Guest Post: The Palestinian Accession to the Rome Statute and the Question of the Settlements

by Ido Rosenzweig

[Adv. Ido Rosenzweig is the chairman of ALMA –Association for the Promotion of International Humanitarian Law; Director of Research – Terror, Belligerency and Cyber at the Minerva Center for the Rule of Law under Extreme Conditions in the University of Haifa; and a PhD candidate at the Hebrew University of Jerusalem.]

Recently the Palestinians submitted (for the second time) a declaration accepting the jurisdiction of the International Criminal Court (ICC) in accordance with article 12(3) of the Rome Statute, thus providing jurisdiction to the International Criminal Court over their territory starting with June 13th, 2014. This was conducted alongside the Palestinian accession to the Rome Statute. That act was described as a political storm, a very aggressive and game changing move by the Palestinians who decided to throw their most important card into the game. That move gave rise to many different questions about its legality and the possible legal and political implications for Israel. In this short comment I address some of these issues and provide my own point of view on them.

What’s at stake here? Currently the ICC has jurisdiction over three types of crimes – war crimes, crimes against humanity, and genocide. It could be argued that with regard to most crime allegations Israel will have the option of raising the complementarity argument in accordance with article (article 17(1)(a) of the Rome Statute). Israel will most likely base her complementarity argument on the outcomes of the 2nd Turkel Report and the ongoing investigation process. However, even if the Israeli complementarity claim stands, there’s still one issue which complementarity won’t resolve, and that’s the settlements.

Where’s the problem? The wording of article 8(2)(b)(viii) goes:

“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;”

There’s a legitimate argument claiming that the settlements and more precisely, the government’s support of the settlements and the transfer of people from Israel to the West Bank, are strictly prohibited and amount to war crimes under the Rome Statute article (“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”). Moreover, since the Israeli High Court of Justice ruled that the Israeli policy regarding the settlements is not justiciable (for example see HCJ 4481/91 Bargil v. GoI), it seems that in this case Israel could be considered as “unwilling and unable” to exercise its jurisdiction with regard to the settlements (or some aspects of that policy).

Will the ICC investigate the Settlements? This question brings us to the other barriers of the ICC admissibility (besides complementarity). The first barrier is gravity (article 17(1)(d)) – the ICC will only deal with severe violations. The interpretations assigned to the population transfer prohibition vary in such way that some from a prohibition to forcibly deport local population into occupied territory, which probably doesn’t include the Israeli settlements in the West Bank, to other interpretations which could include the situation of the settlements.

Another barrier is the territorial jurisdiction of the Palestinians over the settlements. In their recent 12(3) declaration, the Palestinians provided jurisdiction to the court over “the Occupied Palestinian territory, including East Jerusalem“. However, it’s not legally clear over what territory the Palestinian are allowed to provide jurisdiction to the ICC. This is due to the fact that there’s no clear decision or ruling about what constitutes the territory of the Palestinians. In fact, the November 29th, 2012 General Assembly’s resolution 67/19 clearly stated that the issues of the Palestine refugees, Jerusalem, settlements, borders, security and water need to be resolved via negotiations. This can lead to three very important conclusions – (a) It is unclear if the territory where the settlements are located is under Palestinian jurisdiction and therefore if such jurisdiction can be granted to the ICC; and (b) since the very same resolution provided the Palestinians with the upgraded status also left the resolution of borders and settlements to negotiations, it is unclear if the ICC would be allowed to resolve such sensitive political questions through criminal procedures; (c) finally, it can also be argued that by leaving the settlements issue to negotiations, the international community doesn’t regard the transfer of population as a severe act which meets the gravity threshold that was mentioned above.

What’s next? This is where things get even more complicated. Since the questions of the borders and territory are important, they need to be resolved somehow. In my view there are (at least) six potential and interesting ways for these questions to be resolved:

  • Another General Assembly resolution clarifying the situation and thus changing the requirement for negotiations in order to resolve those issues. I think that if the Palestinians were able to achieve that in the first place they would have done so. Therefore it seems that there won’t be a majority in the General Assembly for such a resolution.
  • Security Council resolution on this issue. This is the most farfetched option, as it was the refusal of the Security Council to adopt a relevant resolution that led to the Palestinian Accession to begin with.
  • Decision of the ICC with regard to its jurisdiction. While this could be the main road in this context – letting the ICC prosecutor and after that the Judges, decide on the Court’s jurisdiction, it’s a well known fact that the ICC doesn’t operate rapidly and I believe that the Palestinians won’t be willing to sit down and wait until the ICC issues a decision on that topic.
  • Advisory opinion of the International Court of Justice (ICJ) is probably the Palestinian’s next move. While it’s not a “win-win” situation for the Palestinians as the ICJ might decide against their claim for jurisdiction over the settlements’ territory, it is definitely a “win-no lose” situation where they can gain with a decision in their favor or remain in the same situation as they are now if the ICJ rules against their claim for jurisdiction.
  • The Human Rights Committee, the professional body charged with the implementation and interpretation of the International Covenant on Civil and Political Rights which the Palestinians joined in their first round of ratification of treaties. When the Palestinians come before the committee, one of the decisions the committee will have to make will relate to the treaty’s territorial applicability, and to that end, the committee will have to decide whether Palestinian territory includes the settlements. I doubt that the professional committee will desire to deal with such a hot political and diplomat potato, and anyway, such a review is not scheduled for the upcoming year.
  • Lastly, as was suggested here by my good friend and colleague, Sigall Horovitz, Israel has also the option of joining to the Rome Statute and submitting a declaration under article 124 with an attempt to gain a delay of seven years with regard to the ICC’s jurisdiction over any allegation of war crimes committed by Israel.

It seems that the already complicated Israeli-Palestinian situation just got more complicated, and while it’s unclear what the outcome will be, I’m just not sure that outcome of the Palestinian move was as aggressive as it seemed at first glance. The question of the settlements is obviously broader than the discussion presented above, and in this short comment I presented my thoughts on one specific aspect related to them following the recent developments.

34 Responses

  1. The argument in point (c) is weak, to say the least. All of the war crimes in the Rome Statute are sufficiently grave to warrant their prosecution — that’s why they were included.

    As for point (b), while I have little doubt that the judges would not relish determining the borders of Palestine, they do not need “permission” to do so. The ICC is an independent international organization whose operation is governed by the Rome Statute — and only by the Rome Statute. Only a Security Council deferral resolution pursuant to Art. 16 could prevent the judges from addressing the border issue.

    If the OTP ever did open a formal investigation into Palestine that included settlements, I have little doubt it would avoid focusing on settlements that are in disputed territory. There is enough settlement activity in areas that are indisputably part of Palestine to found a prosecution. The judges could then avoid the legal quagmire by writing something like: “however contested the borders of the state of Palestine might be, there is no question that the settlements at issue in the present case are located within Palestine.”

  2. You seem to espouse a rather extremist view – you appear to claim that your nation’s settlements are “war crimes.”? disclose to the readers whether you served in your country’s military when you were drafted and if so did you personally witness any “Israeli war crimes”? Readers would be interested in your experiences. did you serve or did you obtain some deferment or exemption?

  3. T,

    I think your questions are inappropriate. Rosenzweig’s arguments stand or fall on their own merits; whether he served in the IDF or witnessed war crimes is irrelevant.

  4. To the contrary, they are most appropriate. The failure to serve might give rise to the inference that the proponent lacks objectivity and therefore his comments should be analyzed in this context and perhaps afforded less (or no) weight. Moreover, if he did serve and cannot point to war crimes arising from the settlements that would also undermine such claims.

  5. While I don’t argue that all war crimes are sufficiently grave to warrant their prosecution by the ICC – indeed that’s why they were included. However, under article 17(1)(d) the gravity of the case is also relevant for that matter.

    My claim in point (c) is that the OTP could take into account UNGA Resolution 67/19 as an indicator for the gravity question.

  6. T,

    The failure to serve could indicate lack of objectivity; serving could indicate lack of objectivity. So whether Rozensweig served is irrelevant, unless you can point to something specific in his service or failure to serve that would call into question his objectivity.

    Your second point makes no sense at all. No individual soldier is aware of all of the activities of the army in which he serves; you do not even know Rozensweig served in the West Bank. Moreover, the war crime he discusses is not one that is visible on the ground, in the settlements; it focuses on government policies far removed from the everyday lives of soldiers.

  7. Ido: I follow your very useful exposition up to your claim that “occupied territory” would have to be “under” Palestinian “jurisdiction” — “occupied territory” would be under PA “sovereignty” and within Palestinian territorial jurisdiction, but occupied territory would be controlled by the occupying power, in a sense under the occupying power’s enforcement jurisdiction.
    With respect to “gravity” (which should elsewise be considered in context), I note that GC 49 prohibits individual or mass forcible transfers or deportations from OT declares that the OP “shall not deport or transfer parts of its own civilian population into the territory it occupies.” GC Article 147 makes “unlawful deportation or transfer” a “grave” breach of Geneva law — which seems relevant to per se “gravity.” Perhaps especially because Rome Statute Article 8(2)(a)(vii) similarly lists unlawful deportation or transfer among “grave” breaches. And, of course, customary laws of war would be relevant regarding proper interpretation of the Rome Statute.
    You did not mention Israel’s recent annexation of a small portion of territory. But see GC, art. 47; 1919 List of War Crimes, crimes #s 10 (usurpation of sovereignty during military occupation), 14 (confiscation of property); see also HC IV, Annex, arts. 46, 55.
    What’s your take on annexation?

  8. Jordan, I think that stating the fact that something is a “grave breach” and therefore there’s gravity just means that we consider article 17(1)(d) as void. I don’t think that we should say that one war crime is more serious than the other, or that some war crimes are severe and the other ones are not. However, the ICC is not supposed to deal with every war crime under its jurisdiction and in order to decide on admissibility, the gravity of the specific case must also be considered.

    With regard to annexation I didn’t address it as I wanted to specifically address the issue of the settlements in this discussion.

  9. I agree that ultimately the conclusion about “gravity” should be related to context, which can include a process over time.

  10. Response…I think it is worth recalling that the gc provisions on settlements were not adopted to irritate Israel but in response to nazi Germany’s settlement activities in World War II. Any settlements beyond the green line are verboten.

  11. T,

    Ezra Pound once wrote that a bad reviewer criticizes the poet and not the poem.

    As for the poem, if it is true that “there’s no clear decision or ruling about what constitutes the territory of the Palestinians” (there is indeed enough consensus), this must also apply to Israel: Israel’s borders were not agreed nor negotiated with the Palestinians.

    True, the ICC is not supposed to deal with every war crime. But to me this is not the point. If Israel will put forward charges against Palestinians, this will implicitly also mean that it does recognise Palestinian sovereignty in the parts of the occupied territories raised in those charges. The step taken by the PNA was appropriate for the goal that they intend to achieve.

    “The Multilateralisation of the Israeli-Palestinian Conflict”:

  12. The quoted 8(2)(b)(viii) is introduced as relating to “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law”. What is not addressed, whatever his view, is whether the act of Jews constructing homes and moving into them, to reside in them and conduct normal features of civilian life is not itself within a “framework of international law” and therefore there exists a legal conflict between rights as well as the question of whether there are other elements which may affect the definition of the supposed “crime”.

  13. Yisrael Medad,

    You refer to “normal features of civilian life”. Settlers and settlements control over 40% of the total land in the West Bank (thanks mainly to bypass roads and buffer areas) and exploit a relevant percentage of the local natural resources. The “normal features of civilian life” cannot be made on the shoulders of another population (that btw already paid a huge price). On top of this, the establishment of settlements in occupied territory runs counter to international humanitarian law, which prohibits the transfer of people from the occupying state into the occupied area. It also prohibits any permanent changes in the occupied territory, with the exception of changes mandated by military needs or in order to benefit the local population. In addition, the establishment of Israeli settlements leads to numerous violations of Palestinians’ human rights.

  14. As there is not and never has been a Palestinian state one cannot say that there is Palestinian territory.Moreover, the San Remo Conference designated all of the Ottoman province of Palestine to the Jewish state to be established. The British illegally gave the east bank to Abdulla I and this was recognized after the fact. However, Jordanian sovereignty over the west bank and eastern Jerusalem was only recognized by Britain and Pakistan. Later Hussein relinquished all claims to the area. Moreover, Israel obtained control from an illegal occupier over the areas in a defensive war, See

  15. Avi,
    State is a Western concept. If your sentence was referring to modern times, I suggest to try to avoid to read a non-Western region with Western lens.

    To write that the “the San Remo Conference designated all of the Ottoman province of Palestine to the Jewish state to be established” is simplistic..

    The British White Paper of June 1922 – the first document that officially clarified the interpretation of the Mandate’s text – clarified that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Furthermore, it stressed – and this is perhaps the most relevant aspect – that the “Zionist congress” that took place in Carlsbad in September 1921 had officially accepted that “the determination of the Jewish people to live with the Arab people on terms of unity and mutual respect, and together with them to make the common home into a flourishing community, the upbuilding of which may assure to each of its peoples an undisturbed national development”.

    It is only in light on these clarifications that the preamble as well as Article 2 of the Mandate text can and should be understood. It is noteworthy that Zionist consent to such interpretation was requested, and received, before the Mandate was confirmed in July 1922. In Weizmann’s words:
    “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper [of 1922], and my colleagues and I therefore had to accept it, which we did, though not without some qualms”.

  16. very interesting point[s]/counterpoint[s]. Clearly, infusion of folk into occupied territory [which was not part of Israel prior to the ’67 War regardless of whose territory it is or was — and under int’l law a “people” can be a formal actor with formal participatory roles, rights, and duties], destruction of property, annexation, and collective punishment have contributed to ongoing violence — and I condemn terroristic and indiscriminate violence such as rocket attacks and suicide bombings in violation of international law.
    Is peace possible? What will be the impact of an ICC investigation? Might the latter be a catalyst for a new quest for peace by Israelis and Palestinians?

  17. To “shmuel” (why people have to hide their identity at such a site is a remarkable feature of another ‘normalcy’ but that’s off-topic):

    let’s not be silly. you can’t talk about “occupation” and then note 40% control as meaning something. in essence, Israel, legally, still controls 100% until a peace treaty is signed. the Oslo Accords divided the territory into areas but still controls borders and intervenes in security concerns all over.

    in any case, thanks for reminding us all that we are actually talking about international humanitarian law.

    but to the point, there were Jewish communities in those areas before there were Arabs there. deespite loss of political and military power and capapability, Jews continued living there under Roman, Byzantine, Muslim, Crusader, Ottoman and English occuplations. Uner the Mandate, Arabs finally were successful lin an ethnic cleansing campaign and wiped out ancient Jewish communities in Gaza, Hebron, Shchem/Nablus and the Old City of Jerusalem. Newer communities at Atarot, Neveh Yaakov, Gush Etzion;s four kibbutzim and Bet Haaravh werw also wiped out. Hundreds of Jewish residents were massacred there, not to mention the Arab terror campaign from 1920 to 1948.

    In any case, Jews actually returned to their ancestral homeland by force of international law after 1920 (and a region that had no specific identity except as Jewish territory) and after 1967 to areas where Jewish residence had been extant either centuries earlier or to communities destroyed illegally by Arabs.

    Let’s no avoid that issue since it provides a different view of how law should indeed be applied to Jewish residency in Judea, Samaria and Gaza, the terms used by the UN in delineatuing borders of the partition recommendation in 1947.

  18. There are two versions of the “deportation or transfer” law, one in the Geneva Convention IV, the other in the Rome Statute. Version #2, with its addition of the words “directly or indirectly”, looks like an ex post facto law to me, unless I am to suppose that the presence or absence of the words makes no difference. Ex post facto laws are forbidden in most jurisdictions of the world.

  19. Edward: use of ex post facto law for criminal sanction purposes would constitute a violation of international law (e.g., human rights law as well as the customary principle of nullum crimen sine lege [no crime without law], set forth in Article 22 of the Rome Statute for the ICC). It must be that the 160 states that created the Rome Statute in 1998 expected (opinio juris) that the change you have spotted was, by that time, already part of customary international law.

  20. p.s. and persons that did not transfer, send, etc. could still be complicitors (e.g., by intentionally engaging in conduct while being aware or knowing that such conduct can or will facilitate the acts of a direct perpetrator — whether or not the two know each other, communicate with each other, are separated geographically, etc.).

  21. I’d say that “deport” and “transfer” are both active verbs, that require an object. If the government offers me a payment to move from one place to another, I am not being deported or transferred — even indirectly so. It would be more accurate to say “the government induced me to move”.

  22. Re: “since the Israeli High Court of Justice ruled that the Israeli policy regarding the settlements is not justiciable (for example see HCJ 4481/91 Bargil v. GoI), it seems that in this case Israel could be considered as “unwilling and unable” to exercise its jurisdiction with regard to the settlements (or some aspects of that policy).”

    Resolution 67/19 also specifically mentioned “the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem, including with regard to the matter of prisoners”. So you should also add the forced transfer of several thousand protected persons across international lines of demarcation and their imprisonment in Israeli jails to that list of non-justiciable issues. You already highlighted that in another article when the Israeli High Court of Justice (HCJ) rejected a petition to order the State to refrain from holding Palestinian prisoners and detainees in facilities located in Israeli territory. See “HCJ Rejects Petition against Holding Detained Palestinians in Israeli Territory [HCJ 2690/09] [28.3.2010] –

  23. Re: However, it’s not legally clear over what territory the Palestinian are allowed to provide jurisdiction to the ICC. This is due to the fact that there’s no clear decision or ruling about what constitutes the territory of the Palestinians.

    On the contrary, the ICJ had to perform a legal analysis regarding the status of the territory as a necessary preliminary to its determinations regarding the legal consequences of the construction of the portions of the wall in departure from the Armistice Line of 1949 (i.e. the “Green Line”). In the process it noted that the Geneva Conventions were applicable and that all of the settlements were illegal. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations says that every State has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.

    The armistice lines were approved by a written agreement between the parties and were formally adopted under the terms of two UN Security Council Chapter 7 resolutions (62 and 73).

    Although the lines constitute a provisional measure, they can only be altered by the mutual consent of all the parties concerned. The signed agreements included a prohibition against civilians crossing the lines or entering the areas between the lines. That rule was simply a reflection of the existing laws and customs of land warfare.

  24. Yisrael Medad,

    “There were Jewish communities in those areas before there were Arabs there… Jews continued living there… Newer communities at Atarot, Neveh Yaakov, Gush Etzion…. Jews actually returned to their ancestral homeland”:

    The symbolic case of the Gush Etzion block, in many respects unique, appears as the best possible example in support of your claim. The population settled in the block, where a small community of Jews arrived in 1927, was indeed expelled in the course of the 1948 war. However, all the settlements within the block, apart from Hadar Betar and Kfar Etzion, have expanded by more than 100% in the last 20 years. The block includes today also eight unauthorized outposts that further contribute to hinder the ability of Palestinians to access their natural resources.
    To conflate this massive state-funded project of colonization with “the reestablishment of a Jewish presence in the West Bank” risks to simplify a complex issue.

    I am not sure why it’s not relevant that settlers/settlements control 40% of the total land through a population largely immigrated in the Palestinian territories in recent years thanks to funds and incentives provided by the State of Israel.

    “Israel, legally, still controls 100% until a peace treaty is signed”:
    Israel is the only state in the world that considers it “legal”.
    Your claim would imply that international law allows Israel to create facts on the ground for good, until almost nothing is remained. At that point Israel will be ready to sign a peace treaty. It is a problematic claim.

    Oslo was an intering agreement and settlements violates it in as much as they aim to change the status of the area. The prove of this is that Israel requires to the parties to take into consideration the new demography at each and evry round of negotiation.

    Yes, we are also talking about international humanitarian law: settlements and their consequences for the local majority violate the very principle of international humanitarian law.

  25. PS

    As for “There were Jewish communities in those areas before there were Arabs there”, I want to ask you if you apply this logic also to the english people.

    Maxime Rodinson:
    “The Arab population of Palestine were native in all the usual senses of that word. Ignorance, sometimes backed up by hypocritical propaganda, has spread a number of misconceptions on this subject, unfortunately very widely held. It has been said that since the Arabs took the country by military conquest in the seventh century, they are occupiers like any other, like the Romans, the Crusaders and the Turks. Why therefore should they be regarded as any more native than the others, and in particular than the Jews, who were native to that country in ancient times, or at least occupiers of longer standing? To the historian the answer is obvious. A small contingent of Arabs from Arabia did indeed conquer the country in the seventh century. But as a result of factors which were briefly outlined in the first chapter of this book, the Palestinian population soon became Arabized under Arab domination, just as earlier it had been Hebraicized, Aramaicized, to some degree even Hellenized. It became Arab in a way that it was never to become Latinized or Ottomanized. The invaded melted with the invaders. It is ridiculous to call the English of today invaders and occupiers, on the grounds that England was conquered from Celtic peoples by the Angles, Saxons and Jutes in the fifth and sixth centuries. The population was “Anglicized” and nobody suggests that the peoples which have more or less preserved the Celtic tongues – the Irish, the Welsh or the Bretons – should be regarded as the true natives of Kent or Suffolk, with greater titles to these territories than the English who live in those counties.”

  26. Edward: if the OP pays a bus company to transport persons into the territory in 10 busloads, although the drivers and the bus company “transfer” it would not be illogical to say that the OP transfers through others, especially given the purpose to do so. In a sense, the drives and the company are the “agents” who effectuate the plan. It may not be illogical to conclude that when the OP pays the persons to walk into the territory that the OP transfers the persons through purposeful inducement — that the persons are in effect “agents” of the OP for the purpose contemplated. And one can disagree whether “indirectly” even pertains, although this might be an example of transfer indirectly — but who really knows the contours of this word “indirectly.”

  27. Edward Brynes correctly points out:
    “I’d say that “deport” and “transfer” are both active verbs, that require an object. If the government offers me a payment to move from one place to another, I am not being deported or transferred — even indirectly”

    This remark applies to the clause in the Rome Statute about transfer. It applies likewise, and perhaps more strongly to Geneva IV:49:6. Neither of them forbid free migration. Yet it is obvious and we know that Arab powers involved in drawing up the Rome statute realized that Geneva IV:49:6 did not suit their purpose so they invented the notion of “indirect transfer” by semantic sleight of hand which they inserted in the Rome Statute. Unfortunately, this semantic creativity and/or semantic elasticity –that is spreading the meaning of a pejorative word to cover new situations which do not fit it– has been all too common since WW2. Consider the expansion of meaning of words like genocide, apartheid, transfer and others.

    Be that as it may, Rosenzweig’s article suffers from an absence of historical perspective. San Remo and the League of Nations mandate, 1920 & 1922, assigned the whole country newly named “Palestine,” to the Jewish National Home. Now at the time of the 1967 Six Day War that was the status of the country, since the 11-29-1947 Partition Plan was a mere General Assembly recommendation [see UN charter, articles 10-14]. Hence, Israel does not occupy the territories in question [west bank, Judea-Samaria]. By the way, the Partition Plan used the term “Samaria and Judea” for the area that roughly speaking became the “west bank” under Jordanian occupation.
    Now, since the area is not occupied, the clauses in Geneva IV & the Rome statute speaking of “occupied territory” do not apply for that reason as well.

    The author, Rosenzweig, seems to ignore the problems of the Palestinian Authority not being a state and of the PA’s application to the UN GA & SC for recognition as a state constituting violations of the Oslo accords which left final status issues such as settlements and borders and possible statehood for negotiations.

  28. Shmuel, Kfar Darom in the Gaza Strip and several places named by Y Medad above were inhabited by Jews and were ethnically cleansed of Jews for the most part early in the war. This also applies to several Jewish quarters in the part of Jerusalem occupied by Arab irregular forces before part of the city was occupied by Transjordan’s British-officered Arab Legion.

    Jews also fled south Tel Aviv and parts of Haifa because of Arab irregular attacks. However, Jews could return to their homes, if they were still standing, after the fighting was over in those places, unlike Jerusalem where, as said, Transjordan’s Arab Legion occupied those former Jewish quarters to which Jews could not return.

  29. Shmuel, Maxime Rodinson omits mentioning that there were always Jews in the country that we call the Land of Israel [also see New Testament, Matthew 2:20-22]. While the country was under Muslim rule, Jews were oppressed and humiliated according to Muslim law governing the treatment of dhimmis. The Franciscan friar Francesco Suriano describes with delight how badly Jews were treated by the Muslim Arabs in Jerusalem circa 1500. Of course, Jews always traveled to Israel and Jerusalem when they could and prayed for restoration of the Temple, etc. Foreign Jews were subject to the dhimmi laws like native Jews and like Christian and other non-Muslim natives of the country. I would like to ask Rodinson if he thinks that the oppressor people have superior rights to the traditionally oppressed. Anyhow, his schematic argument is vitiated by the facts that he omitted and the general complexity of the matter.

  30. Elliott,

    As S. explained a few comments above, to write that “San Remo and the League of Nations mandate, 1920 & 1922, assigned the whole country newly named “Palestine,” to the Jewish National Home”, is at best misleading.

    As I wrote above, “The block includes today also eight unauthorized outposts that further contribute to hinder the ability of Palestinians to access their natural resources. To conflate this massive state-funded project of colonization with “the reestablishment of a Jewish presence in the West Bank” risks to simplify a complex issue.”

    Rodinson, did not omit the fact that “were always Jews in the country that we call the Land of Israel”. In the passage that I quoted he simply addressed another topic. In other sections of that book he wrote specifically about the small Jewish minority.
    As for the rest, “I believe”, pointed out in 1857 British consul J.Finn, “there are few countries in the world where in spite of appearances to the contrary, there is so much of practical religious tolerance as in Palestine”.

  31. Shmuel,

    “Oslo was an intering[m[ agreement and settlements violates it in as much as they aim to change the status of the area.”

    It is the official position of Netanyahu on this matter that “Neither the Declaration of Principles of 13 September 1993 nor the Interim Agreement (“Oslo II”) of 28 September 1995 contains any provisions prohibiting or restricting the establishment or expansion of Jewish communities in Judea, Samaria and Gaza.”

    But on another point: if the current PA judicial system’s approach to any Jewish community is bad, what then? How bad? Found at Wiki:

    “The Negotiations Affairs Department of the State of Palestine (PLO-NAD) declared in 2008, that all transactions with Israelis and other foreigners transferring confiscated land in the Occupied Territories violate international law and are null and void. It stated that under the Hague Regulations an occupant may only administer public property as a usufructuary and does not gain sovereignty or title over any part of occupied territory. Israel thus has no right to sell Palestinian state land, nor does it have a right to lease state land for long periods or for the purpose of settlements. According to the PLO-NAD, the Palestinian government of the future Palestinian state will not be under any obligation to honour Israeli transactions in occupied Palestinian property that took place during Israel’s occupation.
    While Palestinian Authority courts can impose death sentences, they cannot be carried out without the approval of the PA President. The current President, Mahmoud Abbas, has consistently refused to approve executions. In September 2010, a Palestinian court reaffirmed that the sale of Palestinian land to Israelis is punishable by death. The Palestine General Prosecution said that the ruling represented “a consolidation of the previous legal principle,” and that the “ruling aimed to protect the Palestinian national project to establish an independent Palestinian state.”

    Is that normative legal practice?

  32. Elliott: what “Arab powers”? In any event, the Rome Statute was adopted by 160 states.

  33. Elliot and Edward are simply describing a joint criminal enterprise between the the Government of Israel, the IDF Commander, and the Jewish colonists who have deliberately pillaged and plundered the land, water, and other natural resources of Palestine in violation of the armistice agreements and the Geneva Convention.

    FYI, Raphael Lemkin addressed the problem of colonists who voluntarily or involuntarily moved into an occupied territory and settled on private land owned by dispossessed persons, or on their state-owned public lands in “Axis Rule in Occupied Europe”. He noted that they could be subject to penal sanctions even in the 1940s. See “6. The Problem of the Colonists” on page 45

    The UNRWA and its predecessor barely registered more than 17,000 Jewish “Palestine refugees” in accordance with UNGA resolution 194(III). Israel still insists today that it won’t accept the repatriation of a single Palestinian Arab refugee of any conflict to its territory, even though the 1st additional protocol indicates that a failure to do so can be considered an on-going offense (i.e. a grave breach and a war crime). Most of the 650,000 illegal Israeli settlers today are not successors in interest to any mandate era legal claims. It seems to me that the members of the regional councils and the mayors of the settlements should be obvious examples of Israeli officials who have committed crimes on the territory of Palestine.

    For its own part the government of Israel and its Courts have rejected claims under San Remo/The LoN mandate and have held that such claims were terminated along with the mandate itself. See for example CApp 41/49 Simshon Palestine Portland Cement Factory LTD. v. Attorney-General (1950), Sifri v. Attorney-General (1950), HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (cited in HCJ 7957/04 Mara’abe v. The Prime Minister of Israel.

    There were 120 countries that voted to adopt Article 8(2)(b)(viii) of the Rome Statute after they had listened to the head of the Israeli delegation to the Rome Conference, Judge Eli Nathan, complain that it would make Israeli settlements a war crime. Since then, more than 120 have ratified the statute knowing that reservations are not permitted.

    Attorney General and future Supreme Court Justice, Elyakim Rubinstein, warned at the time that Israeli Settlers could be prosecuted by the International Criminal Court. He didn’t sound as confident as you guys do about their innocence or their legal rights. See “A-G: New Hague court may indict settlers for war crimes”, Jun.11, 2002

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