Could the Rome Statute apply to those responsible for the Israeli settlements in the West Bank? – Simon McKenzie

It has been over 50 years since the beginning of the Israeli occupation of the Palestinian territories. It is estimated that there are approximately 750,000 Israeli settlers living in the West Bank and East Jerusalem, and they are supported, protected, and maintained by the Israeli state. Simon McKenzie’s new book discusses whether international criminal law could apply to those responsible for allowing and promoting the growth of these settlements, and examines what this application would reveal about the operation of international criminal law. 

In December 2019, Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), announced that there was enough evidence to open an investigation into alleged Israeli and Palestinian war crimes in the West Bank, East Jerusalem and the Gaza Strip. One of the most consequential parts of this investigation will be examining whether those responsible for promoting and maintaining the settlements in East Jerusalem and the West Bank – where an estimated 750,000 Israelis currently live – should be held criminally responsible under the Rome Statute. This raises complex legal questions, demonstrating the challenges of incorporating some parts of international humanitarian law (IHL) into international criminal law.

My book examines how the Rome Statute applies to the settlements in the West Bank through a close examination of two relevant Rome Statute crimes: the war crime of the transfer of population, and the war crime of unlawful appropriation of property. The crimes are based on international humanitarian law, and more specifically, the Fourth Geneva Convention prohibition on the transfer of population of the occupying power into occupied territory, and the 1907 Hague Regulations rules on the management of property during an occupation. The analysis shows that while the crime of transfer of population is a suitable vehicle for a prosecution, the lack of clarity in the underlying law will make the crime of appropriation of property much harder to prosecute. 

The importance of setting out a method of interpretation to justify interpretive decisions

One of the claims made in my book is that being clear about how crimes in the Rome Statute are being interpreted helps justify interpretive decisions. The Rome Statute attempts to comprehensively set out the crimes that can be tried before the ICC. It contains several provisions that govern how the Rome Statute should be interpreted. Most importantly, Article 22(2) provides that the definitions of crimes “shall be strictly construed and not extended by analogy” and that “in case of ambiguity, the definition shall be interpreted in favour of the [accused]”. This provision enshrines the principle of legality in the Rome Statute, requiring a degree of conservatism in any interpretation exercise. 

Consensus about the application of the Fourth Geneva Convention to the West Bank

There is a threshold legal question that must be answered before turning to the two relevant Rome Statute crimes: does the body of law which underpins them – occupation law – apply to the West Bank at all? Many readers will be aware that this has been long contested by Israel on the basis the West Bank was not previously under the legitimate sovereignty of any state and Israel took the territory in a war of self-defence. If the territory was not considered occupied, there would be no prohibition on the transfer of population into the territory. Chapter 1 of my book examines the highly formalistic arguments raised by Israel, demonstrating why they have been rejected by an overwhelming majority of the international community, and highlighting how international law scholars agree that the Fourth Geneva Convention does apply to the West Bank. It is very difficult to imagine the Chambers of the ICC reaching a different conclusion. 

The straightforward application of the crime of transfer of population

Article 8(2)(b)(viii) of the Rome Statute criminalises the transfer of population into occupied territory, providing that the following conduct is a crime: 

“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.”

It is the most obvious vehicle for a prosecution based on the settlements in the West Bank. As noted above, this crime is based on the prohibition on the transfer of citizens of the occupying power into occupied territory. In the book, I examine several aspects of the operation of this provision, including whether it requires the movement of people to be coerced, what level of support by the occupying power is required, and when in time the transfer of population occurs.

Some elements of the crime are reasonably straightforward to interpret. It is apparent that the crime does not require the coercion of the transferees. Further, some degree of support by the occupying power of the movement of people into the territory is necessary, whether directly through providing transport and housing, or through tax concessions and other benefits. However, other aspects of the crime are more ambiguous. For example, it is challenging to determine whether the crime is ‘continuing’. Finding that the transfer of population continued as long as the transferees remained in the occupied territory would mean that a much broader range of people could be held responsible by the ICC. This is because the Rome Statute has a limited temporal jurisdiction, meaning that if it is a continuing crime, more conduct could potentially be within jurisdiction. I argue that while the text of the crime and its history does not offer a clear answer, the principle of legality means that the more restrictive interpretation should be preferred. Transfers of population should be understood to occur at the time when the people move into occupied territory, meaning only those that have occurred after the commencement of ICC jurisdiction over Palestine will be able to be prosecuted at the ICC.

Difficulties in the application of the crime of appropriation of property

Article 8(2)(a)(iv) of the Rome Statute makes the following a crime:

“Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

The requirement that the appropriation of property be carried out ‘unlawfully’ would pose a serious challenge to the ICC. This is because the regulation of property set out in occupation law is insufficiently precise for the criminal law context. The parts of occupation law regulating the taking and using of property are remnants of 19th century understandings of property. I argue that they fail to set clear tests for how property, particularly public property, can be used during an occupation. This is particularly due to the use of the principle of ‘usufruct’ to define the obligations of the occupying power to public property in occupied territory. This principle allows the occupier to use the ‘fruits’ of the land as long as the substance remains. How the usufructuary principle should be applied in the context of an occupation that has lasted over fifty years, and involves changing forms of land use, is unclear. The opaque regulation of state behaviour makes it ever more difficult to apply this article to an individual for the purpose of individual criminal responsibility. 

Challenges of holding an individual responsible for the settlements

The system of criminal accountability established in the Rome Statute would be tested by a prosecution on the basis of the settlements. In particular, the theory of common purpose liability that has been developed by the ICC (for example, see here) relies on a sharp distinction between principals and accessories. Principal perpetrators are required to make an ‘essential contribution’ to the commission of the crime. Given the distributed responsibility of a democratic government where successive governments have upheld the settlement project and it clearly has the assent of a majority of the population, this risks no one being treated as a principal perpetrator. I argue that this suggests that the ‘essential contribution’ test should be reconsidered, and a more flexible approach adopted.

A second challenge will be the potential operation of the defence of mistake of fact. The longstanding Israeli position on the legality of the settlements raises the possibility that an Israeli defendant might genuinely believe they were acting consistent with the law. This is particularly likely with the ambiguities of the crime of appropriation of property. The consideration of this defence shows how hard it is to interpret the Rome Statute consistently with the principle of legality while still ensuring it can properly respond to wrongdoing.

Formidable challenges that remain to a successful prosecution

It is not at all clear that an individual will ever appear before the ICC in relation to the settlements in the West Bank. The ICC may decide it lacks jurisdiction over Palestine on the basis that Palestine is not a state, or that the ICC does not have jurisdiction over nationals of non-party states. While this question was beyond the scope of my book, other scholars have addressed it in considerable detail (see here, here, here, here and here). This is to say nothing of the significant political challenges the ICC would face, and the continued lack of cooperation by Israel. Even if the Prosecutor managed to gather enough evidence to charge someone, the ICC does not conduct trials in absentia – without someone in custody, or who is willing to appear before the ICC, a trial in The Hague is impossible. An Israeli military or political leader submitting to the jurisdiction of the ICC and appearing as a defendant seems very unlikely. 

Despite this, the analysis carried out in my book helps us better understand the relationship between IHL and international criminal law. Most significantly, it demonstrates the difficulty of translating the state obligations of IHL into the crimes of international criminal law while complying with the principle of legality. 

Dr Simon McKenzie is a research fellow in the Law and the Future of War research group at the University of Queensland School of Law. He holds a PhD from the University of Melbourne in international criminal law. He has also worked as a policy officer for the Victorian Department of Justice and Community Safety, a researcher at the International Criminal Court and the Supreme Court of Victoria, and as a lawyer. Along with his research, he produces a podcast exploring how new military technology and international law interact.