THE BLOG
01/01/2015 04:21 pm ET Updated Mar 03, 2015

Palestine and the International Criminal Court

Mahmoud Abbas, the President of the Palestinian Authority, signed the Rome Statute. In two months, Palestine will most likely be a recognized member of the International Criminal Court (ICC), the adjudicatory body conceived to prosecute humanity's worst crimes. Palestinian accession means that the Court will then have jurisdictional authority to investigate allegations raised within the Palestinian Territories. This ability may be retroactive as well, and the Palestinian Authority (PA) can re-petition the Court to investigate events that occurred during the winter 2008-2009 battle between Hamas and Israel, as well as this summer's conflict and its lead up.

Years of concerted Israeli diplomatic effort sought to forestall this. In addition to giving another nudge to Palestinian statehood without attendant progress towards a negotiated solution, Palestinian membership in the ICC would expose Israel to Court scrutiny for its conduct in the Territories. In particular, the Court has jurisdiction over genocide, crimes against humanity and most pertinent now, war crimes. Israel, whose wariness of international investigation was reinforced by 2009's contentious Goldstone Report, has long joined the United States in declining to become a Court member.

Membership in the ICC would give Abbas another tacit endorsement of statehood and the ability to wage powerful lawfare. But will this really get Abbas what he ultimately wants? Or better, what does he want?

With rights come responsibilities. Membership in the ICC enables a party to make complaints alleging war crimes within its borders. It also exposes a party to liability for its own actions, within or beyond its territorial control.

Furthermore, the ICC operates on the principle of complementarity. If an accused State is willing and able to investigate the accusations, the ICC must defer to that process. Estimation of ability to conduct these proceedings is determined by the ICC itself, and lacks clear guidelines.

The international law of war differentiates between the legality of a war and the legality of the war's conduct. The first, called jus ad bellum is the law governing the conditions under which countries can legally go to war. Once a war has started, a different strain of international law kicks in. Jus in bello, or law in war, is the legal body concerning behavior during a conflict. It has taken a number of names throughout the years, and is sometimes referred to as the Law of Armed Conflict, although the consensus name is now International Humanitarian Law (IHL). IHL is agnostic to legality of the war, which is the sole provenance of jus ad bellum. IHL is only triggered once a war has started and applies to both parties regardless of whether the underlying recourse to force is judged just or not. When considering violations of IHL, one must mentally separate a party's conduct in the war from its justifications for initial warmaking.

IHL, although aspirational, is often violated in practice. Commanders make battlefield mistakes. Fighters tread close to civilian populations. The fog of war is thick. However, not all violations of IHL are war crimes. Again, not every violation of IHL is a war crime.

Although there is no one definition of "war crime," Article 8 of the Rome Statute lists many "grave breaches" of the Geneva Conventions (i.e. violations of certain provisions of IHL), as well as specifically enumerated customary international law crimes. Among these are intentionally directing attacks against civilians and civilian objects, Hamas operations in violation of which were clearly documented this summer by the international media. Israel, for its part, has been accused of indiscriminate use of force and of treating police as members of the armed force, even though international law can classify police as civilians.

To play devil's advocate to the PA's public ICC strategy, Israel's conduct in the 2008-2009 Gaza conflict not perfect. But, according to Richard Goldstone's recant of the report that bears his name, fuller investigation produced evidence arguing against "war crimes." Moreover, Israel's proactive investigations into its conflicts, commended by the final U.N. committee of independent experts regarding 2009 and already in progress regarding this summer's hostilities, might shield it from ICC investigation via an honest application of the complementarity principle.

Taking up the mantle of the Rome Statues -- with its rights and obligations -- is definitely not a one-sided victory. But it seems weird to call Abbas's move a "gesture of despair," as some news outlets have claimed. Especially as the PA declined to rehabilitate negotiations that were ultimately called off earlier in 2014. What is it that Mahmoud Abbas really wants?

Could this move be a hint towards a two-state solution without Hamas? Or more specifically, a three-state solution? The latest instantiation of a unity agreement between the Palestinian Authority and Hamas has been nominal since its start. The Palestinian Authority's recently foiled UN bid called for the establishment of a Palestinian state based on 1967 borders. Political reality prevented it from saying anything else, but could its esoteric meaning go beyond its exoteric? Because Israel unilaterally withdrew from Gaza in 2005, in practice, the resolution focused on timed withdrawal from the West Bank. It infuriated Gaza's Hamas leaders, who in addition to lambasting PA officials earlier this week for neglecting reconstruction efforts, accused Abbas of "compromise" in this arguable pursuit of West Bank withdrawal. The resolution failed to receive enough votes to pass in the UN Security Council, but the PA already indicated it plans to try again in the coming weeks, after UNSC membership rotates. The PA has yet to fulfil many of its promises made to Gaza at the close of this summer's conflict, including transfer of funds. Hamas has vocally advocated for PA complaints against Israel in The Hague, but Palestinian membership in the ICC exposes Hamas leaders to possible prosecution for war crimes. Could Abbas be driving a diplomatic wall between the West Bank and Gaza? Could he be laying the steps for a divorce of their political futures? Will ICC membership ultimately further isolate Hamas? Or is Palestinian leadership betting that politics will guide ICC policy against Israel without reciprocal scrutiny?

Palestinian accession to the Rome Statute was a threat long held over negotiations and relations with Israel. Once a threat is enacted, however, it loses its coercive power. Abbas has played a big card. Time will reveal what he wanted in return.