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When Gravity Fails:* Israeli Settlements and Admissibility at the ICC

Published online by Cambridge University Press:  29 August 2014

Eugene Kontorovich*
Professor, Northwestern University School of Law, Chicago, Illinois, United States;
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In the wake of the UN General Assembly's recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to challenge in the International Criminal Court (ICC or the Court) the legality of Israeli settlements. This article explores jurisdictional hurdles for such a case. To focus on the jurisdictional issues, the article assumes for the sake of argument the validity of the merits of the legal claims against the settlements.

The ICC only takes situations of particular ‘gravity’. Yet settlements are not a ‘grave breach’ under the Rome Statute. No modern international criminal tribunal has ever prosecuted crimes that do not involve systematic violence and physical coercion. The ICC's gravity measure involves the number of persons killed; for settlements it would be zero. Indeed, the ICC Prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most have jurisdiction over settlement activity only from the date of Palestine's acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the ICC's gravity threshold.

Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2014 

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See Bob Dylan, ‘Just Like Tom Thumb's Blues’, Highway 61 Revisited (1965) (‘When … your gravity fails and negativity don't pull you through’).


1 Status of Palestine in the United Nations, UNGA Res 67/19, 29 November 2012, UN Doc A/RES/67/19.

2 ICC, Office of the Prosecutor, ‘Situation in Palestine’, 3 April 2012, para 7, Rome Statute (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute).

3 See, for example, George Bishart, ‘Why Palestine Should Take Israel to Court in The Hague’, The New York Times, 29 January 2013,; Aeyal Gross, ‘Following UN Vote on Palestine, Israel May Now Find Itself at The Hague’, Ha'aretz, 2 December 2012,

4 See Geoff Dyer and John Reed, ‘John Kerry to Set Out “Framework” for Future Middle East Talks’, The Financial Times, 2 March 2014,

5 See Kontorovich, Eugene, ‘Israel/Palestine – The ICC's Uncharted “Territory”’ (2013) 11 Journal of International Criminal Justice 979, 982CrossRefGoogle Scholar. The Office of the Prosecutor would most likely treat the vote as settling the question, but the position of the Court remains unknown: see ICC, Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2013’, November 2013, 53–54,

6 See Kontorovich, ibid. But see Ronen, Yaël, ‘Israel, Palestine and the ICC – Territory Uncharted but not Unknown’ (2014) 12 Journal of International Criminal Justice 7.CrossRefGoogle Scholar

7 ‘Settlement activity’ is an informal term for violations of the ICC Statute (n 2) art 8(2)(b)(viii), which prohibits ‘[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies’. The language is lifted almost verbatim from Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287, art 49(6). The provision proved to be controversial at the Rome Conference, as Arab states wanted language that would clearly apply to Israeli settlements, which, after some negotiation, led to the phrase ‘directly or indirectly’ being added to the Geneva-based language. The legal impact of this is unclear because of the circumstances of drafting, the novelty of the provision and lack of subsequent applications. See von Hebel, Herman and Robinson, Darryl, ‘Crimes Within the Jurisdiction of the Court’ in Lee, Roy S (ed), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results (Kluwer Law International 1999) 79, 112–13Google Scholar. The ICC's Elements of Crimes provide that the language ‘needs to be interpreted in accordance with the relevant provisions of international humanitarian law’, a circular reference back to the Geneva Conventions. This provision in the Elements was sought by the American delegation to ‘remove novel arguments about indirect tax incentives to transfer a population’: see Scheffer, David J, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton University Press 2013) 235–36Google Scholar.

8 ICC Statute (n 2) arts 17(1)(d), 53(2)(b).

9 To be sure, the situation in the Congo has resulted in prosecutions, such as Lubanga (see nn 50, 56 and 69), that involve forcible crimes that are not themselves grave breaches. However, the situation in the Congo was characterised by some of the largest atrocities in recent history, with millions killed. The Prosecutor opened the investigation because of reports of ‘thousands of deaths by mass murder and summary execution in the DRC’, along with rape, torture and the use of child soldiers: see ICC, ‘The Office of the Prosecutor of the International Criminal Court Opens Its First Investigation’, ICC-OTP-20040623-59.

10 This article assumes that a Palestinian declaration would focus on settlements rather than more classic war crimes – such as those alleged during the 2009 and 2014 Gaza conflicts – because this is what Palestinian leaders have suggested in their pronouncements since the GA vote. To be sure, the Palestinian leadership has also discussed seeking ICC jurisdiction regarding use-of-force crimes in the 2014 Gaza conflict – after this article was written. Nonetheless, a settlements-focused referral remains the safest course for the Palestinian leadership, as a situation focused on settlements – assuming the inquiry could be defined so narrowly – would largely exclude Palestinian crimes, and is more likely to avoid complementarity barriers.

11 The article focuses only on ‘situational’ gravity, which is a poorly illuminated area of ICC practice; questions about case gravity (which presupposes sufficient situational gravity) are even murkier, and are beyond the scope of this study.

12 ICC, Situation in the Republic of Kenya, Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09, Pre-Trial Chamber II, 31 March 2010, [56] (Situation in Kenya).

13 ICC Statute (n 2) art 77(1)(b).

14 See Cryer, Robert and others, An Introduction to International Criminal Law and Procedure (2nd edn, Cambridge University Press 2010)CrossRefGoogle Scholar (‘So far, all situations in which investigations have been initiated involved hundreds or thousands of the gravest forms of crimes (such as murder or sexual violence)’).

15 ICC Statute (n 2) Preamble, para 2.

16 Yinon Cohen and Neve Gordon, ‘The Settlement Project is Now Self-Sustaining’, The Daily Beast, 13 November 2012,; Tova Lazaroff, ‘2012 Settler Population Grew Almost Three Times as Fast as National Rate’, The Jerusalem Post, 19 November 2012,

17 ibid.

18 The Kenyan situation saw twice as many killed per day. Lubanga recruited approximately 3,000 child soldiers within a few years. Presumably these are all crimes of considerably greater inherent gravity than the indirect transfer of civilians into occupied territory.

19 ICC, Office of the Prosecutor, ‘Policy Paper on Preliminary Examinations’, November 2013, para 62, (Policy Paper).

20 See Situation in Kenya (n 12) [62].

21 Zimmermann, Andreas, ‘Palestine and the International Criminal Court Quo Vadis? Reach and Limits of Declarations under Article 12(3)’ (2013) 11 Journal of International Criminal Justice 303, 324CrossRefGoogle Scholar.

22 The consequences of all actions persist, but that does not make everything a continuing offence. Stolen property stays stolen until returned, but pillage is not a continuing offence.

23 ICC Statute (n 2) art 11.

24 ibid art 22(1) (‘A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court’); see also ibid art 24(1) (barring criminal responsibility for crimes prior to the Statute's entry into force).

25 cf Kevin Jon Heller, ‘Yes, Palestine Could Accept the ICC's Jurisdiction Retroactively’, Opinio Juris, 29 November 2012,, with Scheffer, David J, ‘How to Turn the Tide Using the Rome Statute's Temporal Jurisdiction’ (2004) 2 Journal of International Criminal Justice, 26, 32CrossRefGoogle Scholar (arguing that retrospective jurisdiction would be applicable only to nationals of the declaring state).

26 ICC Statute (n 2) art 11(2) (emphasis added).

27 Schabas, William A, An Introduction to the International Criminal Court (2nd edn, Cambridge University Press 2004) 72CrossRefGoogle Scholar.

28 Schabas, William A, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 87CrossRefGoogle Scholar.

29 See ICC Statute (n 2) art 120 (prohibiting reservations). One might also note that the ‘transitional provision’ for member states is purely prospective, and limited to particular classes of crimes.

30 Emphasis added.

31 Schabas (n 28) 289 (explaining that the provision contemplated situations where the Prosecutor would initiate investigation and a non-member state would then consent through a declaration).

32 ICC, Situation in the Republic of Côte d'Ivoire, Request for Authorisation of an Investigation pursuant to Article 15, ICC-02/11, Pre-Trial Chamber II, 23 June 2011, [40], [62].

33 One might think that if the Court authorised jurisdiction over crimes up to the date of the Prosecutor's application, this would leave slightly under two months between the last acceptance of jurisdiction by Côte d'Ivoire on 3 May and the application on 23 June. However, nothing in the PTC's ruling makes clear which of these closely spaced dates constitutes the endpoint of jurisdiction. Moreover, the application referred only to events up to early April 2011. See ICC, Office of the Prosecutor, ‘Request for Authorisation of an Investigation Pursuant to Article 15’, ICC-02/11, 23 June 2011, para 14.

34 See Policy Paper (n 19) para 61.

35 See Boas, Gideon and others, International Criminal Procedure (Cambridge University Press 2011) 85Google Scholar.

36 Moreno-Ocampo, Luis, ‘Integrating the Work of the ICC into Local Justice Initiatives’ (2006) 21 American University International Law Review 497, 498Google Scholar.

37 Policy Paper (n 19) para 62.

38 ibid.

39 ICC, Office of the Prosecutor, ‘Letter dated 9 February 2006’, 9 February 2006, 8–9,

40 Heller, Kevin Jon, ‘Situational Gravity under the Rome Statute’ in Stahn, Carsten and Van Den Herik, Larissa (eds), Future Directions in International Criminal Justice (Cambridge University Press 2009)Google Scholar.

41 Situation in Kenya (n 12) [190], [199].

42 See deGuzman, Margaret M, ‘The International Criminal Court's Gravity Jurisprudence at Ten’ (2013) 12 Washington University Global Studies Law Review 475, 485–86Google Scholar.

43 Policy Paper (n 19) para 63.

44 See Situation in Kenya (n 12) [62].

45 ICC, Office of the Prosecutor, ‘Policy Paper on Sexual and Gender-Based Crimes’, June 2014, para 45,

46 See deGuzman, Margaret M, ‘Gravity and the Legitimacy of the International Criminal Court’ (2009) 32 Fordham International Law Journal 1400, 1452Google Scholar.

47 Holá, Barbora, Smeulers, Alette and Bijleveld, Catrien, ‘International Sentencing Facts and Figures: Sentencing Practice at the ICTY and ICTR’ (2011) 9 Journal of International Criminal Justice 411, 437CrossRefGoogle Scholar. Presumably, among war crimes, non-grave breaches would be less severe than grave breaches, and would thus be the least severe crimes within the ICC's jurisdiction.

48 Cryer and others (n 14) 160.

49 ICC, Prosecutor v Lubanga, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06, Trial Chamber I, 14 March 2012, [1350].

50 To be sure, local residents might find new neighbours to be disruptive or annoying, but it would be quite something to say that this rises to the level of disruption from war and pillage in the other ICC situations.

51 Cryer and others (n 14) 308 (noting that the transfer prohibition does ‘not originate in classic concerns of … protection of persons and property affiliated with the “other side”’ and protects different values from those of all other war crimes).

52 A malum prohibitum offence is one where ‘the conduct proscribed is not wrongful … independent of the law that defined it as criminal’, as opposed to conduct that is inherently evil: see Husack, Douglas N, The Philosophy of Criminal Law: Selected Essays (Oxford University Press 2010) 411CrossRefGoogle Scholar. Often malum prohibitum crimes are ‘public welfare offences’ that ‘result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize’: Morissette v US 342 US 246 (1952), 255–56.

53 Pictet, Jean S (ed), IV Commentary on the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross 1958)Google Scholar 283.

54 If ‘direct or indirect’ transfer were to be interpreted as going beyond the prohibitions of the Geneva instruments, this would further underscore its malum prohibitum nature.

55 ICC, Prosecutor v Lubanga, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, ICC-01/04-01/06 OA 9 OA 10, Appeals Chamber, 11 July 2008, [35].

56 Baumgartner, Elisabeth, ‘Aspects of Victim Participation in the Proceedings of the International Criminal Court’ (2008) 90 International Review of the Red Cross 409, 425–32CrossRefGoogle Scholar.

57 ICC Rules of Procedure and Evidence, ICC-PIDS-LT-02-002/13_ENG, 2003, r 85(a),

58 Baumgartner (n 56) 420–21.

59 ICC, Prosecutor v Bemba, Fourth Decision on Victims' Participation, ICC-01/05-01708, Pre-Trial Chamber III, 12 November 2008, [72], [74]–[78].

60 Any particular ‘transfer’ may involve an expropriation of property, which could be a separate offence, but it certainly need not do so.

61 Pictet (n 53) 238.

62 In some circumstances, individual Palestinians could claim economic harm from settlement construction, such as difficulty in obtaining access to agricultural lands. Yet, for settlement growth within their existing municipal boundaries or in densely Jewish ‘settlement blocs’, it would be hard to demonstrate that an increase in their population has any direct effect upon individual Palestinians (regardless of the more general effect on ‘prospects for peace’).

63 To the extent that an allegation of expropriation or economic harm is involved, that aspect of the alleged crime could be inadmissible on complementarity grounds, as Israeli courts entertain and grant relief to Palestinians claiming infringement of their property rights.

64 Elliott Abrams and Uri Sadot, ‘Facts on the Ground: Inside Israel's Settlement Slowdown’, Foreign Affairs, 18 June 2014,

65 ICC, Prosecutor v Muthaura, Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11, Pre-Trial Chamber II, 23 January 2012, [50]; Policy Paper (n 19) para 64.

66 Muthaura, ibid [50]; Policy Paper (n 19) para 65.

67 See, for example, Ethan Bronner, ‘Israel's Top Court Orders Settlers to Leave Outpost’, The New York Times, A8, 26 March 2012.

68 The conscription of child soldiers, for example, which could in theory be achieved by sending out draft notices, is in the prosecuted cases typically committed by measures such as abduction and shooting those who failed the physical training regimen: see ICC, Prosecutor v Lubanga, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06, Trial Chamber I, 10 July 2012, [13], citing the Special Court for Sierra Leone, Prosecutor v Sesay, Kallon and Gbao, Case No SCSL-04-15-T, Trial Chamber, Sentencing Judgment, 8 April 2009, para 180.

69 Policy Paper (n 19) para 64.

70 Israel's activity has had elements that contradict the existence of a systematic policy, such as periodic freezes on building tenders, the frequent failure to authorise building in pre-approved projects or private purchases by Israelis, the demolition of houses in certain settlements, and so on.

71 See ICC Statute (n 2) art 8(a) and (b) (distinguishing ‘grave breaches’ from ‘[o]ther serious violations’).

72 Notably, the First Additional Protocol to the Geneva Conventions of 1977 does treat the crime as a ‘grave breach’: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I), art 85(4)(a). Israel is not a party to the Protocol, although 174 states are. Yet, regardless of the status of Additional Protocol I under customary international law, the ICC Statute explicitly incorporates the 1949 Geneva Conventions' definitions of ‘grave breaches’, rather than that of the Protocol: see ICC Statute (n 2) art 8(2)(a).

73 ibid art 8(2)(b)(viii).

74 ICC, Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Appeal against the Decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor's Application of Arrest, Article 58’, ICC-01/05, Appeals Chamber, 13 July 2006 (Situation in the DRC), separate and partly dissenting opinion of Judge Pikis, [40] (noting that the crime may fail to satisfy the gravity criteria when its commission does not threaten the ‘objects of the law in criminalising the conduct’).

75 Pictet (n 53) 283.

76 For example, with regard to Additional Protocol I (n 72), while upgrading the crime to a ‘grave breach’, its commentary did not expand the rationale behind the prohibition: see Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987) paras 3503–04Google Scholar.

77 The International Court of Justice (ICJ) has suggested that the construction of the separation wall, alongside settlement activity, could undermine Palestinian self-determination by amounting to de facto annexation: see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [121]. Fundamentally, the ICJ found it was the wall which could serve as a de facto border that would undermine self-determination, rather than settlements: ibid [121]–[122]; that is, in the ICJ's logic, the wall could amount to an annexation without settlements, but it did not maintain the opposite. Moreover, the construction of the wall is a separate policy outside the scope of the anti-transfer norm; the ICJ based the relevant discussion of self-determination on instruments and principles exogenous to international humanitarian law (ibid [88], [118]) and thus such issues do not inform the rationale of the anti-transfer norm, and would accordingly be outside the ICC's purview.

78 Khaled Abu Toameh, ‘Palestinian Population in W. Bank, Gaza, about 4.5 Million’, The Jerusalem Post, 11 July 2013,; AP, ‘A Look at Israeli Settlers, by the Numbers’, The Times of Israel, 18 August 2013, In cases like Northern Cyprus or Western Sahara, where the implanted population rivals or exceeds the protected population, the political ability of protected persons to maintain their separate identity becomes imperilled.

79 cf Khalidi, Rashid, Palestinian Identity: The Construction of Modern National Consciousness (Columbia University Press 1997) 19Google Scholar; Karsh, Ephraim, Palestine Betrayed (Yale University Press 2010) 39Google Scholar.

80 William Charles Brice and Rashid Ismail Khalidi, ‘Palestine’, Encyclopædia Britannica, 20, (‘[A]fter 1948 – and even more so after 1967 – for Palestinians themselves the term came to signify not only a place of origin but, more importantly, a sense of a shared past and future in the form of a Palestinian state’).

81 This further reduces the relevance of the ICJ's decade-old dicta of self-determination threats to Palestinians. The ICJ's advisory opinion predates the establishment and recognition of the state of Palestine, and statehood is the highest form of self-determination.

82 See Valdivieso, Rosa, West Bank and Gaza Economic Performance, Prospects and Policies: Achieving Prosperity and Confronting Demographic Challenges (International Monetary Fund 2001) 26Google Scholar (finding an average 6% per annum GDP growth in Gaza and West Bank under Israeli control); Arnon, Arie and others, The Palestinian Economy: Between Imposed Integration and Voluntary Separation (Brill 1997) 21Google Scholar (noting that in the first three decades after the Six Day War, the Palestinian economy grew faster than Israel's).

83 This was the case with the paradigmatic problem of German settlement in Eastern Europe and subsequent situations around the world.

84 Atasoy, Ahmet, ‘Population Geography of the Turkish Republic of Northern Cyprus’, (2011) 16(8) Mustafa Kemal University Journal of Social Sciences Institute 29, 38Google Scholar.

85 Ambassador Ronald Schlicher, ‘Turkish Cypriot Census Debate Focuses on Natives Versus “Settlers”’, 18 May 2007,

86 See, generally, Mundy, Jacob, ‘Moroccan Settlers in Western Sahara: Colonists or Fifth Column?’ (2012) 15 Arab World Geographer 95Google Scholar.

87 Reda Shannouf, ‘Western Sahara May Also Request UN Observer Status’, Al-Monitor, 4 December 2012,

88 ‘С 1993 года по 2013 год госкомитетом РА по репатриации зарегистрировано 7 365 человек’ (‘From 1993 to 2013 the State Committee for Repatriation Registered 7,365 People’), Apsnypress, 6 August 2013, See also Natia Kuprashvili and Nizfa Arshba, ‘Abkhazia Takes in Ethnic Kin from Syria’, Institute for War & Peace Reporting, 29 August 2013,

89 This would help to explain the absence of any international organisation or NGO calls for the OTP to investigate Turkey's continued settlement activity in Cyprus, because the invasion and its associated jus in bello crimes and art 49(1) expulsions precede the creation of the Court.

90 This differs from Lauterpacht's much criticised argument that a violation of art 49(6) occurs only when the transfer displaces protected persons: see Lauterpacht, Hersch (ed), International Law: A Treatise: Dispute, War and Neutrality, vol 2 (7th edn, Longmans 1952) 452Google Scholar; Herbert J Hansell, ‘International Law and Israeli Settlement Policy’, Foundation for Middle East Peace, 21 April 1978, Lauterpacht's legal conclusion was premised on the factual observation that art 49 violations tend to go together. One need not agree with the legal conclusion that art 49(6) violations cannot exist simpliciter to recognise that the fact that they often arise alongside art 49(1) violations means that the gravity argument suggested here would not effectively read the settlements crime out of the ICC's jurisdiction.

91 See Ambos, Kai, Treatise on International Criminal Law: Foundations and General Part, vol 1 (Oxford University Press 2013) 257Google Scholar (observing that art 25(3)(e) of the ICC Statute is both ‘an autonomous offence of endangerment’ and an ‘inchoate crime with reference to genocide as the main offence’).

92 Convention on the Prevention and Punishment of the Crime of Genocide (entered into force 12 January 1951) 78 UNTS 277, art 3(c). Under the ICC Statute, incitement is a mode of participation in the crime of genocide: see ICC Statute (n 2) art 25(3)(e).

93 Gordon, Gregory S, ‘From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework’ (2008) 98 Journal of Criminal Law & Criminology 853, 907Google Scholar.

94 See Milanović, Marko, ‘State Responsibility for Genocide’ (2006) 17 European Journal of International Law 553, 572CrossRefGoogle Scholar, n 95 (‘It is of course quite unlikely that the responsibility of either a state or an individual would be invoked if no genocide had in fact occurred’).

95 Heller (n 40).

96 ibid.

97 Situation in the DRC (n 74) [72].

98 See, for example, Mark Osiel, ‘How Should the ICC Office of the Prosecutor Choose its Cases? The Multiple Meanings of “Situational Gravity”’, Hague Justice Portal, 5 March 2009, 4–5,; El Zeidy, Mohamed M, ‘The Gravity Threshold under the Statute of the International Criminal Court’ (2008) 19 Criminal Law Forum 35, 45CrossRefGoogle Scholar.

99 See ICC, Situation in the Democratic Republic of the Congo, Decision on the Prosecutor's Application for Warrants of Arrest, Article 58, ICC-01/04-01/07, Pre-Trial Chamber I, 10 February 2006, [47]. This also implies that there are types of crime that, while within the ICC's jurisdiction, do not cause social alarm.