Are Israel and Turkey’s Settlements Comparable?

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.