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.
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