Sunday, December 2, 2012


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.