ICC and Palestine Symposium: Prosecuting Settlements as War Crimes and Crimes against Humanity–The ICC’s Jurisdiction over the Occupied Palestinian Territory

[Katherine Gallagher is a Senior Staff Attorney at the Center for Constitutional Rights in New York, where she focuses on holding individuals and corporations accountable for egregious human rights and international law violations. @katherga1. The views expressed in this post are made in my personal capacity and do not necessarily reflect the views of any organization I am currently or formerly associated with, nor the views of any individuals or organizations for which I serve as counsel.]

The Prosecutor’s Article 19(3) Request for a ruling on the ICC’s territorial jurisdiction in Palestine is precipitated by her conclusion that there exists a reasonable basis to initiate an investigation into the Situation of Palestine, pursuant to Art. 53(1) of the Rome Statute. Among the criminal activity that the Prosecutor has identified as falling within the scope of investigation is the establishment of Israeli settlements in the occupied Palestinian territory (“oPt”). Specifically, the Prosecutor concluded that “there is a reasonable basis to believe that in the context of Israel’s occupation of the West Bank, including East Jerusalem, members of the Israeli authorities have committed war crimes under article 8(2)(b)(viii) in relation, inter alia, to the transfer of Israeli civilians into the West Bank since 13 June 2014.” (Request, para. 95). 

The Prosecutor further determined that “the potential case(s)” related to settlements- would be admissible pursuant to Article 17(1). In light of Prime Minister Benjamin Netanyahu’s recent statement that far from investigating or prosecuting anyone for their role in planning, ordering or facilitating the settlement enterprise, Israeli authorities would proceed to annex settlements in the West Bank without delay, there can be little objection to her conclusion.

This necessarily short piece surfaces some of the jurisdictional considerations that arise in the context of an investigation into the Israeli settlement enterprise.

The Settlement Enterprise

There are currently approximately 620,000 Israeli settlers in the West Bank, including East Jerusalem, living in approximately 250 settlement locations – with the numbers continuing to rise. The reality of expanding settlements, including more than 200,000 Israeli citizens now living in East Jerusalem (as compared to approximately 300,000 Palestinians), stands in stark contrast to the condemnation of the settlement enterprise – explicitly including in East Jerusalem – by international bodies as illegal: the Security Council (see. e.g., U.N.S.C. Res. 446 (1979), 465 (1980) and 2334 (2016)), the General Assembly, various United Nations Commissions of Inquiry and Fact-Finding Missions, U.N. Special Procedures and treaty bodies, as well as regional intergovernmental bodies, including the European Union, have consistently found that both “the establishment and maintenance of Israeli settlements in the Occupied Palestinian Territory to be in violation of international law and without legal validity.” (Request, para. 88).  Indeed, in the Advisory Opinion on the Wall, the International Court of Justice stated bluntly that “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.” (at para. 120)

The ICC’s Jurisdiction over the Settlement Enterprise

As the scope of the territorial jurisdiction of the ICC is the subject of other entries in this Symposium, and will soon be addressed at length by victims, States, and amicus curiae in response to the Request, this aspect of the Court’s jurisdiction will not be explored here. In any event, I fully concur with the Office of the Prosecutor – and with the State of Palestine, in its State Party referral – that the ICC can exercise its jurisdiction under Article 12(2) for crimes arising out of the settlement enterprise in the occupied Palestinian territory beyond the “Green Line,” i.e., the West Bank, including East Jerusalem, and Gaza.

Subject Matter Jurisdiction: The Prosecutor indicated that she will investigate “inter alia” the transfer of Israeli civilians into the West Bank as war crimes, while also affirming that the incidents cited in the Request are “illustrative only” and do not and cannot reflect the full scope of crimes that could be included in any subsequent cases (Request, paras. 95 and 100). This qualifier is particularly apt in the context of potential crimes arising out of the settlement enterprise. At a minimum, the forcible transfer of Palestinians from or within the oPt should also be fully investigated, as should crimes incident to the displacement of Palestinians such as extensive destruction or appropriation of property not justified by military necessity and pillage. Rome Statute, Arts. 8(2)(a)(iv) and (vii), 8(2)(b)(xiii) and (xvi).

Under the Rome Statute, the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies,” is recognized as a serious violation of the laws and customs of war applicable in an international armed conflict and constitutes a war crime under Article 8(2)(b)(viii).  The same is true in the case of the “deportation of transfer of all or parts of the population of the occupied territory within or outside this territory.” Id.  The inclusion of transfer – forcible and voluntary – codifies in the Rome Statute the prohibitions contained in Article 49 of the Fourth Geneva Convention.  According to the 1958 Commentary, the purpose of the prohibition on transfer of the Occupier’s population is to prevent transfer “for political and racial reasons … to colonize those territories.” Such transfer is often understood as a step towards achieving the end goal of annexation, for as the Triffterer Commentary states, “[t]the implantations of settlements and settlers can constitute a powerful means of ethnic cleansing.” (Triffterer at p. 415). 

The Rome Statute prohibits transfer accomplished by both direct and indirect means. In the case of transfer of Israeli citizens into the oPt, indirect means can include, for example, financial incentives, subsidies and tax exonerations, alongside more direct steps by the State such as the development of settlement plans or the construction of housing.  As for the forcible transfer of Palestinians from the West Bank, including East Jerusalem, the means include home demolitions, forced evictions, land seizures and the creation of a coercive environment.

Although the Prosecutor did not specify investigating settlements as crimes against humanity in the Request, as she had previously suggested (see, e.g., Preliminary Examinations Report 2018, paras. 270-271), the mass displacement of Palestinian civilians from and within the West Bank, including East Jerusalem, pursuant to Israeli government policies, satisfies in fact the requirements of crimes against humanity and specifically of deportation and forcible transfer (see Art. 7(1)(d) in combination with Art. 7(2)(d) of the Rome Statute).

Furthermore, the Prosecutor’s investigation should examine the settlement enterprise through the lens of persecution. The settlement regime is inherently discriminatory: settlement-related policies of Israel, as the Occupying Power, benefit Jewish Israeli citizens in planning and zoning, the allocation of land, natural resources, financial incentives, and access to utilities and infrastructure, while restricting fundamental rights of Palestinians to inter alia freedom of movement, property, enjoyment and use of natural resources and freedom from pillage. The Rome Statue, under Art. 7(1)(h), recognizes persecution against a group based on inter alia national, ethnic, cultural or religious grounds as a crime against humanity.

Personal Jurisdiction: At this early stage of the proceedings, the Prosecutor has not identified any prospective defendants in the Request, but rather referred broadly to “members of the Israeli authorities.” Focus on the Israeli civilian and military leadership is the appropriate starting point for any investigation – and the likely target for any prosecution. 

But the movement of 600,000 Israeli Jewish citizens into the West Bank, including East Jerusalem, is not achieved through the actions of government actors only.  It is furthered by the settlers themselves, who act jointly and with a common purpose to seize and/or settle on occupied Palestinian territory and displace Palestinians. The Center for Constitutional Rights represented Palestinian plaintiffs in seeking to intervene to bring counter-claims against individual settlers who had initiated a suit against Airbnb in Delaware following the company’s announcement that it would delist settlement properties; after Airbnb and the settlers entered a stipulation of dismissal, the Palestinian plaintiffs intervention motion and counter-claims were dismissed, without consideration given to the merits of the argument.

The settlement enterprise is also supported and aided by corporate actors, which have their own obligations under international law, as under the U.N. Guiding Principles on Business and Human Rights. These include banks, telecommunications companies, real estate agencies and the tourism industry. This could be the right case for the Prosecutor to dust off her 2016 Policy Paper on case selection and prioritisation that appeared to open the door to business-related liability and investigate corporate complicity in transfer crimes.

Temporal Jurisdiction: Regarding temporal jurisdiction vis-à-vis the Situation in Palestine, Palestine accepted ICC jurisdiction for crimes committed since 13 June 2014. This should not be understood as limiting investigation to only those settlements physically completed after this date.  The concept of continuing crimes should be employed here: criminal conduct does not commence with the construction of a new settlement or with the transfer of an individual Israeli citizen into the occupied Palestinian territory. The process may include a number of stages – the displacement and dispossession of Palestinians; the seizure of property by the State, often in the name of the military; the establishment of an outpost; access granted to infrastructure; the establishment of a new settlement community – but the criminal conduct is ongoing at and across each stage. As for the forcible transfer of Palestinians from or within the occupied territory, this too must be understood as a crime achieved as a result of a multifaceted coercive process carried out over time by both Israel and settlers.

As the U.N. Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 recalled in his 2018 report, “[t]erritorial conquest and annexation are now regarded as intolerable scourges from darker times, because they invariably incite devastating wars, political instability, economic ruin, systematic discrimination and widespread human suffering.” (para. 24) Such is true of the Israeli settlement enterprise. An ICC investigation is long overdue and much needed to bring an end to the ever-expanding and multifaceted settlement-related crimes.