The Volokh Conspiracy: More on Morsi and a Palestinian ICC Bid


In a guest post at Opinio Juris, I consider some further developments in Palestinian deliberations about joining the ICC, which underline their lack of a government able to accept the Court’s jurisdiction; I also respond to questions made about my initial argument.
(When I wrote this, Hamas was reportedly considering agreeing to ICC jurisdiction; they’ve since decided to rocket Israeli civilian population centers while the matter is under advisement. Perhaps they think, like me, that ICC jurisdiction is entirely non-retroactive, and want to make the most of it.)
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… 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?
Consider the implications of a contrary rule. Imagine the “international community” recognizes a rebel group as the legitimate government of the country it is attempting to take over, such as Syria or Libya, but over which they do not have anything like effective control. It seems a stretch for such a government to be able to accept ICC jurisdiction while the government it challenges retains power, regardless of whether the rebels sit in the country’s seat at the General Assembly. Certainly it would be a nightmare for the Court in dealing with such situations of multiple authorities.
Put simply, the acceptance of ICC jurisdiction has genuine consequences. A government without effective control would be able to accept ICC jurisdiction without substantially obligating itself to anything, precisely what the State seeks to avoid. Even if effective control is not needed for statehood in the ICC, if it is not needed for governmental authority either, it in effect means the international community can bestow jurisdiction on the Court without going through the Security Council. One reason the Security Council is given the power to address the Court’s jurisdictional gaps is that it cannot not only create jurisdiction, but has the authority to enforce compliance. The two cannot be completely severed.
OpinioJuris has also had Kevin Jon Heller’s response to my original post, and other thoughts about potential Palestinian accession.
Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes