No, Going to the ICC Is Not “Lawfare” by Palestine

by Kevin Jon Heller

Just Security has published two long guest posts (here and here) on the ICC and Palestine by Nimrod Karin, a J.S.D. candidate at New York University School of Law who was previously Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations. There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole. And I agree with Karin on a surprising number of issues, particularly concerning the institutional reasons why (for better or worse) the ICC is likely to avoid opening a formal investigation into the situation in Palestine.

I disagree, though, with Karin’s insistence that Palestine has engaged in “lawfare” by ratifying the Rome Statute and using Art. 12(3) to accept the Court’s jurisdiction retroactive to 13 June 2014 — the day after the kidnapping and murder of the three young Israelis. Here is what he says in his second post (emphasis in original):

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC.

I wince whenever I see the term “lawfare,” because it is normally just short-hand for “I disagree with X’s legal actions.” Even if the concept has meaning, though, I don’t see how it can be used to describe what Palestine has done. To begin with, as Karin acknowledges, Palestine did not pluck the June 13 date out of thin air — it’s the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Perhaps that was a political decision by the HRC, but Palestine can hardly be faulted for following its lead, especially given that it could have gone much further back in time (its first Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002) — something for which Karin curiously gives Palestine no credit whatsoever.

I also don’t understand what is so troubling about the June 13 date. To be sure, the kidnap and murder of the three young Israelis was a horrific act. But it’s anything but clear whether Hamas leadership was responsible for their kidnapping and murder. It’s not even clear whether they were killed late on June 12 or early June 13 — the latter date within Palestine’s grant of jurisdiction. So how can Palestine’s choice of June 13 be some kind of devious move to maximise Israel’s criminal exposure while minimising its own?

More fundamentally, though, I simply reject the basic premise of Karin’s argument: namely, that taking a dispute to an international criminal tribunal with general jurisdiction can be seen as lawfare. Perhaps it’s possible to view tribunals with a one-sided mandate (de jure or de facto) as lawfare — the IMT prosecuting only Nazis, the ICTR prosecuting only Hutus. But the ICC? The ICC investigates situations, not specific crimes. By ratifying the Rome Statute and filing its Art. 12(3) declaration, Palestine has taken both Israel and itself to the ICC, not Israel alone. Palestine thus no longer has any control whatsoever over which individuals and which crimes the OTP investigates. That’s not lawfare, that’s bravery — especially given that, as I’ve pointed out time and again on the blog, the OTP is quite likely to go after Hamas crimes before it goes after Israeli crimes. In fact, the only lawfare being practiced in the context of Operation Protective Edge would seem to be by Israel, which has responded to the OTP’s preliminary investigation — which it opened as a matter of situation-neutral policy, not because of some kind of animus toward Israel — by condemning the ICC as a “political body” and launching a campaign to convince member states to stop funding it (which would be a clear violation of their treaty obligations under the Rome Statute).

I have little doubt that Palestine would be delighted if the ICC prosecuted only Israelis for international crimes. But it has to know how unlikely that is. Instead of condemning its decision to ratify the Rome Statute and submit an Art. 12(3) declaration as “lawfare,” therefore, we should be celebrating its commitment to international criminal justice. Indeed, if a state can practice lawfare by giving an international criminal tribunal the jurisdiction to investigate its own crimes as well as the crimes committed by its enemy, the concept has no meaning at all.

http://opiniojuris.org/2015/01/22/no-going-icc-not-palestinian-lawfare/

22 Responses

  1. Kevin,

    I think one can more or less agree with you on all your points (which I do) and still call it “lawfare”. Not to pull a Bill Clinton on you, but it really depends on what the meaning of “lawfare” is.

    For me, it is not as linked to the substance as you. It’s not necessarily about obtaining a clear legal advantage, it’s about using law as a strategic tool. In this sense, it’s difficult to affirm that the general strategy of the Palestinians and their supporters has not been one of lawfare in the past decade, from the ICJ advisory opinion to attempts at joining various treaties and IOs to bolster their claim to Statehood. This “move” to the ICC might definitely carry with it a higher degree of risk for the Palestinians, but I think it would be short-sighted to not see it in the broader strategy.

    One last point: I don’t see lawfare as a negative noun. I think this is the way to go for the Palestinians. There is for me no denying that it is lawfare. The question is now whether it will backfire or not.

  2. Dov,

    I’m more than sympathetic to your position, but most people do see “lawfare” as having negative connotations. Karin certainly does!

  3. Response…
    If all warring parties resorted to law fare rather than violations of the Geneva conventions and Icc statute, the ICc would go out of business.

  4. Thanks for the post . With all due respect , you could name it : as ” lawfare ” or not , justify it or not as such , it doesn’t matter basic configuration ( factually and morally ) :

    The failure of peace talks, led by secretary of state, John Kerry, where the turning point, for the Palestinian authority. Right after that failure , plans already matured , has been pulled out , and used as leverage on the Israeli government , a sort of : ” Comply or die ….. ” And why strategically?? Simply, instead of reaching compromise, fair one, rational one (in peace talks) they were using the court as leverage for the doctrine of : nothing or all , until the last bit of it!!

    Second , there is no bravery in it !! The ICC wouldn’t be able to charge and implicate , any official from the west bank , but from the Hamas (the firsts , did no wrong , no crime , but opposing clearly violence ) . Now if you would take into account, the old and bitter rivalry between Hamas and the west bank, you can very quickly change your perspective, and at least argue that:

    For the west bank leaders ,implicating the Hamas leaders , is no more than a negligible and even desirable collateral damage .

    Thanks

  5. I have to agree with el roam here. Whether you can call it lawfare or not is irrelevant. Abbas made a political move to put pressure on Israel in light of the failure of the peace negotiations and the Security Councils’ lack of support to his latest initiative. But Abbas turning to the ICC is not inherently ‘negative’. It will not be the first or last time an international actor uses an international (or domestic) court to advance a political agenda.

    Calling the PA actions as daring fails to take into account the political realities in the region. An Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002 would have encompassed both Hamas, the PA-Fatah and Israel’s acts. By choosing 13 June 2014, Abbas ensured that only Hamas and Israel’s acts in the last war may come under the jurisdiction of the ICC, without allowing the court the chance to investigate precisely the question that Kevin referred to, namely whether the Hamas leadership was responsible for the kidnapping and murder of the three Israeli teenagers. You can call this “lawfare” or “legal strategy”, but certainly not an “act of bravery”.

  6. Both el roam and Mendieta make good points, but they overlook a critical fact: the PA only went to the Court after Hamas agreed with the move. So whatever one thinks of Hamas, its willingness to submit itself to the ICC’s jurisdiction knowing full well its actions will attract scrutiny qualifies as an act of bravery.

  7. Kevin ,

    Your point concerning the Hamas, doesn’t take to account their mental and physical situation:

    Suppose that the ICC would implicate them ( and it should ) then what ?? can the court get his hand on them they thins ?? Wouldn’t their revenge on the Israeli state be more sweeter than any summon or warrant of arrest issued by the court?? The damage to the Israeli state and its officials , would exceed any futile procedure of such. They are under total siege, each one of them would anyway sacrifice his life for their cause, the human situation or general situation is horrific. From their point of view, can’t be really worse than that !!

    Subjectively, legally, I have learned, that they have certain self persuasion, that the only case, Israel or the ICC can generate, is the launch of rockets on civil targets. Yet, they claim, not done deliberately, but: they lack means, for accurate pinpoint , and anyway, they are desperate and helpless, due to the siege on Gaza.

    In terms of international public opinion , has been proved : military conflicts , have gained them , image of helpless victims , while implicating the Israelis as horrific aggresors and criminals of wars . not great deal for them !! It would be another victory of such , this time legalized and official .

    You can generally speaking , think that they are brave , yet , I wouldn’t go so far , and characterize it as bravery in that context of the ICC preliminary examination and investigation .

    Thanks

  8. with your permission , two corrections in my above last comment :

    1) they think , not : they thin ….

    2) Humanitarian situation , not : human …..

    Thanks

  9. El roam stole the words from my mouth. As a general observation, I think that characterizing any of Hamas’ acts as brave is the last thing you want to be arguing Kevin.

  10. [I have deleted this comment because I intend to turn it into a guest post. It will be up soon — KJH]

  11. Re: “There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole.”

    Really? On 8 December 2014 the ICC Assembly of State Parties met in New York and unanimously voted to accept Palestine as an ICC observer state. That story was picked up by the wire services and reported in the Jerusalem Post and Al Jazeera, e.g. http://www.jpost.com/Arab-Israeli-Conflict/Palestinians-gain-observer-status-at-ICC-384071

    So why do you suppose that the twin pair of articles published a month later by Karin and Howse failed to mention that fact? It certainly goes a long way towards discrediting their positions in my opinion.

    I also thought the narratives in the articles and letters to the editor were tendentious and similarly at odds with many elements of the documentary historical record.

  12. When the letter of the law is twist and bent to suit political purposes, that is rightfully called lawfare.

    The very basis of this issue is lawfare in virtue of the fact that there is no State of Palestine according to the uncontroversial and settled matter that a state meet the qualifications of the Montevideo Convention.

    Perhaps we should also allow a paperclip and a jalapeno pepper to also join the ICC.

  13. Re: “The very basis of this issue is lawfare in virtue of the fact that there is no State of Palestine according to the uncontroversial and settled matter that a state meet the qualifications of the Montevideo Convention.”

    Sorry, but the Montevideo Convention is a treaty in force between a number of contracting states. The majority of them have long since recognized the State of Palestine and there is no compromissory clause that would allow you or any other party to dispute their legal determinations. Quite a few of them are members of the ICC Assembly of State Parties which voted unanimously on 8 December 2014 to accept Palestine as an ICC observer state.

    In fact, the Palestinian government supplied the Prosecutor with a list of 61 bilateral treaties with other states in 2009 when it filed the first Article 12(3) declaration. The League of Arab States also supplied an official exhibit on the status of Palestine that had a long list of treaties between its members and Palestine. The treaties on diplomatic immunity and extradition for acts of terrorism pre-dated the entry into force of the Rome Statute.

    Likewise, the General Assembly resolution that upgraded Palestine’s observer status cited a November 1988 declaration and the role of the PLO Executive Committee, acting as the Provisional Government of the State of Palestine since that date, as one of the factors that justified its action.

  14. You clearly did not understand my reference to the Montevideo Convention. Of course it’s a treaty, but the point discussed here is its reference to a pillar of international law. Any introductory international law textbook will cite the Montevideo Convention not in reference to its law as a treaty but for what it universally reflects.

    I’ll defer: perhaps you could enlighten us on the two theories of statehood and provide me with sufficient evidence of customary international law that my view of the requirements for statehood have been obviated.

    It is utterly absurd that the concept of statehood would be left – at the deepest levels of international law – to the determination of individual states. Using that logic, there’s nothing preventing a paperclip from being declared a state.

  15. Re: ” but the point discussed here is its reference to a pillar of international law. Any introductory international law textbook will cite the Montevideo Convention not in reference to its law as a treaty but for what it universally reflects.”

    Correction: We’re not talking about two different subjects. I don’t accept the proposition that there are any “universal” criteria reflected in the text of the Convention, which the responsible contracting state parties didn’t already consider to be fulfilled, before they formally recognized the State of Palestine.

  16. For the second time:

    I’ll defer: perhaps you could enlighten us on the two theories of statehood and provide me with sufficient evidence of customary international law that my view of the requirements for statehood have been obviated

  17. Re: “For the second time”

    You’ve actually commented three times so far without mentioning a specific rule of modern international law that any state or international organization has violated in the case of the State of Palestine.

    Re: “I’ll defer: perhaps you could enlighten us on the two theories of statehood and provide me with sufficient evidence of customary international law that my view of the requirements for statehood have been obviated”

    One of Nimrod’s letters to the editor complained that “Palestinian claim for statehood seems to rely on a weird conflation of both constitutive and declarative theories of public international law.”

    The notion that the applicable law has to conform to either the constitutive or declarative theories is a completely mistaken view. For example, Opinio Juris recently published an article, “Must Reads from the Past Decade?”. James Crawford’s, The Creation of States in International Law (Oxford 2d ed. 2006) topped the list. It’s interesting to note that he explained (page 5) that neither theory can be employed to satisfactorily explain actual modern practice.

    Crawford said: “It is sometimes suggested that the ‘great debate’ over the character of recognition has done nothing but confuse the issues, that it is mistaken to categorize recognition as either declaratory or constitutive in accordance with some general theory. According to Brownlie: in the case of ‘recognition’, theory has not only failed to enhance the subject but has created: a tertium quid which stands, like a bank of fog on a still day, between the observer and the contours of the ground which calls for investigation. With rare exceptions, the theories on recognition have not only failed to improve the quality of thought but have deflected lawyers from the application of ordinary methods of legal analysis.” (page 26)

    You’ve cited “introductory textbooks” on international law, but many of those introduce private interpretations that add criteria which are not actually stated in Article 1, such as “sovereignty”, “complete independence”, degree of “effectiveness”, “well defined borders”, UN status, actual establishment of diplomatic relations with other states (versus the mere capacity to do so), and so on. Here is an extract from James Crawford’s “Conclusions” chapter in “The Creation of States in International Law”:

    “In the first place, the concept of “sovereignty” as a criterion for plenary competence has been rejected. Although that view gained a certain degree of acceptance among nineteenth-century writers and was accepted in the twentieth century in Soviet and in some western doctrine, the notion of “sovereignty” has been seen to be both unhelpful and misleading as a criterion. It is unhelpful since both the legal and the effective capacities, rights, immunities and so on of States may vary widely, within the limits established by the criteria for separate independence.”

    Many founding members of the United Nations, such as the Philippines, India, Lebanon, Syria, Ukraine, Belorussia, & etc. were not recognized as sovereign, independent states, and did not conduct their own foreign relations in 1945. They did not fit the classical textbook definition. Before his appointment to the ICJ, Judge Jessup was a US Ambassador to the UN. During the debate on Israel’s application for membership he called attention to the fact that the definition of a state for the purposes of the UN Charter didn’t necessarily correspond to the classical textbook definition. He said:
    . . . “we already have, among the members of the United Nations, some political entities which do not possess full sovereign power to form their own international policy, which traditionally has been considered characteristic of a State. We know however, that neither at San Francisco nor subsequently has the United Nations considered that complete freedom to frame and manage one’s own foreign policy was an essential requisite of United Nations membership…. …The reason for which I mention the qualification of this aspect of the traditional definition of a State is to underline the point that the term “State”, as used and applied in Article 4 of the Charter of the United Nations, may not be wholly identical with the term “State” as it is used and defined in classic textbooks on international law.” see page 12 of S/PV.383, 2 December 1948 http://www.un.org/ga/search/view_doc.asp?symbol=S/PV.383

    Many members objected that Israel was not a state because it lacked well defined borders. Israel is a prime example of a state that was nonetheless recognized and admitted to the UN before it ever had any agreed upon borders with its neighboring states. Albania had been admitted to the League of Nations under similar circumstances before its borders were delineated or recognized. In the “North Sea Continental Shelf case (1968), the ICJ noted that fact and advised that: “There is no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisor): Opinion, 1924, P.C.I.J., Series B, No. 9, at p. 10).”

    So notion that a state cannot be a person of international law without a defined territory, in accordance with the rule stated in Article 1 of the Montevideo Convention has certainly not been universally accepted in actual modern practice.

  18. The European Community’s Arbitration Commission of the Peace Conference on Yugoslavia (commonly referred to as the Badinter Arbitration Committee) held that “the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty, and “the existence or disappearance of the State is a question of fact; that the effects of recognition by other States are purely declaratory.” (If this looks like a copy-and-paste job, it is. It’s from something I am working on. I copy-and-pasted myself).

    Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia (January 11 and July 14 1992. Printed in International Legal Materials 31. p. 1495. Opinion 1(a), 1(b).

    So in your opinion, the body established by the then-EC was incorrect in making such a definitive claim?

    I’ve provided you with a well established definition of statehood. You, in turn, have provided me with no such definition. Instead, you have applied only instances in which the rule was apparently violated.

    There are, of course, great issues here.

    I am sympathetic to the idea that there is in fact a state of Palestine – but it exists only in Area A. It’s clear that in those areas, a fully independent Palestinian government wields effective control and does not obey the dictates of Israel (it’s not a puppet government).

    That, however, grants the proposed state of Palestine neither the territories in Area B and C nor effective control over those territories.

    The modes of acquisition of territory in international law are quite well-established. As the Ramallah government has not acquired this territory through one of the established modes, it would need to be shown that a new mode of acquisition has emerged.

    Otherwise, any Israeli activities occurring in Areas B or C cannot legally be investigated (all things held equal) because they are not occurring in territory acquired by the Palestinian State.

  19. Kevin,

    Please correct: it was not the 18-member Human Rights Committee that created the COI, but the 47-nation Human Rights Council.

    Thanks.

  20. Re: “I’ve provided you with a well established definition of statehood. You, in turn, have provided me with no such definition. Instead, you have applied only instances in which the rule was apparently violated.”

    I think you are trying to eat your cake and still have it too. I pointed out that the majority of state parties to the Montevideo Convention have long-since recognized the existence of the State of Palestine – and that it isn’t a justiciable question under the terms of the convention – despite the fact that you personally feel Palestine doesn’t qualify in some respect. A number of EC states have already recognized Palestine’s existence too. The “common” definition you mention above wasn’t applied by the EC members and many other states to the extraordinary case of the Baltic states, even as the Badinter Arbitration was taking place in back in 1991. More to the point, the majority of the members of the EC and the international community of states have ignored the opinion of the Badinter Commission on the subject of the existence of the State of Kosovo and their right to treat it as such.

    Maybe you should stop trying to define the term “state” until you have first defined the term “law”. If you accept the proposition that public international law is comprised of all the customary and conventional rules that the international community of states have adopted to govern their mutual relations, then you can’t claim that they have violated an invariable rule, unless it has been proposed or accepted as such. In fact, the community of states have always allowed one another the prerogative to exercise discretion in order to recognize and treat any entity as another existing state when extraordinary circumstances have warranted it. For example, the Restatement (Third) of the Foreign Relations Law of the United States §201 Reporter’s Note 3 says: “The United States will treat States the territory of which is under foreign military occupation as continuing to exist.” Neither the continued existence of a non-enemy Austrian government exercising control during the Anschluss nor the continued independent existence of the governments of the Baltic States during the Soviet era was ever considered to depend upon the bare facts. The annex to the Charter of the League of Arab States reflects a similar position regarding the de jure existence of the occupied State of Palestine in the member state’s views upon that subject of public international law.

    In any event, no good faith interpretation can transform the term “should” in Article 1 of the Montevideo Convention into the term “shall” and ignore the multitude of other cases in which exceptions have been made.

    When the General Assembly drew the imaginary boundaries of a proposed Jewish state on the map. 60 percent of its territory was located in the Negev, where there simply weren’t any Jewish communities or local Jewish authorities for anyone to recognize on 14 May 1948. The provisional government initially admitted it exercised no control there, but advised the Security Council that the region was uninhabited and that no government had ever exercised control in the past. The US and the USSR chose to recognize Israel’s claims to the new territory on the basis of the proposed UN boundaries. It turned out there actually were a few Palestinian Arab communities in the Negev, like Umm Al-Rashrash and its police station, which were captured by the IDF nearly a year later (in apparent violation of the UN armistice agreements). Israeli sources call the incident “The Conquest of Eilat”. When Syria objected that US recognition had been premature and tabled a resolution requesting an ICJ advisory opinion on Israel’s qualifications for statehood, the US Ambassador explained that it was a non-justiciable political act based upon his government’s free appreciation of the facts and that he would not admit that the Security Council or any tribunal in the world could pass judgment on its legality. See S/1466, 9 March 1950, Letter Dated 8 March 1950 From the Secretary-General to the President of the Security Council Concerning “Legal Aspects of Problems of Representation in the United Nations”, http://goo.gl/rKumh7

    In discussing the possible effects of the 1988 Palestinian UDI L.C. Green explained: “It may of course be asserted that since there is as yet no territory that is governed by the Palestine National Council or the PLO, there can be no “state”. However, it should be borne in mind that in the past countries have in fact recognized the existence of a state in somewhat similar circumstances, as happened with both the Polish and Czech National Committees and their as yet unborn “states” during World War I. Since recognition of statehood is a matter of discretion, it is open to any existing State to accept as a state any entity it wishes, regardless of the existence of territory or of an established government.”

    Professor Brownlie who supervised Crawford’s 1977 doctoral thesis states the position succinctly:

    “Recognition, as a public act of state, is an optional and political act and there is no legal duty in this regard. However, in a deeper sense, if an entity bears the marks of statehood, other states put themselves at risk legally, if they ignore the basic obligations of state relations.”

    Even writers who think that recognition is “a legal determination” agree that there is no definition binding on all members of the community of nations on the criteria for statehood and that the underlying considerations are mainly political, not legal ones. See the essay by Judge Benq Broms on “Recognition of States” in the UNESCO/Martinus Nijhoff Publishers volume “International Law: Achievements and Prospects”, Mohammed Bedjaoui (general editor), 1991, page 47-48

  21. Re: “that the effects of recognition by other States are purely declaratory.”

    That proposition can’t be reconciled with the views held by supporters of the constitutive theory or the actual state practice of some of the parties to the Montevideo Convention. For example, in OETJEN v. CENTRAL LEATHER CO., 246 U.S. 297 (1918), the Supreme Court cited a number of earlier cases and held that:

    “It is also the result of the interpretation by this court of the principles of international law that when a government which originates in revolution or revolt is recognized by the political department of our government as the de jure government of the country in which it is established, such recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence.”

    The doctrine of the retroactive effect of recognition has been employed in landmark US, UK, French, and Dutch cases. See Ti-chiang Chen, “The international law of recognition, with special reference to practice in Great Britain and the United States”, Praeger, 1951, “Introduction” page 4 and “Recognition of States” on page 34.

    The Secretary General’s follow-up report A/67/738 dated 03/08/2013 on General Assembly resolution 67/19 provided a possible example that the former Prosecutor overlooked. The General Assembly said it was upgrading Palestine’s status after taking into consideration the role of the PLO Executive Committee acting as the Provisional Government of the State of Palestine. It cited the November 1988 declaration of the Palestinian National Council to that effect in a footnote reference. The Secretary General’s analysis of the resolution said: In that resolution, the Assembly accorded to Palestine non-member observer State status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice. It also reaffirmed the right of the Palestinian people to self-determination and expressed hope that the Security Council would consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations.

    So according to the Secretary General, the State of Palestine was already in existence at least two months before the UNESCO vote, when it applied for membership in the UN. For its own part, the General Assembly appears to have acknowledged the declarations of the establishment of both the State of Palestine and its government effective as of November 1988. A simple review of the General Assembly’s earlier resolutions on the subject would also make the Office of the Prosecutor’s analysis of Palestine’s status after July of 2002 untenable.

Trackbacks and Pingbacks

  1. Andrew Fleming Chicago

    Opinio Juris » Blog Archive No, Going to the ICC Is Not “Lawfare” by Palestine – Opinio Juris