Tiptoeing Through the ICC Raindrops

By focusing on Israeli and Turkish settlements, rather than Gaza, the ICC prosecutor may be able to make progress while avoiding accusations of bias.

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International Criminal Court prosecutor Fatou Bensouda will be facing significant dilemmas when it comes to the case involving the Israeli-Palestinian conflict. She needs to figure out how to handle it without being accused of bias toward one side or another; how to deal with the expected lack of cooperation on Israel’s part, if she is to investigate Israel Defense Forces operations in Gaza during last summer’s war; and how to deal with Israel’s contention that it is investigating the matter itself.

It’s possible, if she wishes to thoroughly investigate an issue without cooperation from Israel and without needing to deal with Israel’s claim that it is investigating the subject itself, that the prosecutor might choose not to focus on the fighting in the Gaza Strip but rather on Israel’s settlement policy in the West Bank. Under the court’s statute, the transfer of part of the occupying power's civilian population into occupied territory, whether directly or indirectly, constitutes a war crime.

Israel contends that the similar prohibition in the Fourth Geneva Convention don’t apply to settlements in the West Bank, since the territory isn’t really “occupied” — because it didn’t previously belong to any other state— and since Israelis moved there of their own free will. Those arguments were rejected by the International Court of Justice, which is separate from the International Criminal Court, when it considered the case of Israel’s West Bank separation barrier.

Since the establishment of the settlements was based on cabinet decisions and with Israeli government funding, it would be difficult to argue that the policy has not involved a transfer of population by the state. A finding that the court does not have jurisdiction if the relevant state has investigated a matter itself would also not be relevant here inasmuch as it involves government policy. With respect to the requirement that the court deal only with particularly grave matters, the prosecutor could take the position that the scope and duration of the settlement enterprise, along with its concomitant deprivation of the Palestinian right to self-determination, meets that requirement.

Factually, it’s a simple case. And legally, too, despite issues such as the borders of the Palestinian state and the relevance of the Oslo Accords, it is not complicated. Politically, however, it is a hot potato. But the prosecutor could find a way to present it without being accused of bias. 

In July, a complaint by Greek Cypriots was filed with the prosecutor on the issue of the settlement of Turks from Turkey in Northern Cyprus. The Republic of Cyprus is a member of the court and therefore the court has jurisdiction to deal with the matter. Although Northern Cyprus was declared the independent “Turkish Republic of Northern Cyprus”, the international community does not recognize it and views its territory as part of the Republic of Cyprus under Turkish occupation.

The European Court of Human Rights has repeatedly considered the territory occupied and has found that the rights of Greek Cypriots who had property there have been violated. It’s interesting to note that the right-wing Shurat HaDin Israeli law center assisted the Cypriots who filed the complaint.

The prosecutor, who for the time being has not announced the commencement of an examination in the Cypriot case, could view this as an opportunity: If she decides to open an investigation and perhaps even proceed with indictments against the leaders of both Israel and Turkey on the issue of settlement in both the West Bank and Northern Cyprus, it would be difficult for the parties to accuse her of bias.

The prosecutor could also decide to launch a simultaneous investigation into the leaders of Hamas in connection with rocket fire from Gaza into Israel, thereby further limiting the scope for allegations of bias. Neither Israel nor Turkey will hand their leaders over to the court, but the leaders could find that the number of countries to which they can travel without fear of extradition to the court will shrink substantially. Could such a scenario come about? It would require boldness on the prosecutor’s part, but it could be a way of dealing with the Israeli-Palestinian issue, in a way that could not be accused of being biased.