Abbas Offers Bogus ICC Concession During Kerry’s Trip to Israel

April 11, 2013 – NEW YORK – As Sec. State Kerry concludes his trip to Israel to work on restarting negotiations between Israel and the Palestinians, Mahmoud Abbas claims to have made a goodwill gesture by promising not to pursue charges against Israeli officials before the International Criminal Court (ICC) – for two months starting two weeks ago. Abbas’s promise is a gesture of bad faith, not good, and he should receive no credit for it. The ICC simply does not have jurisdiction over Israeli settlements, as Prof. Eugene Kontorovich of Northwestern University, a Lawfare Project Fellow, demonstrates in his new research paper, “Jurisdiction over Israeli Settlement Activity in the International Criminal Court” (available at http://ssrn.com/abstract=2230987). Prof. Kontorovich will also be debating issues relating to the legality of Israeli settlements under international law at the following events:

  • April 15, 2013 @ 12:00PM – Debate on Israeli Settlements and International Law
  • April 21, 2013 @ 8:00PM – Israel’s Borders in International Law
  • April 23, 2013 @ 12:45PM – Disputing Occupation: Israel’s Borders in International Law

The ICC only has jurisdiction over conduct on the “territory” of nation “states,” Prof. Kontorovich explains. Even assuming Palestine will not be treated as a “state” for ICC purposes, its territory is entirely undefined. Last fall’s General Assembly resolution did not set borders for Palestine, but rather acknowledged they would need to be determined through negotiations. All settlements fall in the most disputed parts of the potential Israeli-Palestinian frontier. Moreover, the Palestinians in the Oslo Accords gave Israel exclusive criminal jurisdiction over the settlements. They cannot “regive” this jurisdiction to the ICC.

Moreover, the ICC only has authority to deal with the worst of the world’s crimes. It has traditionally understood this as involving mass atrocities with thousands of dead. Civilian home construction may be internationally reviled, but it is not a crime of the highest gravity, compared to the slaughter of innocents.

“By taking Abbas’s noises about the ICC seriously,” Prof. Kontorovich says, “Sec. Kerry’s diplomatic efforts inadvertently lend credence 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. Accepting 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.”

For more information, please contact:

Prof. Eugene Kontorovich

e-kontorovich@law.northwestern.edu

(609) 610-2066

FOR IMMEDIATE RELEASEThe Lawfare Project