[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?
