Analysis: Can the ICC go after settlements as war crimes?

Expert says ICC could go after some settlements retroactively, on the basis that maintaining existing settlements was an ongoing crime.

JPOST

One of the most speculative ideas going around as the PA’s accession to the International Criminal Court Rome Statute is due to go into effect on Wednesday is whether the ICC can go after the settlements as war crimes and how? Legal considerations aside, the PA reportedly will delay pushing forward with the ICC as part of an informal deal with Israel to receive its custom tax revenue which Israel was withholding and general diplomatic pressure may prevent the Palestinians or the ICC from moving any real cases forward. But what if shortly after June 29, when the UN Commission of Inquiry into Gaza releases its report on the summer Gaza war, the PA and the ICC move forward against Israelis on the settlement issue? The Jerusalem Post consulted with a wide range of top experts on the issue who speculated about what might follow.

Some, like former Foreign Ministry legal adviser Alan Baker were confident that the ICC will ultimately choose not to get involved beyond reviewing a variety of jurisdictional issues, but agreed to some speculating anyway.

The first question is: who would be the defendants? All of the experts agreed that individual house-owners would not be defendants, but at most potentially political, financial and military officials involved on a broader level on promoting the settlement enterprise.

They all also agreed that the ICC Prosecutor has said her starting point would be settlements started or built after November 29, 2012 when the UN General Assembly declared a State of Palestine.

This excludes most of the roughly 350,000 West Bank settlers’ settlements, though some experts theorized ways the ICC might decide to go after earlier built settlements on the basis of being “continuing” war crimes. Most of the experts also said that there was no ICC or other international court precedent for actually prosecuting issues of population transfer and none of them could name a precedent.

Hebrew University Professor and former Foreign Ministry legal adviser Robbie Sabel said he had “no idea who” specifically the PA or ICC might try to target specifically (the ICC makes the final decision, but much of its information comes from whoever files complaints), but that theoretically local planning officials could have some risk.

What would evidence look like and what would happen if Israel refused to cooperate as with the UN inquiry into the summer Gaza war? Sabel said that most documents for approving different stages of building settlements were publicly available and that there was no block to the ICC from obtaining them.

But Sabel did not believe the ICC was likely to get that far because of both its backlog of more conventional cases and the many jurisdictional issues stopping Palestinians complaint at the door to the court.

Sabel said that the issue was ultimately more political than legal and would be highly cumbersome for the court to handle using standard legal analyses.

He pointed out that the court would have to accept the ICC Prosecutor’s recognition of Palestine as a state, a conclusion they may disagree with as they are an even less political body than the prosecutor’s office.

Sabel said they would need to go far beyond their normal mandate by having to define the borders of a State of Palestine which on the ground has no borders and define messy issues like east Jerusalem’s status and “effective control,” while the West Bank and Gaza are essentially ruled by two different Palestinian regimes.

Further, he and Baker noted that the court’s history was focused on crimes of the utmost gravity like genocide, mass murder, mass rape and mutilation, not on population transfer questions and defining borders. Rather, Baker said, at most population transfers had been declared to be illegal, but with little follow-up beyond encouraging them to cease and for persons transferred to return to their homes. Sabel quoted the Rome Statute’s preamble which talks about crimes which “deeply shock the conscience of humanity,” as opposed to the settlements, which he said were inextricably intertwined with resolving border disputes.

Baker added that the entire addition of the “war crime” of direct or indirect population transfer was a last minute political exercise add-on.

He said he was there at the negotiations when the issue was raised and that many realized “the absurdity” of the issue, but that the Western powers played ball with the Arab states to insert the item in order for the Arab states to agree to leave the death penalty out of the Rome Statute.

Baker argued that the issue of complimentarity, that the ICC cannot get involved on an issue unless the national courts are unable or unwilling to investigate the issue, could be raised.

He stated that Israel as a general matter holds to the settlements legality and does not build on private Palestinian land.

Moreover, in those cases where Israel does build on private Palestinian land, the Attorney-General and the High Court of Justice review cases and return the land to the Palestinians if they prove their case. Despite that, Baker said he thought that Israel still had a strong chance of triumphing on the legal arguments that there is no State of Palestine and that even with the Rome Statute including indirect transfers as being a war crime, an expanded standard from the Geneva Conventions which refer to forcible or direct population transfers, the crime could not be applied to voluntary settlers like the Jewish settlers.

He said he expected the ICC Pretrial Chamber would overrule Bensouda and ignore the “political” non- binding UN General Assembly vote on the question of Palestinian statehood if they were true to the law, including the Oslo Accords, though he noted that judges are appointed by their countries, which injects some politics into the issue.

ICC expert and post-doctoral fellow at Haifa University Dr. Sigall Horovitz and international law expert Shlomi Zacharyah took a different approach.

Also emphasizing that all discussions were theoretical and speculative, they said that local planning council and mid-level IDF commanders could be on the defendants list if a case went forward.

Horovitz said that if the ICC through a wider net, it could try to include leaders who indirectly contributed to moving Jews into the settlements, including even leaders of propaganda for furthering that cause.

Zacharyah said that a range of ministers, including Israel’s housing minister, defense minister and others substantially involved in facilitating the settlement enterprise could be on a theoretical ICC list.

Next, Zacharyah said that though any minister who voted in favor of a settlement policy viewed as central to any war crimes committed could theoretically be on the hook, but that it was highly unlikely that the ICC would go after ministers of science, sport or other ministries whose work was not really related to the settlements on a larger level.

Horovitz also thought that speeches could serve as evidence along with tenders and settlement planning approval documents.

Horovitz said that the addition of “indirect” transfers into the Rome Statute’s language could include voluntary movement, such that Jews moving to the settlements voluntarily could be overcome as a defense.

She and Zacharyah said it was uncertain whether the ICC pretrial chambers would accept Bensouda’s view that a State of Palestine already existed and whether they would view all of the West Bank as “occupied” territory as the non-binding but globally widely accepted International Court of Justice West Bank Wall opinion declared in 2004.

But if the ICC did accept those positions, they said it could overcome the undefined borders issue and the idea that borders are supposed to be set by the parties in future negotiations, by saying that its ruling on war crimes was valid in the current setting of occupation, but could be modified by an agreement of the parties down the road.

Horovitz also said that the ICC might choose not to rely on the argument that parts of the West Bank are set to be part of Israel under the Clinton Parameters for resolving the borders issue, by noting Prime Minister Binyamin Netanyahu’s recent statement against a Palestinian state. Regarding complimentarity, Horovitz said that the ICC could again rely on the ICJ 2004 decision which called all of the West Bank occupied, ignoring any public or private land distinction.

She even said that the High Court rulings on the issue where Jewish settlers were made to leave an area could expose Israel to accusations that in other cases it did have the power to remove settlers, but was just unwilling to do so. Zacharyah said though that a variety of claims could be made from both sides since the High Court had seriously looked at the issue of the legality of the settlements on at least a few occasions, including in a 2009 case.

Further, regarding the argument that once all pre-November 29, 2012 settlements are excluded that the numbers of new settlements, according to recent UN Human Rights council statistics could drop to 4,000-10,000 units at tender or planning stages, and maybe much fewer actual new units built and moved into, Horovitz and Zacharyah said that the ICC could potentially go after a wider range of issues.

She stated that the ICC could go after some settlements retroactively using the concept that maintaining existing settlements was a continuing crime and could go after unfinished settlements which already had water, electricity, zoning and other infrastructure built or developed on the grounds that they aided and abetted settlement activity.

Horovitz did re-stress that “no one knows” for sure how far the ICC will go with an idea like aiding and abetting indirect population transfers since there is no precedent to draw from. She also said that number of new settlements since 2012 “do matter,” but that also Palestinian “victims” might argue the issue even more aggressively to the ICC than the ICC Prosecutor does.

Responding to the argument that the entire population transfer war crime was an anomaly or a political absurdity, Horovitz said “so what” – explain that many treaties are formed through such wheeling and dealing, but that did not mean that the war crime could be ignored if the ICC viewed the settlements as systemic and negative enough.

Zacharyah added that he viewed the occupation as the longest and largest in modern history, an issue which cut also cut against Israel and that the ICC could find it had jurisdiction on all issues under black letter law despite all the unique aspects to the situation.

After all of the massive speculation though from a variety of perspectives, some experts said that at the end of the day they simply did not see the ICC trying to declare war crimes on Israeli officials for connecting water and activating electricity as such cases would undermine its serious mission to fight impunity of “real” war crimes.