Mahmoud Abbas at Yasser Arafat's grave
Mahmoud Abbas at Yasser Arafat's graveIssam Rimawi/POOL/Flash 90

The Palestinian Authority (PA) is looking to sue Israel for "war crimes" at the International Criminal Court (ICC), and even while it is not clear the ICC will recognize the PA as a bona fide state, there are numerous other caveats though that could hold back whatever advantage the PA thinks it might have.

Eugene Kontorovich, lecturer in international law at Northwestern University, tells Arutz Sheva that the PA must meet the binding legal definition of a state, and he argues the ICC is ignoring basic fundamentals of international law in order to advance the PA's application for membership.

For one, the ICC is trying to usurp the rules by incorporating UN General Assembly (GA) resolutions into its decision-making on Ramallah’s application. The GA is not authorized to recognize states by the United Nations’ charter, and yet the ICC’s chief prosecutor is taking GA decisions about “Palestine’s” observational status as grounds to treat it as a state member to the court.

As Kontorovich put it in a recent Washington Post article on the subject, the ICC prosecutor “substituted the determination of the General Assembly for her own. The GA is not a judicial body, but a political one. Its determinations are political, not legal.”

Asked to explain further in an interview with Arutz Sheva, Kontorovich expanded his argument.

“There are certain things that have legal definitions. There is a legal concept of what a state is; not what the General Assembly says a state is. If the General Assembly passed a resolution calling it a state, that wouldn't make it true. It’s a separate legal definition. If the GA passed a resolution against an innocent man stating that he is a murderer, that still does not actually make him a murderer.”

The United Nations – a general framework of institutions who administer international law for that matter – do not have a clear equivalent to a parliament that might pass laws at will, which courts would then incorporate into their jurisprudence, he says. International law is defined by conventions, both literal conventions of country’s representatives to discuss amendments and treaties on the one hand, and the “convention” or agreements produced in those meetings on the other.

Working with established laws in those international conventions and whatever case-law precedent that might exist, the ICC prosecutor is responsible from there to prove “Palestine” indeed fits the bill.

“The prosecutor has to establish a legal definition on her own,” says Kontorovich. “It’s a known fact that the General Assembly cannot establish legal precedent. Even a resolution in the United Nations Security Council does not serve in that way.”

These operational, legal definitions apply to other issues – not just what is and is not a sovereign state. Israel has also run into issues over what constitutes an “occupation,” hearing arguments that even the withdrawal from Gaza is not sufficient to say Israel has ended its "occupation" of the area.

It is possible that at some point in the future that those GA “resolutions could lead to eventual change of definitions of things like occupation” or statehood, but they can only serve as inspiration for more formal changes to international treaties like the Geneva Convention that actually illustrate those definitions.

Other issues could create a diplomatic fury if the ICC were to judge the situation by the reality on the ground.

It is plausible that in the event the ICC defined the PA in Judea and Samaria as a state, that would not necessarily mean it has the right to file complaints on behalf of Gaza, because Mahmoud Abbas does not have "effective control" of Gaza - Hamas does.

Arutz Sheva asked Kontorovich if the two regimes could have to be recognized separately given their circumstances.

“There is something I call 'The Morsi Precedent.' When Sisi toppled Morsi, Morsi requested the ICC assert jurisdiction over his country to intervene. The court refused on the grounds that at the time of his appeal, he wasn’t President anymore.”

As Kontorovich delineated in an article for the law blog Opinio Juris last year on the Morsi decision, the Office of the Prosecutor weighed “whether Morsi had 'effective control' of Egypt at the time of the application. Finding that he did not, it concluded he could not accept jurisdiction on behalf of the country.” The ICC decision can be read here.

“He might have had technical authority but not the actual authority,” Kontorovich went on to explain. “It all seems very similar but this does not seem to be slowing the prosecutor down at all.”

The Officer of the Prosecutor seems bent on asserting ICC jurisdiction, he said. The reasons could be an existential issue for the court. 

“Palestine” is a major international issue. As the court tries to justify its existence following several failed prosecutions, ignored subpoenas and accusations that it is too Africa-focused, the ICC might try to enhance its prestige by going after a vulnerable, Western-aligned state.

“Delivering (Binyamin) Netanyahu’s head on a silver platter would be a permanent precedent to talk about," Kontorovich explained.