Experts Suggest Invoking Universal Jurisdiction among Legal Options to Address Israeli Settlements, as International Meeting on Palestine Question Continues
BRUSSELS, 8 September — Invoking universal jurisdiction and a referral to the International Criminal Court were among the legal strategies available to hold Israel accountable for its illegal activities in the Occupied Palestinian Territory, experts said this morning during the second plenary session of the United Nations International Meeting on the Question of Palestine.
Titled “Legal aspects of Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem”, the session opened the second day of the International Meeting, convened by the Committee on the Exercise of the Inalienable Rights of the Palestinian People. It aimed at examining strategies to address the issue of settlements under current legal frameworks, including international humanitarian and Israeli laws.
Delivering presentations were Walid Assaf, Minister of Colonization and Wall Resistance Commission in Birzeit; Christine Chanet, former Chairperson of the United Nations Human Rights Council’s fact-finding mission on Israeli settlements and a Member of the Human Rights Committee and the Committee against Torture, in Paris; Shawan Jabarin, General Director of Al Haq in Ramallah; and Ardi Imseis, Ph.D. candidate at the Department of Politics and International Studies of the University of Cambridge. Francois Dubuisson, Professor, Université Libre de Bruxelles in Brussels, served as a discussant.
Mr. Assaf said what was happening in the Occupied Palestinian Territory was more than occupation, which should be temporary in nature. No Palestinian cities had been created for more than 50 years, while many Israeli cities had sprung up. Also, the rules governing the obligations of the occupying Power prohibited annexation of the occupied territory, transfer of the citizens of their State, any action that would threaten the unity of the occupied territory or forced displacement of protected persons.
In that area, “Judaization measures” also continued, he said. Israel encouraged its citizens to move to the communities located in the eastern slopes of the West Bank, from where Palestinians were expelled. Although the occupying Power was prohibited from confiscating private property, the facts on the ground confirmed the exact opposite was happening. Israel had declared more than 40 per cent of private Palestinian land as either closed military areas or State land and had used it for agricultural, industrial and recreational projects for the colonizers.
Israeli practices in the Palestinian territory did not meet the standard of being a “temporary situation” and rather revealed its intention for permanent control. Therefore, the characterization of these practices as occupation was inaccurate. It was colonization, which could even lead to ethnic cleansing. Prime Minister Benjamin Netanyahu had announced in his election campaign earlier this year that he would not allow a sovereign Palestinian State under his watch and that the building of settlements would continue unabated. Israel was perpetuating the enslavement of Palestinians by denying them the right to freely determine the political status of the Palestinian people.
After describing Israeli practices on the economic, social and cultural fronts, he went on to make some recommendations. It was time for third States to support the right of the Palestinians to self-determination through the recognition of the State of Palestine, and to support the Palestinian bid for full membership in the United Nations, he said. The international community should stand by the Palestinians in asking the International Criminal Court to try the perpetrators of crimes against humanity and war crimes against them. The United Nations should adopt the term “colonization” in place of “occupation”, and “colonizer” instead of “settlers”. It was time to force Israel to comply with legal norms, including with relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, as well as human rights treaties and the advisory opinion of the International Court of Justice.
Ms. Chanet said that in March 2012, the Human Rights Council, in its resolution 29/17, had established an international independent fact-finding mission to investigate the implications of Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem. The mission had conducted numerous interviews and received more than 60 written contributions, including from Israeli civil society. It had analysed the legal nature of settlements and their implications on human rights and humanitarian law.
In the eyes of the international community, the Palestinian territory was “occupied”, a status determined by all relevant United Nations resolutions. This had also been reiterated by the International Court of Justice in its advisory opinion of 13 July 2004. Such a status of occupation conferred obligations on the occupying Power. Article 49 of the Fourth Geneva Convention stated that “the occupying Power shall not deport or transfer its own civilian population into the territory it occupies.” After recalling that text, the International Court of Justice concluded that the settlements set up by Israel in the Occupied Palestinian Territory, including Jerusalem, were in breach of international law.
The mission had considered that settlement activities could fall under the scope of Article 8 of the Rome Statute and constituted war crimes defined as “direct or indirect transfer by the occupying Power of parts of its own civilian population into the territory it occupies”. That article went beyond Article 49 of the Geneva Convention as it also covered indirect transfer. The existence of an elaborate policy had been raised by the Court in paragraph 120 of its opinion. “In 1977, Israel conducted a policy and developed practices of establishing settlements in the Occupied Palestinian Territories contrary to the requirements of Article 49 of the Fourth Geneva Convention.” The Court stated that the latter text prohibited not only forced transfers but also all measures by an occupying Power to encourage the transfer of part of its civilian population into the occupied territory.
The mission had devoted 10 paragraphs of the report to detail that policy, including government funding for its implementation. The same policy had continued and had been openly claimed by the Israeli Prime Minister on television. The mission had drawn a map of settlements and concluded that they formed a tight mesh constituting a creeping annexation that made it increasingly difficult for Palestine to have a State with a viable territory. That policy had thwarted the exercise by Palestinians of their right to self-determination.
The mission’s recommendations had been primarily addressed to Israel to put an end to its colonization, also urging all States to assume their responsibility in their relationship with a State violating international law.
Mr. Jabarin said that he would focus on a few legal points as the reality on the ground had already been sufficiently explained by previous speakers. He stressed that the real problem regarding the question of Palestine was the lack of implementation, which caused the case to continue for decades. Israel had been selective in implementing international law, he said, wondering if Israel had really wanted to change the situation and end the suffering of Palestinians. There was no political will and there was no legal remedy in Israel’s judicial system. Third States should fulfil their obligations under international law.
“Settlement building is not an isolated incident but an official policy,” he said. It was systematic and constituted a war crime. The extensive destruction and appropriation of property and pillaging must be considered as part of a larger policy of “persecution”. Under the Rome Statute, persecution was defined as a crime against humanity. The situation on the ground met the criteria for persecution.
He also urged Palestinian leaders to drop land swaps from the negotiation table as it was illegal and called for an end to pillage by businesses. The European Union’s labelling of goods produced in Israeli settlements was welcomed but was not enough. Imports of those products must be banned. It took 50 years to label those products. Banning them must not take that long.
Mr. Imseis noted that the relevant international laws on civilian settlement of occupied territory had been codified in the 1949 Geneva Convention, to which both Israel and Palestine were party. Article 49, paragraph 6, prohibited the occupying Power from deporting or transferring parts of its own civilian population into the territory it occupied, with no exceptions.
Article 146 and 147, rarely cited in connection with the absolute prohibition on civilian settlements, concerned penal sanctions for committing “grave breaches”, he said. The former required the High Contracting Parties to the Convention to pass laws criminalizing the commission of grave breaches and to locate, prosecute or extradite the suspects. The latter prohibited “unlawful deportation or transfer” and “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”.
The nexus between those provisions was of vital importance from the standpoint of international accountability mechanisms, as the grave breach regime had, to a large extent, been incorporated into the domestic legislation of numerous High Contracting Parties, he said. A final piece of relevant law was Article 8 of the Rome Statute, which listed acts constituting war crimes, including the “direct or indirect” transfer 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. The recent accession by Palestine to the Statute held out unexplored possibilities.
Legal strategies at the domestic level had covered additional measures. The Israeli judicial system was the obvious forum for investigating and adjudicating Israeli violations of the Fourth Geneva Convention. But the system had not been impartial when trying Palestinian claims. None of the cases settled by Israeli tribunals had the terms of the Fourth Geneva Convention applied as a matter of law, he said. Israel rejected the Convention’s status as a codification of customary international law and held a longstanding position that the Convention was not de jure applicable to the occupied Palestine, a position definitively rejected by the principle organs of the United Nations, including the International Court of Justice, the Security Council and the General Assembly. Israel had never taken the steps required under Article 146 to enact legislation penalizing the commission of grave breaches.
For its part, he continued, Palestine might wish to find ways to support civil society groups to engage in greater levels of test case litigation before Israel’s High Court of Justice. Such litigation would prove useful in undercutting any Israeli argument that its courts were competent to hear matters that would otherwise come under the domestic jurisdiction of third States or the jurisdiction of the International Criminal Court according to the complementarity principle. Although Palestine had not exercised full self-determination, it had a judiciary capable of applying international law. Creative counsel could attempt to bring cases before the courts of Palestine aimed at launching litigation against Palestinian legal persons and entities.
Legal strategies at the international level had included both independent and collective state activity, as well as global civil society action, he said. Those methods fell into two spheres — those internal to the Fourth Geneva Convention and those external to it. Article 146 of the Convention allowed for the exercise of universal jurisdiction by the national courts of third State High Contracting Parties. Universal jurisdiction referred to “the authority of domestic courts and international tribunals to prosecute certain crimes, regardless of where the offense occurred, the nationality of the perpetrator or the nationality of the victim”. That principle was first used by the Supreme Court of Israel in prosecuting of Nazi war criminal Adolf Eichmann in 1961. Today, a growing number of High Contracting Parties had begun to enact domestic legislation empowering their courts to invoke universal jurisdiction. Increased efforts should be undertaken to study the domestic legislation of key High Contracting Parties with a view to identifying appropriate forums in which to prosecute legal persons suspected of committing grave breaches, including those connected to Israeli settlements.
One external compliance mechanism was the International Criminal Court, which opened a preliminary examination into the situation in Palestine in January 2015, following Palestine’s accession to the Rome Statute, he said. Settlement activities had a broader impact on the Israel-Palestine conflict and represented an embodiment of Israel’s attempts to illegally acquire territory through the use of force and to frustrate the Palestinians’ right to self-determination.
A related external mechanism was to resort once again to the International Court of Justice, he said. It had been almost 11 years since the watershed advisory opinion on the legal consequences of the construction of a wall in the Occupied Palestinian Territory had been issued. Except for the establishment of the United Nations Register of Damage, no effective follow-up had been undertaken to build momentum around the landmark ruling. Palestine should be laying the groundwork for a return to the tribunal to seek an opinion as to whether Israel’s prolonged occupation of Palestine that had acquired some of the characteristics of colonialism and apartheid had become an illegal regime by violating two fundamental jus cogens norms — the inadmissibility of the acquisition of territory through force and the right of self-determination of peoples. A ruling in that regard would go a long way in imposing a moral and political cost on those who had violated international law with impunity.
Another external mechanism was the use of economic and cultural pressure. Israel had enjoyed preferential trade agreements with a number of High Contracting Parties and regional entities, including Canada, the United States and the European Union. In recent years, the European Union had distanced itself and its funding from Israeli settlements. Such economic pressure could be explored by the United Nations under Chapter VII of its Charter if the Security Council determined that a conflict constituted a threat to international peace and security. But the United States’ veto power presented a considerable political obstacle. One possible solution would be for Palestine to invoke the General Assembly’s deemed residual responsibility over the maintenance of international peace and security. In 1950, the Assembly adopted the “Uniting for Peace” resolution, asserting “authority to act in matters relating to international peace and security if the Security Council could not discharge its ‘primary’ responsibility because of lack of unanimity among permanent members”. A “Uniting for Peace” resolution was a potential tool to recommend the imposition of economic sanctions on the occupying Power.
Finally, he stressed the important role of global civil society. As history had shown, shifts in public attitudes had played a pivotal role in fostering legal strategies to address the great moral questions of the day, be it the end of slavery, the struggle for universal suffrage or South Africa’s anti-apartheid movement.
Discussion
Following the presentations, Mr. Dubuisson, a discussant, highlighted some key points brought up by the speakers, including the obligations of third States under international law and an import ban on products from Israeli settlements. European Union member States had considered Israeli settlements illegal, but their steps taken to counter that had been timid. Third States, including those in Europe, had international legal obligations. The Union’s labelling of goods produced in settlements was not enough as consumers could still buy them. The Union had prohibited products coming from Crimea when it was annexed by the Russian Federation. The same should apply to the Occupied Palestinian Territory, he said.
Hugh Lovatt, Coordinator for Israel/Palestine at the European Council on Foreign Affairs in London, asked about policy implications of temporary or permanent occupation, as well as de facto annexation.
Jad Issac, General Director of Applied Research Institute in Bethlehem, said that when United States Secretary of State John Kerry brought up land swaps as part of the Arab Peace Initiative, Israel had preferred a change in the border or compensation, but not land swaps.
Mr. Imseis said that there was no question that occupation was “temporary”. But the International Court of Justice could be led to conclude that prolonged occupation was de facto annexation.
Mr. Assaf said Israel was building a racist State.
Riyad H. Mansour, Permanent Observer of the State of Palestine to the United Nations in New York, said that he was cautious about seeking another advisory opinion from the International Court of Justice. Its 2004 opinion was strong enough as it dealt with the heart of the occupation, which was settlement. Efforts should focus on the implementation of the 2004 opinion. “Law is on our side,” he said, adding that, however, due to the international community’s weak political will, the Palestine situation quite differed from the case of South Africa’s apartheid, for which the world united to end the discriminatory system. It was time to resort to practical measures to bring Israel into compliance.
Mr. Assaf agreed with him, saying that “we don’t need more decisions,” but must implement all relevant resolutions of the United Nations bodies, including the Security Council and the International Court of Justice.