Settlements & Borders: Palestine, Israel, and the International Criminal Court

By: Aaron Murphy

Will Palestine join the International Criminal Court? The 2012 installment of Palestine as a “non-member observer state” at the United Nations has reignited a caustic debate on the merits of Palestinian accession to the Rome Statute. ICC involvement in Gaza and the West Bank offers the alluring promise of ostensibly impartial judicial oversight, the potential modicum of justice for alleged war crimes and crimes against humanity committed on Palestinian territory, and a deterrent against the eruption of future violence. For the Court itself, an investigation into the Israeli-Palestinian debacle could offer a chance to divest itself of its spotty early history and start anew at the nexus of international criminal law, state sovereignty and relevant world affairs. Is there more to the issue?

Testing The Waters

The Palestinian Authority, led by Chairman Mahoumad Abbas, has long wielded the threat of ICC jurisprudence as leverage in negotiations with Israel. Until the General Assembly upgraded Palestine’s status, Abbas’s warning carried little heft. A Palestinian attempt to accept ICC jurisdiction in 2009 was denied after the Office of the Prosecutor determined that, for the purposes of the Court, Palestine was not a state. A promotion at the United Nations, though, carries with it a wide range of benefits. Vested with the raiments of newfound statehood and mired in yet another round of unfruitful negotiations with Israel, Palestine marshalled plans to join some sixty international organizations this year in a bid to solidify its legitimacy as a sovereign player on the international stage. The full-court push prompted a renewed flurry of speculation on Palestinian intentions towards the ICC.

In August 2014, Palestinian representatives met with ICC prosecutors at the Hague to ponder donning the Rome Statute’s legal cloak. The lead Prosecutor, Fatou Bensouda, penned a Guardian op-ed synthesizing the ICC’s process and laying out the options for the newly minted non-member observer state. Bensouda explained that the ICC “can only investigate and prosecute actions committed on the territory or by the nationals of states that have joined the ICC statute or which have otherwise accepted the jurisdiction of the ICC through an ad-hoc declaration” pursuant to Article 12(3) of the Rome Treaty. According to Bensouda, both accession and its ad-hoc counterpart (the nucleus of Palestine’s failed 2009 jurisdictional bid) are now within Palestine’s reach. Until Palestine comes knocking, however, the Court will refrain from diving into the imbroglio that is Gaza and the West Bank.

Despite this public invitation, the prospect of ICC involvement in the Palestinian crisis presents a veritable grab-bag of slippery issues and fascinating quandaries. Two such problems are particularly difficult to unravel.  First, how should the ICC approach the question of Israeli settlements in the West Bank? Second, how should the Court address the surfeit of novel jurisdictional issues a Palestinian probe would likely encounter?

Settling Scores With The Settlements

When one applies the language of “war crimes” or “crimes against humanity” to the conflict in Palestine, it is easy to summon headline-worthy visions of bombed-out UN charter schools and sizzling rockets descending towards the concrete roofs of Tel Aviv. Lurid, technicolor atrocities such as these make it easy to overlook a problem that is arguably more pressing, a problem the ICC will likely have to address if it ever enters the long-running fray: the legality of Israeli settlements in the West Bank.

Long characterized by much of the international community as a flagrant violation of international law, the settlements at first glance seem to present a clear-cut case.

Article 8(2)(b)(viii) of the Rome Statute gives the ICC jurisdiction over war crimes involving “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.” The established interpretation of this provision, which has deep intellectual ties with Article 49(2) of the Fourth Geneva Convention, forbids Israeli settlements in occupied Palestine. Indeed, it was this very provision that earned the Rome Statute an Israeli “no” vote in 1998. If the matter is prosecuted before the Court, however, the dispute will prove anything but straightforward.

An action on the settlement question would be a case of first impression for the ICC. No country has ever been criminally charged under the transfer provisions of the Rome Statute and the Fourth Geneva Convention. To date, the Court has confined the scope of its proceedings largely to addressing past war crimes by African warlords and toppled former presidents. It has yet to consider a claim of such complexity, defined by such ingrained institutional conduct. In the course of unraveling such a claim, the Court would be forced to journey into the unknown, devoid of the benefits of precedent. The lack of substantive direction on such an issue could make the Court reluctant to tackle the matter in any meaningful way.

Since the ICC is structured as a court of last resort, an investigation into the settlements would indicate that the Israeli legal system is unwilling or unable to do so itself (see Article 17 of the Rome Statute). This reality, termed the complementarity principle, could invoke a firestorm of protest from Israel and its allies. Since the settlement issue is unique to Israel, ICC actions against those settlements would be roundly criticized for failing to account for war crimes committed by Palestinian actors such as Hamas, who might be vulnerable to indictment on other counts. An accusation of imbalance and politics masquerading as impartiality could put a hefty dent in the ICC’s already tenuous public reputation, further draining the court of the legitimacy it desperately needs to fulfill its mandate.

The  unfamiliar and highly uncertain nature of an action against Israel under Article 8(2)(b)(viii), coupled with the very real threat of political blowback, could render the Court reluctant to take up the question of Israeli settlements, even if Palestine enters the fold of member states.

Bewildering Borders

Palestinian accession to the Rome Statute is simply the opening volley in what is likely to be a nasty, contentious debate on the limits of ICC jurisdiction. The boundaries of ICC influence have always brushed against the sharply defended limits of national sovereignty, and the Court’s ability to litigate the conduct of non-member state nationals has proved a perennially controversial subject. Because Israel is not a member of the Court, the ICC must confine its reach only to conduct which “occurs on the territory of Palestine” in accordance with Article 12 of the Rome Statute. This stipulation masks a difficult question: What exactly constitutes Palestinian territory?

In a delightfully meticulous article on the topic, Northwestern Law professor Eugene Kontorovich argues that to exercise jurisdiction, the ICC would have to literally draw the borders of Palestine and Israel. Control over a defined territory is integral to the very notion of a sovereign state, yet the conundrum of delineated Palestinian borders remains as opaque as ever. As Kontorovich points out, the General Assembly’s resolution on Palestinian statehood abdicated the question entirely, treating the borders as an “outstanding issue” in search of a solution. Statehood appears to have vested Palestinians with some territory somewhere, but no one is in a hurry to clarify the details.

This baffling territorial quandary could have alarming consequences for ICC jurisdiction. With no binding guidelines to adhere to, the Court would find itself in the uncomfortable position of drawing national borders for the purposes of legal inquiry. The pitfalls are obvious. For one, the International Court of Justice’s decision in Monetary Gold means that the ICC cannot “determine the legal rights and duties” of a non-consenting state not party to a particular case. Adjudicating the reach of Palestinian territory would necessarily determine the boundaries of Israeli lands as well, a development Kontorovich succinctly terms “as clear a violation of the Monetary Gold principle as one could imagine.” Additionally, Palestinian accession to the Rome Statute implicitly relinquishes territorial and criminal jurisdiction to the Court on certain issues. It is by no means clear that Palestine has such jurisdiction to give, governed as it is by what remains of the Oslo Accords. This discrepancy becomes particularly glaring when discussing the capacity of the ICC to address the legality of Israeli settlements. All West Bank settlements lie within an area over which Israel has full territorial control and complete criminal jurisdiction. To put the issue bluntly: How can Palestine reassign jurisdiction it does not have? Assuming it attempts that very thing, how can the ICC accept jurisdiction of such questionable legitimacy?

An ICC investigation of the Palestinian situation takes the Court into dangerous waters. Such an inquiry, according to Kontorovich, “will win the enmity of all non-state parties” and ultimately render the Court “less able to fulfill its mandate.” While such a dire prediction may overstate the issue, it is certain a Palestinian signature on the Rome Statute will thrust the ICC into perplexing territory indeed.

Treading Softly

The potential role of the International Criminal Court in the conflict between Palestine and Israel is an intriguing one. Adherents to the high ideals of transnational justice weave tapestries of international accountability, cross-border dispute resolution, and deep wounds sutured by the balanced hands of impartial justice. Dogged policy realists proffer doom-laden specters of altered power balances, hamstrung sovereignty, and cataclysmic political fallout. While the actual results remain impenetrable, it is useful to remember the complexities of potential ICC involvement in one of history’s most intractable conflicts. The Court does not offer anything resembling a complete solution. To pretend otherwise is disingenuous.

Aaron Murphy is a J.D. Candidate at Berkeley Law. He is a student contributor for Travaux.

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