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Home Articles posted by Eugene Kontorovich

Settlements, Territory, and the ICC

Published on January 3, 2013        Author: 

The President of Palestine, Mahmoud Abbas, has threatened to accept the jurisdiction of the International Criminal Court in order to pursue a case against Israeli settlement construction. At first, this seems an odd choice. One might expect suits over more classic war crimes involving military forces, of the kind dealt with by the Goldstone Commission, to be a be a safer course.

Such cases have been repeatedly tried in international and national tribunals, and have a well-established jurisprudence. But the rule against “deporting or transferring” one’s civilian population into occupied territory would be a case of first impression, and thus pose potentially daunting obstacles. The attraction of settlements, however, is that the issue is not bilateral. Israel could not counter-claim, as it were.

The talk of taking settlements to the Court is difficult to understand. States refer “situations” to the ICC, not cases. Countries cannot simply engage in strategic claim-splitting, referring the alleged crimes of their enemies and not their own. What is the “situation” here? The scope of the term is not well understood. One might say, at the broadest level, it would seem be the conflict between Israel and the Palestinians, of which settlements is a part – and Palestinian violence is another part. More narrowly, given the security buffer justification of many settlements, it would still be artificial to split the situation into an Israel-only offense.

However, while the GA vote makes the path to such a referral easier, there remains an under-underappreciated hurdle that a settlements-suit would have to clear. If Palestine accepts the jurisdiction of the ICC under Art. 12(2)(a) of the Rome Statute, the Court would only have jurisdiction over Israel for conduct that occurred “on the territory” of Palestine. Thus exercising jurisdiction requires determining Palestine’s territory.

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