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Taking the Settlements to the ICC? Substantive Issues

  • Yaël Ronen (a1)
Abstract

Interest in the criminal aspects of the Israeli settlement project in the West Bank is hardly new; it informed the drafting of Additional Protocol I (AP I) and of the Statute of the International Criminal Court (ICC), and motivated Israel's rejection of both instruments. The 2009 Palestinian attempt to establish ICC jurisdiction prompted extensive scholarly debate on the preconditions for jurisdiction and on its territorial and temporal aspects, as well as on specific admissibility questions, primarily gravity. (Complementarity is not an issue with regard to the establishment of West Bank settlements, since Israeli law and jurisprudence do not prohibit it, although they regulate some aspects related thereto).

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 E.g., Yaël Ronen, ICC Jurisdiction over Acts Committed in the Gaza Strip, 8 J. Int'l Crim. Just. 3 (2010); Eugene Kontorovich, Israel/Palestine—The ICC's Uncharted Territory, 11 J. Int'l Crim. Just. 979 (2013), Andreas Zimmermann, Palestine and the International Criminal Court Quo Vadis? Reach and Limits of Declarations under Article 12(3), 11 J. Int'l Crim. Just. 303 (2013); Michael G. Kearney, On the Situation in Palestine and the War Crime of Transfer of Civilians into Occupied Territory, 28 Crim. L.F. 1(2017); Eugene Kontorovich, When Gravity Fails: Israeli Settlements and Admissibility at the ICC, 47 Isr. L. Rev. 379 (2014); Ido Rosensweig, The Palestinian Accession to the Rome Statute and the Question of the Settlements, Opinio Juris (Jan. 22, 2015).

2 International Committee of the Red Cross, Working Paper Submitted to ICC the Preparatory Commission (June 18, 1999).

3 Bert A.V. Röling, The Significance of the Laws of War, in Current problems of International Law 133 (Antonio Cassese ed., 1975).

4 International Committee of the Red Cross, Customary International Law Rules, Rule 130 (2005); Oscar Uhler et al., Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary 283 (1958) referring to “economic situation” and “separate existence as a race”; Commentary to AP I 1000, para. 3504 (Yvez Sandoz et al. eds., 1987).

5 Mark A. Drumbl, Accountability for System Criminality, 8 Santa Clara J. Int'l L. 373 (2010).

6 Herman von Hebel, Article 8(2)(b)(viii), in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 158 (Roy S. Lee et al. eds., 2001).

7 Theodor Meron, Crimes under the Jurisdiction of the ICC, in Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos 47 (Hermann von Hebel et al. eds., 1999). Antonio Cassese, The Statute of the International Criminal Court: Some Preliminary Reflections, 10 Eur. J. Int'l L. 144, 151 (1999), reiterated in 2013 in Antonio Cassese & Paolo Gaeta, Cassese's International Criminal Law 80–81 (3d ed., 2013).

8 Andreas Zimmermann, Israel and the International Criminal Court - an Outsider's Perspective, 36 Isr. Y.B. Hum. Rts. 231 (2006).

9 UNSC, Israel's Settlements Have No Legal Validity, Constitute Flagrant Violation of International Law, Security Council Reaffirms, United Nations Meetings Coverage 7853d mtg., SC/12657 (Dec. 23, 2016).

10 Marko Milanović, Is the Rome Statute Binding on Individuals? (And Why We Should Care), 9 J. Int'l Crim. Just. 25 (2011).

12 Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, para. 120 (July 9).

14 Zimmermann, supra note 1, at 324.

15 Rome Statute of the International Criminal Court art. 30, July 17, 1998, 2187 UNTS 90.

16 Rome Statute of the International Criminal Court art. 8bis(1), July 17, 1998, 2187 UNTS 90.

17 Rome Statute of the International Criminal Court arts. 8bis(1), 25(3bis), July 17, 1998, 2187 UNTS 90.

18 ICC Office of the Prosecutor, OTP Strategic Plan, para. 21 (2013).

19 Acknowledging this gap, the OTP would consider prosecuting level perpetrators when their conduct has been particularly grave and has acquired extensive notoriety. Id. at para. 22.

20 Rome Statute of the International Criminal Court art. 30, July 17, 1998, 2187 UNTS 90.

23 Nir Yahav, “63.5% of the Jews are Mistaken: The Valley is under Israeli Sovereignty” Walla! (June 12, 2011) (In Hebrew).

25 The 2012 Levy Commission Report on the Legal Status of Building in Judea and Samaria (June 21, 2012), co-authored by the former legal advisor of the MFA and a former supreme court judge.

26 Miriam Bilig & Udi Lebel, Public Opinion Poll regarding Settlement in Judea and Samaria , Ariel University (Aug. 28, 2013).

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