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.

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.