03 Mar How Israel Can (Lawfully) Avoid an ICC Investigation into the West Bank Settlements
[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.