Israeli Settlements under the
Since the beginning of its occupation of East Jerusalem and the West Bank in 1967,
Occupying Power, has officially adopted, supported and financed a policy of
settling parts of its civilian population in those areas, under the pretext of
maintaining its security. Israel
Moreover, it has encouraged the “unofficial” building of settlements, in East Jerusalem and the
West Bank, through what it refers to
as “illegal outposts”. Those outposts are built by Jewish groups without the
prior consent or permission of the Israeli Government. However, they eventually
obtain retro-active permits as well as all sort of facilities.
This direct and indirect settling of Jews in the abovementioned areas is in breach of the international law, because the occupation itself is at the outset illegal under Article 2/4 of the Charter of the United Nations, and it further constitutes a war crime according to the Rome Statute of the International Criminal Court (ICC)[*]. Article 8/2/b/viii of the Statute states: “The transfer, directly or indirectly, by the Occupying Power of parts of its own population into the territory it occupies…”
These facts give rise to two questions: How to hold the perpetrators – as war criminals – accountable before the ICC? Who can refer this situation to the ICC?
This situation is worthy of a careful scrutiny as Israel, the Occupying Power, is not Party to the Statute and thus, in principle, is not bound by it. Consequently, the International Criminal Court cannot exercise jurisdiction over Israeli nationals.
In order to answer the raised the questions, we first must specify the competent parties to refer situations before the ICC. Pursuant to Article 13 of the Rome Statute, a State Party, the Security Council or the Prosecutor is empowered to bring cases before the Court.
However, in the case of a referral by a State Party or the Prosecutor initiates an investigation, the conduct in question must have occurred on the territory of a State Party or the State of the accused person must be a State Party, in compliance with Article 12/2 of the Statute, or otherwise, each can accept the jurisdiction of the Court, on an ad hoc basis, in accordance with Article 12/3 of the Statute.
As a matter of fact, neither
Palestine, nor , is a
State Party. Israel
cannot accede to the Rome Statute, nor accept the jurisdiction of the Court,
since it is not a State. Therefore, it cannot refer the situation of
settlements – as a war crime – to the ICC. Palestine has only signed the Statute
but has not yet ratified it. However, Israel can accept the jurisdiction
of the Court, in conformity with Article 12/3, but it is not expected to do so,
so as to give the Court jurisdiction over its own nationals. Israel
Some may invoke the power of all States Parties to the Statute to refer situations to the ICC, even if the crime was not committed on their territories or the accused person is not one of their nationals. This is true. But in the case before us, the Israeli settlements – as a war crime – it would have been possible only if either
were a State Party. Israel
The only exception to this situation is a referral by the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, in accordance with Article 13/b of the Rome Statute, whether the State where the conduct was committed or of the accused person is a State Party or not. In other words, the Security Council has the power to refer any situation to the Court without any restrictions, i.e.: the limitations set forth by Article 12/2 of the Statute.
In conclusion, it is impossible for
the Prosecutor to bring the situation of Israeli settlements in East Jerusalem
and the West Bank – as a war crime – before
the International Criminal Court. The only and last resort is therefore the
Security Council, by a resolution adopted under Chapter VII of the Charter of
the United Nations, according to the Rome Statute.
[*] Rome Statute is a multilateral treaty establishing the International Criminal Court, adopted and signed on 17 July 1998, and came into force on 1 July 2002.