The Palestinian Right of Return Could Go to the ICC

[John Quigley is Professor Emeritus at the Moritz College of Law of The Ohio State University.]

Photo credit: Wikimedia Commons

The recent violence in Israel/Palestine highlights the need to resolve the underlying issues that have kept generated turmoil for a century. The unresolved issue of Arabs displaced in 1948 is at the top of the list of such issues. The urgency of a resolution of this issue has just been eloquently explained in a timely piece in the New York Times. Peter Beinart, Palestinian refugees deserve to return home. Jews should understand. (New York Times, 12 May 2021).

The issue has also risen to the top of Human Rights Watch’s agenda for Israel/Palestine. In a report it issued in April 2021, Human Rights Watch characterized Israel’s refusal to repatriate Arabs displaced in 1948 as a crime against humanity by way of persecution and apartheid, under Rome Statute Article 7. Human Rights Watch called on the Prosecutor of the International Criminal Court to investigate the situation as a crime against humanity. Human Rights Watch, A Threshold Crossed:  Israeli Authorities and the Crimes of Apartheid and Persecution (April 2021), at pages 204, 207.

Requiring a racial group to reside in separate locations within a state qualifies as apartheid. Under the International Convention on the Suppression and Punishment on the Crime of Apartheid, one act that constitutes apartheid is the taking of measures “designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group.” If forcing a group into a designated area within a country constitutes apartheid, forcing the group out entirely would seem to be hyper-apartheid.

Human Rights Watch in its report did not fully explain a basis for jurisdiction in the International Criminal Court. However, the Rome Statute principles, particularly as explicated in recent jurisprudence in the International Criminal Court, suggest that jurisdiction does indeed exist. The requisites are present for subject-matter jurisdiction, for temporal jurisdiction, and for territorial jurisdiction.

Subject-matter jurisdiction exists under Rome Statute Article 7, for persecution, for apartheid, and for deportation or forcible transfer of population. As indicated in Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, the International Criminal Court is presently dealing with a situation of population displacement – that of the Rohingya population of Myanmar –as a crime against humanity.

In that situation, Pre-trial Chamber III, in its 14 November 2019 ruling to authorize an investigation, found a basis for subject-matter jurisdiction under Rome Statute Article 7 for persecution (paragraph 100) and for “deportation or forcible transfer of population” (paragraph 97). For persecution, the Chamber referred to the Court’s Elements of Offenses to say that persecution is present when a racial group is subject to severe deprivation of fundamental human rights. Such deprivation would seem to be present even absent expulsion, for a refusal to repatriate persons who were displaced. A right to return to one’s country is guaranteed both by the Universal Declaration of Human Rights | United Nations (Article 13) and by the International Covenant on Civil and Political Rights – OHCHR  (Article 12). Israel did not grant its nationality to the displaced Arabs, but under these instruments that circumstance does not negate a right to return.

The requirement of temporal jurisdiction might at first blush seem an insurmountable hurdle, since the displacement occurred many years before the International Criminal Court came into existence. However, expulsion of population qualifies as a violation of a continuing character. Under Article 14 of the International Law Commission’s draft articles Responsibility of States of Intentionally Wrongful Acts, the responsibility of a state for acts that are ongoing “extends over the entire period during which the act continues.” Expulsion is such an act. Pre-trial Chamber III so said in the cited ruling on displacement from Myanmar (paragraph 132). The passage of time is not a bar to correcting human rights violations. In Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (2019), the International Court of Justice found that a remedy is appropriate for a human rights violation of a continuing character, even though the initiation of the conduct began decades in the past (paragraphs 177, 183).

The final jurisdictional requisite relates to the territory in which a violation occurs, or, alternatively, the nationality of the perpetrator. One or the other is required unless a situation is referred to the Prosecutor by the Security Council of the United Nations. If the Security Council refers, the nationality of the perpetrator does not matter, nor does the location. A reference of the situation of the displaced Arabs is not likely, however, because permanent members enjoy a right of veto. Under the Security Council’s practice, the veto right of permanent members applies to a resolution of this type. A resolution to refer this issue would likely be vetoed by some other permanent member.

If the matter were raised by the Prosecutor under Rome Statute Article 15 proprio motu based on evidence collected, or if it were referred by a state party under Rome Statute Article 14, it would need to appear that anyone charged was a national of a state party, or that the acts occurred in the territory of a state party (Rome Statute Article 12).

In the ICC investigation of crimes in Myanmar, Pre-trial Chamber III ruled (14 November 2019) that territorial jurisdiction is present for expulsion of population both in the state in which acts of expulsion occur and in the state of refuge. Myanmar, the state in which the acts of expulsion occurred, is not a party to the Rome Statute, but Bangladesh, the state of refuge, is a party.

Pre-trial Chamber III there analyzed the term “conduct” in Rome Statute Article 12 to include the totality of the conduct constituting the crime. “The Prosecutor,” said the Chamber, “avers that the crime of deportation was completed when the victims left the area where they were lawfully present and fled to Bangladesh as a result of coercive acts and a coercive environment. Accordingly, it could be concluded that part of the actus reus of the crime of deportation occurred in the territory of Bangladesh.” (paragraph 53) The Chamber’s rationale was that expulsion begins in the state in which the actor is located but is completed only when the victims cross into the state of refuge.

The Chamber concluded that this concept of “conduct” is found in customary international law, given that it is commonly seen in domestic penal law. The Chamber reviewed the domestic law of many states and found their practice to support this reading of “conduct.” (paragraph 56)

For the 1948 displacement of the Arab population of Palestine, a number of states could qualify as states of refuge. Two states that received large numbers – Lebanon and  Syria — are not party to the Rome Statute, but two others are. One is Jordan. The other is Palestine, which has served as refuge for Arabs in the Gaza Strip, in the West Bank of the Jordan River, and in the portion of Jerusalem that came under Jordan’s control in 1948. The ICC has already had occasion to rule on the status of these three territories. In Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’ (2021), Pre-trial Chamber I found that the territorial jurisdiction of Palestine “extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” (paragraph 118)

Based on the party status of Jordan and Palestine, the ICC has territorial jurisdiction under Rome Statute Article 12. That conclusion finds additional confirmation in Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (2019), in which Pre-trial Chamber II found territorial jurisdiction for conduct in states to which detainees were taken for interrogation, where those states were party to the Rome Statute. Jurisdiction obtains over conduct, said the Chamber, “if it was initiated in the territory of a State Party and continued in the territory of a non-State Party or vice versa. [Emphasis supplied.] (paragraph 50

As for states that might refer this matter to the Prosecutor, Jordan and Palestine have the greatest direct interest, as states of refuge, but any state party is entitled under Rome Statute Article 14 to make a referral.

In sum, the International Criminal Court’s recent rulings on the situations in Myanmar, Palestine, and Afghanistan, along with the International Court of Justice opinion on the Chagos Archipelago, indicate that the International Criminal Court has subject-matter jurisdiction, temporal jurisdiction, and territorial jurisdiction to investigate the 1948 forced displacement from, and refusal to repatriate to, Palestine. Facts could be adduced to substantiate a charge of deportation or forcible transfer. Documentation from the United Nations is available, given the organization’s involvement in the situation in Israel/Palestine in 1948. Even apart from the circumstances of the departure, a refusal to permit return suffices to sustain a crime against humanity charge, even absent expulsion. A refusal to permit a racial group to return to its territory, coupled with non-recognition of nationality for members of the group, is prosecutable as persecution or as a crime of apartheid.

Criminal prosecution is not the ideal method for resolving an issue like the return of a large refugee population. Efforts at dealing with it, however, have failed. The United Nations has tried since 1948 to convince Israel to repatriate the displaced Arabs, beginning with  A/RES/194 (III) of 11 December 1948.

The Declaration of Principles of Interim Self-Government (Oslo Accords) (1993) was supposed to lead to a negotiated resolution on repatriation, but again without success. Action by the International Criminal Court would not bring a comprehensive solution. The International Criminal Court cannot impose obligations on a state to provide a remedy. Criminal charges, however, hold the prospect of identifying the displacement and the refusal to repatriate as unlawful and might open a door to a bilaterally negotiated resolution, or to one facilitated through some multilateral process.