Disputed Territories and International Criminal Law

Israeli Settlements and the International Criminal Court

Simon McKenzie

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000758054
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

It has been over 50 years since the beginning of the Israeli occupation of the Palestinian Territories. It is estimated that there are over 600, 000 Israeli settlers living in the West Bank and East Jerusalem, and they are supported, protected, and maintained by the Israeli state. This book discusses whether international criminal law could apply to those responsible for allowing and promoting this growth, and examines what this application would reveal about the operation of international criminal law. It provides a comprehensive analysis of how the Rome Statute of the International Criminal Court could apply to the settlements in the West Bank through a close examination of the potential operation of two relevant Statute crimes: first, the war crime of transfer of population; and second, the war crime of unlawful appropriation of property. It also addresses the threshold question of whether the law of occupation applies to the West Bank, and how the principles of individual criminal responsibility might operate in this context. It explores the relevance and coherence of the legal arguments relied on by Israel in defence of the legality of the settlements and considers how these arguments might apply in the context of the Rome Statute. The work also has wider aims, raising questions about the Rome Statute's capacity to meet its aim of establishing a coherent and legally effective system of international criminal justice.

1 What law is applicable to the West Bank?

Introduction

The two crimes analysed in this book share a threshold circumstance element: they must be committed during an “international armed conflict”. This makes it necessary to establish the status of the parts of the West Bank where the settlements have been built to determine if this circumstance element would be satisfied. If the situation in these places does not amount to an “international armed conflict”, the crimes analysed in this book will not apply.

As will be explained, the crimes share this circumstance element because they are found in article 8 of the Rome Statute, the provision that sets out the “war crimes” within the jurisdiction of the International Criminal Court (ICC). War crimes can only be committed in the situations regulated by international humanitarian law (IHL). Treaties and customary international law provide that IHL only applies during an armed conflict, a legally defined circumstance which is further split into ”international armed conflicts” and “non-international armed conflicts”. Each of these circumstances has a different set of applicable IHL rules, with some rules being shared and some specific to the context. The crimes that apply during international armed conflict are more extensive than those that apply to non-international armed conflict. In the case of these two crimes, the critical question is whether the Israeli control of parts of the West Bank is an “occupation” capable of fulfilling the circumstance element requiring the existence of an “international armed conflict”.

The correct answer to this legal question is disputed by the parties to the conflict. This chapter will explore and assess the arguments put forward both in favour of and against the situation in the West Bank constituting an “international armed conflict” and “occupation”. There are multiple sources of IHL relevant in this context. Along with customary international law, the relevant IHL treaties are the Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention IV of 1907 (the Hague Regulations), the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 (GCIV), and the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 1977 (API).¹

1 Regulations concerning the Laws and Customs of War on Land (Hague Regulations), annexed to the Convention (IV) Concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 ConTS 277 (entered into force 26 January 1910); Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GCIV); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 17512 (entered into force 23 January 1979) (API).

The most widely accepted view is that the areas where the settlements have been built in the West Bank are “occupied territory” and subject to occupation law. Israel has disputed this characterisation of the West Bank since soon after it took possession of the territory in 1967. This chapter will consider in detail whether the law of occupation, and in particular the Hague Regulations and GCIV, apply to the places where the settlements have been built. In doing so, it will address the arguments raised by and on behalf of Israel to determine whether they are persuasive.

The chapter will first provide an overview of the relationship between the article 8 crimes in the Rome Statute and IHL, setting out more specifically the source of the circumstance element requiring the crimes to be committed during an international armed conflict or military occupation. It will then consider the relevant test for determining whether the Hague Regulations apply, and conclude that the most persuasive legal view is that Israel’s conduct in controlling the relevant parts of the West Bank is regulated by the Hague Regulations.

It is argued by some that a situation can amount to an “occupation” under the Hague Regulations, but not satisfy the requirements for an “occupation” under GCIV. If this view is accepted, it limits the legal obligations the occupier has over the territory to those provided by the Hague Regulations and customary international law, a body of law that some view as allowing for greater flexibility for the occupying power and less protection for the population under occupation. Importantly for this context, it is argued by some that, if GCIV does not apply, it could mean that neither of the two crimes apply. As such, this chapter also assesses whether GCIV applies to the West Bank.

The applicability of GCIV is governed by article 2, common to all four Geneva Conventions. Article 2 is subject to several competing interpretations. The chapter will focus on two interpretations. First, the orthodox interpretation is that, for the Convention to apply, all that is required is the existence of an armed conflict between two high contracting parties (an “international armed conflict”). It holds that any territory occupied during such a conflict will be subject to GCIV. The second interpretation, preferred by Israel, is more restricted. Israel argues that, as the West Bank had no legitimate sovereign prior to 1967, GCIV does not apply as it is not an occupation that can be classified as an “international armed conflict”. It will be shown that the orthodox position is more persuasive. In addition to these two interpretations, the concepts of “defensive conquest” and a “sui generis” occupation will be considered and assessed.

The purpose of this analysis is to elaborate on the arguments made regarding the application of occupation law that may be relevant to ICL and, in particular, a case before the ICC based on the settlements in the West Bank. A comprehensive overview of contemporary debates about the role of occupation law and IHL in the West Bank and Occupied Palestinian Territories more generally – such as the status of Gaza in light of Israel’s unilateral disengagement – is beyond the scope of the book.

The chapter will conclude by applying the most compelling interpretation of common article 2 to the situation in the West Bank. The analysis demonstrates that the Court should, in any prosecution regarding events in the territory, accept that IHL, including GCIV, applies, and that the circumstance element of the two crimes is established.

How article 8 of the Rome Statute works

It is necessary to first explain why determining the status of the West Bank is crucial. As explained above, the circumstance element of the two crimes is that they be committed during an international armed conflict. The placement of the two crimes in article 8(2)(a) and (b) of the Rome Statute respectively, determines the precise circumstance element.² Each subparagraph of article 8(2) has a different threshold circumstance element that must be satisfied before the crime will apply. The crimes in article 8(2)(a) and (b) both apply to conduct during an international armed conflict (which, as will be shown, extends to military occupations); and the crimes in article 8(2)(c) and (e) apply to conduct during non-international armed conflicts (which does not include military occupations). This book only addresses crimes in subparagraphs (a) and (b).

2 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), art 8(2) (Rome Statute).

The circumstance element of an international armed conflict is found in the text of article 8(a) and (b). Before listing a series of acts which constitute war crimes, article 8(2)(a) explains that they are all “grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention”.³ Grave breaches are particularly serious breaches of the four Geneva Conventions.⁴ This means that all the crimes in article 8(2)(a), including the crime of the unlawful appropriation of property,⁵ must be committed against “persons or property” protected by the Geneva Conventions.⁶ Therefore, a precondition for the crimes being applicable is that the territory is subject to the relevant provisions of the Geneva Conventions, which as will be explained below, requires the existence of an international armed conflict or a subsequent military occupation.⁷

3 Ibid art 8(2)(a).

4 See Knut Dörmann, ‘B. Article 8 para. 2: Meaning of ‘war crimes’’ in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court: A Commentary (C.H.Beck, Hart and Nomos, 3rd ed, 2016) 322, 323.

5 Rome Statute art 8(2)(a)(iv).

6 Dörmann, ‘B. Article 8 para. 2: Meaning of ‘war crimes’’’, above n 4, 32...