How Israel Can (Lawfully) Avoid an ICC Investigation into the West Bank Settlements

by Sigall Horovitz

[Sigall Horovitz is a PhD candidate, teaching fellow and Transitional Justice Project Manager at the Hebrew University of Jerusalem, and a member of ALMA – the Association for the Promotion of IHL. A longer version of this op-ed appears on the website of the Israeli Democracy Institute (in Hebrew).]

The Palestinians have threatened to complain to the International Criminal Court (ICC) about Israel’s settlement activities in the occupied Palestinian territories. Indeed, the transfer of population by an occupying power to occupied territory is a war crime under the Rome Statute of the ICC. Accordingly, assuming that the ICC determines activities in the territory of the Palestinian Authority to be within its jurisdiction, a Palestinian request may entail an ICC investigation into Israeli settlement activities (whether or not Israel accepts the ICC’s jurisdiction). The ICC could also investigate other violations committed on Palestinian territory (by Israelis or Palestinian), such as indiscriminate attacks or unlawful arrests. But the ICC could be precluded from investigating most allegations against Israelis under the principle of complementarity, as Israel would likely investigate these allegations herself. Settlement activities, by contrast, would probably not be investigated domestically as Israel does not consider them to violate any law (and, in fact, they are state policy). However, there might be another way for Israel to prevent an ICC investigation into the settlements, which, ironically, would require her to join the Rome Statute: submitting a declaration under Article 124 of the Statute.

Rome Statute Article 124 is a “transitional provision” (as suggested by its title) which was slated for removal seven years after the entry into force of the Statute, but was eventually left intact. It allows a state that joins the Statute to “declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to [war crimes] alleged to have been committed by its nationals or on its territory”. Article 124 is silent on
whether one state’s declaration (in this case Israel) could limit the ICC’s jurisdiction accepted by another state (in this case Palestine). In light of the purpose of the Statute, namely, to punish and prevent international crimes, it could be argued that an Article 124 declaration can only limit the jurisdiction which the declaring state has accepted by joining the Rome Statute. However, the drafters of the Statute seem to have intended otherwise. During the negotiations on the Rome Statute, France and other states insisted that the ICC’s jurisdiction be conditional on the
approval of the suspect’s state of nationality (at least in cases of crimes against humanity and war crimes and unless the UN Security Council refers the situation to the ICC). These states sought to prevent a situation where their nationals who are serving abroad would be subject to ICC proceedings triggered by the host state. Other states opposed such a serious limitation on the ICC’s jurisdiction and proposed alternatives. Article 124 was adopted as a compromise. If this provision is understood as an attempt to satisfy the French position, it must be construed as allowing the suspect’s state of nationality (in this case Israel) to block the ICC’s jurisdiction over war crimes which was accepted by the state on the territory of which the crimes were committed (in this case Palestine) and vice versa (i.e. it would permit the territorial state to block the ICC’s jurisdiction which was accepted by the suspect’s state of nationality). This is indeed the most widely accepted interpretation of Article 124.

In light of the above, it seems that an Israeli declaration under Article 124 could bar the ICC from investigating alleged war crimes committed by Israelis in the Palestinian territories for a seven-year period (starting from the moment the Rome Statute enters into force for Israel). During these seven years, Israel could resolve the settlements issue through negotiations with the Palestinians. If negotiations fail, Israel’s best way to avoid ICC proceedings would be to investigate the allegations through her existing judicial mechanisms or a transitional justice mechanism adopted for this purpose (assuming that alternative justice means could meet the ICC’s complementarity requirements). As suggested above, Israel could domestically investigate the allegations today and trump the ICC’s jurisdiction without having to join the Rome Statute. But it would take time for Israel to adopt (and find ways to enforce) a policy that outlaws settlement activities. Israel could buy this time by joining the Statute and submitting an Article 124 declaration. By joining the Rome Statute, Israel would gain seven years to find ways to achieve long term justice (whether through negotiations or national adjudication). By not joining the Statute, Israel can find herself investigated by the ICC in the short term.

http://opiniojuris.org/2013/03/03/how-israel-can-lawfully-avoid-an-icc-investigation-into-the-west-bank-settlements/

13 Responses

  1. I wonder if this maneuver can be done every seven years? I.e, join and file a declaration, withdraw after six years, repeat.
    Many argue that “deportation or transfer” is a continuing crime (I disagree, but I think the view is widespread). By this logic, the declaration will not help unless Israel dismantles all the settlements in seven years, which is even less likely than the ICC taking jurisdiction.
    Also, I’m wondering why Turkey and Russia haven’t thought of this. 

  2. Thanks for the interesting questions, Eugene. There is nothing in Article 124 preventing the maneuver you describe. However, it can be argued that when a state joins the Rome Statute and files an Article 124 declaration, it undertakes to submit itself to full ICC jurisdiction after a transitional period of up to seven years (during which the state “opts out” from ICC jurisdiction over war crimes). Since withdrawing from the Rome Statute does not exempt the state concerned from the obligations it undertook when it joined the Statute (see Article 127.2 of the Statute), it is reasonable to assume that the maneuver you describe will not be permitted. This is also consistent with the drafters’ intent, since the compromise reached between the French position and the opposing states was to restrict the “opting out” power of state parties to apply exclusively to war crimes and for a limited time only. Turning to your next remark, even if “transfer” is not a continuing crime as such, in practice, since the settlements have to be maintained by the government in order to merely exist, those maintenance activities can be regarded as “new” acts of transfer. This is especially because new Israeli citizens become residents of settlements on an ongoing basis, either by being born there or moving there from Israel (anyone from Tel Aviv can buy a flat in the settlements and move there, and in fact is encouraged to do so by the significantly lower property prices in the settlements). What indeed follows from this is that Israel should dismantle all settlement activity within seven years of joining the ICC (assuming it filed an Article 124 declaration), unless it reaches an agreement with the Palestinian Authority that certain areas within the occupied Palestinian territories become part of Israel (Israel would still need to dismantles all settlement activity outside those areas). I believe the issue of Turkey has already been discussed on this blog. 

  3. Eugene,

    I would add that the original US proposal for Art. 124, which was for 10 years, specifically permitted renewal. The absence of renewal in the final text of Art. 124 — the US proposal was poorly received by states outside the P-5 — suggests that the opt-out was designed to be a one-time affair (to encourage ratification).

  4. Sigal, you should probably describe your proposal as “Israel should evacuate all settlements including Jerusalem neighborhoods within seven years to avoid ICC investigation,” since that is surely the biggest and most salient part of the proposal. Compared to that, joining the ICC – with or without an Art. 124 declaration – is a detail. 
    As an aside, counting being born as “transfer” seems to really stretch that word past any recognition. Moreover, international efforts to deal with settlers elsewhere have generally treated their children differently.

  5. Why should one limit the application of this interpretation to settlements activity? This is a great idea in general. If you are in a middle of a conflict with a state member and you don’t want the ICC on your back just ratify the convention and make a 124 declaration. Then you could torture the prisoners of the other state free of any ICC risks! Perhaps you can’t repeat that trick once again but still it is a worthwhile idea!

  6. In light even of the context in which you are presenting it – decades upon decades of ongoing violations, and the attempt by Israel to continue to evade accountability – seems like a pretty blatant attempt to evade the rule of law, frustrate the purpose of the Rome Statute and allow for the continuing commission of war crimes and crimes against humanity. In so far as you are posting to note that this might be attempted, very interesting, but otherwise I agree with Yaniv, pretty reprehensible stuff.

  7. It’s important to note that Art. 124 only allows a state to opt-out of war crimes; it cannot opt out of crimes against humanity. The reason the tactic would “work” for Israel with regard to settlements is that the transfer of the civilian population into occupied territory is the former but not the latter.

  8. Re: The reason the tactic would “work” for Israel with regard to settlements .  .  .
     
    I think the establishment and maintenance of Jewish only settlements can still be addressed under Article 7. 
     
    I don’t think there’s any question that Israel deports Palestinians from East Jerusalem and that it forcibly transfers Palestinians to prisons in Israel.
     
    The CERD observations have long-since identified the establishment of Jewish-only settlements and the restrictions on freedom of movement, & etc. as concerns under Article 3 of the ICERD. Nothing prevents the Prosecutor from investigating targeted killings, the crime of apartheid, deportations, persecution, or other crimes against humanity listed in Article 7.   

  9. Hostage,

    You are absolutely right. I was simply addressing the transfer into occupied territory issue.

  10. Re Kevin: I was simply addressing the transfer into occupied territory issue.
     
    Yes of course, I understood that. I was just pointing out to some of the others that the methods, policies, and practices used in “maintaining” decades-old Jewish-only settlements for Israeli citizens (regardless of where they were born) could still be considered prosecutable offenses, even if the associated war crimes listed in Article 8 are not. 

  11. Yaniv and Chris – You both seemed to have missed the crux of my argument that by joining the Rome Statute and filing an Article 124 declaration, “Israel would gain seven years to find ways to achieve long term justice…” (emphasis added). In other words, if Israel does not join the Statute, violations may continue beyond the seven year mark (even if the ICC investigates Israel’s conduct in the occupied Palestinian territories, we can expect years of jurisdiction and admissibility proceedings before the ICC prior to the commencement of an actual trial, during which violations could continue). Thus, joining the Statute and filing an Article 124 declaration, would mean that Israel could continue perpetrating crimes for only seven more years rather than for a much longer period.
    Eugene - The issue of Israel joining the Rome Statute is not merely “a detail”, but the op-od deals with the merits of joining the Rome Statute with an Article 124 declaration. Israel would benefit in many other ways from joining the Rome Statute, but discussing them was outside the scope of my op-ed. For example, as a State Party to the Rome Statute, Israel could propose amendments to the Statute, refer crimes from all over the world to the ICC, and suggest candidates for senior ICC positions. In addition, by joining the Rome Statute, Israel would grant the ICC jurisdiction to investigate and prosecute international crimes committed in Israel but which Israel is unable to investigate due to her inability to apprehend the perpetrators (e.g. rockets fired fromGazaintoIsrael against Israeli civilians). Moreover, joining the Rome Statute would send a clear message (domestically and internationally) that Israel is a rule of law and peace-loving nation. This would both improve Israel’s international image and legitimacy, and make us Israelis proud to belong to Israel.  
    By the way, being born in the settlements could be followed by moving out of your parents’ home at one stage but still wanting to live close by, which would require the construction of additional houses in the same settlement (and indeed, lately, new settlements have not been created by Israel but existing ones are being expanded).
     

  12. It would appear that the subsequent comments opposing Sigal’s theory (in this very interesting article) are actually correct since they fall in line with the drafting history of the Rome Statute.
    After all “[a] treaty shall be interpreted in good faith in accordance with… its object and purpose”. Considering that it was at the insistence of Arab States to include a provision which would directly prohibit Israeli “settlements”, an interpretation of the Rome Statute that would in any way help Israel would be very much opposed to its object and purpose: to impute Israel.
    Go figure

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