[Adv. Ido Rosenzweig is the chairman of ALMA –Association for the Promotion of International Humanitarian Law; Director of Research – Terror, Belligerency and Cyber at the Minerva Center for the Rule of Law under Extreme Conditions in the University of Haifa; and a PhD candidate at the Hebrew University of Jerusalem.]
Recently the Palestinians submitted (for the second time) a declaration accepting the jurisdiction of the International Criminal Court (ICC) in accordance with article 12(3) of the Rome Statute, thus providing jurisdiction to the International Criminal Court over their territory starting with June 13th, 2014. This was conducted alongside the Palestinian accession to the Rome Statute. That act was described as a political storm, a very aggressive and game changing move by the Palestinians who decided to throw their most important card into the game. That move gave rise to many different questions about its legality and the possible legal and political implications for Israel. In this short comment I address some of these issues and provide my own point of view on them.
What’s at stake here? Currently the ICC has jurisdiction over three types of crimes – war crimes, crimes against humanity, and genocide. It could be argued that with regard to most crime allegations Israel will have the option of raising the complementarity argument in accordance with article (article 17(1)(a) of the Rome Statute). Israel will most likely base her complementarity argument on the outcomes of the 2nd Turkel Report and the ongoing investigation process. However, even if the Israeli complementarity claim stands, there’s still one issue which complementarity won’t resolve, and that’s the settlements.
Where’s the problem? The wording of article 8(2)(b)(viii) goes:
“The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;”
There’s a legitimate argument claiming that the settlements and more precisely, the government’s support of the settlements and the transfer of people from Israel to the West Bank, are strictly prohibited and amount to war crimes under the Rome Statute article (“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”). Moreover, since the Israeli High Court of Justice ruled that the Israeli policy regarding the settlements is not justiciable (for example see HCJ 4481/91 Bargil v. GoI), it seems that in this case Israel could be considered as “unwilling and unable” to exercise its jurisdiction with regard to the settlements (or some aspects of that policy).
Will the ICC investigate the Settlements? This question brings us to the other barriers of the ICC admissibility (besides complementarity). The first barrier is gravity (article 17(1)(d)) – the ICC will only deal with severe violations. The interpretations assigned to the population transfer prohibition vary in such way that some from a prohibition to forcibly deport local population into occupied territory, which probably doesn’t include the Israeli settlements in the West Bank, to other interpretations which could include the situation of the settlements.
Another barrier is the territorial jurisdiction of the Palestinians over the settlements. In their recent 12(3) declaration, the Palestinians provided jurisdiction to the court over “the Occupied Palestinian territory, including East Jerusalem“. However, it’s not legally clear over what territory the Palestinian are allowed to provide jurisdiction to the ICC. This is due to the fact that there’s no clear decision or ruling about what constitutes the territory of the Palestinians. In fact, the November 29th, 2012 General Assembly’s resolution 67/19 clearly stated that the issues of the Palestine refugees, Jerusalem, settlements, borders, security and water need to be resolved via negotiations. This can lead to three very important conclusions – (a) It is unclear if the territory where the settlements are located is under Palestinian jurisdiction and therefore if such jurisdiction can be granted to the ICC; and (b) since the very same resolution provided the Palestinians with the upgraded status also left the resolution of borders and settlements to negotiations, it is unclear if the ICC would be allowed to resolve such sensitive political questions through criminal procedures; (c) finally, it can also be argued that by leaving the settlements issue to negotiations, the international community doesn’t regard the transfer of population as a severe act which meets the gravity threshold that was mentioned above.
What’s next? This is where things get even more complicated. Since the questions of the borders and territory are important, they need to be resolved somehow. In my view there are (at least) six potential and interesting ways for these questions to be resolved:
- Another General Assembly resolution clarifying the situation and thus changing the requirement for negotiations in order to resolve those issues. I think that if the Palestinians were able to achieve that in the first place they would have done so. Therefore it seems that there won’t be a majority in the General Assembly for such a resolution.
- Security Council resolution on this issue. This is the most farfetched option, as it was the refusal of the Security Council to adopt a relevant resolution that led to the Palestinian Accession to begin with.
- Decision of the ICC with regard to its jurisdiction. While this could be the main road in this context – letting the ICC prosecutor and after that the Judges, decide on the Court’s jurisdiction, it’s a well known fact that the ICC doesn’t operate rapidly and I believe that the Palestinians won’t be willing to sit down and wait until the ICC issues a decision on that topic.
- Advisory opinion of the International Court of Justice (ICJ) is probably the Palestinian’s next move. While it’s not a “win-win” situation for the Palestinians as the ICJ might decide against their claim for jurisdiction over the settlements’ territory, it is definitely a “win-no lose” situation where they can gain with a decision in their favor or remain in the same situation as they are now if the ICJ rules against their claim for jurisdiction.
- The Human Rights Committee, the professional body charged with the implementation and interpretation of the International Covenant on Civil and Political Rights which the Palestinians joined in their first round of ratification of treaties. When the Palestinians come before the committee, one of the decisions the committee will have to make will relate to the treaty’s territorial applicability, and to that end, the committee will have to decide whether Palestinian territory includes the settlements. I doubt that the professional committee will desire to deal with such a hot political and diplomat potato, and anyway, such a review is not scheduled for the upcoming year.
- Lastly, as was suggested here by my good friend and colleague, Sigall Horovitz, Israel has also the option of joining to the Rome Statute and submitting a declaration under article 124 with an attempt to gain a delay of seven years with regard to the ICC’s jurisdiction over any allegation of war crimes committed by Israel.
It seems that the already complicated Israeli-Palestinian situation just got more complicated, and while it’s unclear what the outcome will be, I’m just not sure that outcome of the Palestinian move was as aggressive as it seemed at first glance. The question of the settlements is obviously broader than the discussion presented above, and in this short comment I presented my thoughts on one specific aspect related to them following the recent developments.