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

by Eugene Kontorovich

[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.

4 Responses

  1. Response…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.

    You’re welcome to beat a dead horse, but the OTP has already advised that the determination on the right of accession under Article 12(1) is up to the Secretary General, who no longer had any discretion in the matter after the votes by UNESCO and the General Assembly. He and the Swiss government have already accepted accessions from Abbas to the other relevant multilateral conventions on IHL and IHRL.

    After Abbas wrote his Op-Ed in the NYTimes saying that the statehood bid at the UN would allow him to transform the conflict from a political issue into both a political and legal issue, through the use of the international courts, Khaled Meshal, head of the Hamas Politboro, publicly spoke out in support of the initiative during the 5th international conference in support of Palestinian Intifada in Tehran. He said it was a courageous act that must be appreciated and supported.

    In any event, the Hamas leadership consented to the appointments of all the ministers of the new unity government under President Abbas. So they would have no locus standi to claim the primacy of a state as individual defendants and members of the “Islamic Resistance Movement” or the “Party for Change and Reform” in any event. President Abbas, Prime Minister Hamdallah, and Foreign Minister Al Malki don’t need permission from either organization or Islamic Jihad to file accessions on behalf of the State of Palestine according to the relevant provisions of the VCLT and the Summary Of Practice Of The Secretary-General As Depositary Of Multilateral Treaties: Chapter VI
    A. Authorities representing the State without full powers
    101. In accordance with recognized customary international treaty law, as codified by the Vienna Convention on the Law of Treaties, only heads of
    State, heads of Government and Ministers for Foreign Affairs (referred to hereinafter as “qualified authorities”) are, by virtue of their functions, and
    without having to produce full powers, considered as representing their State for the purpose of performing all acts relating to the conclusion of a treaty, including their signature with or without reservations (see article 7 (2) (a) of the Convention).

    FYI, we keep talking about the “PA” and the 2006 PA elections. It was an interim municipal organ created jointly by Israel and the PLO under the Oslo Accords. The General Assembly resolution on Palestine’s status in the UN continued the long standing practice of recognizing the PLO, not the PA, as the sole representative of the Palestinian people, in addition to recognizing the role of the PLO Executive Committee as the “Provisional Government of the State of Palestine”. It had been responsible for conducting the PA’s international relations, since 1988. The 2011 application for membership in the UN was “(Signed) Mahmoud Abbas President of the State of Palestine, Chairman of the Executive Committee of the Palestine Liberation Organization” and wasn’t undertaken in his capacity as President of the Palestinian National Authority. The Hamas leadership has announced plans to join the PLO.

  2. Minor Correction: “It had been responsible for conducting the PA’s international relations, since 1988.” Should have read “the State of Palestine’s and the PA’s international relations, since 1988.

    I believe the new Prime Minister can also be considered one of the authorities that can file accessions or signatures on behalf of the State, since Abbas issued a decree that redesignated the PA “the Government of the State of Palestine shortly after the UN General Assembly vote which ended the old division of responsibilities between the PLO and the PA.

  3. The “peace process”, do you mena the process through which Israel keeps the status quo and build new settlements? The equivalence between ICC acceptance and E1 is baseless.

    ICC can be problematic, but it’s probably the only way to stop impunity. What is impunity? Haaretz’s articles of yesterday might help to get an example of it:

    The Israel Defense Forces has issued an expropriation order for land in the West Bank village of Ein Yabrud, so that settlers from the nearby Amona outpost can continue using a road that crosses the land.

    The 6.4-dunam (slightly over an acre) plot is owned by Palestinians. The road, like Amona itself, was built without a permit.

    Last summer, after the High Court of Justice heard at length a petition filed by the Yesh Din human rights organization on behalf of the landowners, part of the road was destroyed. A new access road was rebuilt along what had been a public road when the Jordanians controlled the West Bank, from 1948 to 1967.

    But the new road was just four meters wide, and a sharp curve made it nearly impassable to buses. Last winter, settlers began widening the road without authorization, so that it again encroached on private Palestinian land.

    The state said it would try to stop the illegal roadwork, and the cabinet secretary instructed a team of transportation experts to find a legal solution to the problem of access to Amona, itself an unauthorized outpost that was built illegally on private Palestinian land. The experts were unable to provide such a solution, given the absence of either land rights or a zoning plan in the relevant area.

    That led to a decision to expropriate, for military use, the land on which the original access road was built. The order was secretly issued by GOC Central Command Maj. Gen. Nitzan Alon in May, but the Palestinians learned of it only in July.

    Attorneys Michael Sfard and Shlomy Zachary of Yesh Din returned to the High Court. They claimed the expropriation order suffered from several legal flaws, above all the fact that the land would apparently be used for an access road to Amona. That would make the order ipso facto illegal, they wrote, “because an expropriation order is supposed to be issued only for vital and urgent security needs.”

    The court’s ruling on this issue, as well as on the fate of most of the outpost’s houses, is still pending.

    Though expropriation orders are supposed to be used only for security purposes, at one time, settlements were routinely built on land expropriated through such orders. But in 1979, the High Court ruled this practice illegal, and the state complied. That makes the expropriation order issued for Amona’s benefit extremely unusual.

  4. I’m not an expert on international law, but all this maneuvering strikes me as just more lawfare by the Palestinian Arabs. That is the downside of the ICC; whatever idealism may have inspired its creation, it has come to be used as a just another anti-Israel propaganda tool. I am having a hard time seeing why the US should continue to support its existence.

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