The State of the Debate
Interest in the criminal aspects of the Israeli settlement project in the West Bank
is hardly new; it informed the drafting of Additional Protocol I (AP I) and of the
Statute of the
International Criminal Court (ICC), and motivated Israel's
rejection of both instruments. The 2009 Palestinian attempt to establish ICC
the preconditions for jurisdiction and on its territorial and temporal aspects, as
well as on specific admissibility questions, primarily gravity.
(Complementarity is not an issue with regard to
the establishment of West Bank settlements, since Israeli law and jurisprudence do
not prohibit it, although they regulate some aspects related thereto).
Some of the debated matters were decided in practice when the ICC Office of the
Prosecutor (OTP) announced in 2015 that it regarded Palestine as a state for the
purposes of accession to the ICC Statute and acceptance of ICC jurisdiction. This
decision does not formally close the debate, as the matter is ultimately for the
Court to determine. Nonetheless, with the Prosecutor having undertaken a preliminary
examination of the situation in Palestine, including the settlements, this
contribution addresses some relevant substantive issues. It tenders some
observations on the application of ICC Statute Article 8(2)(b)(viii) (specifically
addressing the crime of transfer by the occupying power of part of its of civilian
population to occupied territory) to the settlements, focusing on the systemic
nature of the transfer of population, both as the normative essence of the crime and
as a factual characteristic of Israeli policy.
The Criminalization of Transfer of the Occupying Power's Civilian
Population into Occupied Territory
Article 8(2)(b)(viii) is exceptional among crimes listed in the ICC Statute. On the
perpetrator's side, transfer of population under Article 8(2)(b)(viii) is the
only crime under the Statute other than aggression, which requires state involvement
as a constitutive element: “The transfer, directly or indirectly, by
the Occupying Power.” The crime therefore requires unlawful
conduct attributable to the state. Individuals would be indictable as principal
perpetrators only if they are public
authorities (or if their conduct is otherwise attributable to the
This wording is an
acknowledgement that notwithstanding the culpability of individuals, transfer of
population requires an operational state apparatus. It differs from crimes against
humanity (including torture) and genocide, where a plan or policy by the state or
organization are a contextual requirement—in law for the former, in practice
for the latter. In the case of settlements, the crime is not only
“caused by the system,”
but is carried out by it.
Even more significantly, on the victim's side transfer is again the only crime
other than aggression which protects not individuals’ physical integrity but
a collective interest, namely the demographic
of the native
population in the territory concerned.
Moreover, the criminalization is intended to protect
persons from the consequences of the transfer, thereby imposing
individual responsibility for an indirect result of the conduct. That consequence is
only implied in the provision rather than defined in it. This has resulted in
controversy over the values sought to be protected by the prohibition, and
correspondingly, over the actual conduct that is prohibited.
In other words, transfer of the occupying power's civilian population into the
occupied territory essentially concerns a relationship between political
communities. This does not mean that it cannot be regulated under international
criminal law, but the fiction that system criminality is the crime
is doubly difficult
The Status of the Crime Stipulated in Article 8(2)(b)(viii) and Why It
There is no doubt as to the applicability of the prohibition on transfer of
population as a matter of state responsibility under the Fourth Geneva Convention
(GC IV) Article 49(6), since Israel is party to the Convention. But Israel is party
neither to AP I nor to the ICC Statute, which criminalize the conduct of
individuals. The question therefore arises as to the substantive legal basis for
prosecuting Israelis under Article 8(2)(b)(viii).
Reportedly, during the 1998 negotiations in Rome many states held the view that the
criminal prohibition in Article 8(2)(b)(viii) was customary law.
However, the basis for this is not clear, given
the arguable lack of state practice. A different
view, held by Meron, Cassese,
and others, is that in 1998 the criminal
prohibition on transfer of population was not customary. Zimmermann
claims that it has since crystallized into one, pointing to domestic legislation and
statutes of domestic and hybrid tribunals which have incorporated Article
These, too, are
principally expressions of opinio juris. No one has ever been indicted for the crime
under either domestic or international law. Moreover, state pronouncements relating
specifically to Israeli settlements are much more reserved regarding the criminality
of the conduct. For example, neither UN Security
Council Resolution 2234 on the illegality of the settlements nor the
explanations of votes accompanying it made any mention of the criminal character of
the settlement activity.
of the above, and since in determining whether a customary norm exists which creates
a criminal prohibition the principle of legality calls for a restrictive approach,
the view that Article 8(2)(b)(viii) reflects customary international law is rather
Even if customary international law had crystallized since 1998, Israel would have a
strong case as a persistent objector. Its objection to the criminalization of
transfer was a main reason for its nonaccession to either AP I or the ICC Statute.
Even when it signed the Statute, implying a softening of its objection
(notwithstanding the subsequent rescinding of the signature), its accompanying
statement indicated that its objection to Article 8(2)(b)(viii) persisted.
That Article 8(2)(b)(viii) does not reflect customary law does not mean that it
cannot be binding upon Israelis. The ICC Statute can impose substantive obligations
individuals as a matter of conventional law, through the territorial and
personal jurisdiction of states parties.
The substantive prohibition in Article 8(2)(b)(viii) is
therefore grounded in Palestine's acceptance of the ICC Statute. This has
implications ratione temporis and ratione loci.
First, unless the domestic law of Palestine had prohibited it earlier, the
prohibition on settlements only exists from the time that the Statute entered into
force for Palestine, namely April 1, 2015. The Court's temporal jurisdiction,
which Palestine has accepted retroactively from June 13, 2014, does not extend to
Article 8(2)(b)(viii) because the latter did not constitute a crime in Palestine
until the Statute came into force on April 1, 2015. This raises the question whether
the continuing effect after April 1, 2015 of acts carried out pursuant to earlier
decisions (for example military orders taking private property) would be regarded as
the consequence of earlier conduct or as new conduct.
Second, the practical significance of Article 8(2)(b)(viii)’s applicability
only to conduct (of Israelis) on the territory of Palestine cannot be overstated.
Acts in the West Bank by the military, such as the issuing of military orders on
property and movement, fall within the purview of the Article. But a great part of
the settlements project is pursued, at least initially, in Israel. This is where
relevant government and parliament (Knesset) decisions are adopted. Whether these
activities may be regarded as taking place in
the West Bank would depend on whether one adopts the effects doctrine for
localizing the criminal act.
What Constitutes “Transfer”?
Another controversial issue is the meaning of “transfer”; and
consequently, what particular activities by Israelis might fall within its scope.
Israel maintains that GC IV Article 49(6) only prohibits forcible transfers, and
consequently so does the crime. This view is hardly tenable in light of the wording
and purpose of this provision, and has been rejected by the International
Court of Justice.
Israel's own interpretation of the prohibition was not always so limited.
When on September 14, 1967 Theodor Meron, then Legal Advisor of the Ministry of
Foreign Affairs of Israel, wrote to the Prime Minister
of the absolute
prohibition under GC IV Article 49(6), at issue was not any suggestion of
forcible action, and indeed his memo made no mention of a condition of
The addition of “indirectly” in Article 8(2)(b)(viii) is widely
regarded as a response to the Arab group's pursuit, during the negotiations
of both the Statute and the Elements of Crimes, of a very expansive definition of
the prohibited conduct, so as to include organization, encouragement, inducement,
help, facilitation, nonprevention, etc. The precise scope of
“indirectly” was left unspecified, and none of these modes of
perpetration resolves the fundamental question of what is “transfer,”
which a person is barred from planning for, encouraging, facilitating, etc.
In my view, the term “transfer” cannot be understood as limited to the
physical movement of persons across a demarcating line (forcibly or otherwise),
because it is not the presence of civilians of the Occupying Power in the occupied
territory as such that raises concern (indeed, there is no prohibition on entry of
civilians into occupied territory). What makes the transfer objectionable is its
detrimental impact on the interests of the local population. Such a change is only
possible if there is a continuous presence of settlers.
Meron's 1967 opinion cited above is again poignant. It states that the
purpose of the prohibition is “to prevent settlement in
occupied territory of citizens of the occupying State” (my emphasis). But how
far does “settlement” extend?
This matter has received scant attention. Zimmermann holds that
“transfer” as relocation and settlement must be distinguished from
inducement to stay.
But I doubt
that the two categories can be distinguished in practice. Certainly in the case of
the Israeli settlements this is a formidable challenge, as the state's
involvement in relocation, establishment, and stay in the West Bank is a full
package. It consists of incentives across the board: free and subsidized land;
financial benefits to individuals and local municipalities; quality road
infrastructure allowing easy access to Israel's metropolitan area; military
protection including restrictions on Palestinian access and movement; assimilation
of the law in the settlements to that which applies in Israel; and even legal
sanctions on individuals’ refusal to conduct economic and cultural relations
with the settlements. Most importantly, aside from specific incentives, the
management of the settlements is fully integrated within state administration,
making their location practically immaterial to individuals’ decisions to
live there. It is this integration which constitutes the strongest facilitating
element in moving to a settlement.
International criminal law attaches criminal responsibility to all levels of
perpetration. This means that every employee of the public sector (which constitutes
a third of Israel's workforce) involved in establishing and perpetuating the
settlements with intent and knowledge
is committing a crime. The question is whether a line
should be drawn somewhere, and if so, how. One might take guidance from the
definition of the crime of aggression, which is limited to “planning,
preparation, initiation or execution.”
However, this restriction to the initial stages is
linked to the fact that the crime of aggression is expressly limited to persons
“in a position effectively to exercise control over or to direct the
political or military action of a State.”
Article 8(2)(b)(viii) is not so limited, and indeed,
if perpetuation of the settlements is indeed criminal, those most responsible are
not only those in a position “to direct” political or military
One might argue that the preoccupation with demarcating the precise scope of the
crime is unnecessary, since at any rate, only those most responsible would be
sought by the ICC,
as, perhaps, the prime minister, the military commander in the West Bank, or the
heads of the Division of Settlement in the Jewish Agency (which operates under
governmental authority). Indeed, the OTP might decide to limit its efforts in that
way; the Court might later also exempt itself from delineating the crime and limit
itself to determining the culpability of particular defendants before it. But it is
not sound legal policy to avoid the hard task of defining a crime by enforcing it
only in obvious cases. For one thing, the deterrent effect of the criminal
prohibition is lost. Also, experience shows that there may be a gap between criminal
tribunals’ aspirations to try those at the highest echelons, and their actual
ability to do so.
importantly, ICC prosecutorial policies only apply in the ICC. The statute itself is
likely, indeed expected, to impact national judicial systems, which might not
restrict themselves to trying persons only for the most serious cases. In
conclusion, the actus reus of the prohibition has yet to be clearly ascertained.
The mens rea required for conviction under the ICC Statute is intent and
8(2)(b)(viii) therefore requires the prosecution to prove, inter alia, that
defendants knew that their acts were transferring Israeli civilians into occupied
territory. Insofar as concerns the architects of the settlement project and their
legal advisors, this seems to pose no difficulty. But as one descends the hierarchy,
where maintaining the settlements is integrated in day-to-day state administration,
it is worth considering two possible
defenses: mistake of fact and mistake of legal element.
For almost fifty years Israel has been consistently obliterating the distinction
between itself and the settlements (or the West Bank more generally). In maps and
the boundaries of
sovereign Israeli territory have been intentionally obfuscated. The construction of
the Separation Barrier has only exacerbated public misconceptions. It is therefore
not surprising that with respect to certain parts of the West Bank (such as the
Jordan Valley, not to mention Jerusalem), many Israelis are not aware that
these are occupied land.
In addition, for almost fifty years the government has been propagating the view that
the territory of the West Bank
is not occupied because it had not been taken from a sovereign.
This view has been endorsed by lawyers at the
person might know that transfer of civilian population to occupied territory is
prohibited, but be factually mistaken about the West Bank being
“occupied” because of a legal mistake as to the definition of
Each individual case would have to be considered on its merits, but it is worth
noting that the systemic nature of the settlement project, namely its organization
and its embedment in state apparatus, renders it to some extent transparent to those
involved in it.
The application of Article 8(2)(b)(viii) to the Israeli settlements is less than
self-evident. In part this may be because the original prohibition in GC IV was
drafted following a different type of settlements activity from the one that Israel
is engaged in. In another part this is because the conversion of state
responsibility into individual responsibility has not received sufficient attention.
As the need to interpret the Article approaches, the gaps and difficulties need