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

by Liron A. Libman

[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 25th the Brigades claimed responsibility for targeting Beersheba and Ashdod, two Israeli large cities, with three grad missiles. On July 30th, 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.

11 Responses

  1. Liron,

    Interesting piece. Thank you for writing it.

    I am not very familiar with the ‘status’ of the West Bank and Gaza strip, which caused me to wonder — what would be the result for Fatah, Hamas, PA etc if Israel were to accede to the Rome Statute?

  2. Palestinian leaderships are a disgrace for the Palestinian people. They can be blackmailed that’s why they get and keep power.

    On a more general level, the central issue is that there are no other nations stuck in a decades-long limbo, without citizenship and without a state, like the Palestinians. And there are certainly no other nations that would tolerate it. We oppress but we require that this oppression is accepted silently by the oppressed. Orwell was right, “War is peace. Freedom is slavery. Ignorance is strength.”

  3. Thank you Ian for the feedback.
    I think you ask a very interesting question. To the best of my knowledge, the Rome Statute does not define the “territory” of a state for the purposes of article 2(a) other than including specifically vessels and aircrafts registered in that state. Article 125, dealing with accession, has no reference to territories under control of a state or territories for which a state has responsibility for foreign relations, as sometimes mentioned in other conventions.
    The status of the West Bank and Gaza is a complex and disputed issue. Israel has claimed, after the 1967 war, that legally it is not an occupier, since Egypt (with respect to Gaza) and Jordan (with respect to the West Bank) were not the legitimate sovereign in these territories. These states invaded the territories in 1948 in defiance of the UNGA partition plan, which designated most of them (but not east Jerusalem) to an Arab (Palestinian) state that was not established.
    However, Israel itself did not annex the territories, and they were ruled by a military government under the customary law of belligerent occupation (in Gaza, until the disengagement in 2005 and in the West Bank, to this day, subject to arrangements of self-government made in the Oslo Accords 1993 – 1995).
    The status of East Jerusalem is different, since Israel did apply the Israeli Law and administration on this territory in 1967. To make things even more confusing, the Israeli foreign minister at the time, in a letter to the UN, undermined the Israeli step as a practical one, not an annexation. To the contrary, Israeli courts, in different contexts, ruled that East Jerusalem is a part of Israel’s territory.
    In addition, another complexity: Israel is a state party to the ICCPR and other human rights treaties. However, it claims consistently that they do not apply in the territories. The ICJ in the Wall advisory opinion rejected this claim and applied these conventions.
    Luckily for us (or not) it will probably stay a theoretical question. The probability that Israel will accede to the Rome statute is smaller than the probability that an asteroid will collide with earth, destroying life on the planet until the end of the year. There is much distrust in Israel in the fairness and objectivity of international tribunals in general (and the ICJ can take some credit for that).

  4. Shmuel,
    I think there is a wide consensus that the present status-quo is not stable and cannot continue. However, when it comes to solutions, positions vary a lot, not just between Israelis and Palestinians, but also inside each society.
    Anyway, this is not the subject of my post. Some of us do find interest in petty legal questions.

  5. Liron hi ,

    Thanks for interesting post. you present naturally the tendency of aggravating the potential liability of Abas and other leaders .

    But one should not forget the mere fact, that he can claim, that at first place, mere knowledge of such commissions of crimes, can’t be sufficient, and why??

    Since he is not a head of a sovereign state (I mean actually….) he doesn’t have and can’t have the full means for controling and avoiding such assualts and crimes .

    So, suppose that you could claim that even mere knowledge was and is sufficient (as apparently provided by 25 (d) of the statute), if he does prove, that the Israeli occupation, barred him from full control of territory subject of crimes, then: he has, not at all, slim chance to get away with it!!

    And everything of course, in light of the terms: ” effective responsibility ” , as provided all along article 28 of the statute.


  6. Liron , just certain addition to my above comment :

    The record or history of Abas , is clear !! He declaratively at least , has opposed over and over the use of any mean of violence in this conflict .

    Trust me , he can present full evidences , of statments of israeli politicians, security officials , and even from the extrem right , that clearly proving , that they were confirming his peaceful attitude .

    this is , if presented , not at all negligible defence showing his clear and consistent pattern of behaviour and state of mind .


  7. Hi el roam,
    Thanks for the comment.
    Sure, I agree the question of criminal liability is not straightforward. More factual evidence is needed, and some legal ambiguities will need clarification.
    Each track of criminal responsibility discussed has different parameters to address.
    Indeed, you are right that being a state confers not just rights but also extended responsibilities under the rules of state responsibility. However, in the specific context of international criminal law, I think it is less significant.
    Things can get complicated for the Palestinians if conflicting factual arguments will be used. For instance, the claim that the PA has effective control over the territory is a prerequisite for statehood. Arguing that due to Israeli occupation or any other reason the PA does not have effective control over a territory, where armed groups are operating openly, widely and extensively may conflict with the simultaneous claim to statehood as a reality, not just a just cause.

  8. El roam,
    As for your second comment –Surely, Abbas’s past declarations will have to be weighted. However, it is interesting to note that Charles Taylor also tried to claim he is a man of peace, based on overt actions and declarations. However, the tribunal was more impressed by covert actions of a very different character. I do not claim this is the case with Abbas just that declarations are important, but actions “under the radar” may be even more important.

  9. Thanks liron for your reply . As to past declarations of Abas ,it seems that you have ignored the fact had been mentioned in my second comment , that :

    Security officials ( shaback for ex.) have declared clearly that Abas oppose definitely use of violence of any kind .

    Now , when security officials , of the israeli state , confirms it , it does corroborate at least to some extent , that Abas is : ” well preached well reached ” person . It is very reliable to presume , that solide evidences led such security officials to such statements .

    So , it won’t be an easy task in this regard !!


  10. just corrections to my above last comment :

    1) should be : opposes instead of – oppose

    2) should be : confirm instead of – confirms .


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