Following the UN’s decision last Thursday, Palestine may contact the court’s prosecutor once again, asking for a hearing on the crimes that are being committed in its territory. The court’s prosecutor may well rule that in light of Palestine’s recognition as a state, the court has authority to hear the case.
If Palestine should complain to the court, Article 8(2)(b)(viii) of the court’s statute may be at the center of the case. This article states, in part: “The transfer, directly or indirectly, by an occupying power of parts of its own civilian population into the territory it occupies” is a war crime.
This statute is the continuation of a rule in the Fourth Geneva Convention. Israel’s past claims that the rule did not apply in the territories may be rejected: The International Court of Justice, also in The Hague, settles legal disputes between countries and gives advisory opinions. When this court gave its advisory opinion over the separation barrier, it ruled that contrary to Israel’s position, the Fourth Geneva Convention applied in the territories, including the prohibition against building settlements in occupied territory. This ruling has even greater force now that Palestine has been recognized as a state.
Israel’s claim that the provision applies only to the forced transfer of a population from an occupying country to the occupied territories, and not to a voluntary move, is likely to be rejected both in light of Israel’s large investment in the settlements and the active establishment of new settlements, and also because the court’s statute includes the phrase “direct or indirect” in its prohibition against such a transfer.
It should be noted that the crime being discussed is the “transfer,” not the “move” of those moving. The ones to be accused are not the settlers themselves, but those responsible for building the settlements. Some believe that the prosecutor and the court will not want to deal with the matter because it does not involve grave war crimes such as the killing of civilians. However, the clause was included in the Rome Statute of the International Criminal Court over Israel’s objections, with full awareness, and the court cannot ignore it.
It is also possible that the prosecutor and the court will opine that the settlements, no less than the killing of civilians, are at the heart of the occupation regime, the dispossession, the discrimination and the negation of the Palestinians’ right to self-determination, and that the case therefore deserves to be heard. It is also a relatively easy case from a legal perspective: In cases of complaints against the killing of civilians, complicated questions may arise regarding the interpretation of the principles of complementarity and proportionality.
According to the principle of complementarity, the court will not hear the case if the relevant country has carried out a genuine investigation of its own. Israel may claim that it has done so.
According to the principle of proportionality, if civilians were killed during an attack on a legitimate military target, it is a crime only if the killing of the civilians was not proportional to the anticipated military advantage. Israel may claim it meets that principle.
As far as the settlements are concerned, the principle of complementarity is not relevant, and no questions of proportionality can be raised. Incidentally, Israel’s High Court of Justice has never ruled on the question of the settlements’ legality.
The Levy Committee’s report on the outposts’ legality, which was published in July 2012, stated that if there were any truth to the approach that the territories were occupied according to the definitions of international law, and the Geneva Convention’s provisions forbidding the settlements applied to them, the committee would have to rule that it could recommend no way to legalize the status of the outposts. Rather, the committee would have to recommend that the outposts be removed.
Instead, the committee chose to rule that Israel was not a “military occupier” of the territories at all. The government was hesitant to adopt this conclusion, which would have been tantamount to defying the entire world, and has maintained its stance that the territories were occupied for some purposes, while arguing that the prohibition against settlements did not apply. Even as far back as 1967, Israel had sought to gain the authority over the territories that an army has over occupied territory, while denying the prohibition of building settlements on such territory.
The recent idea to partially adopt the Levy Committee’s report – legalizing the outposts, without stating that there is no occupation – will only make Israel’s position seem that much more absurd.
From the conclusion that there is no occupation, it must follow that the settlements are indeed illegal under international law.
It will take many stages, together with legal and political decisions, for the International Criminal Court to find Israeli leaders guilty of this crime, and there are many reasons to believe that the political circumstances will keep that from happening. The Palestinians may also not be interested in recognizing the court’s authority for fear that they, too, will be accused of war crimes against Israel, such as firing rockets at civilians.
On the other hand, Israel’s isolation to the point where only nine countries out of the UN’s 193 member states voted in its favor last week shows this scenario is now far from being science fiction.