Guest Post: Effective Control and Accepting ICC Jurisdiction

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.]

New reports say the Palestinian leadership has decided to seek to join the International Criminal Court as a member state. The PA has been threatening such action fairly constantly for several years, and it remains to be seen whether they mean it this time.

A recent and little-noticed development at the ICC suggests the Palestinian Authority may have a harder time getting the Court to accept its accession than many previously thought. A few months ago, in a situation quite analogous to the Palestinians’, the Court rejected an attempted accession.

Recall that the ICC rejected a 2009 Palestinian attempt to invoke its jurisdiction by saying that it lacked the competence to determine if Palestine was a “state” under international law. A main motive for the last year’s General Assembly’s vote to treat Palestine as a non-member state was to bolster its case for ICC membership. The idea was that the OTP would look only to the formal, “political” action of the General Assembly, rather the the objective factors of whether Palestine satisfies the criteria of statehood, such as whether they control their own territory.

Whether that is true or not, recent developments show that even if the OTP accepts that Palestine is a state – ignoring objective tests – it would conclude that the PA cannot accept jurisdiction on behalf of that state, certainly not for Gaza. In May, the OTP just rejected an attempt by Mohammed Morsi, the first democratically elected president of Egypt, to invoke the Court’s jurisdiction over his country under article 12(3). The OTP concluded that when Morsi filed the declaration last December, he was no longer the head of state for Egypt.

Crucially, the OTP used a combination of two distinct tests for the legitimate government of a country for purposes of accepting jurisdiction. The first was a “political” test, referring to the views of the UN, the Rome Statute’s depository. The UN recognizes the Sisi-installed government, that came to power in a coup against Morsi last year. So far, so good for the PA: the U.N. recognizes Abbas as the head of state of Palestine. However, the OTP did not stop there.

It went on to apply an additional, objective test – whether Morsi had “effective control” of Egypt at the time of the application. Finding that he did not, it concluded he could not accept jurisdiction on behalf of the country. This is particularly notable because Morsi was removed in a violent coup, followed by severe repression. Thus the OTP’s action could be seen as at odds with some vague notion of the “grand purpose” of Court: ICC jurisdiction might be most needed when democratically-elected governments are ousted in a military putsch. But the Prosecutor wisely ignored common arguments that the Court should at every turn interpret its jurisdiction broadly because its purpose is to do good, and thus the more jurisdiction, the better.

Now lets apply the “effective control” test to PA. Hamas came to power in coup against Abbas’s government, and since the “statehood” of Palestine, the latter has never exercise “effective control” over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president. Indeed, “effective control” is a double-edged sword for Abbas. On the one hand, his lack of it would bar accepting ICC jurisdiction. On the other hand, his lack of it is also what prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.

Then there is a bigger question: can either Abbas or Hanniyeh claim to have effective control? In the view of much of the international community, all of the West Bank and Gaza is occupied by Israel.  The defining feature of occupation is “effective control” by the occupying power. It means that the occupying power is the real power on the ground – which is why it is required to maintain law and order, administer government and so forth. Given that Israel is thought to exercise effective control, it is hard to see how either of the rival Palestinian leader could claim this, except through the unusual arrangement of condominium).

One might say, that’s not fair! Palestine cannot join the ICC because it’s occupied? But don’t occupied countries need the ICC the most? But this is just a rehash of the coup argument. While military junta countries and occupied countries may need the ICC more, this is just an argument for countries joining the Rome Treaty early, before they need it.

Of course, “the State of Palestine” is an odd duck, because in any other situation, international law clearly says one cannot become a new state while occupied; being a state has objective requirements like effective control that occupation negates. In its explanation of its action on Egypt, the OTP explained:

It would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

That would be precisely the situation that would arise between the Hanniyeh and Abbas regimes regarding Gaza, and between the PA and Israel regarding the West Bank and Gaza. For a while, the Palestinians have managed to uniquely claim to best of both worlds, claiming to be an occupied territory while at the same time claiming to have emerged as a genuine new state with a real government that runs its affairs, but yet still being occupied.

The Morsi precedent suggests that even if the Palestinians are allowed to hold both ends of the stick on the “statehood” question, they will be frustrated on the government question. And they will have their old ally, Egypt, to thank.

14 Responses

  1. Let us not forget that while the jury is out on potential Palestinian acceptance of ICC jurisdicition and ratification of the Rome Statute, the OTP may be able to examine the situation in Gaza due to participation of dual national IDF personnel. These dual nationals representing ICC States-Parties present a unique challenge for OTP as it assess article 15 communication presented.

    Clearly, the situation call for robust cooperation from States Parties, that will entail: 1) to communicate to OTP as to how many of its nationals are currently engaged in Gaza conflict as members of IDF. 2) a warning from ICC States Parties to its nationals who hold dual Israeli nationality to not actively participate in the Gaza hostilities given the risk of potential investigations.

    Apart from ICC, the ICC States Parties are also obliged to investigate participation of its nationals as members of IDF. This presents potential fulfilment of the Rome Statute complementarity obligation.

  2. The OTP wrote “the applicants neither exercised the requisite authority, nor were they in possession of ‘full powers,’ on behalf of the State of Egypt,”. From the text I do not understand that the OTP considers that the PA should satisfy both conditions. One of the two conditions might be sufficient.

    Imagine that China invades the Netherlands for a day, has effective control of the territory, the Dutch government and the army flee to the UK, China commits genocide by killing all the rest of the Dutch and leaves. The next day the Dutch government returns and exercises effective control of the territory. In its absence the whole world still recognizes the Dutch government as the government of the Netherlands and the SC even accepts its testimony. The Dutch government asks the ICC to look into the genocide. Would ICC refuse jurisdiction based on the fact that the Dutch government did not have effective control of the territory?

  3. This analysis fails on account of the non-existence of any ‘effective control’ test under international law regarding recognition of governments.
    On 1 May the OTP issued a Press Release dismissing the declaration submitted by the ousted Egyptian government, on the basis ‘that they lacked the requisite authority under international law to act on behalf of the State of Egypt for the purpose of the Rome Statute.’ Following criticism that there was inadequate reasoning supplied, the OTP then came out with the second press release which you’ve highlighted.

    Referring to the Vienna Convention on the Law of Treaties, the OTP’s second press release explained the reasons for dismissal as such ‘After careful consideration of all the facts, the Office concluded that as a matter of international law, the applicants neither exercised the requisite authority, nor were they in possession of “full powers,”[1] on behalf of the State of Egypt, either on the date the declaration was signed or on the date it was submitted to the Registrar of the Court.’

    The footnote refers to article 2.1.c of the Vienna Convention which reads: ‘”Full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty’.

    To date the practice of the United Nations, in accepting the state of Palestine’s ratification and accession to various international treaties, has been to consider Abbas and his representatives as exercising these ‘full powers’ on behalf of the state of Palestine. To the best of my knowledge, there has been no consideration of the so-called ‘effective control’ test on these occasions since it does not exist as a matter of international law. The OTP refers to the ‘legal test of effective control’ yet provides no citation to any source of international law establishing such a test.

    The better view is that recognition of governments is not regulated under international law, it being a political process. The OTP’s reference to ‘effective control’ might be rooted in the 1980 decision of the UK to no longer accord recognition to governments. Colin Warbrick wrote as follows in the MLR 56 (1993): “Among the factors that would influence the quality of the relations with the new [government] would be the British Government’s assessment of ‘Whether they are able of themselves to exercise effective control of the territory of the State concerned and seem likely to do so.’ The thrust of the statement was that effectiveness would generally be a necessary precondition for governmental status, but it would not necessarily be a guarantee of ‘normal Government to Government’ relations.”

    The precise quote used by the OTP is that, ‘In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law’. The underlined phrases are the words of Hersch Lauterpacht, reproduced from his 1947 book Recognition in International Law. As a scholar Lauterpacht is no doubt convincing, but as a compelling source of a rule of international law, I’m highly skeptical that this is an adequate source upon which the OTP can draw in order to reach to a critical decision.

    In general it all seems a bit twisted that while on the one hand the OTP is adamant that under the law of the Rome Statute it cannot establish the existence of a state, while on the other hand it is fully capable of engaging with the far murkier question of establishing the existence of a government, by reference to a non-existent ‘legal test’. This contradiction appears indicative of politically driven decisions from the OTP, putting to the lie the mantra that ‘Politics and political considerations have no place and play no part in the decisions taken by the Office and in the execution of its independent and impartial mandate.’

    The reference to ‘effective control’ seems totally irrelevant given the finding that the declaration hadn’t been submitted on behalf of the state of Egypt. It appears that the OTP’s analysis re ‘effective control’ is a mere strawman argument. It serves no purpose other than attempting to provide some padding to the second press release so as to support the claim that ‘rigorous factual and legal analysis of the communication and additional information received from the applicants’ had been undertaken.

    At any rate, the OTP’s conclusion, simply reiterates the ‘full powers’ test, when stating that the declaration ‘was not submitted, as a matter of international law, by any person with the requisite authority or bearing “full powers” to represent the State of Egypt for the purpose of expressing the consent of that State to the exercise of jurisdiction by the Court.’ There is no doubt but that Abbas and his representatives, are for now, accepted as having the ‘full powers’ to accede to international treaties including the Rome Statute, on behalf of the state of Palestine, a state which has been recognized even despite it being subject to Israeli military occupation.

  4. If we back off of the issue whether there is a Palestinian state, would a state that all recognize as a state (say, through its govt. in exile) not be able to ratify the Rome Statute if it is occupied by another state?
    Eugene: doesn’t your word “threatening” indicate a bias?

  5. Response…Now lets apply the “effective control” test to PA. Hamas came to power in coup against Abbas’s government, and since the “statehood” of Palestine, the latter has never exercise “effective control” over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.

    That’s false. FYI, many observers have commented that Netanyahu deliberately exploited the kidnappings to excuse his attempt to topple the new Palestinian Unity government. The Palestinian Justice Minister, Saleem Al-Saqqa, and Ismail Jabr, the Gaza court public prosecutor who filed the most recent complaints are legal representatives of the PLO-Hamas Unity Government that was appointed and sworn in by Abbas in coordination with Ismail Haniyeh. Just Google: “Palestinians swear in unity government; Hamas’ Ismail Haniyeh welcomes the ‘historic step’; Abbas says new government will fight any Israeli punitive measures against the PA.

    I think you are barking up the wrong tree anytime you suggest that the repeated political decisions taken by the international community of states don’t have legal consequences. The ICC Prosecutor wasn’t appointed to “wisely” grant impunity to commit crimes on the territory of Palestine in repeated defiance of the expressed will of the international community of states. For its part, the UN adopted the Vienna Convention on the Law of Treaties which unambiguously said that: 1) it applies to any treaty. like the Rome Statute, which is the constituent instrument of an international organization; 2) every State possesses capacity to conclude treaties; and 3) that members of UN specialized agencies, like Palestine, belong to a special category of states; and 4) that the Secretary General has a binding treaty obligation to accept their instruments of signature or accession. The UN General Assembly confirmed the results of the UNESCO vote.

    If Luis Moreno Ocampo had simply read the section on the “all States formula” from “Summary of Practice of the Secretary General acting as Depositary for Multilateral Treaties” ST/LEG/7/Rev.1 (1999) or applied the rules of the VCLT that govern interpretations of Rome Statute, then he would have known that the Secretary General doesn’t consult the practice of the General Assembly in cases involving current members of UN specialized agencies. He and the General Assembly had a treaty obligation to deal with Palestine as a State immediately after the UNESCO vote. It’s UN observer status was completely irrelevant in that respect, but the situation was subsequently rectified. As you noted, the members knew perfectly well that they were enabling the Palestinian government to accept ICC jurisdiction in line with either Article 12(1) or 12(3).

    Response … Then there is a bigger question: can either Abbas or Hanniyeh claim to have effective control? In the view of much of the international community, all of the West Bank and Gaza is occupied by Israel.

    Your comparisons to the coup in Egypt are inapposite, since Sisi and Morsi didn’t have an agreement on a Unity Government and weren’t under a foreign occupation. FYI, the Council of the League of Nations adopted a resolution in 1932 on the criteria to be employed when terminating a mandate regime. It was agreed by all that the ability of a mandated state to “stand alone” and be recognized as an independent state included “effective control” of its territory, but that it did not imply a requirement to defend itself from foreign aggression. It was agreed that many of the members of the League couldn’t defend themselves from one of the great powers and that the Mandated States should be encouraged to join the League and obtain the protections of mutual defense afforded by the Covenant in accordance with Article 10. See “The General Principles Governing the Termination of a Mandate”, Luther Harris Evans, The American Journal of International Law, Vol. 26, No. 4 (Oct., 1932), pp. 735-758

    Response … For a while, the Palestinians have managed to uniquely claim to best of both worlds, claiming to be an occupied territory while at the same time claiming to have emerged as a genuine new state with a real government that runs its affairs, but yet still being occupied.

    This really isn’t any different from the contested emergence of the state of Croatia during the Trial of Slobodan Milošević. You are setting a dangerous precedent whenever you suggest that it is permitted to commit acts against an unrecognized community that would be unlawful in the case of another state.

    Judge Schwebel served as the United States representative on the UN Special Committee on the Question of Defining Aggression. In an essay written before the General Assembly adopted the resolution, he cited the example of Israel’s disputed statehood in 1948 and said there was nothing to prevent members, and everything to compel them, to interpret “States” as embracing entities whose statehood is disputed. He said it would be pedantic literalism to maintain that an entity whose statehood is disputed is excluded from the reach of Article 2, paragraph 4 of the Charter. He said that was amply demonstrated by the events of the postwar years. The two largest armed conflicts of the time had involved violation of internationally agreed lines of demarcation – and there had been no lack of charges of aggression in those conflicts. Other actual and potential conflicts had involved entities not recognized as States by all concerned, sometimes, by any concerned. He said to exclude this kind of conflict is to ignore both history and current events. Schwebel said that such cases could be easily resolved by referring to the explanatory note in the General Assembly’s definition of aggression which says that the term “State” is used without prejudice to questions of recognition or to whether a State is a member of the United Nations. See “Justice in international law”, Cambridge University Press, 1994, page 573-574

  6. PA has already done a 12/3 referal. Surprised no one (including here) does not remember that: the Court is arleady seazed, and if it refuses to act, it is because of that: because it refuses to act, not because it can’t act.

    all these debates are great for OTP that does not in any way get into this conflict. they are nonetheless meaningless.

    and i’d add that the decision not to take a decision by the OTP stated very clear reason: it wouldn’t act before Palestine would be recognized as a state either by the UNSC, UNGA or ASP. It is now the case, close the discussions, or to put it in more vulgar words: cut the crap.

    ps: the theory of control is absurd. did Congo control ituri when it asked the OTP to come in? Of course not, and that was precisely why it asked the OTP to come in.

  7. Response…It seems to me that you are over-reading what OTP meant in its “effective control” language. It was talking about a deposed regime claiming to be the reigning government even though a different regime had overthrown it and now exercises effective control over Egypt. That’s very different from a weak but recognized government that lacks effective control over one region of its country (the PA and Gaza). Many states lack control over a politically dissident region or a region controlled by rebels: think of Pakistan and the Tribal Areas, Ukraine and Donetsk, Iraq and ISIS territory (and the Kurdish region), Syria and rebel territory. None of these states belongs to the ICC, but it seems inconceivable that if any of them decided to join the ICC or to grant 12/3 jurisdiction, OTP would deny them on the basis that, lacking effective control over all their territory, they are not states.

    Of course all of these are members of the U.N., and Palestine is not. But U.N. membership is not a formal prerequisite of statehood, and OTP doesn’t consider it to be. Recall what OTP said in its response to the PA’s prior attempt to grant 12/3 jurisdiction to the ICC:

    ¶6. …[T]he Office has assessed that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute ….
    ¶7. The Office has been informed that Palestine has been recognized as a State in bilateral relations by more than 130 governments and by certain international organizations, including United Nations bodies. However, the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non-member State”. The Office understands that … Palestine submitted an application for admission to the United Nations as a Member State …, but the Security Council has not yet made a recommendation in this regard. While this process has no direct link with the declaration lodged by Palestine, it informs the current legal status of Palestine for the interpretation and application of article 12.
    ¶8. The Office could in the future consider allegations of crimes committed in Palestine should competent organs of the United Nations or eventually the Assembly of State Parties resolve the legal issue relevant to an assessment of article 12…

    OTP put weight on the fact that Palestine was not then a Non-member State of the General Assembly. It is now. It also put weight on whether the Security Council admits Palestine to the UN. It did not. So the statehood question is still arguable in both directions. OTP might kick the issue to the Assembly of States Parties for decision, as its language suggests. But the “effective control” issue in the Egypt/Morsi decision is a red herring that won’t settle the argument.

    Of course, if the ICC decides to accept a Palestinian accession, the temporal jurisdiction will be from the time of accession – it will therefore not include any events in the current conflict (article 10). The only way the ICC could gain jurisdiction over the current conflict is via 12/3 jurisdiction. If that happened, the Hamas leadership would face far more exposure than Israel. Israel is in a position to exercise complementarity by investigating credible war crime allegations – which was a recommendation of the Turkel Committee in any case, in its second report. Israel has taken steps to implement Turkel’s recommendation, and it has the legal infrastructure to investigate.

  8. Kontorovich says “Now lets apply the “effective control” test to PA. Hamas came to power in coup against Abbas’s government, and since the “statehood” of Palestine, the latter has never exercise “effective control” over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.”

    This demonstrates a basic lack of understanding of the structure of the PA, and of the events of 2006/2007.

    In 2006, Hamas won a majority of seats in the Palestinian Legislative Council, allowing Hamas to appoint the Prime Minister, Ismail Haniyeh. Mahmoud Abbas was already the President of the PNA, elected to that position in 2005. The Israeli military then arrested approximately 40 members of the Hamas members of the PLC, including its president, effectively preventing a quorum. The PLC did not officially sit and institutions of the PNA that should have been transferred to the power under the Prime Minister to Hamas were not, leading to an armed conflict between security forces loyal to the former ruling party, Fateh, and the newly ruling party, Hamas. In June 2007 President Abbas declared a state of emergency and began promulgating laws under presidential decree on the basis that the PLC was not operational. One of those decrees was to dismiss Ismail Haniyeh as Prime Minister and appoint Salam Fayyad in his place. Thus, if one is to compare the legitimacy of state heads in the PA to those in Egypt, Fayyad is the PA’s Sisi, put into power after a democratically elected government was unseated, with Haniyeh as its Morsi.

    Therefore if the interpretation of the OTP’s decision regarding Egypt can be applied in this way, it is the PA’s version of Sisi who has referred to the OTP, not its Morsi and Mr. Kantorovich’s argument only supports the PA’s legitimacy to accede to the Rome Statute; it does not undermine it.

    The dispute over Abbas’ standing as president is due to the fact that his term ended in 2009 and he has not been re-elected, nor have any other national elections been held since 2006. The lack of elections surely cannot be a basis for asserting that the government lacks effective control; as Mr. Kontorovich pointed out, Sisi has been recognized by the UN as the head of Egypt. The juxtaposition of Abbas vs. Haniyeh as competing heads of state is simply inaccurate.

    Finally, as others have already pointed out, Abbas swore in a unity government, uniting the authorities of Gaza and the West Bank, in June. It is as able to exercise its authority while under belligerent occupation as it was prior to 2006, and thus the only remaining issue is whether Palestine can accede to the statute with its current status as an occupied state.

  9. Prof. Kontorovich wrote that “For a while, the Palestinians have managed to uniquely claim to best of both worlds”.

    To me it is the occupying power that should no longer be able to have it both ways. The laws of occupation either apply or do not apply. If it is an occupation, it is beyond time for Israel’s custodianship — supposedly provisional — to be brought to an end. If it is not an occupation, there is no justification for denying equal rights to everyone who is subject to Israeli rule, whether Israeli or Palestinian. Successive Israeli governments have got away with a colossal bluff for nearly 47 years. It is time to call that bluff and compel a decision.

  10. The legal analysis here is persuasive and important.

    However, the real issue at the ICC may not ultimately be how to interpret and apply the law, but rather whether the ICC itself will function honestly and impartially as a court. I predict that, underneath all the legal jargon, it will function as a kangaroo court, in accordance with the anti-Israel bias of Europe and much of the world.

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