Are Israel and Turkey’s Settlements Comparable?

by Kevin Jon Heller

Eugene Kontorovich argues today at Volokh Conspiracy that Israel could minimize the likelihood of an ICC investigation into its transfer of Israeli civilians into the West Bank by emphasizing Turkey’s similar transfer of Turkish civilians into Northern Cyprus, which it has been illegally occupying for more than four decades.  Here are the key paragraphs:

Cyprus was a state with clear borders when Turkey invaded in 1974, and is a charter member of the ICC. If anyone should be loosing sleep over settlements suits in the ICC, it would be Turkey. Interestingly, no one has suggested in the past decade that Cyprus’s ICC membership would scare the Turks out of N. Cyprus, or get the Turks to agree to a peace deal). But a referral by Cyprus would not face the various thorny temporality and territoriality issues of a Palestinian complaint. Moreover, Cyprus is a particularly gross case of changing the demographics of occupied territory through settlement, with settlers now outnumbering protected persons n the territory.

Apart from the manifest hypocrisy, what should be disappointing for believers in international humanitarian law is the failure of anyone to call Abbas (or Erdogan) on it. I am not aware of any news, NGO, or governmental response pointing out the unseemliness of Abbas invoking the ICC from Ankara.

[snip]

Discussions of a potential ICC referral often focus on potential liability by Palestinians as a factor that would dissuade them (or the Court) from proceeding. But Israel’s best bet for heading off such a suit would be to make clear the implications for other non-member states that would clearly be on the settlement hook: Turkey and Russia.

For the record, I think it quite unlikely that the ICC will indict Israeli leaders over settlements, but I’d bet the farm it wouldn’t indict Israel and Turkish leaders in this decade. Indeed, if I were the Israeli government, I’d spend less time preparing an ICC defense that working up a Cypriot case against Turkey, as a favor to its new bestie.

With respect to Eugene, this is a terrible suggestion for Israel.  I have no sympathy for Turkey’s occupation of Cyprus, and Eugene correctly points out that an ICC prosecution of Turkish officials would face no territorial-jurisdiction problem.  But he seriously underestimates the issue of the Court’s temporal jurisdiction.  Indeed, when we take into account the fact that the ICC can only prosecute acts committed after 1 July 2002 — the day the Rome Statute entered into force — it seems clear that the case against Israel is vastly stronger than the case against Turkey.

Two points of comparison are relevant.  The first concerns the sheer number of immigrants. Although statistics are not easy to come by for Cyprus, a comprehensive 2006 study suggests that the overwhelming majority of the Turks in Cyprus arrived there between 1974 and 1979 — and that the number of immigrants in the past decade has been relatively small, likely in the thousands.  Contrast that with Israeli immigration: the number of Jewish settlers living in the West Bank in 2002 was around 214,000; there are more than 350,000 living there today — an increase of approximately 136,000 civilians.

Numbers, however, do not tell the whole story.  The mere fact of settlement in occupied territory is not a war crime; the actus reus of the crime is “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.”  Article 8(2)(b)(viii) thus targets state officials whose actions facilitate the transfer of civilians into occupied territory; it does not target the settlers themselves.  That is a critical distinction when we try to compare Turkey and Israel, because the Israeli government has much more actively facilitated the transfer of civilians since 2002 than the Turkish government.  Here is what the 2006 report says about immigration to Cyprus:

The significance of demography in Cyprus changed after 1974 not only because of this ethnic homogenization of the two states, but also because of an influx of immigrants from Turkey. In addition to the displacement of Cypriots, Turkey and the Turkish Cypriot administration initially facilitated and encouraged an immigration of Turkish nationals from Turkey following the war. This policy was designed to bolster the Turkish population and to create a viable economy independent of Greek Cypriots.  Immigrants who were part of this policy received empty Greek Cypriot properties and citizenship in the Turkish Cypriot state almost upon arrival. This facilitated migration ended by the late 1970’s, and international pressure and internal opposition to the policy led to the amendment of the law that eliminated property privileges for the other immigrants who arrived after 1982. Immigration had by this time declined, and the number of immigrants acquiring citizenship significantly dropped. A further amendment of the citizenship law in 1993 restricted citizenship rights to persons who had been resident on the island for at least five years. Although immigration from Turkey continued on a smaller scale, these later immigrants who arrived in the island did so of their own initiative as they sought a better future there. In contrast to the first wave of migrants who were brought to the island as part of state policy, the factors determining the later wave fit other global patterns of economic migration, and those later immigrants received no special treatment or privileges from the state.

I don’t want to push this argument too strongly; there may well be other Turkish policies that would qualify as indirect transfer both pre- and post-2006, when the report was written.  But there is no question that the Israeli government has much more actively facilitated the transfer of its civilians into the West Bank since 2002 — and that Israel intends to continue to facilitate that transfer for the indefinite future.

Statehood issues aside, in short, a rational prosecutor would find Israel’s violation of Article 8(2)(b)(viii) to be far more serious — and far easier to prove — than Turkey’s.  The number of Israeli civilians transferred since 2002 is much greater, and Israel’s facilitation of that transfer since 2002 is much more significant.

Like Eugene, I’m skeptical that the ICC will ever prosecute an Israeli official for the war crime of illegal transfer.  But the last thing the Israeli government should do, if it wants to avoid an investigation, is “work up a Cypriot case against Turkey.”  That case would simply foreground how much stronger the case against Israel really is.

http://opiniojuris.org/2013/01/06/are-israel-and-turkeys-colonizations-comparable/

8 Responses

  1. I was in Cyprus in 2000 for an International Law Conference. The pain over the Turkish Occupation is visceral. Eugene trying to use Cyprus pain to help us ignore Palestinian pain is grotesque and far too cavalier for deadly serious matters. I asked my taxi driver about the Green Line and he was a man who had lost all in the North when the Turks came in. My question so upset him that he had to stop the car and have his son come and pick us up and drive us to the hotel. We feared the father was having a heart attack. How insensitive to Cyprus and Palestinian pain. There is a great deal of pain in that region and snarky posts about it are demeaning to all of the people and the seriousness and difficulty of these matters.

  2. Pain over occupation should not be relative to this or that presumption of insensivity.  Many Jews consider the occupation of Judea and Samaria by the Hashemite regime in 1948 and its illegal annexation in 1950 – in addition to the results of the 1947-48 hostilities which came about because the Arabs states and the Arab community in the Palestine Mandate rejected the territorial compromise proposal (yet another partition of the Jewish National Home after the 1922 truncation of the area to facilitate a new home for a Saudi Arabian refugee who was intent upon fomenting violence to assist his brother dislodged from the throne in Damascus, the 1937 partition plan and the 1939 one) which were the final ethnic cleansing of Jews from all Arab-held areas to be very painful, historically unjust as well as illegal.
    That the revival of Jewish communities in those areas, gained in a war of defense in 1967 following Arab aggressive moves, should be considered somehow illegal and we residents as part, passive as KJ Heller makes clear, of a “war crime” when all we are doing is not transfer (or being tranferred) but recreating the life that was in those areas for many centuries, even prior to the Arab illegal conquest and occupation in 638 CE, is not only an insenstive position to hold and advance but, I would suggest immoral and untenable.
    The 19 years between 1948 and 1967 were the only time in some 3000 years when Jews were totally banned and excluded from that area although in early periods temporary prohibiition by foreign occupiers were in effect in various locations, off and on, to be hiostoricall accurate.   In fact, in was only under the Mandate regime of 1922-1948 that the local Arabs, some recent immigrants themselves, managed to destroy permanently (well, until 1967) Jewish life in Gaza, Shchem [Nablus], Jenin, Hebron among other locations.  How ironic for a situation whereby the League of Nations decided to “reconstitute the Jewish nation home” in those areas (after all, they were west of the Jordan River; what was excluded from the Mandate was east of the river) and the Mandate was to “facilitate close Jewish settlement on state and waste lands” (Article 6).  KJH suggests that Israeli officials who have been doing that, facilitating the movement of Jews into Judea and Samaria, and previously, Gaza, are somehow war criminals.  Odd and illogical to me and not only insensitive.

  3. Art. 8 “does not target the settlers”?  Well, without addressing the alleged responsibility of a direct perpetrator, what about accomplice liability under Art. 25(3)(c) when they intentionally engaged in conduct and knew or were aware that that conduct can or will facilitate the conduct of a direct perpetrator?
    And what about JCE responsiiblity of the various types?

  4. Yisrael, your comment confirms my point, to wit:  “There is a great deal of pain in that region and snarky posts about it are demeaning to all of the people and the seriousness and difficulty of these matters.” Eugene’s approach was grotesque if one knows even a little about the Cyprus situation.
    Best,
    Ben

  5. Wow,
    I have failed to visit my beloved OJ for a few days due to paramount workload and issue comes to Turkey and Cyprus and Israel.
    Firstly, please allow me to stress the fact that the ignorance of learned lawyers as regards the conditions before and after 1974 Turkish invasion is not surprising at all, for you guys are all just too selective in your western-biased perceptions. (surprise, surprise fellas, Turkey is a staunch ally of the west, especially of Obama Administration)
    Please, just google “Akritas Plan” and maybe we may talk about the reasons of the Turkish operation on the island, which is, as far as I am concerned humanitarian in essence and legally justified (sanctioned by the treaties establishing the Cyprus state and its regime ).
    This is how the occupation had started.
    As regards the regime of occupation, why should one occupation be worse than the other? I mean, I congratulate Prof. Kantorowicz, for introducing completely new and utterly fallacious methods to PIL so that we may calculate who is more evil in his/her actions! But there is no such a yardstick as he poorly tries to introduce. How could someone brilliant like Prof. K fall that apart from sound legal methodology?
    Lastly, please allow me to reiterate that it was the southern Greek part that denied a reunion of the Cypriot-halves (as foreseen by the so-called Annan plan) in a referendum!
    Turks agreed, in that referendum, to start living together with the Greeks of the island and gave a 75% yes vote, whereas Greeks turned down a huge opportunity by voting “oxi” (=i.e. no)
    Now, who is the villain? Why did that taxi driver and the like choose not to go back to their beloved homes in the north?
    The one-sided presentation of the facts by Kantorowicz and (sadly) by Benjamin Davis makes me feel like I am reading a Tolkien book, where categorically-evil orcs are slaughtering innocent elves and hobbits!
    Cyprus is a complicated issue that should be handled by the real experts, who spend real time and effort on this problem in a methodologically sound and objective fashion, needless to say!
    Best Regards
    Gokhan

  6. Kantorowicz = Kontorovich.
    apologies for this typo…

  7. Thanks Gokhan – unfortunately, what I wrote was not about fictional creatures but about a real man and his expression of his painful loss. Maybe difficult to address and complicated (I agree) but real nevertheless.
    Best,
    Ben

  8. Response… I agree with Jordan. Many of the so-called settlers are really Israeli state officials on the scene who are directly responsible for directing and facilitating the population transfers in question or perpetrating the dislocation of the Palestinian population and the creeping expropriation or destruction of Palestinian property.
     
    That would certainly apply to the acts of the regional IDF Commanders and members of the military courts, the Mayor of Jerusalem, and the members of the Regional Councils for the Occupied territories: Gush Etzion, Har Hebron, Bik’at HaYarden, Mateh Binyamin, Megilot, Shomron, & etc.
     
    Raphel Lemkin felt that penal responsibility for assisting the occupying power in acts of dispossession could not be excluded in cases of colonists who had not been moved into the territory against their will. See the discussion under the heading “The Problem of the Colonists” in Axis Rule in Occupied Europe/

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