During Secretary of State John Kerry’s recent trip to the Middle East, Palestinian president Mahmoud Abbas offered what he called a goodwill gesture — refraining from bringing Israeli officials before the International Criminal Court for charges related to housing construction in settlements. Much of the motivation behind Palestine’s successful effort to be dubbed a “state” by the United Nations General Assembly last fall was the desire to threaten Israel with the ICC, whose proceedings are open only to internationally recognized states.
Abbas’s offer is not a genuine concession. He is simply promising not to do something he could not do anyway, under both the court’s statute and existing agreements with Israel. The Palestinians committed in the Oslo Accords not to take such actions, so at best, Abbas is trying to sell the same horse twice (or rather, rent it out for a few months). Worse, the imagined ICC investigation is not a horse, but a unicorn: a fantastical notion unconnected to the actual practice of international criminal law. Even if Palestine were to join and be accepted as a member state by the ICC — which is far from certain — the court would have no jurisdiction over the settlements issue.
By taking Abbas’s noises about the ICC seriously, Kerry’s diplomatic efforts inadvertently lend credibility to the notion that the ICC would have jurisdiction. This undermines America’s ability to avoid such charges against its servicemen in the future, and contradicts its longstanding arguments about the limits on the court. Calling Abbas’s bluff would support an unprecedented, unbounded, and activist vision of the court’s role in international affairs — one that could only come back to haunt the U.S., which, like Israel, has not consented to ICC jurisdiction.
Abbas talks of taking Israel to the ICC as if it were the People’s Court, freely dispensing justice to all comers. Yet the ICC does not deal with all or even most alleged international crimes. It has completed only two cases in its eleven-year existence, with only one conviction. A prosecution involving Israeli settlements would be unprecedented in several alarming ways.
The ICC has never accepted a situation referred by a member state against a non-member state. Moreover, the ICC has been understood to be a court for dealing with the world’s worst atrocities. Thus it has never pursued crimes that did not involve large-scale murder and extreme brutality. Finally, no international criminal tribunal, from Nuremberg on, has ever prosecuted anyone for settlement activity, despite an abundance of potential targets from Morocco to Indonesia. Thus an ICC investigation, let alone an actual prosecution, would be unprecedented and mark a significant departure from the practice of the court.
Moreover, the ICC simply does not have jurisdiction under the terms of its statute. Since Israel is not a member state, the court could have jurisdiction over its officials only if the settlements were on Palestinian sovereign territory. They are not.
The borders of Palestine, like those of Israel, remain uncertain and disputed. Even the General Assembly’s statehood resolution did not purport to establish borders (which is not part of statehood recognition anyway), and in fact recognized that the territory of Palestine remains to be negotiated. Even if there is territory over which the Palestinian government has clear control (Ramallah, for example), all the settlements fall in the most disputed territory, with the vast majority of construction taking place within a few miles of the 1949 Armistice Line.
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.