Moreno-Ocampo Needs a Remedial Criminal Law Course

Moreno-Ocampo Needs a Remedial Criminal Law Course

Here is Moreno-Ocampo’s latest doozy, concerning the possibility of Israelis being prosecuted for war crimes related to Israel’s illegal settlements in the West Bank:

Where the Israeli High Court of Justice has approved specific settlements as legal, this could provide a complete defense to any allegations that they are war crimes, former International Criminal Court chief prosecutor Luis Moreno-Ocampo told the Jerusalem Post on Thursday.

Moreno-Ocampo is in Jerusalem lecturing at the The Fried-Gal Transitional Justice Initiative at the Hebrew University Law School.

Although Moreno-Ocampo has stepped down from his post, he was the boss of the current ICC chief prosecutor who will decide whether or not the settlements qualify as a war crime, is considered highly influential internationally and his statement could be a major coup in the debate over the issue.

Moreno-Ocampo did not by any means say that the settlements were legal under international law.

But he did say that “Israel’s High Court is highly respected internationally” and that anyone prosecuting Israelis regarding settlement activity would be incapable of proving criminal intent if those Israelis explained that they honestly believed their actions were legal once ratified by the country’s top court.

“At least they could show no intention” to commit a crime said the former chief ICC prosecutor.

Few ICL scholars are more sympathetic to mistake defences than I am (see this article), but Moreno-Ocampo’s statements simply make no sense. Most obviously, Art. 32(2) of the Rome Statute specifically recognises the principle ignorantia legis neminem excusat — ignorance of the law excuses no one:

A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility.

Art. 32(2) applies regardless of whether a defendant was simply unaware that his actions were illegal (ignorance) or affirmatively believed that they were legal (mistaken belief). So if an Israeli was prosecuted for committing a settlement-related war crime — transfer of civilians into occupied territory, forcible transfer, pillaging, etc. — it would not matter that he either did not know international law criminalised his actions or believed that his actions were legal because the Israeli Supreme Court had approved the legality of settlements. The only question would be whether he committed the actus reus of the war crime in question with the necessary mens rea.

To be sure, some common-law systems provide an exception to the ignorantia legis principle where the defendant has reasonably relied on an official interpretation of the law. Moreno-Ocampo’s emphasis on the reputation of the Israeli Supreme Court suggests he might be thinking about that exception. But there are two significant problems here. First, no such exception exists in the Rome Statute, as the text of Art. 32(2) makes clear. Second, even if there was one, the ICC would be very unlikely to conclude that an Israeli defendant could reasonably rely on a statement by an Israeli court — even a supposedly “highly respected” one (which is questionable) — that settlements are legal. That would obviously be the case if the Israeli Supreme Court affirmed that the settlements were legal under Israeli law; no international tribunal has ever allowed such a “domestic legality” defence. And I seriously doubt that the ICC would find it any more reasonable for an Israeli defendant to rely on an Israeli court’s interpretation of international law, given the widespread international rejection of official Israeli positions on a variety of international-law issues.

Finally, we might be generous and assume that Moreno-Ocampo was actually thinking not about Art. 32(2) of the Rome Statute, but about Art. 32(1), which recognises mistakes that negative mens rea:

A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

In this interpretation, Moreno-Ocamp is actually arguing that an Israeli defendant who knew the Israeli Supreme Court had approved the legality of the settlements would not have the mental states required by any of the various settlement-related war crimes. But that is a flawed argument, because none of those war crimes require a mens rea that would be negated by a belief in settlement legality. Consider, for example, the elements of the war crime of direct or indirect transfer, Art. 8(2)(b)(viii) of the Rome Statute:

1. The perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies…

2. The conduct took place in the context of and was associated with an international armed conflict.

3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

In terms of mens rea, Art. 8(2)(b)(viii) requires the prosecution to prove that the defendant (1) intentionally engaged in the acts that qualified as direct or indirect transfer; (2) knew that Israeli civilians were moving into occupied territory; and (3) knew that Israel exercised effective control over the West Bank at the time of the transfer. The defendant’s belief that settlements are legal would not negate either of those mental elements, so Art. 32(1) would not apply.

No matter how we interpret it, then, Moreno-Ocampo’s statement about the Israeli Supreme Court makes no sense as a matter of substantive international criminal law. Israel relies on the “expertise” of this “highly influential” former prosecutor at its own peril…

Topics
Foreign Relations Law, International Criminal Law, International Human Rights Law, Middle East, Organizations
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el roam
el roam

Kevin , I don’t understand, what makes you think at first place, that: committing mistakes, is an issue here. A person can commit mistakes, and interpret wrongfully the law, where, he had the margins, for exercising discretion to do so. But , when judge , issues an order , warrant , or ruling , then : No mistake , but , one needs to : obey and comply with it , unless prima facie it is a mistake ! However, mistakes of that kind of prima facie, can’t typically, occur over and over, during dozens of years, and have to do with complex interpretation of law, but rather, more , technical issues, or jurisdiction. So , an isareli official , couldn’t commit any mistake , and such provision or reservation ( article 32 to Rome statute ) is irrelevant. However , it seems that you have ignored article 33 to the statute , reads so : Article 33 Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve… Read more »

el roam
el roam

Just to demonstrate it , here ahead , article 287(a) of the ” penal law 5737-1977 ” of Israel , dictates so :

” Violation of lawful direction

287 (a) If a person violates a direction duly issued by a Court, by an official or by a person who acts in an official capacity and is authorized for that purpose, then he is liable to two years imprisonment.”

Well, reading such article, it would be ridiculous then to claim, mistake of some sort , while:

The order, ruling, was of the highest court ,such kind of were spread or issued , over dozens of years, has to do with complex interpretation of law and international law, and prima facie, well , or correctly issued.

executing it , can’t be a mistake ! since , no margins for discretion exist .

Thanks

Kevin Jon Heller

The Israeli Supreme Court is ordering Israeli government officials to transfer civilians into occupied territory? Wow, who knew?

el roam
el roam

Kevin ,

Who wrote it ?? The issue, is too complicated, and trust me Kevin, you don’t know much about it (although I am sure, that you are absolutely sure that you know, but: it is natural and legitimate of course to feel so ).

However, what I was referring to, was the legal issue, at the core of your post:
Can it be considered as a mistake of law ( such hypothetical mistake of an Israeli official in such situation ) .

P.S. : just a slight and sober reminder : no court , order nothing , until an issue is brought in front of him . And then , he solves or prevail the issue directed to him , nothing more than that , he can , and should do . Policy is dictated by the executive branch , and court solves , punctual issues brought to it .

Thanks

Kevin Jon Heller

The confidence with which you make nonsensical claims about issues you know nothing about never ceases to impress.

el roam
el roam

Well kevin , just reading your post , and my comments on it , would be sufficient for reasonable reader . Your perception , has been rejected , ” in limine ” so !! However, The issue of settlements, is very complicated. Sometimes , a court ( and that what counts Kevin , the court !! ) can mess with factual and legal configuration of simple theft , in hundreds of pages , just to think of the whole issue ….. Now think how complicated is the issue , the duration , the facts , questions of law . So, with all due respect, it was really amazing to read such comment of yours: ” The Israeli Supreme Court is ordering Israeli government officials to transfer civilians into occupied territory? Wow, who knew? ” Because, he who knows, even basically what is going on here, in that region, would surely laugh from it. The court , transfers civilians ….. been left Speechless !! However , Kevin , if you only new the meaning of the word ” transfer ” you would understand , that no transfer , never ever took place !! Transferring something, is an active action, you take… Read more »

Anon
Anon

Well, el-roam, while the Israelis don’t forcibly transfer their own civilian population to the occupied territories, the State of Israel does have a policy of providing a wide range of incentives for civilians to move there, so it isn’t only a matter of whether Israel has only acted negligently with regards to settlements but that it has a policy directed to that effect.

That said, the Israeli judicial system doesn’t always toe to the line of the official interpretations of international law (so I’m not so sure of how would the ICC regard its prestige and judicial independence), and as you said disobeying a Court ruling is a criminal offence which carries prison terms, so maybe Ocampo is right in his broad point. I honestly don’t know.

el roam
el roam

Anon , thanks for your comment . It is just , that sticking to the legality , demands that :

Factual configuration or conduct , shall match provision and definition of the law . You can’t accuse a person in robbery, while it was a theft, although in both cases, thinks have been taken out of control of the possessor . Different definitions !!

Incentives , and policies of such , even if proven , don’t constitute a ” transfer ” in the meaning of the Rome statute with all due respect .

Thanks

Anon
Anon

Well, that would depend a lot on how the term “transfer” is defined according to IHL and the ICC’s statutes, but I will say that the neither seems to limit it to forcible transfer – so it may also include cases in which there is a state policy that provides incentives for having your own civilian population moving to the occupied territories.

I also assume it would be illegal for an occupying power to provide incentives for the civilian population of the occupied territories to move elsewhere as well, even if such movement were voluntary.

el roam
el roam

Anon ,
The problem yet, is that, at least, from the very beginning, the local population (the Israeli) not only voluntary ” transferred ” itself, but was pushing the government, for ” transferring them ” to the occupied territory (if you know the ideology of the so called: national religious groups).

What would you do with it ?? Is it possible , to imagine even , that pressure from the occupier population , to be ” transferred ” shall be defined as transfer ??

The word ” transfer “( not defined in the Rome statute , and anyway for the purpose of the statute ,but I shall verify it definitely ) has very excessive meaning, where persons and objects are treated as objects , and they can’t resist or are passive and helpless in the process . The person transferring has sort of possession or control on them . So , it doesn’t match here simply !

Thanks

Lurker
Lurker

El-roam,

the meaning of “transfer” is left undefined in Rome Statute. Thus, we must look into the purpose of the prohibition, which is to prohibit changing the demographics of an occupied territory. That is a policy-level target.

It does not prohibit an individual from moving to live in an occupied territory, nor does it require the occupying power to prevent its citizens from this with active measures. However, it is quite clear that Israeli government is not only passively allowing its citizens to move into an occupied territory to live their among the populace. Instead, it actively establishes and expands specially constructed settlements for them, and offers financial and legal benefits for moving.

It is very difficult to imagine how the word “transfer” could be construed so that it would not encompass the Israeli settlements policy. Indeed, it might well be argued that this policy was the exact target of the criminalization we are discussing.

el roam
el roam

Lurker ,

Thanks for your comment .The problem is that when you write :

” it actively establishes and expands specially constructed settlements for them, and offers financial and legal benefits for moving ”

Then , we don’t deal with transfer , but with what you have written above as just been quoted , not transfer of people !

However, it is possible to claim, that the purpose of the article, is to prevent (generally speaking) what you have written as:

” to prohibit changing the demographics of an occupied territory.”

But then , a judge , shall have to shift from the common or ordinary , or legal meaning of the word or verb : ” transfer “, to other dimensions , while I was only dealing with the meaning of transfer , so hectically repeated by Jhon kevin , while actually doesn’t match occurrences on the ground .

Even in purpose terms or interpretation , it wouldn’t be a picnic , yet , not the current issue .

Thanks

Kevin Jon Heller

Lurker,

You are, of course, absolutely right. The key is not “transfer” but “indirect” — the criminal prohibition, unlike the IHL prohibition, covers both direct (forcible) and indirect (non-forcible) transfers of civilians. The drafting history is quite clear that “indirect transfer” comprises precisely the kinds of government policies that you mention — policies that encourage Israelis to move into settlements in the West Bank. Indeed, that is how Israel itself understands “indirect transfer.” (Refusing to ratify the Rome Statute in consequence.) El roam’s ramblings about the dictionary limiting transfer to forcible transfers are thus quite beside the point.

Hostage
Hostage

Re: The drafting history is quite clear that “indirect transfer” comprises precisely the kinds of government policies that you mention — policies that encourage Israelis to move into settlements in the West Bank.

Of course. These colonies are not suspended in the mid-air. They’re located on plundered public and private property. I believe that customary international law already recognized direct and indirect modes of common-purpose liability for crimes that would have applied to official involvement in creating or perpetuating that situation, regardless of the willingness of all the participants to furnish their own transportation to the scene of the crime.

In fact, the situation outlined by Ocampo begs the question of the liability of the High Court Justices for putting the state’s imprimatur on pillage and plunder or other crimes against persons and property in the occupied territory.

el roam
el roam

Kevin and hostage ,

The point is, that ” transfer “, and : ” indirect ” , can’t be reconciled:

The essential item, is:” transfer ” , and then, it’s nature is such of being: indirect. yet :

Such think doesn’t exist !! it’s a mistake of legislator . because , if there wasn’t any transfer , never ever , how can it help to define it as : indirect one !!

indirect and transfer are incompatible simply !!

Someone can only indirectly contribute to transfer, but the problem, that transfer per se, never ever has taken place, so how been contributed indirectly??

It is a mistake of the legislator !! And a judge , shall have a hell of one on it . But this is only the word : ” transfer ” , right ??

Thanks

Anon
Anon

Kevin:

Does your remark mean that the meaning of “transfer” under the ICC’s statute is different from the meaning under customary IHL? I thought that the mere provision of incentives for your own population to move to an occupied territory in the way Israel does is already against the Geneva Conventions.

I Respect Moreno Ocampo
I Respect Moreno Ocampo

So a highly respected lawyer who has taught at Harvard and Stanford is the object of ridicule from the likes of KJH. What a shock. Since Kevin is a self-hating jew he has to rip up a respected, brilliant lawyer who has concluded the opposite of KJH. Tell us again Kevin, have you ever been to Isreal? Probably not you have no understanding at all of the situation and you should since you opine you are such an expert on Isreal. Accusing the Isrealis of war crimes..ha..Arabs get elected to the Knesset. War crimes my a$$. So here is a bio of the professor you think so little of… From Wiki… “Moreno Ocampo was an Associate Professor of Criminal Law at the University of Buenos Aires and a visiting professor at Stanford University and Harvard Law School.[2] He has acted as a consultant to the World Bank, the Inter-American Development Bank and the United Nations.[2] He is a former member of the advisory board of Transparency International and a former president of its Latin America and Caribbean office. As of fall 2013, he was a Senior Fellow at the Jackson Institute for Global Affairs at Yale University.[2] In 2011, The… Read more »

Hostage
Hostage

Re: Kevin and hostage, The point is, that ” transfer “, and : ” indirect ” , can’t be reconciled Re: The point is, that ” transfer “, and : ” indirect ” can’t be reconciled If you insist on engaging in semantics, then yes they most certainly can. Of course we haven’t even discussed the direct establishment and evolution of Nahal military settlements. There’s ample sanction to understand the prohibition as a ban on facilitation or acquiescence to even a voluntary migration. In any event, the military commander can’t expropriate public or private property anywhere in an occupied territory for non-essential, non-military uses, such as private civilian dwellings. FYI, UN Security Council resolutions 62 and 73 were adopted under the auspices of Chapter 7 of the UN Charter. The Security Council required the parties to observe and implement the terms of the armistice agreement, pending a mutually agreed upon final settlement. Article IV of the agreement cited military regulations and customs which prohibited civilians from crossing the armistice lines of demarcation and stipulated that they were to remain in effect. The notion that convoys of civilian caravans can pass through military checkpoints and voluntarily migrate across permanent international lines… Read more »

el roam
el roam

Hostage , Thanks for your comment . With all due respect Hostage , you lack discipline . The post , and my comments , were referring to the notion of : ” Transfer ” as dictated in the following article of the Rome statute , here I quote for an appropriate discipline ( 8 (2) (b) : ” (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;” So you see , we were , and I was engaging in that clause , solely with : transfer of population ( underlining population ) . I have proven clearly , that no transfer took place never ever , and : transfer can’t be indirect by its nature and its ordinary meaning , while , no particular definition , is prescribed in the Rome statute for it . The Rome statute , provides definitions for : ” crime of apartheid ” for : ” slavery ” for example , but not for transfer ! In such , a judge… Read more »

el roam
el roam

Just clarification for my last comment , the Rome statute , defines the term : “Enslavement” and not as been written : ” slavery ” . and more :

The Rome statute , defines , the term : transfer , but for the purpose of the ” crime against humanity ” here :

“Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;”

Thanks

Kevin Jon Heller

IRMO, Here’s an idea: let’s stack up the CVs of all the professors who loathe Moreno-Ocampo and all the CVs of the professors who like him and then put the stacks on a scale. Hate to tell you this, but the first stack is going to plummet to the floor. And for the (irrelevant) record, the “likes” of KJH includes law degrees from Stanford and Leiden, a chair at the University of London, dozens of articles in leading journals, multiple sole authored and edited books for Oxford University Press, serving as a lead defence attorney at the ICTY in one of the most important trials since Nuremberg, and extensive consulting with the UN and NGOs around the world. And guess what? You should give my ideas absolutely no extra credence simply because of my credentials. They should be judged on their intellectual merits — and their intellectual merits alone. It is revealing that you seem incapable of engaging with ideas themselves, choosing instead to debate the credentials of those who promote them. As for calling me a self-hating Jew, you’re just making yourself look stupid. Sharing your (obviously right-wing) politics is not a requirement for being a good Jew. And… Read more »

Kevin Jon Heller

Anon,

There is some debate about how broadly transfer should be interpreted under IHL, but “indirect” transfer is an innovation of the Rome Statute. GC IV simply provides that “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Alan Baker
Alan Baker

Folks, I find this discussion intriguing, except, of course for the somewhat irrelevant ramblings of Mr. Hostage, who is merely abusing this site for stale political propaganda. As you probably know, the text of Art. 8(2)(b)(viii) of the Rome Statute was based on, and to a certain extent copied from the wording of Article 49 of the 1949 Fourth Geneva Convention. The expression “directly or indirectly”, in reference to “transfer”, does not appear in the Geneva Convention, and was deliberately added at the initiative of Syrian and Egyptian representatives at the 1998 Rome Conference, in order to specifically include Israeli settlement activity within the war crimes provision. Their aim was to try to attempt to render such activity as relevant to the gravity criterion of the Statute – ie – “most serious crimes of concern to the international community as a whole” (Preamle and Articvle 1 of the Statute, despite the obvious difference between that and the genuinely grave crimeas listed in the Statute. This “manipulation” of an international text that had been drafted to address the post-world War II situation, was indicative of the loaded interpretation they wanted to give, in light of the obvious fact that the wording… Read more »

Kevin Jon Heller

Alan, Thanks for your comments. Much of what you say is well taken. But I disagree with you in three critical respects. First, although it is true that Art. 49 was not intended to apply to Israel’s settlements, that is obviously because they did not yet exist. The provision was, however, intended to establish a legal principle that would apply not only to the Nazis’ transfers, but also to similar transfers that would occur in the future. So there is nothing wrong with applying Art. 49 to Israel’s settlements in the West Bank, assuming that the provision’s requirements are satisfied. (Which I certainly think they are.) Second, it is inaccurate to claim that the ICRC Commentary says Art. 49 requires the transfer of civilians into occupied territory to be “forcible.” The quote you cite does not say that, and the ICRC’s paragraph headings contradict it. Paragraph 1, which addresses the removal of civilians from occupied territory, is entitled “Forcible Transfers and Deportations.” By contrast, Paragraph 6, which addresses the transfer of civilians into occupied territory, is entitled simply “Deportation and Transfer.” The difference is not accidental and makes clear that, in fact, Art. 49 does not require the transfer of… Read more »

Anon
Anon

It seems to me that the term might have just been added to further clarify the meaning of the term “transfer” so it would not be necessary for whoever reads the Statute to go as far as reading its drafting history to infer the legal meaning of the term. Certainly that is in itself a political goal but I’m not sure if it has any special legal significance.

What constitutes directly transferring civilians into a territory (occupied or not)? I suppose forcible transfers fall on this category, but can voluntary transfer be done directly? If so, how? By asking people if they want to go there and providing them with the means to do so, such as subsidizing their arrival and stay? Or this is a form of indirect transfer? But if it is indirect, then how else can voluntary and direct transfer take place, then?

el roam
el roam

Alan Baker ,

Thanks for your contributing comment . That reckless combination of : ” Transfer ” and : ” Indirect ” had raised great suspicions concerning the origin, the motives , and the back mind of such insertion . It is just that I hadn’t time or resources for tracing back the history of it . Now , Thanks to you , it has become clear . Thanks

Hostage
Hostage

Re: That reckless combination of : ” Transfer ” and : ” Indirect ” had raised great suspicions concerning the origin, the motives , and the back mind of such insertion. As a person of Jewish descent, I’m very sympathetic to the case for defending the fundamental human rights of the Jewish people of the former Palestine mandate and those who have been assimilated to them. Unfortunately, no one can offer an unblemished defense for some of the acts that they have perpetrated against the other inhabitants since 1948. See for example: “100-Year-Old General: We Razed Arab Villages, So What?: Brig. Gen. (res.) Yitzhak Pundak: If we hadn’t done it, there would be a million more Arabs and there would be no Israel. http://www.israelnationalnews.com/News/News.aspx/168912#.VYuDd7y37tR There’s a British proverb which explains “The past is a foreign country. They do things differently there.” The authors of the Levy report, including Dr Alan Baker, are simply trying to revive the age-old practice of private profit from the plunder of war through the use of trite arguments about “sovereignty” that no one has accepted since the 19th century. A new political unit called “Jordan” came into existence in January 1949 as a result of… Read more »

el roam
el roam

Hostage , but suppose you had to cut it , like a judge let’s say , in a tort case , and dividing blame or guilt between two sides . Are you serious to claim , that from 1948 and on :

100% blame and guilt on the Israeli side, and: 0% on the Arab side ?? Because, when I read your comments (not only the current one) I have noticed, or rather, can’t recall even one accusation, of any kind, on the Arab side.

Moreover: you claim to have jewish origin or alike. It means , that no subjective perception whatever could be attributed to you ?? 100 Vs. 0 percent ?? Is it really so from your part ??

Please , if you wish to , let us know :
What are your figures in that balance ?? I must admit, a bit weird with all due respect.

Thanks

Kubo Macak

Without taking sides on the political aspects of the debate (of which I can claim very little expertise), two points can perhaps be added to the interesting discussion between Alan and Kevin. First, the ICJ considered Art 49(6) GC IV to be clearly applicable to the question of the legality of the settlements in the Wall Advisory Opinion (at para. 120): “As regards these settlements, the Court notes that Article 49, paragraph 6, of the Fourth Geneva Convention provides: ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’ That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.” Second, the ICRC’s more recent position on the settlements can be gauged by looking at its statement issued in the context of the Conference of High Contracting Parties to the Fourth Geneva Convention in 2001, which (after referring to the language from Article 49 GC IV) describes the “the establishment of Israeli settlements in the… Read more »

Kevin Jon Heller

Kubo,

It’s amazing we even have to debate this. There is, of course, precisely one state in the entire world that does not view Israel as occupying the West Bank: Israel.

I had not realized the Alan Baker above was the Alan Baker of the Levy Report. Having gone back over the Article 49 section, it is interesting to note that the Report cites in defense of its conclusion that the Article does not apply… an article by Alan Baker. Can you imagine Israel’s outrage if a UN investigation cited a previous article by one of its Commissioners? We’d never hear the end of it.

That said, the Levy Report is not a serious legal document. Its purpose was to provide the current right-wing Israeli government domestic cover. After all, the Report doesn’t even accept that the Geneva Conventions apply to Israel…

el roam
el roam

Kevin , To your kind attention : 1) Levy report , doesn’t state , that Geneva conventions are not applying to Israeli law or state . But rather, stating that, the Israeli parliament had to approve it, while actually, only ratified by the government. However, he couldn’t claim whatever at first place, due to the fact, that the Geneva conventions are one of the cores of customary international law, so, either neither….. 2) Levy report , is a legal document. You seem to confuse : binding , legal , legislative . It is not binding , doesn’t have legislative force , but : legal force , means : legal document . Since, such document, let alone made or led by an ex judge of the supreme court, appointed officially by the government, then: surly can be a legal basis for a judge ruling , in such, it is a legal one (differentiated from: binding per se, and legislative). 3) Concerning transfer or not , read P. 12 in the report (can’t be fount as a whole in English) The ICRC quote, and the professors of law there (American Journal of International law, Vol.84 , 1990, p. 719) you would reveal… Read more »

el roam
el roam

Kevin , Correct , no other state in the world , denies that Israel is an occupier , yet : What makes you think , that the Israeli state , itself , denies it ?? Check it out : 1) Israel , never ever denied that it did occupy , in war , military , by force , the west bank . 2) Never ever denied , that it is implying there , military regime ( at least in zone C , for the rest , too complicated right now ) . 3) Oslo agreement , clearly proves , that the Israeli state , considered the west bank , as the future state of the Palestinians . 4) Later , even Benjamin Netanyahoo , in his famous speech , in the University of Bar ILan , stated clearly : two states , to : two peoples . So , at least , implicitly , never ever considered itself , as a non occupier . However : 5) Nothing to do with transferring its own population to west bank settlements , and : 6) Due , to proven malicious intents of Palestinians , due to very hazardous geo political regional situation… Read more »

Kevin Jon Heller

From the Levy Report:

Israel therefore did not see itself as an occupying power in the classical sense of the word, and so never saw itself committed to the Fourth Geneva Convention in relation to Judea, Samaria and Gaza.

It should be added here, that the Israeli government did indeed ratify the Convention in 1951, but since it was not adopted by the Knesset (on this issue see this and this HCJ rulings) it merely issued a statement saying it will voluntarily implement the humanitarian provisions of the Convention (here, here, here and here).

Doesn’t get much clearer than that.

Kevin Jon Heller

Even the radical right in Israel understands that the ICRC does not remotely embrace el roam’s “analysis” of indirect transfer.

el roam
el roam

Kevin , So you cite , precisely what I have been arguing : 1) Levy claims in his report that : ” Israel therefore did not see itself as an occupying power in the classical sense of the word ….” you are either occupier , or not !! what is the meaning of not in the ” classical sense ” precisely what been explained by me above . However , Levy reasoning is rather : historical and legal , while : Israeli governments , rather suggest that security issues , and as stated : malicious intent of Palestinians , bar peace agreement . 2) I have explained already Kevin : There is no such animal , such species :” indirect transfer ” so what are you suggesting again ?? Such notion , can’t take place in the real world , but in multi universes one . you can only contribute indirectly to transfer , but the: transfer , as it is , as done typically , must have been executed or effected , but non of this , never ever has taken place , but rather : A population which transferred the government to there, is it also to be… Read more »

Anon
Anon

I don’t understand why are you guys debating whether Israel occupies the West Bank or not. Even Israeli courts recognize it as being under Israeli belligerent occupation.

Kevin Jon Heller

Anon,

We’re not debating it. It’s universally acknowledged that Israel is occupying the West Bank — including by Israeli courts, as you point out. I was simply pointing out that the Levy Report denies that evident fact, which is indicative of the quality of its legal analysis.

Hostage
Hostage

Re: Hostage , but suppose you had to cut it , like a judge let’s say , in a tort case , and dividing blame or guilt between two sides. When you are already in a hole, you should stop digging and engaging in “whataboutery”. Criminal trials have some inherently different characteristics. Most of us learned that “Two wrongs don’t make a right” while we were still children growing up. The international criminal tribunals have uniformly rejected the proposition that tu quoque arguments can be employed as grounds for excluding criminal responsibility. I suppose that the degree to which enemy crimes influenced a particular defendant’s state of mind should be taken into consideration as a mitigating factor during the sentencing phase. The Rome Statute is the first criminal tribunal that deals with the issue of victim’s rights and compensation. There might be some justification to apply the civil law doctrine of “unclean hands” in those portions of a ruling. At this point in time, I think the scope of victim’s rights under the statute are still being fleshed-out and don’t constitute a concrete, finalized set of “cut and dried” rules or procedures. Re: 100% blame and guilt on the Israeli… Read more »

el roam
el roam

Hostage , Thanks for the comment , let’s start from the leg of it : 1) Those palestinian factions , accepting the court’s jurisdiction , can be attributed to the palestinian authority in the west bank , among others : to screw up the Hamas regime , they hate so much , don’t be foolish by it !! And the Hamas ?? well : they are happy for every slightest opportunity , to screw up the Israeli state , and they are aware of the advantages they can and actually gain , in the International arena by that . Moreover, they are not afraid of nothing!! How shall the ICC reach them ?? in any case ?? Summons for appearance?? arrest warrants ?? who is going to execute it , where ?? they are under huge siege !! While Abu Mazen , has got nothing to be afraid of , but to screw Israel and Hamas , his days as terrorist are over , and no longer implied to the jurisdiction of the Rome statute . 2) My first question ( dividing tort ) was general ( sort of personal ) not legal , Since , you have that tendency… Read more »

el roam
el roam

Hostage,

just for the gimmick, follow the link, watch Ismail Hania, the leader of the Hamas, marking victorious V, in front of the wreckage of his house (not to mention family members and ” colleagues” he lost) in the last operation in Gaza (protective edge). Does he look to you , like someone , who is afraid of Summon for appearance ?? In the ICC ?? Those guys, would eat alive , blow themselves, on Fatou Bensouda , and ten thousands like her. [Comment edited as per forum guidelines]

Here :

http://www.ynet.co.il/articles/0,7340,L-4565587,00.html

Thanks

Kevin Jon Heller

Good to know el roam also does not understand the separation between the jus ad bellum and the jus in bello.

el roam
el roam

Kevin, If I would only start to specify, what you don’t understand, at the core of your occupation and expertise, I shall not stay young anymore.

However, Self Defense, as been stated has got nothing to do, neither with jus ad bellum, nor with jus in Bello.

You didn’t have enough with the current post?? and previous ?? you want some more ??

Because , if your goal is to exhibit your ignorance in law and international law , you are then :

Efficient as hell !! be my guest then … You are mostly welcome !!

Best wishes ….

el roam
el roam

Kevin ,

I have seen , that you have deleted part of my comment above . It’s not the first time . I have clarified it to you , you don’t have any right whatsoever , to delete comments here .

This is a public domain , an open square , where people , comment freely , as they wish , let alone in public political issues .

If you want to control comments, you need to stop to gain rating , in public domains, and open a blog, only for ” experts like you ” charging money, or accessed with passwords, and simply give up, the public rating .

You can’t have them both !! You can’t cut, and leave intact ! This is , an illegal discrimination . In many states, it is, a criminal offense, and civil tort.

[Comment edited as per forum guidelines]

Leave my comments , and others , as they are , you don’t have any right !!

Kevin Jon Heller

First el roam claims that “self-defense… is a sort of jus cogens.” Now he claims self-defense “has got nothing to do, neither with jus ad bellum, nor with jus in Bello.” It’s almost as if he is trying to be incoherent…

el roam
el roam

Sure Kevin, whatever…..

Hostage
Hostage

Kevin, Alan Baker is obscuring the fact that the PLO relied on an Israeli High Court of Justice decision regarding the incorporation of the Hague Rules into Israel’s municipal code in the Elon Moreh case when they accepted the terms of the Oslo Accords. The Court held that customary international laws, like the Hague regulation prohibition against pillage and expropriating private property, were automatically part of the law of the land in the absence of any conflicting Knesset statute. Note that Israel has no written constitution and that the Knesset enjoys a high degree of Parliamentary supremacy. In many cases, it can overturn a High Court decision by simply adopting an ordinary statute. The High Court also held that the military government could not assert the “military necessity” of a settlement after it had already been established without benefit of any such determination. The Begin government subsequently adopted a policy of only constructing settlements on so-called “state lands”. Baker is doing an end run around the Court by asking the Knesset to either annex the territory or legalize pillage after the fact. So at the time the major Oslo Accords were signed, there was no agreement to negotiate the final… Read more »

el roam
el roam

Hostage , The issue is very complicated . But , you should know : Where ruling of law reigns, there is no supremacy to no one, no official, no authority, but: Principals !! and above all, the principle of rule of law, means: No one is above the law !! So, the fact, that there is no constitution, to the Israeli state, never ever bared any fulfillment of that principle of rule of law. So , even the Knesset , is under such guidance , endless times , the supreme court , ordered and directed the Knesset , it is even prescribed by law , here I quote : ” Basic Law. The Judiciary (1984) Chapter Three. The Courts 15. Supreme Court d. Without prejudice to the generality of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be competent – 2. to order State and local authorities and the officials and bodies thereof, and other persons carrying out public functions under law, to do or refrain from doing any act in the lawful exercise of their functions or, if they were improperly elected or appointed, to refrain from acting;” end of quotation… Read more »

el roam
el roam

Hostage ,

Just for the clarification :

1) The law cited, is not the formal translation of it (it is an original Israeli law, not British one). Such formal form, in English, doesn’t exist.

2) The supreme court , can guide the Knesset , and even in its work as legislator , Thanks to more provisions other than the one cited . But maybe later .

Thanks

Hostage
Hostage

Re: Hostage , The issue is very complicated It’s not complicated at all. I have posted a couple of comments that haven’t appeared yet, so pardon any duplication. In 1919 when the Zionist Delegation presented their case to the Paris Peace Conference, U.S. Secretary of State Robert Lansing asked Dr. Weizmann to clear-up some misunderstandings regarding the meaning of the term “Jewish National Home”. He asked him point blank if it required the establishment of an autonomous Jewish government? Weizmann answered in the negative – and that is fatal to any claim that the Allied Powers ever granted Jews a legally secured right to a sovereign state in Palestine or that Article 80 of the UN Charter preserved the right to establish one. See Papers relating to the foreign relations of the United States, The Paris Peace Conference, 1919, The Council of Ten: minutes of meetings February 15 to June 17, 1919, page 169. http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1919Parisv04&isize=M&submit=Go+to+page&page=169 Article 6 of the Palestine Mandate stated that Jewish immigration was subject to “suitable conditions”. It also excluded any “state lands or waste lands” “required for public use” from those that the mandatory administration could employ for Jewish settlement. So there was never any legal… Read more »

el roam
el roam

Hostage , I was rather referring to the following part of your comment :

” Note that Israel has no written constitution and that the Knesset enjoys a high degree of Parliamentary supremacy. In many cases, it can overturn a High Court decision by simply adopting an ordinary statute. ”

Maybe later , on some others .

Thanks