Since the beginning of its occupation of East Jerusalem and the West Bank in 1967, Israel, the 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.
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 Israelis 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.
Now that Palestine’s status has been upgraded by the UN General Assembly to a “non-member Observer State”, and which implicitly means the recognition of Palestine as a sovereign and independent State, it can either accede to the Rome Statute, or accept the jurisdiction of the Court on an ad hoc basis. As such, it can refer the situation of settlements – as a war crime - to the ICC.
It is worth mentioning that Israel 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. In any case, its consent is not required in the case before us.
Concerning the Security Council, it can - acting under Chapter VII of the Charter of the United Nations - and in accordance with Article 13/b of the Rome Statute, refer situations to the ICC - 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 now possible for Palestine to bring the situation of Israeli settlements in East Jerusalem and the West Bank – as a war crime – before the International Criminal Court. The Security Council, by a resolution adopted under Chapter VII of the UN Charter, can do so as well – as a last resort.