Yesterday the UN General Assembly voted to recognize
Palestine as a non-member state, paving the way for full statehood for
Palestine. Although the legal status of
Palestine has been a question of contention for years, the General Assembly
vote may be the tipping point that brings Palestinian dreams of statehood to
fruition. Predictably, both the U.S. and
Israel voted against the resolution. A
few close allies voted with U.S. and Israel (including Canada), though most allies simply abstained from the vote in
order to avoid angering the U.S. and Israel.
The resolution passed by a wide margin, 138 in favor, 9 against, 41
abstaining.
What’s interesting is the arguments that the US has deployed
against Palestinian statehood. These
arguments display a surprisingly central role for international criminal
justice.
In
particular, the US is concerned that the Palestinian
Authority will now move to join the International Criminal Court as a
signatory
to the Rome Statute. This would be the
first move in an attempt by the Palestinian Authority to trigger the
jurisdiction of the Court over crimes allegedly committed by Israel.
This would include scrutiny over Israeli
bombing practices during the recent air war over the Gaza strip, and
potentially previous conflicts as well. Of course, this jurisdiction
might also bring
unwanted scrutiny over the indiscriminate rocket attacks that Hamas has
launched against civilian centers in Israel, including Tel Aviv, an
inquiry
that the Palestinians may wish to avoid. On the other hand, perhaps
that would help delegitimize Hamas on the international stage, which is
something the Palestinian Authority might indeed want.
Incidentally,
the Palestinian Authority tried to trigger the
ICC’s jurisdiction before, although its claim to statehood then was even
weaker, and it simply deposited a "declaration" accepting the court's
jurisdiction. This move prompted a huge academic debate over whether
the ICC's jurisdiction could be triggered in this manner by a
proto-state like Palestine. But even now, the Palestinian
Authority may have some difficulty demonstrating its own statehood.
While recognition from the General Assembly
is undoubtedly important and relevant, there is a control problem.
Simply put,
the Palestinian Authority has no control over Gaza City, which is
controlled by
Hamas. In fact, Mahmoud Abbas isn’t even
allowed inside the Gaza Strip, apparently.
Indeed, it appears clear that at least some countries voted
in favor of the resolution to increase Abbas’ credibility and strengthen his
hand against his more radical opponents in Hamas. Supporting Abbas seems like the best chance
for peace with Israel because the Palestinian Authority at least has a chance
with negotiating a deal with Israel, unlike Hamas. These are all pragmatic considerations that
sound in realpolitik.
The last issue is the legal question of retroactivity. Over at OJ, Kevin Heller notes
that the Rome
Statute allows a state party to grant retroactive jurisdiction to the
court (for acts committed prior to the state's adoption of the Statute). While this is true, it isn’t clear to me that
a retroactive granting of jurisdiction would permit the ICC to exercise
jurisdiction over acts that were committed before Palestine was even a
state. Of
course, there doesn’t appear
to be anything in the Rome Statute that precludes this possibility, but
it certainly
represents a far more expansive understanding of retroactive
jurisdiction. The answer depends, I think, on the deeper question of
what ICC jurisdiction is meant to accomplish -- ending impunity for
criminal conduct or helping to resolve international disputes that
sparked international crimes.
Did you guys encounter any policy enforcers on your trip?
ReplyDeleteWtf.. wrong article :p
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