Does the Palestinian Turn to the ICC Mandate a Cut-off in Economic Assistance?

By Yishai Schwartz
Monday, February 9, 2015, 1:45 PM

The Palestinian turn to the International Criminal Court has Israel’s supporters fretting over potential prosecutions and international delegitimization. But as a recent letter from 75 senators to Secretary of State John Kerry illustrates, the most immediate repercussions will likely be felt by Palestinians themselves---in the form of an automatic cutoff in American economic assistance.

The senators’ letter points to a provision in recent appropriations legislation that seeks to deter Palestinian prosecutions of Israelis in hostile international fora. The law mandates that the US withhold all economic assistance from the Palestinian Authority if “the Palestinians initiate an International Criminal Court judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.”

At first glance, it seems that recent events were precisely what Congress had it mind when it passed this provision. There is little doubt that the Palestinian intention in joining the ICC was to prompt the Prosecutor to initiate investigations against Israeli officials. Just days before submitting instruments of accession to the Rome Statute, the Palestinian Authority filed an “ad hoc” 12(3) declaration retroactively accepting ICC jurisdiction “for the purposes of identifying, prosecuting and judging authors and accomplices of crimes within jurisdiction of the Court committed in the Occupied Palestinian territory, including East Jerusalem, from June 13, 2014.” (That date, incidentally, is the day after three Israeli teenagers were kidnapped by Hamas operatives in the PA-controlled West Bank--the precursor event to the summer’s war between Israel and Hamas.) And immediately after the Palestinian submission, ICC Prosecutor Fatou Bensouda announced a preliminary examination into “the situation in Palestine”. Given the clear causation and intentionality, some commentators are suggesting that the cutoff provision has already been implicated.

If true, this would place the Obama administration in a difficult position. In the past, threats to Palestinian aid have often been moderated by presidential waiver authority. For instance, the same appropriations bill that threatens to cut off aid if the Palestinians appeal to the ICC, also does so if they “obtain the same standing as member states” at a UN agency. But while this other provision allows the Secretary of State to keep funds flowing if doing so is in the “national security interest of the United States,” the ICC-related cutoff contains no such waiver authority. (This appears to have confused some commenters.) So if the administration concludes that the Palestinians have indeed “initiated” or “actively supported” an ICC investigation, it will have no choice but to withhold funds. The humanitarian consequences, and the destabilizing effect on a Palestinian Authority whose security forces have been crucial for calm in the West Bank, make this result distinctly unattractive.

Thankfully for Obama and Kerry, the language in President Abbas’ 12(3) letter, and the specific provisions cited by both Abbas and Bensouda, give the White House a great deal of wiggle room. The text of the Congressional cutoff provision is actually quite vague and borders on the incoherent. It contains two distinct triggers---“initiate an International Criminal Court judicially authorized investigation” or “actively support such an investigation”--both of which, quite plausibly, simply don’t apply.

The first difficulty comes in defining the phrase “International Criminal Court judicially authorized investigation.” At the moment, the ICC prosecutor is only engaged in “a preliminary examination,” a step taken on the prosecutor’s own authority in order to determine whether to open a formal investigation. This is in contrast to to a later, explicitly investigative stage, that requires authorization from the ICC’s Pre-Trial Chamber. Given Congress' use of the word “investigation” and the reference to “judicially authorized,” it seems plausible to argue that the sort of investigation to which Congress referred simply hasn’t yet occurred. Indeed, an earlier version of the provision lacked any reference to “judicially authorized” at all, instead threatening a cutoff if the “Palestinians request, petition, apply, refer, or actively support an investigation or prosecution of Israeli nationals before the International Criminal Court.” The record leaves little evidence of why language changed, but the shift suggests a level of intentionality in the phrase “judicially authorized” that helps distinguish a full-blown ICC “investigation” from a Prosecutor’s “preliminary examination.”

Still, this doesn’t quite lay the issue to rest. Granted it seems difficult to “actively support” an investigation that hasn’t yet happened, and so the argument against the triggering  of this clause is quite strong. But “initiates” is something else entirely, especially given the context in which the word is used. As the Rome Statute makes clear, it is the ICC Prosecutor who actually initiates ICC investigations. States can only “refer” cases or accept jurisdiction, thereby inviting the Prosecutor to conduct a preliminary examination in the hopes that she will eventually open an official investigation. Given this structure, it’s difficult to imagine what Congress might have possibly meant when warning Palestinians not to “initiate an International Criminal Court judicially authorized investigation,” other than warning them not to “take those steps that lead to an International Criminal Court judicially authorized investigation.” Put simply, the Palestinians have taken every single step they can to trigger an investigation; does that not satisfy the “initiate” standard?

The White House has two ways out of this: First, the administration can insist that the “initiate” clause can only be implicated once there actually is an “International Criminal Court judicially authorized investigation… that subjects Israeli nationals to an investigation for for alleged crimes against Palestinians.” In other words, it doesn’t matter that the Palestinians have already done all they can do to bring about such an investigation; what matters is their success. So if, and only if, such an investigation actually materializes will the Palestinians retroactively be implicated in having initiated it.

Second, the White House can rely on a rather formalistic distinction between a “referral” and a “declaration.” Administration officials could argue that “initiate” refers only to formal Article 14 “referrals,” the standard procedure by which a state invites investigative action. And here again, the shift away from the older, and arguably broader, language of “request, petition, apply, refer, or actively support” might help the administration. Abbas’ letter doesn’t “refer” the situation in Palestine at all. Instead, Abbas references Article 12 Section 3 and writes that Palestine “recognizes the jurisdiction of the Court for the purposes of identifying, prosecuting and judging[].”

Bensouda’s' subsequent announcement only strengthens that distinction: She highlights that her decision to open a preliminary examination simply “follows” (rather than “is based on” or some term similarly denoting causation) the Palestinian jurisdictional “declaration… lodged under 12(3).” And it becomes particularly stark in a footnote to the Prosecutor’s Policy Paper on Preliminary Examinations, a footnote that almost seems designed to allow Palestinians to avoid Congress’ “initiate” trigger: “It should be noted that article 12(3) is a jurisdictional provision, not a trigger mechanism. As such, declarations of the sort should not be equated with referrals, but will require a separate triggering by the Prosecutor proprio motu or by a State Party.” The administration thus has a very good argument that “the Palestinians” didn’t “initiate” anything; it was the Prosecutor who triggered this preliminary examination.

At the moment, these arguments seem to be winning. Only days after Bensouda’s announcement, Senator Lindsey Graham condemned the Palestinian move as a “bastardizing of the role of the ICC, but simultaneously issued a warning that aid would evaporate “if they filed a complaint."  Presumably, his prospective language was deliberate: Palestinians had not yet triggered a cut-off, but were dangerously close to doing so. Similarly, last week’s senators’ letter conspicuously avoided a statement about whether the provision had already been implicated, simply explaining that the signatories “will not support assistance to the Palestinian Authority while you undertake a review of this matter.”

For now, then, the Obama administration retains some breathing room. The White House can still argue that the appropriations cutoff has not been triggered and can therefore refrain from executing the cutoff. But as Bensouda’s examination rolls forward, as she draws on Palestinian assistance and perhaps, as the examination becomes an investigation, the White House’s legal grounds for holding back will grow increasingly precarious.