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.