Refuting the Palestinian Allegation to the ICC that Israeli Settlements Are a War Crime

By Amb. Alan Baker, JCPA

• Israel’s settlement activity is conducted in accordance with the requirements of international customary law, as well as the Oslo Accords, which established an agreed legal regime enabling each party to conduct planning, zoning, and construction activities within the areas under its jurisdiction, pending resolution of the conflict.
• Israel’s settlement activity does not fulfill any of the overriding criteria established by the ICC Statute for war crimes, which includes the requirement that such activity be “part of a plan,” “done on a large scale,” and be “of sufficient gravity as to justify further action by the Court.”

• Israel’s settlement policy is based on individual initiatives and is carried out on a relatively minor scale, especially as compared with the mass transfer of populations carried out in recent years by Russia in Georgia and Ukraine, by Turkey in Northern Cyprus, by Indonesia in East Timor, by Morocco in Western Sahara, by Syria in Lebanon, by Vietnam in Cambodia, and by Armenia in Nagorno-Karabakh.
• Strict measures are taken by Israel’s investigative and judicial authorities to ensure that violations of laws and norms are duly investigated and prosecuted. Israel’s ongoing legal and juridical supervision fulfills the complementarity requirement of articles 17 and 53 of the ICC Statute, according to which allegations are deemed inadmissible if they are duly and properly investigated or prosecuted by the state which has jurisdiction.
• The International Committee of the Red Cross has clarified that the population transfer prohibition set out in the 1949 Fourth Geneva Convention was specifically drafted to address a repeat of the mass, forced population transfers conducted by the Nazis during the Second World War. As such, it is not applicable to Israel’s settlement activity.

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The writer, former legal counsel to Israel’s foreign ministry and former ambassador to Canada, heads the international law program at the Jerusalem Center.<