Guest Post: Possible Responsibility of Palestinian Authority’s Leadership for the Al Aqsah Martyrs’ Brigade Actions During the Gaza Conflict

[Col. (reserve) Liron A. Libman is the former head of the International Law Department in the Israel Defense Forces. He is currently a PhD candidate at the Hebrew University of Jerusalem and teaches criminal law at Ono Academic College.]

Recently, there has been extensive discussion regarding a possible Palestinian application to the ICC, and the various complex legal issues that would arise from such a move. Most commentators have cited internal Palestinian politics as the main reason for Abbas’ foot-dragging with regard to approaching the ICC. In essence, the claim is that since Hamas is committing war crimes against Israel, any Palestinian initiative at the ICC would expose Hamas officials to proceedings before the ICC. In fact, the Palestinian Ambassador to the UN Human Rights Council Ibrahim Khraishi has explicitly stated that Hamas’ launching of missiles at civilian objects constitutes a crime against humanity, warning that this makes an application to the ICC problematic for Palestinians (See here).  What is largely overlooked is the commission of similar acts by armed factions of the Fatah party, particularly the Al Aqsa Martyrs’ Brigade. This post will briefly explore evidence of Fatah’s involvement in firing rockets at Israeli civilians, and the possible criminal liability of Palestinian Authority (PA) or PLO officials for those attacks.

The Fatah movement dominates the PA. Palestinian President Abbas is also the political leader of Fatah, which is the largest faction in the Palestine Liberation Organization (PLO). Evidence indicates that the Fatah-affiliated Al Aqsah Martyrs’ Brigade, like Hamas, intentionally directs rocket attacks at Israeli civilians and civilian centers. These attacks are not occasional shootings, attributable to a rogue group of militants – they are regular occurrences. This faction does not try to hide its involvement in these incidents; on the contrary, it takes pride in the attacks and even posts videos of them on its official YouTube channel. See also various reports here and here. For example, on July 25^th the Brigades claimed responsibility for targeting Beersheba and Ashdod, two Israeli large cities, with three grad missiles. On July 30^th, they claimed responsibility for firing 7 rockets into Israeli cities.

Furthermore, it is interesting to note, that the Fatah Al Aqsah Martyrs’ Brigade was supposedly dismantled following President Abbas’s decree in 2007. Now it has re-emerged, declaring an “open war against the Zionist enemy [Israel]” not just in Gaza but also in the West Bank and Israel within the green line. This declaration was accompanied by a list of attacks carried in the West Bank, mostly against military targets but some against civilian settlements. Until now, no response to this development by President Abbas or the PA leadership was recorded [for more details see: here].

From a criminal law point of view, it is clear that those actually firing rockets towards civilians and into civilian centers, whether they are connected to Hamas, Fatah or other Palestinian factions, are committing war crimes enshrined in article 8(2) of the Rome Statute, inter alia intentionally targeting civilians; since these acts were committed as part of a widespread and systematic attack on the civilian population, it is also possible that they were committing crimes against humanity.

A more complex and interesting question is that of other persons who may be held responsible for these crimes, most particularly among senior PA officials.  Both factual and legal issues would have to be explored in this regard. Factually, in order to establish responsibility it would be necessary to confirm the existence of a link between Fatah’s political leaders, who are also to a large extent the leaders of the PA, and the armed factions responsible for attacks. Legally, it would be necessary to establish a mode of liability in accordance with the Rome Statute.

Most straightforwardly, liability would be established if the attacks took place as the result of a direct order from Fatah leadership [Rome Statute, Article 25(3) (b)]. Soliciting the attacks or inducing them will have the same legal effects under this article. As cited above, it seems clear that these shootings are part of a definite policy. Whether this policy is connected with the Fatah party in a broader sense remains to be seen.

An alternative source of liability could be established if it were determined that the Fatah leadership, acting with intent to facilitate the commission of attacks, provided armed factions with substantial support, either by concrete means such as supplying weaponry, providing money to buy weapons, or paying salaries, or else through active encouragement of such attacks in a manner that may establish liability based on aiding, abetting or otherwise assisting the commission of the crime [Rome Statute, Article 25(3)(c)].

The question of whether aiding and abetting require that the assistance was specifically “directed” to the commission of the crimes remains open, in view of the conflicting interpretations adopted by judges in the ICTY and by the Special Court for Sierra Leone in its famous judgment in the Taylor case. The ICC has yet to rule regarding whether the material element of “specific direction” is required in order to impose liability in accordance with Article 25(3)(c). Notably, “specific direction” is not expressly mentioned in the definition of assistance in the Rome Statute, which does incorporate a special mental element of intent to facilitate the commission of a crime. This special mental element may have made the “specific direction” requirement redundant.

Additionally, it is plausible to characterize the criminal responsibility of Fatah’s leadership as contribution to the commission of attacks by the Al Aqsa Brigades, a group acting with a common criminal purpose, as set forth in Article 25(3)(d) of the Statute. In order to establish liability under Article 25(3)(d), it is not necessarily required  to show that a person shared the group’s intention to commit these crimes; mere knowledge of the intention is sufficient, when added to that person’s own intention to contribute.  Moreover, liability under Article 25(3)(d) is not dependent on a person being a member of the “criminal group”.

Finally, there is a possibility, although it is less likely, that liability could be established under the mode of superior responsibility set forth in Article 28 of the Statute, to the extent that Fatah leadership, or even Abbas himself, exercised effective control over the militant factions. In this regard, Abbas’ de jure position as head of the Palestinian unity government, as well as head of Fatah party, may serve as evidence for his effective control over Fatah’s Al Aqsa Brigades. At the same time, effective control would largely be determined by examination of Abbas and Fatah leadership’s factual ability to prevent or punish these attacks.

It is not the goal of this post to suggest that Abbas or any other senior Palestinian official is responsible for war crimes. However, in light of the above, PA leaders cannot be confident that if jurisdiction would be established the ICC prosecutor would not open a preliminary examination to determine whether there are reasonable grounds to establish their liability for international crimes committed over the course of the last round of hostilities.