The Difference Between Art. 49(6) of GC IV and Art. 8(2)(b)(viii) of the RS

by Kevin Jon Heller

I have no desire to get into an argument with Eugene Kontorovich about the ostensibly “landmark” decision of a French intermediate court — especially because, like him, I am far from fluent in French and the decision strikes me as quite legally complicated. But it is important to push back against claims like these (emphasis mine):

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

There are two significant problems here. First, despite emphasizing war crimes, Eugene’s post focuses solely on the Fourth Geneva Convention’s prohibition on the transfer of civilians into occupied territory; it simply ignores the Rome Statute’s very different war crime of direct or indirect transfer. Here is Art. 49(6) of GC IV (emphasis mine):

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

And here is Article 8(2)(b)(viii) of the Rome Statute (emphasis mine):

(viii)     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.

To begin with, it’s worth noting that it is anything but self-evident that Art. 49(6) requires “actually organizing and moving population en masse (compare to individual transfers in 49.1),” as Eugene claims in the comments to his post. His analogy to the Nazis’ colonization of Poland and Ukraine — in which civilians “weren’t merely encouraged, but rounded up” — is misplaced, because unlike Art. 49(1), Art. 49(6) does not require the transfer of civilians to be forcible. Moreover, the war crime in question — Art. 8(2)(b)(viii) — even more clearly does not require “actually organizing and moving population en masse,” because it prohibits both direct and indirect transfer. Art. 8(2)(b)(viii) thus prohibits a much broader range of actions than Art. 46(1). And, of course, a violation of Art. 8(2)(b)(viii), unlike a violation of Art. 49(6), gives rise to individual criminal responsibility.

The second significant problem with Eugene’s post is that, in fact, the French intermediate court’s decision appears to say nothing at all about whether settlement activities qualify as war crimes. Given my French, I am loathe to conclude unequivocally that it does not. But the decision does not mention either the Statut de Rome or Art. 8(2)(b)(viii), nor does it mention crimes de guerre (war crimes) or transfert… indirect (indirect transfer) — two obviously critical expressions in the French version of the Rome Statute.

The French intermediate court’s decision may well be a landmark concerning corporate responsibility; I’m sure Eugene will tell us in his next post. But I think it is to safe to say that the decision tells us little, if anything, about whether Israel’s settlement activities qualify as the war crime of direct or indirect transfer of civilians into occupied territory.

Note: I have restructured the post for clarity.

9 Responses

  1. Conveniently, the court lists the legal sources relied on for the law of occupation, etc., on p. 20 of the judgment, and the Rome Statute is not among them:

    Il est invoqué, qu’en l’espèce, il y a violation des articles 49-6 et 53 de la Convention de Genève, des articles 23, 27 et 46 du Règlement annexé à la IVème Convention de La Haye de 1907, de l’article 4 de la Convention de La Haye du 14 mai 1954, de l’article 27 du règlement de La Haye de 1907, de l’article 5 de la Convention IX de la Haye de 1907 et de l’article 53 du protocole additionnel n° 1 aux Conventions de Genève. 

  2. Please excuse my ignorance, but it appears that this is a landmark decision in the context of Israel’s responsibility for alleged violations of international law due to the activities of Jewish communities beyond the Green Line.

    It would be hard to contest such activities would constitute war crimes under the Rome Statute. After all, a treaty is to be interpreted inter alia in light of its context (VCLT, art. 31(1)). Considering Article 8(2)(b) was drafted in the Rome Statute in its current form due to the insistence of certain anti-Israel States for the purposes of delegitimising Jewish communities beyond the Green Line, any alternative interpretation would fail to conform to this context. However, as far as Israel is concerned and as long as the PA doesn’t accept jurisdiction of the ICC while being recognised as a State (assuming the entire West Bank would be part of that State), the relevant source for determining the legality of the Jewish Communities would be the regime created by the Fourth Geneva Convention and the Hague Regulations. This is why this case is in some respects very significant.

  3. Kevin: good points, and the significant value of the Rome Statute’s provision in this regard is that when 160 states met in Rome to formulate this provision it was presumably meant to reflect customary international law and represents, at least, opinio juris of some 160 states.  This has important implications with respect to the Israeli claim that although HC No. IV and the C.I.L. reflected therein apply to the West Bank occupation, GC IV, as treaty law, does not because of a technical argument re: the text of art. 2 —  a position that no other state, nor the ICCR, seem to accept.
    It is also important to recall the the IMT at Nuremberg applied that laws of war reflected in HC IV as C.I.L. without the participation clause-limitation regarding the treaty as such.  By analogy, whether or not the Israeli claim about a technical limitation in common art. 2 has traction, the customary law of war reflected in GC art. 49, and now in the Rome Statute, has no such limitation.

  4. It seems to be slightly extreme to argue that Article 8(2)(b)(viii) of the Rome Statute would apply to Israel under customary international law. First, as noted in the North Sea Continental Shelf case, the practise and opinio juris of the most affected States is crucial important for the development of a customary norm. Considering Israel would be the most affected State by such a norm, it seems very unlikely a norm contrary to its practise and opinio juris exists in this instance.
    In any event, even if a custom did exist in this regard, Israel would certainly be considered a persistent objector.
    Consequently, the Geneva Convention and Hague Regulation regime is the appropriate one for the examination of the legality of the Jewish communities beyond the Green Line.

  5. international custom, as evidence by state practice towards Turkey, Morocco, Russia, Indonesia, Vietnam, Syria, Aremenia, etc, strongly cuts against treating the “indirect” norm as customary.
    Moreover, the way the language of the Statute was proposed suggests it was “progressive development” rather than reflection of preexisting custom.

  6. Nigel: our casebook International Law and Litigation in the U.S. (West, 3 ed. 2009) notes that the persistent objector claim lacks support in general patterns of practice and general patterns of opinio juris.  We know of no case that was decided on the basis of such a claim,a lthough dicta appears in a few cases.
    Eugene: the preamble to the Rome Statute contains no such phrase and, instead, notes affirmations, determinations, and recollections with respect to “crimes” and responsibilities that exist, etc. Article 5 speaks of “crimes of concern to the international community as a whole,” which, of course, would be crimes under customary international law over which there is universal jurisdiction among states.

  7. It is true that the principle of a persistent objector has not been applied directly in a case. However, this does not discredit its existence (similar to how the plea of necessity was not accepted for many years, and even in recent years when it has been accepted – vis-a-vis Argentina – it has either been overruled or not followed).
    In any event, this principle has been recognised obiter dicta by important tribunals, including the ICJ and by the IACtHR. It is also recognised in the Third Restatement of the Foreign Relations Law of the U.S.
    It emanates from the basic principle stated by the PCIJ in the Lotus case (1927), that “[i]nternational law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will”.

  8. Nigel: rare dicta indeed and the dictum in SS Lotus, if true (it is not, since consent is not the same as expectations that something is legally appropriate or required, i.e., opinio — and even with respect to treaties, what drives interpretation is “ordinary meaning,” not consent as such) it would mean that a state could op out of C.I.L. at any time in the future. 
    Recall that allies of Germany had persistently refused to ratify HC No. IV but at the IMT at Nuremberg, their nationals were bound by the C.I.L. reflected in the treaty once it became C.I.L. by 1939.  Persistent refusal did not create immunity from the reach of universal law.

  9. I have not read the judgment but I agree with the point made by Kevin emphasizing the difference between Art. 49(6) GC IV and Art. 8(2)(b)(viii). The latter encompasses both direct and indirect transfer of the population and the massive investments in the OPT by Israel by way of infrastructure  and benefits given to the settlers surely comes within the scope of the Article. In this respect it needs to be emphasized that Nigel’s comments – that the Article was promoted by states hostile to Israel – in fact reinforces the conclusion that the Article indeed applies to the Jewish Settlements.
    Be it as it may, the issue of whether the Jewish settlements are contrary to Article 49(6) has already been(correctly) decided by the ICJ in its advisory opinion from 2004 and I find it very strange that a French Court would rule to the contrary. Furthermore, I find it odd that those reopening the debate (as in this post and as in the poorly drafted Levi Report) neglect to mention the ICJ decision…

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