Israel may be found guilty of a war crime.

Avi Bell drew to my attention a very important clause that I had not noticed which necessitated a total rewriting of my article.

By Ted Belman

I fully expect “Palestine” to be recognized as a state by the GA this month thereby opening the possibility that it will lodge a complaint with the ICC referencing “crimes” committed by Israel which are in the jurisdiction of the ICC.

But first it must become a signatory to the Rome Statute thereby opening themselves up to prosecution. That will include prosecution for crimes committed by Hamas in Gaza. It is far from certain that it will be willing to open up this can of worms.

Israel is not a signatory to this treaty but can still be prosecuted under a notion known as “universal jurisdiction”.

Matters can also be referred to the ICC by the Security Council or by the Court’s Prosecutor.

But I want to focus on an article in HAARETZ today or the possibility of Israel’s settlement policy being referred to the Court. The author writes,

According to the statute of the court, the direct or indirect transfer of an occupier’s population into occupied territory constitutes a war crime.

This is very problematic for Israel.

First of all, the Rome Statute which created the ICC also limited its jurisdiction to certain crimes which included “Deportation or forcible transfer of population” which according the Statute “means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”.

Secondly under the definition of “war crimes” the statute provided

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

Thus, Israel will be accused of “indirectly transferring”

The Fourth Geneva Convention may also apply but it doesn’t add to the jurisdiction of the ICC. It proscribes “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” The language is clear.

But there is a Protocol to this statute which added the words “directly or indirectly”. Israel refused to sign on to that Protocol.

In my article The truth about “the occupation” and “the settlements” I wrote:

The anti-Zionists argue the settlements are illegal and rely solely on the provisions of the Fourth Geneva Convention which provides that the Occupying power is prohibited from transferring civilian populations to occupied territories. They say that the prohibition against transfer includes a prohibition against encouragement to settle. The matter has never been put to a court for interpretation or determination. But the International Committee of the Red Cross (ICRC) advises “that this provision was intended to prevent a practice adopted during the Second World War in which certain powers transferred portions of their populations to occupied territories for political and racial reasons or in order, as they claimed to colonize those territories.”

Nazi Germany enforced two kinds of transfers but in both cases they were forced transfers. The victims were the persons being forced.

Transferring populations is not a grave breach of the Geneva Conventions. However a Protocol to the GC makes it so but Israel is not a party to the protocol and is not bound by it.

The anti-Zionists reject the notion that the proscription is against only forced transfers and argue that the FGC proscribes inducement to move as well. But how can there be a crime of inducement when the person committing the act, the settler, has done nothing wrong. How can you be guilty of a crime by inducing someone to do something which is not a crime? Furthermore, this inducement would be a War Crime on an equal footing with Genocide. The equation is ludicrous. And if the settlers settle on their own volition and not due to inducements, what then? Also it is impossible to prosecute an occupying power. So what individuals would be held responsible?

Even if someone in Israel was convicted of offering inducements to settle, the settlers would not be affected and could remain in the settlements if they wished.

Matas opines, “The interpretation defies the ordinary understanding of criminal responsibility where the person committing the act is the primary wrongdoer and the person inducing the act is only an accessory.”

Matas concludes. “There is all the difference in the world between forcible transfer, the offence of the Geneva Convention, and voluntary settlement, even where the settlement is encouraged” (by are merely providing inducements).[..] “Transfer is something that is done to people. Settlement is something people do.”

The Rome Statute of the International Criminal Court made it an offence to ”directly or indirectly” transfer populations. The ICRC has attempted to interpret “indirect transfers” as “inducements” thereby making them a crime. But the GC certainly does not and that currently is the prevailing opinion.

But that didn’t prevent the ICJ, in its advisory opinion above noted, from finding that the settlements violated international law. No reasons were given and no authority cited. But elsewhere it expressed the opinion that the combination of the settlements and the fence amounted to de facto annexation. It ignored the fact that Israel took the position that the fence was not intended to be the border but was merely a security measure. While actual annexation may be a violation of the FGC, the settlements and the fence certainly were not.an annexation or a violation of the FGC. What a legal stretch! And what about the settlements on the west side of the fence? Are they an annexation too?

Thus the ICJ did not conclude that someone in Israel was guilty of inducing settlements or in any other way of transferring populations…

Matas expands on his dim view of the advisory opinion. He considers it an attempt to discredit Israel. In the end it discredited the ICJ. He prays that the ICC will be more judicious. The ICJ, after all, is an organ of the UN who requested it to provide the opinion. Similarly the UN requested Goldstone to investigate Cast Lead and produce a report. This report, like the advisory opinion, was just what the UN ”ordered”.

But keep in mind that the opinion of the ICJ was just that, an opinion, and is not legally binding on anyone.

In any event, the ICC only has jurisdiction over the crimes enumerated in the Statute creating it. And clearly its a crime to indirectly transfer your own population into the occupied land.

Thus if Israel is prosecuted in the ICC she may be found guilty of a war crime. Now it is not a crime for Israelis to voluntarily live there. So will Israel’s hold on the settlement blocs become tenuous.