10 Dec Moreno-Ocampo Needs a Remedial Criminal Law Course
Here is Moreno-Ocampo’s latest doozy, concerning the possibility of Israelis being prosecuted for war crimes related to Israel’s illegal settlements in the West Bank:
Where the Israeli High Court of Justice has approved specific settlements as legal, this could provide a complete defense to any allegations that they are war crimes, former International Criminal Court chief prosecutor Luis Moreno-Ocampo told the Jerusalem Post on Thursday.
Moreno-Ocampo is in Jerusalem lecturing at the The Fried-Gal Transitional Justice Initiative at the Hebrew University Law School.
Although Moreno-Ocampo has stepped down from his post, he was the boss of the current ICC chief prosecutor who will decide whether or not the settlements qualify as a war crime, is considered highly influential internationally and his statement could be a major coup in the debate over the issue.
Moreno-Ocampo did not by any means say that the settlements were legal under international law.
But he did say that “Israel’s High Court is highly respected internationally” and that anyone prosecuting Israelis regarding settlement activity would be incapable of proving criminal intent if those Israelis explained that they honestly believed their actions were legal once ratified by the country’s top court.
“At least they could show no intention” to commit a crime said the former chief ICC prosecutor.
Few ICL scholars are more sympathetic to mistake defences than I am (see this article), but Moreno-Ocampo’s statements simply make no sense. Most obviously, Art. 32(2) of the Rome Statute specifically recognises the principle ignorantia legis neminem excusat — ignorance of the law excuses no one:
A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility.
Art. 32(2) applies regardless of whether a defendant was simply unaware that his actions were illegal (ignorance) or affirmatively believed that they were legal (mistaken belief). So if an Israeli was prosecuted for committing a settlement-related war crime — transfer of civilians into occupied territory, forcible transfer, pillaging, etc. — it would not matter that he either did not know international law criminalised his actions or believed that his actions were legal because the Israeli Supreme Court had approved the legality of settlements. The only question would be whether he committed the actus reus of the war crime in question with the necessary mens rea.
To be sure, some common-law systems provide an exception to the ignorantia legis principle where the defendant has reasonably relied on an official interpretation of the law. Moreno-Ocampo’s emphasis on the reputation of the Israeli Supreme Court suggests he might be thinking about that exception. But there are two significant problems here. First, no such exception exists in the Rome Statute, as the text of Art. 32(2) makes clear. Second, even if there was one, the ICC would be very unlikely to conclude that an Israeli defendant could reasonably rely on a statement by an Israeli court — even a supposedly “highly respected” one (which is questionable) — that settlements are legal. That would obviously be the case if the Israeli Supreme Court affirmed that the settlements were legal under Israeli law; no international tribunal has ever allowed such a “domestic legality” defence. And I seriously doubt that the ICC would find it any more reasonable for an Israeli defendant to rely on an Israeli court’s interpretation of international law, given the widespread international rejection of official Israeli positions on a variety of international-law issues.
Finally, we might be generous and assume that Moreno-Ocampo was actually thinking not about Art. 32(2) of the Rome Statute, but about Art. 32(1), which recognises mistakes that negative mens rea:
A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.
In this interpretation, Moreno-Ocamp is actually arguing that an Israeli defendant who knew the Israeli Supreme Court had approved the legality of the settlements would not have the mental states required by any of the various settlement-related war crimes. But that is a flawed argument, because none of those war crimes require a mens rea that would be negated by a belief in settlement legality. Consider, for example, the elements of the war crime of direct or indirect transfer, Art. 8(2)(b)(viii) of the Rome Statute:
1. The perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies…
2. The conduct took place in the context of and was associated with an international armed conflict.
3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
In terms of mens rea, Art. 8(2)(b)(viii) requires the prosecution to prove that the defendant (1) intentionally engaged in the acts that qualified as direct or indirect transfer; (2) knew that Israeli civilians were moving into occupied territory; and (3) knew that Israel exercised effective control over the West Bank at the time of the transfer. The defendant’s belief that settlements are legal would not negate either of those mental elements, so Art. 32(1) would not apply.
No matter how we interpret it, then, Moreno-Ocampo’s statement about the Israeli Supreme Court makes no sense as a matter of substantive international criminal law. Israel relies on the “expertise” of this “highly influential” former prosecutor at its own peril…
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 ) .
Thanks
Just to demonstrate it , here ahead , article 287(a) of the ” penal law 5737-1977 ” of Israel , dictates so :
” Violation of lawful direction
287 (a) If a person violates a direction duly issued by a Court, by an official or by a person who acts in an official capacity and is authorized for that purpose, then he is liable to two years imprisonment.”
Well, reading such article, it would be ridiculous then to claim, mistake of some sort , while:
The order, ruling, was of the highest court ,such kind of were spread or issued , over dozens of years, has to do with complex interpretation of law and international law, and prima facie, well , or correctly issued.
executing it , can’t be a mistake ! since , no margins for discretion exist .
Thanks
The Israeli Supreme Court is ordering Israeli government officials to transfer civilians into occupied territory? Wow, who knew?
Kevin ,
Who wrote it ?? The issue, is too complicated, and trust me Kevin, you don’t know much about it (although I am sure, that you are absolutely sure that you know, but: it is natural and legitimate of course to feel so ).
However, what I was referring to, was the legal issue, at the core of your post:
Can it be considered as a mistake of law ( such hypothetical mistake of an Israeli official in such situation ) .
P.S. : just a slight and sober reminder : no court , order nothing , until an issue is brought in front of him . And then , he solves or prevail the issue directed to him , nothing more than that , he can , and should do . Policy is dictated by the executive branch , and court solves , punctual issues brought to it .
Thanks
The confidence with which you make nonsensical claims about issues you know nothing about never ceases to impress.
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
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.
Anon , thanks for your comment . It is just , that sticking to the legality , demands that :
Factual configuration or conduct , shall match provision and definition of the law . You can’t accuse a person in robbery, while it was a theft, although in both cases, thinks have been taken out of control of the possessor . Different definitions !!
Incentives , and policies of such , even if proven , don’t constitute a ” transfer ” in the meaning of the Rome statute with all due respect .
Thanks
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.
Anon ,
The problem yet, is that, at least, from the very beginning, the local population (the Israeli) not only voluntary ” transferred ” itself, but was pushing the government, for ” transferring them ” to the occupied territory (if you know the ideology of the so called: national religious groups).
What would you do with it ?? Is it possible , to imagine even , that pressure from the occupier population , to be ” transferred ” shall be defined as transfer ??
The word ” transfer “( not defined in the Rome statute , and anyway for the purpose of the statute ,but I shall verify it definitely ) has very excessive meaning, where persons and objects are treated as objects , and they can’t resist or are passive and helpless in the process . The person transferring has sort of possession or control on them . So , it doesn’t match here simply !
Thanks
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.
Lurker ,
Thanks for your comment .The problem is that when you write :
” it actively establishes and expands specially constructed settlements for them, and offers financial and legal benefits for moving ”
Then , we don’t deal with transfer , but with what you have written above as just been quoted , not transfer of people !
However, it is possible to claim, that the purpose of the article, is to prevent (generally speaking) what you have written as:
” to prohibit changing the demographics of an occupied territory.”
But then , a judge , shall have to shift from the common or ordinary , or legal meaning of the word or verb : ” transfer “, to other dimensions , while I was only dealing with the meaning of transfer , so hectically repeated by Jhon kevin , while actually doesn’t match occurrences on the ground .
Even in purpose terms or interpretation , it wouldn’t be a picnic , yet , not the current issue .
Thanks
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.
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.
Kevin and hostage ,
The point is, that ” transfer “, and : ” indirect ” , can’t be reconciled:
The essential item, is:” transfer ” , and then, it’s nature is such of being: indirect. yet :
Such think doesn’t exist !! it’s a mistake of legislator . because , if there wasn’t any transfer , never ever , how can it help to define it as : indirect one !!
indirect and transfer are incompatible simply !!
Someone can only indirectly contribute to transfer, but the problem, that transfer per se, never ever has taken place, so how been contributed indirectly??
It is a mistake of the legislator !! And a judge , shall have a hell of one on it . But this is only the word : ” transfer ” , right ??
Thanks
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.
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.”.
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.
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 !!
Thanks
Just clarification for my last comment , the Rome statute , defines the term : “Enslavement” and not as been written : ” slavery ” . and more :
The Rome statute , defines , the term : transfer , but for the purpose of the ” crime against humanity ” here :
“Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;”
Thanks
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!
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.”
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.
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.
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?
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
Re: That reckless combination of : ” Transfer ” and : ” Indirect ” had raised great suspicions concerning the origin, the motives , and the back mind of such
insertion.
As a person of Jewish descent, I’m very sympathetic to the case for defending the fundamental human rights of the Jewish people of the former Palestine mandate and those who have been assimilated to them. Unfortunately, no one can offer an unblemished defense for some of the acts that they have perpetrated against the other inhabitants since 1948.
See for example: “100-Year-Old General: We Razed Arab Villages, So What?: Brig. Gen. (res.) Yitzhak Pundak: If we hadn’t done it, there would be a million more Arabs and there would be no Israel. http://www.israelnationalnews.com/News/News.aspx/168912#.VYuDd7y37tR
There’s a British proverb which explains “The past is a foreign country. They do things differently there.” The authors of the Levy report, including Dr Alan Baker, are simply trying to revive the age-old practice of private profit from the plunder of war through the use of trite arguments about “sovereignty” that no one has accepted since the 19th century.
A new political unit called “Jordan” came into existence in January 1949 as a result of 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.
Hostage , but suppose you had to cut it , like a judge let’s say , in a tort case , and dividing blame or guilt between two sides . Are you serious to claim , that from 1948 and on :
100% blame and guilt on the Israeli side, and: 0% on the Arab side ?? Because, when I read your comments (not only the current one) I have noticed, or rather, can’t recall even one accusation, of any kind, on the Arab side.
Moreover: you claim to have jewish origin or alike. It means , that no subjective perception whatever could be attributed to you ?? 100 Vs. 0 percent ?? Is it really so from your part ??
Please , if you wish to , let us know :
What are your figures in that balance ?? I must admit, a bit weird with all due respect.
Thanks
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: https://www.icrc.org/eng/resources/documents/misc/57jrgw.htm).
In summary, the better interpretation seems to be that Article 49 GC IV does in fact apply to Israeli settlements.
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…
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 :
http://www.pmo.gov.il/Documents/doch090712.pdf
Thanks
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 .
Thanks
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.
Even the radical right in Israel understands that the ICRC does not remotely embrace el roam’s “analysis” of indirect transfer.
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 )
Thanks
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.
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.
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).
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 .
Thanks
Hostage,
just for the gimmick, follow the link, watch Ismail Hania, the leader of the Hamas, marking victorious V, in front of the wreckage of his house (not to mention family members and ” colleagues” he lost) in the last operation in Gaza (protective edge). Does he look to you , like someone , who is afraid of Summon for appearance ?? In the ICC ?? Those guys, would eat alive , blow themselves, on Fatou Bensouda , and ten thousands like her. [Comment edited as per forum guidelines]
Here :
http://www.ynet.co.il/articles/0,7340,L-4565587,00.html
Thanks
Good to know el roam also does not understand the separation between the jus ad bellum and the jus in bello.
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 ….
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 !!
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…
Sure Kevin, whatever…..
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.” http://www.jewishvirtuallibrary.org/jsource/Peace/gazajer.html
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.
Hostage ,
The issue is very complicated . But , you should know :
Where ruling of law reigns, there is no supremacy to no one, no official, no authority, but:
Principals !! and above all, the principle of rule of law, means: No one is above the law !!
So, the fact, that there is no constitution, to the Israeli state, never ever bared any fulfillment of that principle of rule of law.
So , even the Knesset , is under such guidance , endless times , the supreme court , ordered and directed the Knesset , it is even prescribed by law , here I quote :
” Basic Law. The Judiciary (1984)
Chapter Three. The Courts
15. Supreme Court
d. Without prejudice to the generality of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be competent –
2.
to order State and local authorities and the officials and bodies thereof, and other persons carrying out public functions under law, to do or refrain from doing any act in the lawful exercise of their functions or, if they were improperly elected or appointed, to refrain from acting;”
end of quotation :
You see Hostage , authorities , includes also the Knesset , and that’s include legislation work or outcome .
Thanks
Hostage ,
Just for the clarification :
1) The law cited, is not the formal translation of it (it is an original Israeli law, not British one). Such formal form, in English, doesn’t exist.
2) The supreme court , can guide the Knesset , and even in its work as legislator , Thanks to more provisions other than the one cited . But maybe later .
Thanks
Re: Hostage , The issue is very complicated
It’s not complicated at all. I have posted a couple of comments that haven’t appeared yet, so pardon any duplication.
In 1919 when the Zionist Delegation presented their case to the Paris Peace Conference, U.S. Secretary of State Robert Lansing asked Dr. Weizmann to clear-up some misunderstandings regarding the meaning of the term “Jewish National Home”. He asked him point blank if it required the establishment of an autonomous Jewish government? Weizmann answered in the negative – and that is fatal to any claim that the Allied Powers ever granted Jews a legally secured right to a sovereign state in Palestine or that Article 80 of the UN Charter preserved the right to establish one. See Papers relating to the foreign relations of the United States, The Paris Peace Conference, 1919, The Council of Ten: minutes of meetings February 15 to June 17, 1919, page 169. http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1919Parisv04&isize=M&submit=Go+to+page&page=169
Article 6 of the Palestine Mandate stated that Jewish immigration was subject to “suitable conditions”. It also excluded any “state lands or waste lands” “required for public use” from those that the mandatory administration could employ for Jewish settlement. So there was never any legal 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.
Hostage , I was rather referring to the following part of your comment :
” Note that Israel has no written constitution and that the Knesset enjoys a high degree of Parliamentary supremacy. In many cases, it can overturn a High Court decision by simply adopting an ordinary statute. ”
Maybe later , on some others .
Thanks