We know what is stake at in Libya’s admissibility challenge regarding Saif Gaddafi: either a fair trial at the ICC that will likely result in a lengthy prison sentence or an unfair trial in Libya that will almost certainly result in execution. Libya has done nothing to disguise the unfairness of its national proceedings, but it has generally pretended to be concerned with Saif’s right to a fair trial in its many filings at the ICC. So I was very surprised to find Libya argue in its most recent motion that Saif’s lawyers, the Office of Public Counsel for the Defence (OPCD), should not even be allowed to see the evidence it provides the Pre-Trial Chamber in support of its admissibility challenge:

29. In its 7 December 2012 Decision concerning Mr. Gaddafi the Pre-Trial Chamber requested Libya to make available sample investigative materials. Libya has made such samples available (as set out in Annexes 4 to 7 and 15 to 17), prior to the accusatory phase of proceedings on an exceptional basis as a demonstration of its genuine commitment to fully cooperate with the Court in these admissibility proceedings. Libya requests however that this material be treated as being submitted to the Chamber on an ex parte basis. This is necessitated by the strict non-disclosure requirements of investigative material prior to the accusatory phase of proceedings under Article 59 of the Libyan Code of Criminal Procedure (as set forth in the Application of Libya), and for
obvious reasons of confidentiality.

30. Article 59 requires non-disclosure of investigative material under threat of criminal punishment. It provides that:

Investigation procedures and their results shall be considered confidential.
Investigators, prosecution members and their assistants of clerks and experts who are related to the investigation or attend to their profession or post shall undertake not to disclose same. Anyone who breaches this provision shall be punished in accordance with Article 236 of the Penal Code.

The unfairness of Libya’s ex parte request is obvious — the OPCD can hardly challenge Libya’s claim that the national proceedings against Saif satisfy the principle of complementarity if they don’t have access to the supporting evidence. Which is, of course, precisely the point of the request.

To be sure, Libya doesn’t acknowledge the real reason it doesn’t want the OPCD to see its evidence. Instead, it chooses to once again attack the integrity of the OPCD’s lawyers…

Nothing in the Human Right’s Council’s report is particularly novel; it’s long been obvious that both the settlements and the transfer of Israeli civilians into the Occupied Palestinian Territories are illegal. Nevertheless, it’s worth noting the report’s most important conclusions:

100. The facts brought to the attention of the Mission indicate that the State of Israel has had full control of the settlements in the OPT since 1967 and continues to promote and sustain them through infrastructure and security measures. The Mission notes that despite all the pertinent United Nations resolutions declaring that the existence of the settlements is illegal and calling for their cessation, the planning and growth of the settlements continues both of existing as well as new structures.

101. The establishment of the settlements in the West Bank including East Jerusalem is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination.

102. The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law, as applicable in the OPT as notably recognised by the 2004 ICJ Advisory Opinion.

103. The settlements are established for the exclusive benefit of Israeli Jews; settlements are being maintained and developed through a system of total segregation between the settlers and the rest of the population living in the OPT. This system of segregation is supported and facilitated by a strict military and law enforcement control to the detriment of the rights of the Palestinian population.

104. The Mission considers that in relation to the settlements Israel is committing serious breaches of its obligations under the right to self-determination and “certain obligations under international humanitarian law”, including the obligation not to transfer its population into the OPT. The Rome Statute establishes the International Criminal Court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying Power of parts of its own 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. Ratification of the Statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.

105. The existence of the settlements has had a heavy toll on the rights of the Palestinians. Their rights to freedom of self-determination, non-discrimination, freedom of movement, equality, due process, fair trial, not to be arbitrarily detained, liberty and security of person, freedom of expression, freedom to access places of worship, education, water, housing, adequate standard of living, property, access to natural resources and effective remedy are being violated consistently and on a daily basis.

Based on those conclusions, the HRC report demands that Israel “cease all settlement activities without preconditions” and “immediately initiate a process of withdrawal of all settlers from the OPT.” Interestingly, the report also encourages both states and corporations to ensure that their business dealings with Israel do not support the settlements — even if that means terminating those dealings…

Apropos of Kevin’s recent posts, Professor George Bisharat of UC Hastings Law School takes to the NYT op-ed pages to call for Palestine to join the ICC and seek investigation of Israel’s actions in the West Bank and Gaza.

The Palestinians’ first attempt to join the I.C.C. was thwarted last April when the court’s chief prosecutor at the time, Luis Moreno-Ocampo, declined the request on the grounds that Palestine was not a state. That ambiguity has since diminished with the United Nations’ conferral of nonmember state status on Palestine in November. Israel’s frantic opposition to the elevation of Palestine’s status at the United Nations was motivated precisely by the fear that it would soon lead to I.C.C. jurisdiction over Palestinian claims of war crimes.

Israeli leaders are unnerved for good reason. The I.C.C. could prosecute major international crimes committed on Palestinian soil anytime after the court’s founding on July 1, 2002.

As our readers know, the retroactivity issue is not quite so easy, although there is certainly ample evidence this could happen. But I have two main reactions:

1) Are we so sure that the UN General Assembly vote to upgrade Palestine to observer state status settled the statehood question for the purposes of the ICC? After all, Palestine had already been recognized by more than 100 countries prior to the recent GA vote, but the ICC rejected jurisdiction in that situation.  What has really changed?  I agree that the GA vote matters, but does it matter enough?

2)  Professor Bisharat also suggests that “Ending Israel’s impunity for its clear violations of legal norms would both promote peace in the Middle East and help uphold the integrity of international law.”  I am doubtful about both of these claims.  Even if Israel is guilty of the violations Bisharat alleges, how does chasing them with ineffectual ICC arrest warrants help the peace process? And how would the integrity of international law be upheld by ICC investigations that will surely be rejected by Israel (and Hamas when they realize what they are facing).

If this is the Palestinian strategy to resolve their dispute with Israel, than the prospects for the settlement of this dispute are even more remote than I had previously believed.

Michael Lewis claims, in his very interesting post, that “it is fair to say that if Israel’s action in the 1967 war was justified by Article 51 (something that most states, if not most scholars, seem to agree with), then Article 51 ‘imminence’ is broader than Caroline ’imminence’.” I don’t have time today to address that claim in any detail, but I want to point out — once again using Tom Ruys’ fantastic, and extraordinarily careful, book on Article 51 (pp. 272-80) — that the Six Day War actually provides little support for an “elongated” concept of imminence. To begin with, Israel itself did not claim that it was engaging in anticipatory self-defense:

McClatchy reports that Israel now believes Iran will not be able to produce a nuclear weapon until 2015 or 2016.  That is progress of a sort; Netanyahu had previously been claiming that Iran would have the bomb no later than late summer 2013 — around six months from now.  But Israel is still insisting that Iran is only two or three years away from nuclear capability, so I think it is useful to recall and update the timeline I mentioned early last year of breathless Israeli and Western claims about Iran’s nuclear program:

1984: West German intelligence sources claim that Iran’s production of a bomb “is entering its final stages.” US Senator Alan Cranston claims Iran is seven years away from making a weapon.

1992: Israeli parliamentarian Benjamin Netanyahu tells the Knesset that Iran is 3 to 5 years from being able to produce a nuclear weapon.

1995: The New York Times reports that US and Israeli officials fear “Iran is much closer to producing nuclear weapons than previously thought” – less than five years away.  Netanyahu claims the time frame is three to five years.

1996: Israeli Prime Minister Shimon Peres claims Iran will have nuclear weapons in four years.

1998: Former Secretary of Defense Donald Rumsfeld claims Iran could build an ICBM capable of reaching the US within five years.

1999: An Israeli military official claims that Iran will have a nuclear weapon within five years.

2001: The Israeli Minister of Defence claims that Iran will be ready to launch a nuclear weapon in less than four years.

2002: The CIA warns that the danger of nuclear weapons from Iran is higher than during the Cold War, because its missile capability has grown more quickly than expected since 2000 – putting it on par with North Korea.

2003: A high-ranking Israeli military officer tells the Knesset that Iran will have the bomb by 2005 — 17 months away.

2006: A State Department official claims that Iran may be capable of building a nuclear weapon in 16 days.

2008: An Israeli general tells the Cabinet that Iran is “half-way” to enriching enough uranium to build a nuclear weapon and will have a working weapon no later than the end of 2010.

2009: Israeli Defense Minister Ehud Barak estimates that Iran is 6-18 months away from building an operative nuclear weapon.

2010: Israeli decision-makers believe that Iran is at most 1-3 years away from being able to assemble a nuclear weapon.

2011: An IAEA report indicates that Iran could build a nuclear weapon within months.

2013: Israeli intelligence officials claim that Iran could have the bomb by 2015 or 2016.

The McClatchy articles quotes an Israeli intelligence officer as asking “Did we cry wolf too early?” That’s amusing: Israel (and the West) have been crying wolf over Iran’s nuclear capability for nearly three decades.

David Bosco has an important post at The Multilateralist today reminding people that Palestine does not have to ratify the Rome Statute for the ICC to be able to investigate the situation in the West Bank and Gaza.  As David notes, because Palestine has filed a declaration under Article 12(3) accepting the Court’s jurisdiction on an ad hoc basis, the Prosecutor already has the authority to initiate an investigation, should she so choose.

That said, it still matters — at least formally — whether Palestine takes advantage of its newly-recognized statehood and ratifies the Rome Statute.  The Court’s jurisdiction over a situation can be triggered in three different ways: (1) a referral by a State Party; (2) a referral by the Security Council; and (3) a decision to investigate proprio motu by the Prosecutor.  Procedurally, there is a significant difference between those methods: unlike investigations triggered by a State Party or Security Council referral, the Pre-Trial Chamber has to authorize a proprio motu investigation.  The relevant provision of the Rome Statute is Article 15:

1.         The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

2.         The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

3.         If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

4.         If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

The Rome Statute’s differential treatment of proprio motu investigations is not an accident.  During the drafting of the Rome Statute, some states wanted the Prosecutor to have unfettered authority to initiate investigations, while others — fearing politically-motivated prosecutions — wanted to limit investigations to referrals by States Parties and the Security Council.  Article 15 reflects the compromise the drafters reached: the Prosecutor would have proprio motu power, but the use of that power would always be subject to judicial review.

Why does this matter for the new state of Palestine? Because an investigation conducted pursuant to an ad hoc declaration like Palestine’s is treated as a proprio motu investigation, so the Prosecutor’s decision to investigate must be confirmed by the Pre-Trial Chamber.  That was the case, for example, in Cote d’Ivoire: once the Prosecutor decided to act on Cote d’Ivoire’s ad hoc acceptance of the Court jurisdiction (retroactive, as I’ve noted before), he submitted a formal request under Article 15 to the Pre-Trial Chamber asking it to authorize the investigation — which it did.

At least procedurally, then, Palestine does indeed have a significant incentive to ratify the Rome Statute.  If it ratifies, a formal referral of the situation in the West Bank and Gaza to the Court would qualify as a State Party referral under Article 14 of the Rome Statute, exempting a decision by the Prosecutor to investigate from Pre-Trial Chamber review,  By contrast, if Palestine does not ratify the Rome Statute and rests on its previous ad hoc declaration, a decision by the Prosecutor to investigate would qualify as a proprio motu investigation that would require the Pre-Trial Chamber’s authorization.

As I have pointed out numerous times before, I find it inconceivable that this Prosecutor will decide to investigate the situation in the West Bank and Gaza.  But if she does, it will be easier for her to open that investigation if Palestine has ratified the Rome Statute.

Pathetic:

Ambassador Susan Rice objected Wednesday to the Palestinians’ latest bid to capitalize on their upgraded UN status when their foreign minister spoke at Security Council while seated behind a nameplate that read “State of Palestine.”

It was the first Palestinian address to the Security Council since the UN General Assembly voted overwhelmingly on November 29 to upgrade the Palestinians from UN observer to non-voting member state.

Rice said that the United States does not recognize the General Assembly vote in November “as bestowing Palestinian ‘statehood’ or recognition.”

“Only direct negotiations to settle final status issues will lead to this outcome,” Rice said.

“Therefore, in our view, any reference to the ‘State of Palestine’ in the United Nations, including the use of the term ‘State of Palestine’ on the placard in the Security Council or the use of the term ‘State of Palestine’ in the invitation to this meeting or other arrangements for participation in this meeting, do not reflect acquiescence that ‘Palestine’ is a state,” she added.

Fortunately — though I know this comes as a shock to the US, which likes to pretend that it is primus inter pares — the US doesn’t get to unilaterally determine whether Palestine is a state. Nor does Israel (and note that that Rice’s “direct negotiations” lament is simply designed to give Israel a veto over Palestinian statehood by continuing to avoid negotiating in good faith).

My suggestion: at all future UN meetings, Rice should avoid turning her head toward the seat with the State of Palestine placard.  That will make it much easier for her to pretend that more than 70% of the world’s states didn’t recently vote to recognize Palestinian statehood.

[John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter LLP in Washington, DC and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009.]

Julian invited me to respond to his post about my op-ed on the international law applicable to intervention in Syria.

It is not accurate to say that the op-ed “endorses non-legal intervention in Syria.” Indeed, it does not “endorse” intervention at all.

But I can see how Julian may have been misled, since he linked to a reprint in the San Antonio Express News of my original op-ed in the Washington Post. The Texas paper (perhaps not surprisingly, given views of international law in Texas) entitled my article “International law has failed Syria; it’s time to intervene” — which was quite the reverse of what the op-ed said. The Washington Post more accurately titled my article (in the print editions): “Aiding Syria: Easier said than done — International law presents many obstacles to a quick U.S. intervention.” (Note: Op-ed writers don’t get to approve the headlines given to their articles.)

In fact, I pointed out that the Obama Administration had been prudent to be cautious about intervening in Syria. I said:

Intervention without an international legal basis could make it more difficult for Washington to criticize other countries if they intervene in neighboring states based on less laudable motives. Inserting more arms into an already unstable region risks more bloodshed, and those weapons could fall into the hands of groups hostile to U.S. interests, as happened in Libya.

But I added that “As the violence in Syria increases…the president is likely to feel compelled to provide more than political support and non-lethal aid.”

Julian asks at the end of his post:

If one really thought international legality was so crucial, wouldn’t it be better to seek out a plausible legal theory, rather than simply rely on muddy political formulations? For instance, wouldn’t it be easier just to recognize the Syrian opposition as the government of Syria, and get their consent?

In fact, I suggested exactly this possibility. I said

If the Syrian Opposition Council becomes more inclusive and can legitimately claim to represent the majority of Syrians, and if it excludes terrorist groups and other extremists, the administration may conclude that it is legally permissible to provide military assistance based on the council’s consent.

Of course, there are also other potential legal rationales for intervention, including a possible argument for a No Fly Zone that would extend from Turkey into Syria, based on a Turkish theory of self-defense. But I did not have space to describe these alternative theories.

There are counter-arguments to each of these theories. So I also noted the possibility that

the administration could intervene in a limited way to protect civilians without asserting a legal basis, as the Clinton administration did with its participation in the 1999 NATO bombing campaign of Kosovo, to protect Kosovars from atrocities committed by Serbia.

My concluding paragraph did not endorse intervention. It simply stated that if the violence in Syria continues, the Obama Administration (and other governments) “may” conclude that they need to intervene, whether they can come up with a good legal basis or not.

Former Bush State Department Legal Adviser John Bellinger has a complicated op-ed arguing that the U.S. should be prepared to intervene militarily in Syria, even if its intervention is not strictly legal.  His argument is complicated because he rejects the idea that any intervention in Syria now, even with the agreement of the Syrian Opposition, would violate existing international law.

Not in so many words, of course.  But that’s the upshot of the Libyan government’s most recent statements.  Saif recently appeared for the first time in a Libyan court; his trial, which was supposed to start this month, is now set for May 2013 because the Libyan government has still not provided him with counsel.  Don’t be fooled into thinking, though, that Saif will stand trial for the crimes against humanity of murder and persecution — the charges at the ICC.  No, according to AP, the charges in Libya are, shall we say, a bit different:

The imprisoned son of slain dictator Moammar Gadhafi made his first appearance on Thursday in a local court on charges of harming state security, attempting to escape prison and insulting the nation’s new flag, Libya’s official news agency said.

LANA says the trial of Seif al-Islam Gadhafi, the ousted leader’s longtime heir apparent, was held in the western town of Zintan where he is being held by militiamen. The spokesman of Libya’s General Prosecutor Taha Baara quoted Seif al-Islam as saying: “only God will defend me.”

The charges are linked to his June meeting with an International Criminal Court delegation accused of smuggling documents and a camera to him in his cell. The four-member team was detained by Zintan rebels but released after the ICC made an apology and pledged to investigate the incident.

The ICC declined comment on what it called “national proceedings,” which on Thursday were adjourned until May so that a lawyer could be assigned Seif al-Islam, the most senior member of the ousted Gadhafi regime to be captured alive in 2011.

There is no reason to revisit the ridiculousness of the charges involving Melinda Taylor and the OPCD — the fact that they are at the heart of Saif’s domestic prosecution simply serves as a reminder of Libya’s contempt for the ICC.  It is important to emphasize, however, that Libya’s complementarity challenge can succeed only if Libya’s domestic prosecution of Saif is based on the “same conduct” as the ICC proceedings.  That is obviously not the case.

Libya could argue, of course, that it is continuing to investigate Saif for the conduct underlying the crimes against humanity charges, so it is not inactive with regard to that conduct.  But there is a problem with that — Taha Baara, the spokesperson for Libya’s General Prosecutor, has admitted that the requisite investigation is over:

Baara said the Zintan tribunal would convene again on May 2.

“Investigations for trying him for war crimes are over and he will be put on trial for that at a later time,” Baara told the Reuters news agency.

From a complementarity perspective, vague promises to prosecute Saif for “war crimes” at some point in the future are not good enough.  Libya must either be actively investigating Saif for the same conduct or actively prosecuting him for that conduct.  By its own admission, it is doing neither.  Libya’s complementarity challenge, therefore, must fail.

Okay, I’m exaggerating.  But only slightly.  As Wells Bennett notes today at Lawfare, Judge Pohl has rejected al-Nashiri’s contention that the US and al-Qaeda were not engaged in hostilities (an armed conflict in IHL terms) at the time of the acts alleged in his indictment — primarily the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts. I have explained before (see here and here) why al-Nashiri’s argument is correct. Unfortunately, but completely unsurprisingly, Judge Pohl disagrees.  It is worth examining his four-page decision in detail, because it illustrates why the military commissions are so deeply and irremediably flawed.

Here is the first substantive paragraph:

Whether hostilities existed on the date  of the acts alleged to have been committed by the accused is as much a function of the nature of hostilities as any particular legally significant act by either the legislative or executive branches of government. Whether hostilities existed on the dates of the charged offenses necessarily is a fact-bound determination; moreover, whether a state of hostilities existed is as much a function of the will of the organization to which the accused is alleged to belong to as the U.S. government. In determining whether hostilities exist or do not exist, the enemy gets a vote.[1] Whether Al Qaeda, the organization of unprivileged enemy belligerents to which the accused is alleged to be a member, considered itself to be at war with the United States on the date of the alleged law of war violations is a factor among many to be considered by the trier of fact and is as relevant as any judgments made or withheld by the President or the Congress.

This is patently incorrect.  Whether a state is engaged in an armed conflict with a non-state actor is a purely factual determination, one that depends (sound familiar?) on the organization of the non-state actor and the intensity of hostilities between the non-state actor and the state.  Full stop. Whether a non-state actor believes it is “at war” with a state is irrelevant to that determination; it is not “a factor among many.”

But perhaps Judge Pohl is aware of legal precedent that I’m not.  After all, he footnotes his claim! So let’s see what the footnote says (emphasis mine):

“In connection with the plan of a campaign we shall hereafter examine more closely into the meaning of disarming a nation, but here we must at once draw a distinction between three things, which as three general objects comprise  everything else within them. They are the military power, the country, and the will of the enemy. The military power must be destroyed, that is, reduced to such a state as not to be able to prosecute the war. This is the sense in which we wish to be understood hereafter, whenever we use the expression “destruction of the enemy’s military power.” The country must be conquered, for out of the country a new military force may be formed. But if even both these things are done, still the war, that is, the hostile feeling and action of hostile agencies, cannot be considered as at an end as long as the will of the enemy is not subdued also…” Carl von Clausewitz, On War Book I Chapter 2 (1832) (emphasis added). In other words, whether the enemy has the will to make war is determinative of whether hostilities begin to exist, continue to exist, or have been terminated.

Yes, indeed: Judge Pohl’s only citation for the idea that a non-state actor can declare war against a state is an 1832 quote from Clausewitz about conflicts between states.  Had he chosen to do so, of course, Judge Pohl could have provided a slightly more relevant — and slightly more recent — citation, such as Quincy Wright’s widely-accepted conclusion that insurgents, “not being recognized states, have no power to convert a state of peace into a state of war.  So their declaration or recognition of war would have no legal effect.”  Judge Pohl must have missed that one.

Onward to the next paragraph…

[Eugene Kontorovich is Professor of Law at Northwestern Law. This post is cross-posted at The Volokh Conspiracy]

In response to my post about Turkey’s settlements, Kevin Jon Heller argues that from the perspective of International Criminal Court liability for “indirectly… deporting or transferring” its nationals into occupied territory, Israel would be more vulnerable than Turkey.

Although statistics are not easy to come by for Cyprus, a comprehensive 2006 study suggests that the overwhelming majority of the Turks in Cyprus arrived there between 1974 and 1979 — [before Cyprus's ICC membership went into effect] and that the number of immigrants in the past decade has been relatively small, likely in the thousands. Contrast that with Israeli immigration: the number of Jewish settlers living in the West Bank in 2002 was around 214,000; there are more than 350,000 living there today — an increase of approximately 136,000 civilians.

[Prof. Heller seems to assume, as he has argued before, that ICC jurisdiction over Palestine could be retroactive to 2002, if it files an Art. 12(3) declaration. I think that position has real textual basis, but is not in my view the best reading of the text as a structural or policy matter. Let's set this aside - just as we set aside big questions about territorial jurisdiction - and, since we're talking about my original post, stick with my assumption of purely prospective jurisdiction.]

Now to the issues Prof. Heller raises. In fact, Turkey’s settlements are a far graver violation of the anti-transfer norm and its purposes.

1) How does one measure the gravity of civilian “transfer”? Typical war crimes are measured in the number of bodies — but that is because the purpose of the provisions is to protect lives. But this doesn’t seem the right way to measure “deportation or transfer.” It must be measured in light of its purposes – colonization, etc. Otherwise, if 1000 people are transferred into a territory of 500, it would be considered de minimis, whereas if 1 million were transferred into a territory of 100 million, it would be a big deal.

Turkish settlers constitute an absolute majority in N. Cyprus (and by many accounts the prior Turkish population is not so happy about the new arrivals). By contrast, Israeli civilians in the West Bank (not including Gaza) are under 20% of the total population, if you include E. Jerusalem (and follow Palestinian population figures). Throw in Gaza, and the percentage drops considerably.

Lets look at it another way. The total population of the island is 1.1 million. Turkish settlers in N.Cyprus constitute over 13% of the population of the island. In the unlikely event of reunification, the Greeks see this as a bitter pill. Population statistics for the Palestinians are also greatly in the dispute, but if one estimates the total population between the river and sea at 11 million, the Jews across the Green Line would be about 5% of the total. Given that Israel has had more time to cement its hold, and it doesn’t have far go to to “transfer” settlers, one might conclude it was not trying particularly hard, or that the Turks are just better at it.

2) In the same vein, In N. Cyprus, the influx of settlers has been accompanied by the collapse of the local population, ie had net emigration. That exacerbates the demographic effect, and is course part of the classic “move in, kick out” model where 49(6) violations were helped effectuate de facto 49(1) breaches. In West Bank, by contrast, population has grown rapidly. Similarly, the ICRC commentary mentions economic effects as one of the policies behind 49(6), and the WB has done in the past decade whereas N.Cyprus has stagnated.

3) That leaves the question of when the Turkish “transfer” happened, which is a real and important point Prof. Heller raises. The real is answer is we do not know for sure. Yes, the big surge was in the years after the invasion. But all these numbers are very disputed and we do not have the benefit of human rights groups like Peace Now or Foundation for Peace in the Middle East that have gone out of their way to track Turkish settlers with the precision of their Israeli counterparts.

However, in June 2003, the Parliamentary Assembly of the Council of Europe issued a recommendation that stated, in part:

“It is a well-established fact that the demographic structure of the island has been continuously modified since its de facto partition in 1974, as a result of the deliberate policies of the Turkish Cypriot administration and Turkey. Despite the lack of consensus on the exact figures, all parties concerned admit that Turkish nationals have since been systematically arriving in the northern part of the island.”

Based on the European Parliament’s estimates of the settler population a decade ago (115K) and conservative estimates today (150K), one can conservatively estimate an increase equivalent 16% of the territory’s population a decade ago.

More anecdotally, a quick Google search reveals news accounts that suggest non-trivial mainland influx in the past decade, and more importantly, it appears this period saw the significant out-flow of the previous locals.

Moreover, some portion of both populations are the children born to those who have allegedly been “transferred.” Israel has a higher fertility rate than N.Cyprus as a whole, and the Jewish civilian population across the Green Line is higher than the Israeli average. So more of the contested Israeli population was delivered, rather than transferred, than their Turkish counterparts. That is why “natural growth” allowance proposals for Israeli settlements were once more in vogue, and now not so much.

4) The bigger picture concerns the unit of analysis. The number of people on the island of Cyprus has changed drastically as a result of Turkey’s settlement program. The number of people between the river and the sea has not changed a whit. Thus, ultimately the effects cannot be measured independently of the proposed political solution. In the case of Cyprus, the international community favors a one-state solution, which makes the sending of external migrants relevant. If the dominant paradigm would be partition, no one would care how many Turks Ankara squeezed into their corner of the island.

Since the dominant paradigm for Israel involves a border demarcation that puts the vast majority of Israelis inside Israel, and kicks the rest out, the demographic implications are entirely unlike Turkey’s settlement program. And if the dominant paradigm were one-state – all the more so, the number of Jews between the river and sea has not increased at all, unlike the number of Turks on the island.

5) As for Kevin’s point that Israel has taken greater steps to facilitate transfer – well, that gets into the merits, which I wish to avoid at this point. I’ve assumed for the sake of argument that “transfer” has occurred on both sides. That is a highly fact specific question, and I am pretty sure I would not characterize some of the Turkish and Jewish migrants as “transferred.” I will observe that the WB is on the other side of an imaginary line, while N.Cyprus is on the other side of a body of water. The latter takes more getting to.