Criminal as well as illegal: Israeli settlements in the OPT

There is a real possibility that Israeli leaders could be indicted for war crimes over the program of building settlements for Israeli citizens in the Occupied Palestinian Territories.

The Geneva Conventions are international law governing the behaviour of states during war and military occupations. The Israeli settlement program is illegal under the Fourth Geneva Convention (1949). Article 49, paragraph 6, states:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

The UN Security Council has been concerned about the settlement program since it started in the early 1970s. In Resolution 446 of 22 March 1979 the Security Council,

Affirming once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem,

Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;”

Later resolutions called upon the Government and people of Israel to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem [UNSCR 452]; and called the settlement program a flagrant violation of the Fourth Geneva Convention [UNSCR 465].

Israel has refused to accept these Resolutions, as well as many others concerning its behaviour in the West Bank, Jerusalem, Lebanon and Gaza. In addition, there have been 32 draft resolutions against Israel that have been vetoed by the United States.

Zionists sometimes argue that the word ‘transfer’ in paragraph 6 of article 49 refers to forced transfers, and does not apply to Israeli settlers in the West Bank who move there voluntarily. This argument is wrong because: (a) the Article says forced transfer when it means forced transfer, as in paragraph 1; and (b) even if the transferred population moves willingly the occupied population is forced to accept them, and this is clearly unjust; a program of such transfer amounts to colonization of the occupied territory by the occupying power, in violation of Chapter XI of the UN Charter. This is what the paragraph is designed to prevent.

Israel has also argued that the Fourth Geneva Convention does not apply in the Occupied Palestinian territories, on the basis of a legalistic argument that there is no need to go into here, because the International Court of Justice, the highest authority there is on international law, has decided the matter [paragraph 120]:

the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.

At present it seems unlikely that the Security Council will be able to stop the illegal settlement program, because of the US veto. But there is another route.

The settlement program also constitutes a war crime, so Israeli government ministers may bear personal criminal responsibility for it and can be prosecuted by the International Criminal Court. (I am grateful to internet commenters johnboy4546 and Tvisyn for bringing this to my attention.)

Article 8 of the Rome Statute of the ICC deals with war crimes: paragraph 2(b)(viii) is concerned with population transfer from the occupying territory to the occupied territory. Including the lead-in the text says (my emphasis):

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, “war crimes” means: (a) Grave breaches of the Geneva Conventions of 12 August 1949… (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:… (viii) the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies

The State of Palestine can ask the ICC Prosecutor to investigate the alleged crime only if it, itself, accepts the jurisdiction of the Court. Palestine previously had a problem doing this, because the Prosecutor said he did not have the authority to decide if Palestine is a state for the purposes of the Rome Statute, and asked the UN to consider the matter. In 2012 the UN General Assembly upgraded the status of Palestine at the UN from observer mission to non-member state observer mission. Personally, I doubt that this will be sufficient for the Prosecutor. However, it should only need a one-line resolution from the GA explicitly saying that ‘Palestine is a state for the purposes of the Rome Statute’, and this should easily be achievable. The Security Council would not have a veto on this.

If the Prosecutor of the ICC investigates, I expect him to say there is a case to answer against all Israeli government ministers who supported the policy in the past. The wording of the Rome Statute quoted above quite clearly applies. Also I would expect the Military Governors to be indicted, because they issue building permits for the settlements. Their authority derives from the international laws of war, so they ought to apply international law in considering applications for permits, and should refuse illegal orders from the Israeli government.

The suspects are unlikely to surrender themselves, and I expect the Prosecutor to issue arrest warrants. Since Israel has not accepted the jurisdiction of the ICC, it can refuse to execute those warrants. If the suspects ever leave Israel, they could be arrested, so their personal lives will be disrupted. Hopefully, we will see no more of those frequent visits by Netanyahu to the USA to be lauded by the Congress. Unfortunately, I doubt the suspects will ever come to trial.

However, the political ramifications would be enormous. I believe Israelis would finally realise that the Netanyahu government is leading Israel in the wrong direction, and that a new generation of politicians will come forward, committed to halting the settlement program and making peace with Palestine.

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About David Gerald Fincham

Retired academic scientist.
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  • Chris Berel

    Number one: The ICC will not investigate because this “crime” on the scale of offenses, is a misdemeanor.

    Number two: Transfer means transfer, not someone moving out to the country because the land is cheaper. The Israeli government did not transfer any Israelis, voluntarily or not, into the disputed territories.

    • Walk Tall Hang Loose

      The ICJ say it is a transfer because it is organised or encouraged by the Israeli government. The ICC say it has jursidiction because it is part of a plan or policy. There is no category of war misdemeanor in the Rome Statute. A war crime is a war crime.

      • Chris Berel

        The ICJ is wrong to classify it so. Obviously it is a political decision outside the realm of actual law. The use of the misdemeanor terminology indicates how minor an infraction this issue is, if it were actually an infraction, which the Israeli government proved it was not, which could be prosecuted.

        With all of the actual genocide, mass atrocities, ethnic cleansing, and war crimes occurring throughout the Arab Middle East and Muslim North Africa, pursuing Israel is like prosecuting jay walkers while letting drunks drive to their hearts content.

        • Walk Tall Hang Loose

          “The Israeli government proved it was not an infraction”. No it didn’t, it argued its case to the ICJ and they rejected it, saying that the settlement program is in breach of international law because it violates the Fourth Geneva Convention. The ICJ is a body of independent senior judges, and it is disgraceful to call their judgments ‘political’.

          While I have some sympathy with your second paragraph, I suggest the ICC would regard the crime as serious, because it has been going on for 40 years in spite of dozens of SC resolutions saying it is illegal and calling upon Israel to stop it urgently. It has also been a major obstacle to a peace agreement, and therefore indirectly responsible for thousands of deaths.

          • Chris Berel

            It is not a major obstacle to peace as the organized Palestinian terror campaign began in 1964, well before any settlements.

            The Israeli government so proved the legality of the settlements to the satisfaction of the Israeli government itself. It does not need to justify such to the ICJ as the ICJ does not hold jurisdiction authority.

            Despite the length of time that people have been jaywalking, it is nothing as compared to the drunk drivers on the road. Therefore, any attempt by the ICC to bring this matter up is political in nature, proving once more that “the law is an ass,” particularly what passes for international law.

    • Nick

      The Israeli government uses its soldiers to beat and kill and drive people from their lands.

      That’s ethnic cleansing/transfer – an extreme form of pogrom.

      Of course, if you think pogroms are perfectly acceptable then it will not bother you.

    • Tom Hodges

      Wow you are on a mission. Life your life…