The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Palestinians seek to take advantage of ICC's unique "Israel" provision


The Palestinian Authority is seeking to join the International Criminal Court as a state party, and press a variety of war crimes complaints against Israel for military operations during last summer's Gaza War and for settlements. Many internationalists will now argue that this move (long called the Palestinian's "nuclear option") is not aggressive, and that Israel and the U.S. should hardly mind. International courts are instruments of justice, so what is there to object to, the argument goes.

In a series of posts, I'll consider what Israel can expect from the Court. At the outset, it should be noted that joining the Palestinian effort to join the ICC can hardly be seen as a great step forward for international law, as it involves violating two specific Palestinian commitments from the Oslo Accords: to not seek a final status determination outside of negotiations, and giving Israeli exclusive jurisdiction over Israeli nationals in the territories. The Oslo Accords were an internationally-guaranteed agreement, so at best the ICC effort is born in illegality.

There is a glib response that what has Oslo done for the Palestinians, but the clear answer to that is it has given them the government and self-rule that they bootstrapped into claimed statehood and ICC membership. In other words, the ICC bid is not a result of what the Palestinians did not get from Oslo, but rather of what they did get. Indeed, the Palestinians continue to claim rights under Oslo, such as the transfer of monies by Israel, suggesting they still see the treaty as binding.

Now to the ICC itself. The Court's foundational statute (the Rome Statute) contains a provision inserted specifically designed to target Israel. The history bears reviewing. The elaborate definition of war crimes in the Rome Statute (Art. 8) is lifted largely from the Geneva Conventions and other related treaties—why reinvent the wheel? Yet at the 1999 drafting conference, a group of Arab states secured one significant change in the Rome State provision corresponding to IV Geneva Art. 49(6), prohibiting an occupying power from "deporting or transferring" its civilian population into the occupied territory. This was on odd provision to tinker with, since it had seen no prosecutions in any international or national courts in its history.

The Arab states prevailed at negotiations to have the ICC provision prohibit "directly or indirectly deporting or transferring" (they had originally asked for even broader language). Obviously in law the difference between direct and indirect effects is quite significant. The Rome Statute language has no parallel or precedent in international law, and was generally understood as seeking to go beyond the Geneva Conventions to encompass the self-motivated migration of Israelis into the West Bank (and back then, Gaza). It was designed to make "facilitation" a crime—i.e., to turn the negative prohibition on "transfer" into a newfangled positive obligation on a government to discourage or prevent its nationals from migrating into a territory under its control.

So the statute from the start was uniquely cooked to target Israel (this is fairly obvious from the authors of new language) the only nation to be thus honored. The notion that the provision was understood to target Israeli is further supported by the experience Cyprus, an original state party to the Rome Statute. When the ICC came into being in 2002, no one even speculated that Turkey might have to answer for its massive settlement enterprise in the occupied north of the island. Indeed, Turkish settlement activity only accelerated since then. Even since a group of Cypriot refugees and an EU parliamentarian complained to the ICC last year about the matter, no action has been taken. If the Court were to investigate Israeli settlements, despite the significant jurisdictional obstacles (to be discussed in subsequent posts), while ignoring Turkish ones, where there is a 12-year backlog of jurisdiction, it would deprive the proceedings of any legitimacy. And no one thinks action against Turkish officials is even remotely likely.

Moreover, that a group of Arab states (including, ironically, Morocco, author of perhaps the most ambitious settler enterprise in Western Sahara, which the Palestinians happen to support) expanded the provision shows that they understood that the Geneva language fits at best imperfectly with the diverse patterns of Jewish migration into the West Bank (which include both government-supported building projects and private construction and purchase, property belonging to Jews from before 1949, outposts built in defiance of government regulations, and so forth).

To be sure, the Court might ultimately interpret the Rome Statute provision to be entirely congruent with the Geneva one, which itself has never been interpreted. But Israel quite reasonably does not want to be the test subject for interpreting new rule designed solely for it.

The Geneva provision, incidentally, was designed to protect against fundamental demographic changes in the occupied territory (what the Nuremberg prosecutions called "obliterate[ing] the former national character of these territories.") The re-write of it for the ICC is unfaithful to those policies, as it is rather hard to effect fundamental demographic change through mere indirection and facilitation. The target case bears this out.

The Israeli settlements have not come close to effecting such a change; after nearly five decades, the settler population remains a small fraction (less than 10%) of the total population of the territories the Palestinians claim are occupied. Indeed, Palestinian claims of demographic ascendancy not just in the territories, but between the river and the sea, belie the notion of fundamental demographic change. In occupied Cyprus, by contrast, settlers have reached a major demographic tipping point, constituting roughly half the population. If the Court were interested in setting precedent on settlements, this would be a logical place to start, but I would not bet on it.

Next post: What we can learn from the Court's track record.