The Volokh Conspiracy
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The Palestinian bid for a U.N. Security Council resolution has apparently stalled, with Abbas unable to get the necessary votes. This raises the question of what the next step will be. Abbas may wait until the next rotations on the Council, when new members like Venezuela will surely be more congenial. Or he may finally cast the dice and accept the jurisdiction of the International Criminal Court (ICC). That decision would have far-flung diplomatic and legal implications—beyond Israel and Palestine—whose full scope is not yet understood.
One major consequence of the Palestinians accepting the jurisdiction of the ICC is that any subsequent investigation would certainly focus on alleged Palestinian crimes at least as surely as Israeli ones. This point has been widely acknowledged.
Yet what remains underappreciated about a potential ICC investigation is the extent to which it could scrutinize the conduct of people located outside either Israel or Palestinian territories. For example, senior Hamas operatives are based in Turkey and Qatar. Hamas's leader, Khaled Mashal, is based in Qatar. Hamas operatives in Turkey have been behind recent terrorist attacks.
The decision of the Special Court for Sierra Leone in the case of Charles Taylor, and other decisions by international criminal tribunals, shows that leaders residing outside the territory in which crimes are being committed can be convicted on the basis of their overall support and leadership of the organization carrying out the crimes. As Palestinian nationals, Mashal & co. would fall within the Court's nationality-based jurisdiction, despite being located in non-member states. They would also fall within the Court's jurisdiction as nationals of Jordan, the only Arab country to join the ICC.
Moreover, the broad interpretation of the geographical scope of a "situation" adopted by the Prosecutor in the recent decision regarding Registered Vessels of the Comoros would further support including extraterritorial activities linked to the conflict in the scope of the investigation. (The prosecutor concluded that actions on board Comoros-flagged vessels are part of a broader situation involving Israel and Gaza, despite the latter not being within the court's jurisdiction, a decision justly criticized here.)
Indeed, all those—regardless of nationality or domicile—who plan, finance or support Palestinian terrorism could be investigated as aiders or abettors to the Court's jurisdiction to the extent they plan crimes within what the Court would regard as Palestinian territory. Given the interest in expanding aiding and abetting liability in international law, it is reasonable to assume that the Office of the Prosecutor could see an opportunity in advancing international criminal law by looking into Qatar's funding of Hamas as part of its investigation into Hamas. The investigation into the financing of Palestinian terror could place pressure on groups engaged in such activities in Western countries, and on those countries where they are located.
An ICC investigation into Hamas will place both Qatar and Turkey in the international spotlight, and will lead to intense international pressure on their senior leaders, including the Emir and increasingly belligerent and paranoid President Erdogan, to assist in the ICC's investigation and deliver wanted persons to the ICC. These countries will doubtless react with hostility to such efforts, leading to diplomatic tension between them and the ICC's Western supporters.
In other words, an ICC investigation could pull in much of the Middle East, in a way that is likely to be obnoxious and destabilizing, and will pit Western interests in diplomatic quiet with their commitment to justice.
Moreover, Israel sees a Palestinian turn to the ICC as the ultimate betrayal of the diplomatic process that created the Palestinian government itself. It may react by spreading the love. Thus it would have little to lose by joining the ICC itself, and forcing an investigation of Turkish settlements in Cyprus, and, if the Court allows for retroactive jurisdiction, perhaps Lebanese rocketing of Israel. It could also perhaps refer Iran for its incitement to genocide, which as I explain, could be understood as relating to the territory of Israel.
In other words, not only would a Palestinian turn to the ICC not be limited to Israel and the Palestinians—it would also sweep in much of the Middle East.
The big question is why the Palestinians claim to be so keen on the ICC given their own massive exposure. In other situations, weaker powers like Ukraine have refused to join the ICC and use it against their more powerful attackers in part because of concerns that their own crimes would be dealt with as well. Cyprus, already a state party, has not pushed a strong ICC case against Turkey because it fears this would anger Ankara and destabilize the situation.
So perhaps the Palestinian leadership is simply more committed to international justice, whatever the cost. More likely, they think the nominally two-sided sword of international criminal law will only cut one way in this case—against Israel. They might think this for political or technical reasons.
On the political side, they might think that the international community's overwhelming and one-sided political criticism of Israel will translate to the judicial arena. On this score they are likely to be disappointed. While the OTP's recent adoption of G.A. resolutions about Israel as dispositive of legal questions is troubling, it is certain the Prosecutor would vigorously pursue cases against both Palestinians and Israelis. The Court sees this as central to its legitimacy.
But the Palestinians may also be counting on a practical advantage they have. They may doubt that the ICC's writ will run to Palestinian-controlled society. The ICC has never successfully carried out an investigation in a state that does not want it there. As the collapse of the high-profile prosecution of Kenya's president in recent months shows, the ICC is powerless in the face of recalcitrance, let alone active undermining, by state subject to investigation. The opportunities the authoritarian Palestinian government will have for witness intimidation (recall the "collaborators" in Gaza), evidence manipulation and so forth are massive. Israel, by contrast, is an open democracy, whose own NGOs and international lawyers happily argue the case against it. Call it asymmetric lawfare.
Thus despite the ICC's best intentions to pursue cases against both sides, the Palestinians may reckon that given the Court's limitations, they might be effectively insulated. They may miscalculate here as well—unlike in the Kenya situation, there is another party involved, and significant evidence could be provided by Israel itself. If they are right, while the Palestinian leadership might avoid accountability, the price will be the legitimacy of the ICC. The Palestinians may be happy to burn the ICC for diplomatic leverage, but it is not clear why the rest of the world should go along.
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