This past week, Riad Malki, Foreign Minister for the Palestinian National Authority, met with the chief prosecutor for the International Criminal Court (ICC), Fatou Bensouda. The public photo-op was designed to pressure Israel in its continued fighting in the Gaza Strip and sets the stage for a likely Palestinian accession to the ICC. If the Court eventually exercises jurisdiction over events in the Middle East, it would represent a short-sighted act and a realization of what critics feared when the ICC was formed.
When the terms of the ICC were considered, states around the world contemplated vesting the Court with universal jurisdiction to prosecute matters anywhere in the world. Instead, the parties opted for a limited jurisdiction scheme that vested the prosecutor with authority only in matters involving actual states or in situations referred by the United Nations Security Council. In the former, the prosecutor has authority to investigate and prosecute crimes covered by the Rome Statute only if a state has joined the ICC or if a state accedes to its jurisdiction in a particular circumstance.
In 2009, after Israel’s Operation Cast Lead in Gaza—a situation, like the current, designed to stop Hamas aggression—the Palestinian Authority attempted to accede to the Court for the purposes of having it investigate alleged war crimes and crimes against humanity. For several years, then chief prosecutor, Luis Moreno Ocampo, investigated whether the Court had any jurisdiction. After much dialogue with international lawyers—of which I was part—Ocampo concluded that the ICC did not have jurisdiction because he lacked the basis to conclude a Palestinian state existed. However, the court explicitly left open the possibility of changing its position if the General Assembly recognized a Palestinian state.
There were—and still are—several legal reasons why a Palestinian state does not exist. Although there is no international law officially dictating what constitutes a state, the generally accepted standards are set forth in the Montevideo Convention and look at several factors, including whether an area has a permanent population, a defined territory, a government, and the capacity to enter into foreign relations with other states. The Palestinians lack these critical prerequisites for statehood and openly acknowledge as much in their public statements, routinely discussing statehood in an aspirational sense. In fact, virtually the entire international community regularly talks of a “two-state” solution, an implicit recognition that only one currently exists.
Nonetheless, the Palestinians have shifted tactics in recent years, preferring to try and circumvent negotiations with Israel, argue that a state already exists, and manipulate international law for their purposes. As part of that strategy, the Palestinians lobbied for the UN General Assembly in November of 2012—after Ocampo announced his decision earlier in the year not to accept the Palestinian bid to the ICC—to recognize a Palestinian state as a non-member observer at the UN.
However, the General Assembly vote to recognize a Palestinian state merely proves that the UN is a political body, not that a Palestinian state actually exists. If it did, there would be no need to talk incessantly about a “two-state solution.” It also does not change the fact that the Palestinians lack certain basic criteria that have historically defined states, such as exercising control over areas that are supposedly part of its territory.
For those reasons, the ICC would be mistaken to conclude that there is a sufficient legal basis for it to change its position on jurisdiction. Moreover, if the Palestinians attempt to join the Court, apparently Hamas and Islamic Jihad—terrorist groups—are prepared to sign the Rome Treaty and recognize the Court’s jurisdiction as well. That will place the ICC prosecutor in the awkward position of having to investigate and eventually prosecute the very parties seeking to wield the court as a political weapon.
Israel has not and will not recognize the Court’s jurisdiction, because it realizes that doing so would severely impede its sovereign prerogative to defend itself. The Palestinians likely will, however, in an effort to pressure Israel and because they can simply flaunt any adverse rulings later.
If the ICC accepts jurisdiction, it will then have to investigate and prosecute vigorously at all levels of the Palestinian governing bodies, including Fatah, which formed a unity government with Hamas earlier this year. Should it fail to do so for willful and indiscriminate violations of international humanitarian law, it would cease to have any credibility. Whatever legitimacy the ICC has could hinge on it avoiding the matter altogether. After this week’s meeting at The Hague, however, it may already be too late.
Brett Joshpe is principal of Joshpe Law Group LLP, a New York City law firm that handles corporate and litigation matters and also represents whistleblowers. He was previously part of a delegation of international lawyers who opposed ICC jurisdiction over Israel following Operation Cast Lead. He is also co-author of the book “Why You’re Wrong About the Right.”