“Article 8(2)(b)(viii) of the Rome Statute prohibits “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.” There are some difficult interpretive issues involved in the war crime, particularly concerning whether the settlers themselves violate the provision by settling in occupied territory. But the idea that (many of) the settlements constitute war crimes is anything but frivolous. Indeed, scholars agree that the inclusion of that part of Article 8(2)(b)(viii) in the Rome Statute was one of the primary reasons Israel refused (and still refuses) to ratify the treaty.”
This inclusion makes settlement construction a war crime. But Israel is not bound by the provision except that by virtue of the Court’s “universal jurisdiction” the court may be able to rule on it. Universal jurisdiction only applies over genocide, crimes against humanity and war crimes.
Israel to release paper on Gaza operation to preempt ICC and blunt UN criticism.
Israel is expected to release a paper in the coming days giving its legal position regarding Operation Protective Edge, as part of an effort to preempt an investigation by the International Criminal Court and before the release of what is expected to be a highly critical report by the UN Human Rights Council.
The paper is an intergovernmental project that was drawn up with representatives from the Prime Minister’s Office, the IDF, and the Justice, Foreign Affairs, and Defense ministries. According to one official, it will be an overview from a legal perspective of the summer’s events.
One government official said that, since the ICC is reticent to take up cases which are being investigated by a country’s judicial system that is recognized as competent, the paper will underline Israel’s judicial review of the events over the summer.
The Palestinian Authority, which already asked the court to investigate the Gaza operation, took another approach on Monday, indicating that it will also ask the court to look into Israel’s settlement construction.
Israel Radio quoted Palestinian Authority Foreign Minister Riyad al-Maliki as saying in an interview in the Arab press that the PA intends to formally joining the ICC on April 1 and immediately ask the court to investigate Israel’s settlement policy.
According to the report, the reason the Palestinians are adapting this approach is that, while the investigation they asked the court to carry out regarding the events in Gaza will open them up to counterclaims of being responsible for war crimes, they feel the settlement issue is a “one way street.”
One Foreign Ministry official did not appear overly concerned by the Palestinian move, saying that Israel is studying the issue, but that this is a very slow process that could take years to play out. It could be months before the court decides to open an investigation, and then – if it even does so – even much longer to carry it out and then pursue the matter in court. As a result, he said, there is no sense of great urgency yet in Jerusalem about this threat.
Meanwhile, former New York Mayor Rudy Giuliani, a former federal prosecutor, met with the IDF advocate-general during his two-day stay here.
Asked by The Jerusalem Post on Sunday what advice he would give Israel about dealing with the court, Giuliani said, “I don’t think I would recognize their jurisdiction.”
Giuliani said that if Israel were his client, and the court would try to assert jurisdiction, “I would say you don’t have jurisdiction, and we never gave you that jurisdiction over us, and our sovereignty prevents you from just taking that jurisdiction.
The ICC just can’t say ‘I have jurisdiction over you,’ otherwise sovereignty means nothing. You have to cede sovereignty to them,” he pointed out.
Giuliani added that he is uncomfortable with the makeup of the ICC.
“I don’t know who they are, how they are appointed, what checks and balances are on them,” he said.