Guest Post: More on Morsi’s Shadow on Palestine’s ICC Efforts

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

Rumors and speculation about a Palestinian ICC bid continue to abound. However, news accounts about the process behind the PA’s consideration of the issue underline the point I made in a prior post that based on the Morsi precedent, Abbas could not accept the Court’s jurisdiction. I will elaborate on that here, and address some comments about my argument (partly concurred in by Kevin) about the relevance of the Morsi matter to a Palestinian referral.

In a meeting last week Abbas sought “written consent to join the ICC” from other Palestinian factions. According to another account Abbas has a draft acceptance letter, and is “waiting for signature from Hamas and Islamic Jihad.” If the PA needs the written consent – not just a political nod- from the Gaza–based factions, it strongly supports the view that the PA government does not have full power to accept jurisdiction on behalf of Palestine, especially for Gaza.

Some might say that if the government is divided and both possible claimants to full powers agree, then any defect is cured (this may be why Abbas wants written authorization).  The argument does not work: the sum of governmental authority is greater than its parts. To accept ICC jurisdiction, especially after the Morsi matter, it must be clear which particular government is in control, and it must be that government that accepts jurisdiction.

The reason to require government control over a state for ICC jurisdiction is it is that government that will be responsible for enforcing the treaty. A joint signature raises myriad intractable problems. Who will ultimately be carrying out the obligations of the treaty? Abbas would presumably not mind signing over authority over Israeli crimes, but then not cooperate with the court in investigating Hamas crimes, saying he has no control there.

If all factions give written consent to join, who has authority to terminate membership?

The Hamas leadership’s cheeriness about the prospects of an investigation suggest they expect the Court to be biased against Israel, or think they are effectively immune from process. Countries they are likely to travel, if any, are not ICC members, and its unlikely the international community would seriously sanction Hamas for failure to cooperate. (It also reflects a poor comprehension of complementarity, which would leave the Palestinians much more open to charges given that they have never investigated, let alone prosecuted, their own war crimes).

The Palestinians openly seek to use ICC investigations for diplomatic leverage: “Diplomats say they expect the Palestinian plan to join the ICC and set a war crimes investigation in motion to be one of the bargaining chips on the table in Cairo.”

But this is only a bargaining  chip so long as the Palestinians do not use it: once cashed in, it cannot be redeemed. Once they accept jurisdiction, it is not a chip at all, but an unalterable fact (assuming the Court accepts jurisdiction, which I think it should not). One cannot “take back” an acceptance of jurisdiction in exchange for some other consideration. It is irrevocable, and can only be terminated with a year’s lead time.

Thus once the matter is in the hands of the ICC, even a full peace treaty and complete Israeli acceptance of all Palestinian demands would not end jurisdiction and possible liability. Thus instead of being a bargaining chip, it would be an irrevocable fact on the ground. Thus those interested in a  revival of the peace process must understand that an ICC acceptance would be the Palestinian’s version of building in E1 – a death blow to the prospects of any negotiations. This might explain the reported opposition of the U.S. and Britain to such a move. It is not because of any slavish devotion to Israel – the relationships between the countries are reportedly at an  all time low – but rather a slavish devotion to the peace process.

One question that arose is whether the effective control test for a government would not bar the acceptance of jurisdiction by governments in exile. I think it clearly would, and indeed, Morsi’s government is effectively in internal exile.

Consider the implications of a contrary rule. Imagine the “international community” recognizes a rebel group as the legitimate government of the country it is attempting to take over, such as Syriaor Libya, but over which they do not have anything like effective control. It seems a stretch for such a government to be able to accept ICC jurisdiction while the government it challenges retains power, regardless of whether the rebels sit in the country’s seat at the General Assembly. Certainly it would be a nightmare for the Court in dealing with such situations of multiple authorities.

Put simply, the acceptance of ICC jurisdiction has genuine consequences. A government without effective control would be able to accept ICC jurisdiction without substantially obligating itself to anything, precisely what the State seeks to avoid. Even if effective control is not needed for statehood in the ICC, if it is not needed for governmental authority either, it in effect means the international community can bestow jurisdiction on the Court without going through the Security Council. One reason the Security Council is given the power to address the Court’s jurisdictional gaps is that it cannot not only create jurisdiction, but has the authority to enforce compliance. The two cannot be completely severed.