Moreno-Ocampo Needs a Remedial Criminal Law Course

by Kevin Jon Heller

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…

61 Responses

  1. 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 that person of criminal responsibility unless:
    (a) The person was under a legal obligation to obey orders of the Government or the superior in question;
    (b) The person did not know that the order was unlawful; and
    (c) The order was not manifestly unlawful.

    2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

    So , by reading it , you can conclude , that surly a court , highest one , while interpreting , let alone , international law ( by itself , very very complicated issue ) .


  2. 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 .


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

  4. 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 .


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

  6. 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 an object or person, and transfer him literally from point A, to B.

    Here is the definition from : ” cambridge Dictionaries online ” to the word : transfer , here :

    ” to move someone or something from one place, vehicle, person, or group to another:
    He has been transferred to a psychiatric hospital.
    She transferred her gun from its shoulder holster to her handbag.
    We were transferred from one bus into another.
    Police are investigating how £20 million was illegally transferred from/out of the trust’s bank account.
    The aim is to transfer power/control/responsibility to self-governing regional councils.”

    You see , by transferring , you can’t cause it to happen , you must do it , directly do it , this is the core of the action . Now , can you prove it to me , that ever , the Israeli government did it ?

    If you know something even about it, surely, you would be able to provide me, with one example, right Kevin??

    This is just a negligible demonstration of how lengthy and far from you , is the subject .

    Best wishes

  7. 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.

  8. 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 .


  9. 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.

  10. 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 !


  11. 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.

  12. 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 .


  13. 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.

  14. 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.

  15. 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 ??


  16. 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.

  17. 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 Atlantic included him among its “Brave Thinkers”, a guide to the people risking their reputations, fortunes and lives in pursuit of big ideas. In that same year, Foreign Policy magazine designated him one of its “100 Top Global Thinkers”, the magazine’s portrait of the world marketplace of ideas.”.

  18. 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 of demarcation to their destinations without government intervention and assistance at every step along the way is simply ludicrous.

    The government of Israel has acted indirectly, through various instrumentalities, to franchise the bus lines, rail lines, and construct the network of roads and highways that connect Israel to the settlements as part of a common criminal purpose. Likewise, the Knesset has funded the construction of the settlements and provided utilities and other essential services through the instrumentality of the WZO Settlement Division, the JNF, and the Regional Councils.

    The excuses employed by Israelis are very similar to the ones employed by German occupation officials to legalize or launder property and resources obtained by criminal means through the instrumentality of acquisitions by third parties, like Krupp, I.G. Farben, and hoards of colonists. The German efforts simply resulted in criminal liability for all.

  19. 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 shall have to deal first , with the common meaning of it , and in light of it , no transfer never ever has taken place .

    I do understand Hostage , that you have plenty of complaints and resentment over the Israeli state as occupier or whatever , but : ” each cow at a time ” . let’s all be patient , and you may observe thinks , totally different !!


  20. 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;”


  21. 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 yes, I have been to Israel. Multiple times. I’ve even — hold on to your hat! — consulted with the government.

    PS: The country is “Israel,” not “Isreal.” Ask any Harvard professor!

  22. 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.”

  23. 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 of article 49 was never intended to apply to Israel’s settlements.

    The authoritative and official ICRC commentary published in 1958 in order to assist “Governments and armed forces…called upon to assume responsibility in applying the Geneva Conventions,” clarifid article 49 as follows:
    “It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.”

    In other words, according to the ICRC commentary, Article 49 relates to deportations, meaning the forcible transfer of an occupying power’s population into an occupied territory.

    Historically, over 40 million people were subjected to forced migration, evacuation, displacement, and expulsion, including 15 million Germans, 5 million Soviet citizens, and millions of Poles, Ukrainians and Hungarians.

    The deliberate alteration of the text, by adding “directly or indirectly” is indicative of the proponents’ and the international community’s acknowledgement of the fact that Article 49 as drafted in 1949 was simply not relevant to the circumstances of Israel’s settlements.

    So while your discussion of possible jurisprudential meanings behind the use of the term “directly of indirectly” is of interest in and of itself, it cannot ignore the simple fact that the insertion of this wording was nothing more than a political manipulation.

  24. 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 civilians into occupied territory to be forcible. (Which would have been a strange requirement, given that many German civilians quite willingly moved into the Occupied Eastern Territories during the war.)

    Third, and finally, although you are certainly correct that the inclusion of “indirectly” in Art. 8(2)(b)(vii) of the Rome Statute was politically motivated — targeted primarily at Israel — that is largely beside the point. The Rome Statute is a treaty, and 124 states have ratified the treaty knowing full well that it criminalises indirect transfer. So the ICC has every right to prosecute individuals for indirect transfer — Israeli or otherwise — as long as it has jurisdiction over them.

    PS: I think you do Hostage a disservice. You may disagree with him, but he is one of the very few commenters on my Israel posts who bothers to defend his positions substantively, at length, and relying on documents that are all publicly available. I wish all commenters were more like him.

  25. 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?

  26. 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

  27. Re: That reckless combination of : ” Transfer ” and : ” Indirect ” had raised great suspicions concerning the origin, the motives , and the back mind of such

    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.

    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 the formation of a federal union between Arab Palestine and Transjordan in accordance with the resolutions adopted by an Arab Palestinian Congress held in Jericho. When two-thirds of the members of the international community of states present and voting adopted a “decision” on Jordan’s membership and participation in the UN Organization, in accordance with Articles 2 and 18 of the UN Charter, they disposed of any debate about Jordan’s “sovereign equality” or the legality of the political union between Arab Palestine and Transjordan. Contrary to Zionist propaganda claims, the FRUS revealed that the US government extended de jure recognition to the union. It also revealed that when Israeli Prime Minister Eshkol suggested the joint Palestinian-Transjordanian government was somehow “occupying” the West Bank, President Johnson instructed Ambassador Goldberg to make the terms of the UN Security Council resolution perfectly clear by stipulating that it required the withdrawal of the armed forces of Israel.

    Once again the plenipotentiaries attending the Rome Conference chose words that were not at all surprising, in light of the fact that customary international law already recognized both direct and indirect modes of common-purpose criminal liability – and the fact that all of the Great Powers had employed their own private chartered colonial companies to indirectly facilitate the recruitment and transport of settlers and plundered resources during the heyday of colonialism.

    The notion that the laws of nations must protect humanity, rather than the rights of states, actually started when Edmund Burke complained about the plunder and deportation of the Jews of St. Eustatius: “Their abandoned state and their defenceless situation call most forcibly for the protection of civilized nations. If Dutchmen are injured and attacked the Dutch have a nation a government and armies to redress or avenge their cause. If Britons are injured Britons have armies and laws the laws of nations (or at least they once had the laws of nations) to fly to for protection and justice But the Jews have no such power and no such friend to depend on. Humanity then must become their protector and ally.”

    Zionist propaganda strangely insists that means that every one of the thousands of ethnic groups existing today needs to have it’s own “nation state”.

    But a change in sovereignty does not effect personal, heritable, or communal property rights under customary, conventional, or most domestic legal systems. For example, the U.S. Supreme Court recognized a long time ago that there was a fundamental principle of the law of nations: “[t]hat when a territory is acquired by treaty, cession, or even conquest, the rights of the inhabitants to property, are respected and sacred.” Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 749 (1838). In United States v. Percheman 32 U.S. 51 (1832) with regard to the continuing rights of the inhabitants to citizenship, inheritances, residency, and private property ownership the Court said: “The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged if private property should be generally confiscated and private rights annulled on a change in the sovereignty of the country. The people change their allegiance, their relation to their ancient sovereign is dissolved, but their relations to each other and their rights of property remain undisturbed.”

    The Nuremberg Principles, based upon the Hague conventions of 1899 and 1907, explicitly protected “towns,” “villages,” “places:, “any civilian population,” “family rights and honor,” and “private property” against the crimes of pillage, excessive expropriation, deportations, or displacements. Those crimes did not become in anyway obscure between 1945 and 1948 or 1967.

    Most of us have seen the video of Prime Minister Netanyahu bragging about the fact that he had secretly obtained special plenary powers from US Secretary of State Warren Christopher that enabled him to “kill the Oslo Accords”. So it seems to me that Dr. Baker’s the one using this website for propaganda purposes regarding the the legitimacy of the settlements based upon those abrogated agreements. The European Court of Human Rights recently decided that persons displaced by armed conflicts or their family members with heritable rights have an inalienable right under customary international law to return and access their properties. It held that states have a legal duty to facilitate the exercise of that right as soon as possible after the hostilities have ceased. The Court also ruled that “negotiations” cannot be used as an excuse to avoid those obligations.

    The ICJ clearly rejected the notion that the moribund Oslo agreements can be employed to renounce the civilian population’s on-going protections against permanent displacement contained in articles 6, 8, and 49 of the 4th Geneva Convention.

  28. 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.


  29. 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 occupied territories” as amounting to a “violation of the Fourth Geneva Convention” (at para. 5, available here:

    In summary, the better interpretation seems to be that Article 49 GC IV does in fact apply to Israeli settlements.

  30. 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…

  31. 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 the same basic analysis, presented by me at that post.

    Link to the report :


  32. 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 : those territories, can’t be delivered to no one , surely not to the Palestinians ( so far ) . Question of critical survival , of self defence .


  33. 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.

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

  35. 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 implied ?? Ridiculous !! you just didn’t bother to quote those professors of law from the report, So, I shall:

    ” The convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before second world war – the mass transfer of people into and out of occupied territories for purposes of extermination , slave labor or colonization , for example ….The Jewish settlers in the west bank are most emphatically volunteers. They have not been ” deported ” or ” transferred ” to the area by the Government of Israel , and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva convention to prevent ” ( Rostow )

    ” Irony would ….be pushed to the absurdity of claiming that Article 49 ( 6) , designed to prevent repetition on Nazi – type genocidal policies or rendering Nazi metropolitan territories judenrein , has now come to mean that ….the west bank ….. must be made judenrein and must be so maintained , if necessary by the use of force by the government of Israel against its own inhabitants . Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49 (6 ) ” . ( Julius Stone )


  36. 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.

  37. 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.

  38. 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 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.

    Like most civilized people I recognize that crimes have been committed on both sides. In every case, I hold the perpetrators 100% responsible and refuse to assign any blame to the victims. My comments here are almost invariably responses to someone else’s theses or remarks. If there were Palestinian authors or commenters here making extravagant claims based upon a pastiche of legal, logical, and historical sounding fallacies, I’d gladly debunk them for you. I’m one of the few people here who has commented on the extradition treaties that the State of Palestine had concluded with third-party non-member states (e.g. The Arab League and OIC) prior to the date of the Rome Statute’s entry into force. I’ve noted the fact that many of the members of the League and OIC are ICC member states that can be called upon to use those multilateral agreements to assist the Court in obtaining custody of Palestinian suspects from third party states. I’ve endorsed the conclusions of UN Special Rapporteurs, Fact Finding Missions, and the panels of legal experts assigned to follow-up on the investigations conducted by the Israelis and Palestinians. Those reports have always contained allegations that the Palestinian militias aligned with Fatah, Hamas, Islamic Jihad, et al have committed crimes that are subject to the Court’s jurisdiction with no apparent military objective in sight. They have uniformly recommended that the ICC Prosecutor should investigate and bring those responsible to justice.

    FYI, all of those Palestinian factions have agreed to accept the Court’s jurisdiction for any crimes their members might have committed under the auspices of one or more Article 12(3) declaration(s).

  39. 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 , to insert propaganda or intuitive judgment to your comments . but even so :

    You tend to forget, that the self defense right, is a sort of jus cogens, and as such, attributes blame on the one who may appears as victim, and reduce or eliminate liability on the aggressor. It has a huge impact on the understanding and judgment of this conflict . Correct , criminal liability , is personal at the ICC , yet , it has certain impact , not only in sentence terms , but indictment and ruling also , one scroll , can’t have it all here of course .


  40. 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 :,7340,L-4565587,00.html


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

  42. 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 ….

  43. 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 !!

  44. 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…

  45. Sure Kevin, whatever…..

  46. 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 status of cases involving stolen private lands. The PLO only agreed to Israel’s continued exercise of jurisdiction “in accordance with international law”, and the customary prohibition of pillage incorporated in the municipal “law of the land” per the High Court ruling, i.e.: “Israel shall exercise its authority through its military government, which, for that end, shall continue to have the necessary legislative, judicial and executive powers and responsibilities, in accordance with international law. This provision shall not derogate from Israel’s applicable legislation over Israelis in personam.”

    In either case, the military government should be bringing the perpetrators to justice when they establish outposts on stolen private lands and Baker is talking out of both sides of his two faces.

  47. 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 –

    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 :

    You see Hostage , authorities , includes also the Knesset , and that’s include legislation work or outcome .


  48. 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 .


  49. 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.

    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 justification for the establishment of Jewish-only settlements on publicly owned land in occupied Palestine, even if Article 80 of the UN Charter worked the way Zionists claim.

    To sum up: Foreign Jews had no guaranteed legal right to immigrate to Palestine; they had no right to settle on state land or waste land required for public use once they got there; and they had no legal right to expropriate private property in violation of the Hague regulations.

  50. 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 .


  51. @Hostage:

    Indeed, in any event it should be noted that it is also not clear that article 80 of the UN charter applies in this case as well as the termination of the Mandate seems to have been interpreted as ending the applicability of its Charter as well. For instance, the US proposed to turn the Mandate into an UN Trust as soon as the UK announced the termination of the Mandate, which would imply an end of the provisions of its Charter.

    I can also note that you mentioned that it is a legal obligation to preserve property rights and, seemingly, the right to return. If so, could this provisions be used to accept the legality of some settlements? After all, some of them lie in land that was owned by Jews during the Mandate and who lost it as a result of violence during and after the termination of the Mandate, in places such as Hebron (over the Hebron massacre of 1929), Jerusalem (Jews were expelled or fled from the eastern part of the city which was placed under Jordanian occupation during the 1948 war) and in parts of the present-day Gush Etzion bloc (specifically where the village of Kfar Etzion stood before it was conquered by Jordan on May 13, 1948). It should be noted, too, that Gush Etzion in particular was among the very first settlements built by Israel, ostensibly appealing to returning to property lost as a result of the conquest of Kfar Etzion during the 1948 war, and similar arguments have been used with regards to settlements in east Jerusalem and Hebron.

    If this is the case, then the issue of settlements is not really as clear as it is generally said to be and should be analyzed in a case-by-case basis.

    Personally, I don’t think appeals to right to return or property restitution apply as there is no inalienable right to that effect – indeed, you mentioned ECHR rulings on the matter (perhaps referring to Loizidou v. Turkey), yet the ECHR has also ruled in Demopoulos v. Turkey that the compensation scheme passed by Turkey after that ruling provides appropriate redress to Cypriots who lost their property as a result of the 1974 conflict despite the fact that restitution of the said property (and, in consequence, a physical return to it) has been applied in a minority of cases, ostensibly placing adequate monetary compensation in the same standing and also acknowledging that the interests of third parties (such as people who bought the said properties from the TRNC after it was formed) should be respected.

    Yet, the issue of whether allegations of a right to return and property restitution have a bearing on the legality of some Israeli settlements in the occupied territories (and also to residence and property claims by Palestinians) is an interesting question that also deals directly with how the claims of right to return and property restitution are supposed to be dealt with and which puts both Israelis and Palestinians in a very awkward position, both legally and politically.

  52. Re: in any event it should be noted that it is also not clear that article 80 of the UN charter applies in this case as well as the termination of the Mandate seems to have been interpreted as ending the applicability of its Charter as well.

    Yes. In a number cases, the Israeli High Court of Justice ruled that rights under the mandate came to an end when it was terminated, e.g. CApp 41/49 Simshon Palestine Portland Cement Factory LTD. v. Attorney-General (1950), Sifri v. Attorney-General (1950). Both of those cases were reported in the International Law Commission Yearbook. Furthermore, the High Court heard all of these fringe theory arguments in 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; and HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel). The Court rejected the notion that Jews have any special right to live in the occupied territories.

    I’ve explained why Article 80 is irrelevant in the comments to Dr. Lorenzo Kamel’s article a week or so ago. It suffices to say that, if Article 80 protects rights that states or peoples obtained under a mandate (after it’s terminated), then the ICJ decision in the Cameroons v UK case is inexplicable. It held that the inhabitants lacked the necessary legal standing, since the General Assembly’s resolution regarding the status of the territory was legally dispositive.

    Re: I can also note that you mentioned that it is a legal obligation to preserve property rights and, seemingly, the right to return. If so, could this provisions be used to accept the legality of some settlements?

    The UNRWA and its predecessor registered 17,000 Palestinian Jewish refugees. I’m only talking about those persons or their family members with inheritable rights (citizenship if born abroad to a Palestinian father, and landed estates). Kfar Etzion wasn’t privately owned. It was purchased by the JNF from an order of German monks, who had been deported as enemy aliens. The displaced persons certainly have a right to return to their country of origin or habitual residence, but corporations, especially parastatal ones, may not have the same property rights as natural persons under IHL. None of the other persons living in the Etzion Bloc today is doing so legally. Read the full memo attached to the infamous cover letter that Theodor Meron wrote in 1967 at the SOAS website. He stated flatly that the civilian and military settlements were illegal and suggested that the so-called return of the Jews to Kfar Etzion might be employed as a subtrfuge to get around the initial objections. But Israel has abandoned all pretense that this is simply a return of the original inhabitants or their family members.

    Re: Personally, I don’t think appeals to right to return or property restitution apply as there is no inalienable right to that effect

    You are welcome to argue that point, but the ICRC (Customary IHL Rule 132 and 133), the UN (General Assembly resolution 3236 (XXIX), and the ECHR (Case Of Sargsyan V. Azerbaijan And The Case Of Chiragov And Others V. Armenia) have all stated that there is an inalienable right of return that is a norm of customary international law.

    The Lieber Code explained in the 1860s that, even in non-international conflicts, it was no longer permitted to drive private citizens into distant regions. The authors of Article 46 of the Hague Convention hailed it a the “Magna Charta” of family and private property rights and expressed the hope that it would end the practice of plundering and emptying entire districts of their civilian populations. Article 6 of the 4th Geneva Convention states that displaced persons continue to enjoy the protections of the convention until they are repatriated. Article 8 does not permit local officials to conclude special agreements that renounce the civilian population’s protection under Article 49 against permanent displacement or deportation. Article 85 of the First Additional Protocol made unreasonable delay in repatriating prisoners and civilians a grave breach and a war crime.

    Alexander Orakhelashvili explained that: Resolution 242 called for ‘a just settlement of the refugee problem’ in Palestine. ‘Just settlement’ can only refer to a settlement guaranteeing the return of displaced Palestinians, and other interpretations of this notion may be hazardous. The Council must be presumed not to have adopted decisions validating mass deportation or displacement. More so, as such expulsion or deportation is a crime against humanity or an exceptionally serious war crime (Articles 7.1(d) and 8.2(e) ICC Statute).”

    The commission of a crime cannot be the object of a valid international agreement. Basically any final settlement negotiated at gunpoint during a belligerent occupation that violates a jus cogens norm, like the prohibitions against war crimes or crimes against humanity, would be null and void from the very outset in accordance with the customary rules contained in Articles 52 and 53 of the Vienna Convention on the Law of Treaties.

  53. Just an additional remark , following a post launched , by Chris borgen ( “A Note About Commenting on Opinio Juris
    by Chris Borgen ” ) has to do with so called : policy regarding the editing and deleting of comments ( with no possibility to comment there at the post itself , so hereby ) :

    What I have written to Kevin Jon Heller above, is applied equally on the site managers or editors:

    No way you can delete or edit comments !! You are fed on public readers (Moreover: that site, is accepting advertisement ,and probably for money) So, you must respect the public as a whole, you can’t edit or delete, due to different or variant style or different ways of expressions or whatever. It is illegal discrimination, surly while dealing with the public and political issues.

    It is of course desirable to ask and bag for civilized language, yet, no more than asking and begging for it .

    He who doesn’t like such imposition, should look for secured blog, denying access, but for certain internal forum .

    He who is fed on public , should respect the public , as a whole , and not only different opinions , but , different attitudes and styles , typically , has to do many times , with personal background , or different cultures and alike ,surly while dealing with an international site .

    You simply can’t dictate here , right from wrong !! No one does it or can do it in public domain , and this is , definitely public domain .Too many people , in the real one , couldn’t get compensation for cruel defamation , thanks or due to freedom of speech , so why would you ?? To your kind attention !!


  54. Hostage:

    I have a few comments:

    1) Even if you wished to deny the case of Kfar Etzion due to the fact that the land was owned by the JNF, this would have no bearing on the situation in east Jerusalem and Hebron, or the situation of those who lived there as tenants if there is a right to return.

    2) Looking at the precedents set by:

    2.1) The UN: UNGA resolutions seem to place return and compensation in a similar standing (e.g. UNGA res. 394), and the UNSC accepted rather harsh limits to any notion of return in the case of Cypriot refugees when it endorsed the “Set of Ideas” on the matter in UNSC res. 750 on 1992, which include as a principle limiting the right to physically return to preserve a clear demographic majority of the dominant ethnic groups in each respective territory at the time on para. 22 and which were also featured in the UN-sponsored Annan Plan (see “The Right of Return in International Law: An Israeli Perspective” by Eyal Benvenisti for a more detailed analysis);

    2.2) The ECHR: See the aforementioned ruling in Demopoulos v. Turkey;

    It would seem that the right to return and property restitution is to be rather limited when enough time has passed and civilians have moved into the previously vacated areas, leading to new displacement of populations in the process of allowing returnees to exercise their right. It would seem, instead, that the provisions dealing with a right to physically return, and reside, in a previously vacated territory is meant to apply when the end of hostilities has been effectively reached and when a relatively limited amount of time has passed so civilians would not be further affected by it. I doubt this could be said with regards to the Israeli-Palestinian conflict (particularly since the major population movements took place even before 1974, and time elapsed was explicitly included as a factor by the ECHR in this matter), both for Israeli and Palestinian refugees alike.

    But if you don’t think this is an important issue, then why shouldn’t Israeli courts evict Palestinians residing in Jerusalem to allow Israelis with the respective property deeds to live in those properties? Why would those Israelis be settlers and not returnees under this standard? After all, if a right to return is an inalienable right then it would seem legitimate for Israelis who own property in east Jerusalem to reside there, regardless of whether the said property was sold to a Palestinian family (or of they simply moved there), the legal and political status of the city or the status of the peace process.

    And of course, if such evictions by Israeli courts are illegal, then why wouldn’t Palestinian refugee claims be subject to similar restrictions pending a final status agreement?

    It seems to me that neither Palestinians not Israelis can have their cake and eat it too: Either right of return is inalienable and subject to no or little limitations and some settlements are not necessarily illegal; or the right to return is subject to several limitations, including and especially dealing with preventing a negative outcome for people who live on previously vacated territories, and all Israeli settlements are illegal (and Israeli court rulings which evict Palestinians from homes which were owned by Jews during the British Mandate are contrary to IHL, even if those Jews can provide the respective property deeds) but the right of return for Palestinian refugees is also limited and subject to the presence of Israeli civilians in properties that were vacated in the 1947-1949 war.

    3) I am not sure that being registered in the UNRWA has any legal or even practical bearing on this matter. After all, Israel had a policy of getting as many Jews as possible unregistered and it is also not clear that many Jewish refugees ever registered on it, even if they could. Note that the same argument does not seem to apply to the Palestinian refugees, who have every reason, possibility and need to be registered in the UNRWA as suggested by the high number of people registered there.

    Furthermore, this would not negate the validity of property deeds owned by Jewish refugees, with the corresponding right to access and enjoy them as well (itself intimately and inherently linked to a right of return).

    4) At last, taking your arguments at face value, I also disagree with your assertion that international agreements cannot rest on committing an illegality – a claim that is even stranger when dealing with deliberate population displacement and claiming that it was regarded as illegal as early as the 1860 Lieber Manual. After all, didn’t the 1923 Lausanne treaty between Greece and Turkey include provisions mandating a compulsory population exchange between both countries? Didn’t the Allies also engage in deliberate displacement of civilians in the Postdam Agreement? Isn’t these agreements’ legality recognized to this day with no recognition to a right of return in either case? Either the customary prohibition to deliberately displace civilians was actually not effective then, but actually arose at a later date, or at the very least the right to return can perfectly be limited by international agreements (as suggested by the sponsorship of the Annan Plan by the UN).

  55. Re: Even if you wished to deny the case of Kfar Etzion due to the fact that the land was owned by the JNF, this would have no bearing on the situation in east Jerusalem and Hebron, or the situation of those who lived there as tenants if there is a right to return

    I don’t think you understood what I meant to say. First of all, no settlement established “unilaterally” beyond the armistice lines during a belligerent occupation can be recognized as legal.

    I cited two related ICRC customary rules: 132 Return of Displaced Persons and 133 Property Rights of Displaced Persons. Both become operative after hostilities have ceased. I did not mean to imply that JNF ownership of Kfar Etzion or any other locale would impair the right of any displaced Jewish person or their family members to return to the Palestinian state. That of course would include the inhabitants of any other locales, like Hebron, or Gaza.

    Israel remains bound by the terms of its own acceptance of the 1949 armistice agreements. They were a “provisional measure” mandated by the UN Security Council in accordance with Article 40 of the UN Charter. The Charter itself stipulates that those Chapter 7 provisional measures are without prejudice to the claims of either party. After the failure to conclude a final settlement at the Lausanne Conference, the Security Council reminded the parties that the armistice agreements had terminated hostilities and that they should begin repatriating any Palestine refugees (Jews and Arabs alike) that had been vetted by the mixed armistice commission or the Palestine Conciliation Commission. See for example S/RES/89(1950) and S/RES/95(1951).

    I stated that UNRWA had only registered 17,000 Jewish refugees to give some idea of the scope of the problem. But I went on to say that I was talking about those Jewish persons who had actually been displaced or their children born in exile, who would have acquired Palestinian nationality automatically in accordance with the 1925 Palestine Citizenship Ordinance which remained in effect until 1950. That would include anyone who was displaced, regardless of whether or not the UN registered them. Likewise, the General Assembly ordered its PCC to maintain a database of property claims in 1949 and again in connection with the construction of the wall in 2004. The PCC statistics would only provide an idea of the scope of the property claims involved.

    What I had in mind was something like the post WW-II German constitution. It restored the citizenship of both the Jewish parents and any descendants born abroad who would have otherwise been German nationals, if not for the effects of the Nazi era Nuremberg race laws and illegal deportations. They did not need to apply for immigration, because the government treated them as if they had always been its citizens.

  56. Indeed, but if you consider that the right to return is an inalienable right, then why would it be illegal for Jewish refugees with Israeli nationality to attempt to get restitution of properties in the West Bank or east Jerusalem, even if they lie within areas recognized as settlements by the international community?

    Those Israeli citizens who are in possession of property deeds dating from the Mandate who sue in Israeli courts to get restitution of the said property and succeed, leading to the eviction of Palestinian families living there and who decide to reside in these properties thereafter, are settlers or simply returnees? If they are the latter, then it would necessary, at the very least, to contrast allegedly illegal settlements with the registered properties at the PCC to determine whether they are actually illegal or not. If they are the former, then it is far from clear that the right to return is to be interpreted as an inalienable right, in line with the arguments I provided earlier with regards to the limits of a right to return when a rather significant time has elapsed ever since the population movement took place.

    As for the case of the post-war (West) German Constitution, I am not sure of whether it is a completely comparable to the Israeli-Palestinian situation. After all, and as a starting point, East Germany did not extend nationality to those Jews who were subject to Nazi rule, so I’m not sure on how to evaluate this. I am not sure any States had any complaints to make about that policy with regards to a right to return.

  57. @ Anon

    I’m working offline, because my replies are vanishing when I post them. I see you have new post and hope addresses some of your questions.

    It’s not illegal for private individuals to exercise their rights peacefully. But it’s illegal for a belligerent occupying power to use threats or armed force to facilitate them in doing so. The Meron memo illustrates that Kfar Etzion has been a national project or state undertaking since day one and the overwhelming majority of the tens of thousands of settlers there today have no relation to the original inhabitants who were displaced.

    Many of your points are well taken. I was alluding to some of your examples when I said “you could argue that, but …” I think the UN Charter and subsequent prohibitions in the 1949 Geneva Conventions and their protocols were specifically intended to prevent the recurrence of some of the striking historical situations perpetrated by the Great Powers that you noted.

    The ECHR judgements that I cited were delivered in 2015. The one you cited was delivered in 2010. The ECHR has also instructed the British Courts to enforce the default judgements of the regular courts in southern Cyprus against UK citizens who purchased plundered property in Northern Cyprus in the matter of Meletis Apostolides v David Charles Orams and Linda Elizabeth Orams. They had been ordered to demolish their home, return the land to the rightful owner, and pay rent until they settled the matter.

    Only about a third of the UN member states have ratified the convention on non-applicabiity of statutory limitations to “eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, or genocide”. So there is probably some merit to the argument that many states would accept the proposition that a displaced refugee’s rights to property or to return might diminish in time.

    Nonetheless, 170 or so have ratified the 1st Additional protocol, which declared delays in repatriation and apartheid war crimes. Those as “on-going” crimes. A logical first step would be for some of those states, which host large refugee populations to grant their courts universal jurisdiction, to indict those responsible, and bring them to justice if possible.

    I think we are comparing the state of the world to the state of the law at the time and see many of the same disparities. There are 50 million or so refugees in the world today. It doesn’t appear to me that there is any legal solution on the horizon yet, but I’m no prophet. Courts can only handle the facts of the actual cases brought before them. I doubt the current ICC Prosecutor intends to bring those responsible for these situations in Palestine, or Cyprus to trial or that she has the necessary jurisdiction to do so in many of the other blatant cases of ethnic cleansing and plunder of property that spring to mind.

    The British publicist whose commentary I cited above regarding Article 46 of the Hague rules admitted at the time that it was mere desiderata and cited Sherman’s march to the sea as the sort of thing it was designed to prevent going forward. So the Lieber Code obviously was ineffective.

    The notion that a crime cannot be the object of a valid international agreement has been axiomatic, at least since the days when Lassa Oppenheim included it in his treatise on international law. The “international community of states” mentioned in The Law of Treaties made it a conventional UN rule. Disputed cases are the subject of a compromissory clause that permits the ICJ to dispose of the matter.

    It’s pretty clear that the Security Council and General Assembly have failed to maintain international peace and security. FWIW the General Assembly and ICRC at least go through the motions of examining state practice and opinio juris through diplomatic conferences, the ILC, special studies, and etc. Both have some official role, if only an indirect one, in promoting the codification of international law.

    The 15 members of the Security Council have created the criminal tribunals and approved their draft statutes. They have even legislated a bit with regard to terrorism and other issues. But the Council lacks sufficient credibility or authority to make anything like a judicial pronouncement that could abrogate a fundamental human right or violate the Charter principle of equal rights and self determination of peoples, or the right to self-defense. Alexander Orakhelashvili cited Judge Lauterpacht’s preliminary judgement in the Bosnia genocide case to that effect.

    If South Africa can’t setup isolated enclaves that are reserved for certain ethnic groups without violating Article 1 of the Charter, then I don’t think that the Secretary General and the Security Council can demand that the displaced peoples of Cyprus acquiesce to the UN doing the very same thing -and nothing in paragraph 11, 22, or 25 of S/23780 actually did that.

    While displaced persons have the right to return and to access their property, there will always be the problem of those who genuinely do NOT want to do so, or fear to do so. So there will always be a need to mention “negotiations” regarding possible compensation in such cases. That does not mean that a belligerent can refuse to repatriate those displaced persons who genuinely do wish to return and access their property.

  58. Remember when el roam cited the ICRC in defence of his “analysis” of indirect transfer? The ICRC specifically disavowed the idea that Art. 49(6) is limited to forcible transfer. See here.

  59. @Hostage:

    Don’t worry about the delays in posting – I post from my mobile, so I face difficulties of my own sometimes (like when providing long answers).

    A few points:

    1) I am not sure that Israel, as an occupier, is necessarily barred from trying to restore the possession of their nationals’ properties and, by extension perhaps, their return to them if a right to return is regarded as inalienable and not subject to limitations. After all, if it is expected that it should respect those rights for the occupied population under its control and foreigners, why wouldn’t these rights extend to its own nationals? This is the case particularly since the right to restitution and return are seen of paramount importance and independent of any political settlement (and even predating it). I don’t think IHL expects states to prioritize non-nationals over its own citizens on this matter.

    That said, I do agree that there are many Israeli citizens who have nothing to do with any property claims and who are rightly labeled as settlers. Indeed, chances are that most are settlers. But if there are returnees among them, in a strict legal sense, it would be fair to make that distinction.

    Now, since I think the right to return is in fact open to be limited, I would say that even returnees would not necessarily have a right to take possession of property in the West Bank and reside there. I’d even say that they don’t, because of the effects of their presence on the occupied population, particularly those who are evicted as a result of restition of property, though I would also note that this last concern should also be extended to populations not living under belligerent occupation as well.

    2) Your point regarding the Geneva Conventions is well taken, but it would still leave some concerns open. For instance, how should the property rights of populations displaced by conflict before they became international custom be dealt with? While these displacements may have taken place earlier, if the inability of the said population to return is an ongoing crime, then the dispute is not really solved. In particular, even though the GCs may have been written to prevent Great Posers (and states in general) from deliberately displacing populations again, if there non-return is an ongoing crime then these populations would seemingly have a right to return. Yet, there doesn’t seem be any relevant support for these return to take place.

    3) Regarding the ECHR cases, a superficial reading of the ruling seems to be that the ECHR doesn’t regard there are no relevant accessible and opportune mechanisms for property claims to be made at a national level. In the case of Demopoulos v. Turkey, it ruled that such mechanism was in place in TRNC for Cypriots to make property claims and, indeed, such mechanisms seem to be designed to that effect (unlike, for instance, Azerbaijan’s laws which don’t deal with Armenian refugees specifically and also which have not been tested in situations like the one in that respective trial). What does matter, however, is that the ECHR ruled that there exists a mechanism that can provide effective redress even if it doesn’t center on property restitution to that end. This would mean, then, that it does not regard return and restitution as inalienable rights but that they can be one of many equally valid options to provide effective redress for displaced populations, and that States are not obliged to provide compensation only in some very particular cases. Note, too, that the Orams case’ ruling is from 2009.

    4) I think there needs to be a distinction between deliberate displacement and not providing effective redress for people who were subject to displacement as a result of an armed conflict (deliberate or not). Maybe I’m wrong, but judging by the ECHR’s ruling, only the latter would be the on-going crime. Of course what does “effective redress” mean is a completely different issue, and it is certainly open to debate if time elapsed could mean that property restitution and return are not to be the preferred means of redress unless material conditions don’t allow for it under any circumstances or if the affected persons prefer compensation instead.

    I tend to take the view that time elapsed does matter – the arguments by the ECHR in Demopoulos v. Turkey with regards to the effect of restitution and return on people who may live in the properties that would be restituted to their rightful owners are particularly persuasive, and I would also say that the case of Israeli courts evicting Palestinians in east Jerusalem to restore the possession of houses located there which belong to Israeli Jews would also be another example of this, even if Israel is the occupier.

    5) At last, I think the behavior of states and international institutions such as (and especially) the UN is a strong indication on how they interpret international law, though it is also true that the UN does not act always within IHL (for instance, I am not so sure that it is accurate to state that the US occupation of Iraq ended when the Iraqi Interim Government was formed on June 2004 as the US exercised effective control over Iraq, as suggested by the dependence of the Iraqi government on the American forces).

    Yet the behavior of states with regards to the right to return and property restitution as the compulsory means of redress for displaced persons except in very specific cases when a significant time has elapsed since the said population displacement took place, resulting in the eviction of a significant number of civilians who may be leaving in the properties to be restituted (and perhaps causing a major demographic change in the state which has to provide redress to these displaced persons); the behavior of the UN in one specific instance of this (Cyprus, and in that case there were also considerations on the demographic composition of the territories at hand); and now the ECHR in the Demopoulos case suggest that this is at least a rather complex issue.

  60. PS: Regarding S/23780, the relevant paragraph is this one:

    “20. The bi-zonality of the federation is reflected in the fact that each federated state would be administered by one community which would be guaranteed a clear majority of the population and land ownership of its area. It is also reflected in the fact that the Federal Government would not be permitted to encroach upon the powers and functions of the federated states, nor could one federated state encroach on the power and functions of the other”

    Can be found at:

  61. @Hostage

    Regarding the exchange between Sect. Lansing and Dr Weizmann at the Paris Peace Conference.

    I believe that Dr.Weizmann’s reply was that the Zionists were not immediately requiring of the Great Powers, an autonomous Jewish State.
    But, when the Jewish population of Palestine eventually reached a majority. that majority would create within Palestine, a government that would met the needs of the people. i.e. a State.

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