His threat to challenge Israeli settlements in court is completely empty.
During
Secretary of State John Kerry’s recent trip to the Middle East,
Palestinian president Mahmoud Abbas offered what he called a goodwill
gesture — refraining from bringing Israeli officials before the
International Criminal Court for charges related to housing construction
in settlements. Much of the motivation behind Palestine’s successful
effort to be dubbed a “state” by the United Nations General Assembly
last fall was the desire to threaten Israel with the ICC, whose
proceedings are open only to internationally recognized states.
Abbas’s offer is not a genuine
concession. He is simply promising not to do something he could not do
anyway, under both the court’s statute and existing agreements with
Israel. The Palestinians committed in the Oslo Accords not to take such
actions, so at best, Abbas is trying to sell the same horse twice (or
rather, rent it out for a few months). Worse, the imagined ICC
investigation is not a horse, but a unicorn: a fantastical notion
unconnected to the actual practice of international criminal law. Even
if Palestine were to join and be accepted as a member state by the ICC —
which is far from certain — the court would have no jurisdiction over
the settlements issue.
By taking Abbas’s noises about the
ICC seriously, Kerry’s diplomatic efforts inadvertently lend
credibility to the notion that the ICC would have jurisdiction. This
undermines America’s ability to avoid such charges against its
servicemen in the future, and contradicts its longstanding arguments
about the limits on the court. Calling Abbas’s bluff would support an
unprecedented, unbounded, and activist vision of the court’s role in
international affairs — one that could only come back to haunt the U.S.,
which, like Israel, has not consented to ICC jurisdiction.
Abbas
talks of taking Israel to the ICC as if it were the People’s Court,
freely dispensing justice to all comers. Yet the ICC does not deal with
all or even most alleged international crimes. It has completed only two
cases in its eleven-year existence, with only one conviction. A
prosecution involving Israeli settlements would be unprecedented in
several alarming ways.
The ICC has never accepted a
situation referred by a member state against a non-member state.
Moreover, the ICC has been understood to be a court for dealing with the
world’s worst atrocities. Thus it has never pursued crimes that did not
involve large-scale murder and extreme brutality. Finally, no
international criminal tribunal, from Nuremberg on, has ever prosecuted
anyone for settlement activity, despite an abundance of potential
targets from Morocco to Indonesia. Thus an ICC investigation, let alone
an actual prosecution, would be unprecedented and mark a significant
departure from the practice of the court.
Moreover, the ICC simply does not
have jurisdiction under the terms of its statute. Since Israel is not a
member state, the court could have jurisdiction over its officials only
if the settlements were on Palestinian sovereign territory. They are
not.
The borders of Palestine, like those
of Israel, remain uncertain and disputed. Even the General Assembly’s
statehood resolution did not purport to establish borders (which is not
part of statehood recognition anyway), and in fact recognized that the
territory of Palestine remains to be negotiated. Even if there is
territory over which the Palestinian government has clear control
(Ramallah, for example), all the settlements fall in the most disputed
territory, with the vast majority of construction taking place within a
few miles of the 1949 Armistice Line.
Prosecuting settlements would require determining
Israel’s borders. The ICC has never been thought to have the massive
power of drawing national boundaries — even those tribunals that do have
this role can do so only with the consent of all the affected
countries. Determining the “territory” of Palestine would be a massive
expansion of the power of the ICC, giving it control of the most
essential aspects of national sovereignty and existence. It would make
the scope of the ICC’s jurisdiction always indeterminate — non-member
nations would be vulnerable to suits simply through their neighbors’
convincing the court that a certain territory is theirs.
The ICC is a court of delegated, not universal,
jurisdiction — a limitation insisted upon by the U.S. The Oslo Accords
specifically assign all criminal jurisdiction over settlements
exclusively to Israel. If the ICC were to ignore such deals, it would
set an extremely dangerous precedent for the U.S., which has actively
negotiated over 100 jurisdictional treaties with countries around the
world specifically to insulate Americans from the reach of the court.
Finally, the court can pursue only
“grave” instances of the crimes within its jurisdiction — the worst of
the worst. This has thus far been confined to contexts of mass
atrocities, involving at least thousands of innocent victims.
Settlements may be internationally reviled, but they are not massacres
of civilians, or the use of little kids as cannon fodder, crimes with
which the ICC has dealt thus far, and it would both trivialize and
politicize the ICC to treat them as such. To be sure, some activists
have argued for loosening the gravity requirement to include actions
upsetting to the international community — specifically to facilitate
the prosecution of Western nationals. If the building of houses for
civilians constitutes a grave crime, surely a series of errant drone
strikes could qualify (Afghanistan is already a member).
Perhaps the greatest irony of Abbas’s ICC bluff is
that he announced his intention to use the court a few months ago in a
press conference in Ankara, side by side with the Turkish prime
minister. Turkey occupies northern Cyprus, where it has established a
massive settlement enterprise, with Turkish settlers now outnumbering
locals. And Cyprus is already an ICC member. This incongruity went
unremarked, further feeding the Palestinians’ hopes that even a nuisance
suit in the ICC could be an effective mechanism to embarrass Israel.
Even supporters of the Palestinian cause recognize the
unlikelihood that the ICC will ultimately pursue such a case. So the
U.S. should not encourage use of the court for international
grandstanding. Instead of begging Abbas not to turn to the ICC,
Secretary Kerry should be explaining why such a move would be
unproductive and contrary to the rule of law.
— Eugene Kontorovich is a professor at
Northwestern University School of Law, where he teaches constitutional
and international law, and a fellow at the Lawfare Project.
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