Palestine’s Egypt problem at the ICC

August 5

There is a lot of discussion, again, about the Palestinians accepting the jurisdiction of the International Criminal Court, and pursuing war crimes charges against Israelis. The Palestinian Authority obviously has some good lawyers, because it has not heeded the siren song of the human rights groups goading it to sign the Rome Treaty.

Aside from potential war crimes cases against Palestinians, which I do not think worries them too much (I suspect they are skeptical about enforcement) there is the scarier possibility for the them: that the Court would find it has no jurisdiction. Then the Palestinian’s diplomatic nuclear bomb would turn out to be a dud. I’ve written about some of the serious problems with ICC jurisdiction over Israeli settlements before. In a post at OpinioJuris yesterday, I point to a more fundamental problem the Palestinians face in accepting jurisdiction (see original for links):

Effective Control and Accepting ICC Jurisdiction

A recent and little-noticed development at the ICC suggests the Palestinian Authority may have a harder time getting the Court to accept its accession than many previously thought. A few months ago, in a situation quite analogous to the Palestinians’, the Court rejected an attempted accession.

Recall that the ICC rejected a 2009 Palestinian attempt to invoke its jurisdiction by saying that it lacked the competence to determine if Palestine was a “state” under international law. A main motive for the last year’s General Assembly’s vote to treat Palestine as a non-member state was to bolster its case for ICC membership. The idea was that the OTP would look only to the formal, “political” action of the General Assembly, rather the the objective factors of whether Palestine satisfies the criteria of statehood, such as whether they control their own territory.

Whether that is true or not, recent developments show that even if the OTP accepts that Palestine is a state – ignoring objective tests – it would conclude that the PA cannot accept jurisdiction on behalf of that state, certainly not for Gaza. In May, the OTP just rejected an attempt by Mohammed Morsi, the first democratically elected president of Egypt, to invoke the Court’s jurisdiction over his country under article 12(3). The OTP concluded that when Morsi filed the declaration last December, he was no longer the head of state for Egypt.

Crucially, the OTP used a combination of two distinct tests for the legitimate government of a country for purposes of accepting jurisdiction. The first was a “political” test, referring to the views of the UN, the Rome Statute’s depository. The UN recognizes the Sisi-installed government, that came to power in a coup against Morsi last year. So far, so good for the PA: the U.N. recognizes Abbas as the head of state of Palestine. However, the OTP did not stop there.

It went on to apply an additional, objective test – whether Morsi had “effective control” of Egypt at the time of the application. Finding that he did not, it concluded he could not accept jurisdiction on behalf of the country. This is particularly notable because Morsi was removed in a violent coup, followed by severe repression. Thus the OTP’s action could be seen as at odds with some vague notion of the “grand purpose” of Court: ICC jurisdiction might be most needed when democratically-elected governments are ousted in a military putsch. But the Prosecutor wisely ignored common arguments that the Court should at every turn interpret its jurisdiction broadly because its purpose is to do good, and thus the more jurisdiction, the better.

Now lets apply the “effective control” test to PA. Hamas came to power in coup against Abbas’s government, and since the “statehood” of Palestine, the latter has never exercise “effective control” over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president. Indeed, “effective control” is a double-edged sword for Abbas. On the one hand, his lack of it would bar accepting ICC jurisdiction. On the other hand, his lack of it is also what prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.

Then there is a bigger question: can either Abbas or Hanniyeh claim to have effective control? In the view of much of the international community, all of the West Bank and Gaza is occupied by Israel.

[For the rest, see the original post...]

UPDATE: After writing the OpinioJuris piece, I saw that the Palestinians are waiting for Khaled Mashaal’s approval to sign the papers. That both underlines the “who’s the boss question,” and shows Mashaal is no dummy.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.
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