Israeli Settlements under the Rome Statute of the ICC
Israeli Settlements under the
Since
the beginning of its occupation of East Jerusalem and the West Bank in 1967, 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 Israel Palestine Israel 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 Palestine or 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 Palestine or
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.
Gabriel
Helou
Twitter: @GabrielHelou
[*] 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.
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