ISRAELI SETTLEMENTS AND THE ICC
What does the application of the crimes of the Rome Statute to the continued existence and expansion of Israeli Settlements in the West Bank reveal about the operation of the Rome Statute?
Simon McKenzie
ORCID ID: orcid.org/0000-0003-0709-3943
Submitted in fulfilment of the requirements of the degree of Doctor of Philosophy
August 2017
Melbourne Law School
The University of Melbourne
1
ABSTRACT
The International Criminal Court, established by the Rome Statute, was created to provide a venue of last resort for the prosecution of the most serious international crimes. However, whether the Statute successfully established a coherent and legally effective system of international criminal justice is open to question. This thesis examines this issue by considering how the crimes of the Rome Statute might apply to the continued existence and expansion of Israeli settlements in the West Bank. The examination reveals some of the difficulties caused by incorporating the principles and obligations of international humanitarian law generally and the law of military occupation specifically into the crimes of the Rome Statute. This methodological approach allows for parts of the Statute to be ‘stress-tested’ to see how they meet, or fail to meet, the Statute’s broader aim of establishing a coherent and legally effective international criminal justice system where the law is knowable, predictable, and able to be applied.
Two crimes have been identified as being particularly relevant to the settlements. First, the war crime of transfer of population in article 8(2)(b)(viii) and second, the war crime of unlawful appropriation of property in article 8(2)(a)(iv). The texts of these two war crimes in the Rome Statute are taken verbatim from relevant provisions of international humanitarian law (IHL) and the law of occupation more specifically. This thesis also addresses the threshold question of whether the law of occupation applies to the West Bank, and how the principles of individual criminal responsibility, and specifically common purpose liability, might operate in this context.
The study of the operation of these crimes shows some of the consequences of taking clauses from IHL and inserting them wholesale into the Rome Statute, without any amendments to reflect the reality that individual criminal responsibility is different from state responsibility. This thesis demonstrates how the interface between IHL and international criminal law can be problematic. It shows how the adoption of vague and flexible principles from IHL into crimes for which individuals can be held liable has the potential to cause serious inconsistencies between IHL doctrine and the operation of international criminal law.
In addition, in the event of an investigation or prosecution in relation to the settlements, the thesis provides a point of comparison to the legal approaches of the
2
Prosecution and of the Court’s Chambers, allowing for an assessment of how each organ is carrying out their roles, and providing insight into how each organ may perform in any specific future case. While the thesis does not set out to determine the criminal responsibility of any particular individual, it does in some instances stake a claim about what is the most persuasive legal position to take on the scope and operation of the crimes. Deviation by the Prosecutor or the Judges from these positions could reveal a different attitude to the most persuasive legal position to take but may also suggest something about the priorities and operation of the relevant organs of the Court.
3
DECLARATION
I make the following declaration:
(i) The thesis comprises only my original work towards the PhD except where indicated in the preface; (ii) Due acknowledgement has been made in the text to all other material used; (iii) The thesis is fewer than the maximum work limit in length, exclusive of tables, maps, bibliographies and appendices.
Simon McKenzie
4
ACKNOWLEDGEMENTS
There are many people who have supported me while I have been researching and writing my thesis. I have been surrounded by friends, generously supported by my family, and I am grateful for the opportunity I have had to spend over three years exploring this topic at the University of Melbourne. It has been a long, but very worthwhile, journey.
Tim Hawkins was a graduate of the University of Tasmania who tragically died in the Bali Bombings in 2002, and his family, friends and associates established a scholarship to commemorate him. I was fortunate to be awarded this scholarship in 2012, and it allowed me to spend several months working at the International Criminal Court in the Office of the Prosecutor. My time in The Hague was a formative experience. It helped me appreciate both the possibilities and limits of international criminal justice, and caused me to think more deeply about the importance of the Prosecution and Court engaging in careful legal analysis to both live up to the requirements of justice, ensuring legal rights for the accused while promoting the accountability of the guilty. I would not be continuing to explore these ideas in this thesis without this generous scholarship, and I hope this work is a fitting testament to Tim Hawkins’ memory.
I am indebted to my principal supervisor, Tim McCormack. I first got to know Tim during my time at the International Criminal Court, where I worked as his research assistant in his capacity as Special Advisor on International Humanitarian Law. As a fellow Tasmanian who also grew up in Burnie, he has long been a model of what it was possible achieve, even when you come from somewhere on the edge of the periphery. As his PhD student, I have appreciated his good humour, his thoughtful advice, and care and support. He has been an invaluable guide throughout the process.
I am also very grateful of the support of my other supervisor, Bruce Oswald. His warmth, availability and incisive advice has been outstanding. He has continued to push me to ensure that I have thought about how my research interacts with international law more broadly, while not losing sight of the legal technicalities of a doctrinal analysis. I am very grateful for the genuine care he has had as my supervisor, and my PhD experience would have not been nearly as rewarding without his efforts.
I have been the beneficiary of guidance from many others at the Law School. Rain Liivoja, Rosemary Grey and Monique Cormier have all kindly read through parts of
5 my thesis and given me very helpful advice and encouragement. I have also had productive discussions that have made a real contribution to the direction of my study with John Tobin, Alison Duxbury, Peter Rush, Tim Lindsay, Madelaine Chiam and Anna Hood.
I have spent my time at the Melbourne Law School sitting amongst friends, which has made coming into work a real pleasure. It has been a lot of fun to share an end of level nine of the Law School with, at various times, Monique, Maddy, Alison, Rebecca Nelson, Anna Hood, Sophie Rigney, Leticia Villeneuve and Michelle Lesh. I am sure it is why I did not find the PhD experience the lonely time I was warned of; instead, I have found it collegiate and rewarding.
I visited Israel during my study, and was hosted by the Minerva Center for Human Rights at Hebrew University. They invited me to join the induction fortnight of the Human Rights under Pressure (‘HR-UP’) interdisciplinary doctoral study group. It was a remarkable experience and profoundly enriched my perspective on the situation in Israel and Palestine, and allowed me to participate in some compelling and confronting conversations about law, ethics and politics. It made me think much more deeply about my thesis, as well as so much more. I am very grateful to Tomer Broude and Danny Evron and the HR-UP doctoral students for being so welcoming of me during the time that I joined them.
The thesis would not have been possible without the institutional support of the Melbourne Law School and the Australian Government Research Training Program Scholarship I was fortunate enough to receive.
Finally, I would like to thank my family for their continued and unwavering support over my study, and for long before. Both of my parents Leanne and Colin, and my brother Alex, are always available, and are kind enough to read my work and discuss it with me. My interest in law and how it relates to the ideal of justice is due in no small part to the conversations we had around the kitchen table about how law at its best can be a force for good in the world, and that the task of making our legal system live up to the principles of justice was something that all lawyers share.
August 2017
6
CONTENTS
INTRODUCTION ...... 14
I. METHODOLOGY ...... 16
II. OVERVIEW OF THE FACTUAL SITUATION ...... 23
THE WAR OF 1967, THE OCCUPATION OF PALESTINE AND THE SETTLEMENTS ...... 23 PALESTINE AND THE ICC ...... 29
III. CHAPTER OVERVIEW ...... 30
IV. ‘ELEMENT ANALYSIS’ APPROACH ...... 31
V. INTERPRETATION OF THE ROME STATUTE ...... 34
ROLE OF THE CUSTOMARY APPROACH TO THE INTERPRETATION OF TREATIES ...... 36 PRINCIPLE OF LEGALITY ...... 39 ROLE OF ‘INTERNATIONALLY RECOGNISED HUMAN RIGHTS’ ...... 43 HIERARCHY OF SOURCES FOR INTERPRETING CRIMES IN THE ROME STATUTE ...... 44 INTERPRETING CRIMES ...... 50
VI. CONCLUDING REMARKS ...... 50
CHAPTER ONE: LAW APPLICABLE TO THE WEST BANK ...... 52
I. INTRODUCTION ...... 52
II. ARTICLE 8 OF THE ROME STATUTE ...... 54
III. THE HAGUE REGULATIONS...... 57
A. RELEVANT PROVISIONS ...... 58 B. DO THE HAGUE REGULATIONS APPLY? ...... 59
IV. GCIV AND ADDITIONAL PROTOCOL I ...... 61
A. THE ORTHODOX VIEW ...... 63
INTERNATIONAL COURT OF JUSTICE ...... 64
UNITED NATIONS ...... 66
OTHER INTERNATIONAL BODIES ...... 67
7
SUPREME COURT OF ISRAEL...... 69
B. NARROW VIEW OF ARTICLE 2 ...... 72
POSITION OF THE GOVERNMENT OF ISRAEL ...... 72
YEHUDA BLUM: ‘THE MISSING REVERSIONER’ ...... 75
LIMITATION OF SECOND PARAGRAPH OF ARTICLE 2 ...... 76
V. WHAT INTERPRETATION OF ARTICLE 2 SHOULD BE PREFERRED? ...... 77
A. OBJECT AND PURPOSE OF THE CONVENTION ...... 78 B. DRAFTING HISTORY OF ARTICLE 2 ...... 80 C. FIRST PARAGRAPH OF ARTICLE 2 ...... 83 D. THE SECOND PARAGRAPH OF ARTICLE 2 ...... 84
TEXTUAL ANALYSIS ...... 85
OTHER FACTORS ...... 87
CONCLUSION ...... 90
VI. ARGUMENTS NOT BASED ON ARTICLE 2 OF GCIV ...... 90
A. DEFENSIVE CONQUEST ...... 91 B. ISRAEL AS ‘TRUSTEE-OCCUPANT’ ...... 89 C. A ‘SUI GENERIS’ OCCUPATION ...... 93 D. CESSATION OF APPLICATION OF THE CONVENTION...... 94
VII. CONCLUDING REMARKS ...... 98
CHAPTER TWO: CRIME OF TRANSFER OF POPULATION ...... 100
I. INTRODUCTION ...... 100
II. PROHIBITION ON THE TRANSFER OF POPULATION ...... 102
III. INTERPRETIVE AMBIGUITIES ...... 108
A. IS THE VOLUNTARY MOVEMENT OF PEOPLE COVERED BY ARTICLE 8(2)(B)(VIII) OF THE ROME STATUTE? ...... 108
1. VOLUNTARY TRANSFER AND ARTICLE 49(6)...... 108
2. VOLUNTARY TRANSFER AND ARTICLE 8(2)(B)(VIII)...... 119
3. SUMMARY...... 122 B. WHAT LEVEL OF SUPPORT BY THE OCCUPYING POWER IS REQUIRED TO BREACH THE PROHIBITION? ...... 123
8
1. IS ANY SUPPORT NECESSARY? ...... 123
2. DOES THE OCCUPYING POWER HAVE TO ‘INTEND’ TO ALTER THE DEMOGRAPHICS OF
THE TERRITORY? ...... 126
C. HOW MANY PEOPLE NEED TO BE TRANSFERRED? ...... 130 D. WHEN DOES THE TRANSFER OCCUR?...... 131
IV. CONCLUDING REMARKS ...... 141
CHAPTER THREE: CRIME OF APPROPRIATION OF PROPERTY ...... 143
I. INTRODUCTION ...... 143
II. ‘THE PERPETRATOR […] APPROPRIATED CERTAIN PROPERTY’ ...... 147
TEXT, OBJECT AND PURPOSE ...... 147
1. ‘PROPERTY’...... 147
2. ‘APPROPRIATION’ ...... 148
DRAFTING HISTORY ...... 150
1. PROPERTY ...... 150
2. APPROPRIATION ...... 151
JURISPRUDENCE OF INTERNATIONAL TRIBUNALS...... 152 ACADEMIC COMMENTARY ...... 155 CONCLUSION ...... 156
III. ‘THE […] APPROPRIATION WAS NOT JUSTIFIED BY MILITARY NECESSITY’ ...... 157
APPLYING MILITARY NECESSITY IN AN OCCUPATION ...... 158
1. THE APPROPRIATION MUST BE FOR A MILITARY PURPOSE ...... 159
2. THE APPROPRIATION MUST HAVE BEEN REQUIRED TO ACHIEVE THE MILITARY PURPOSE 160
3. THE MILITARY PURPOSE, AND THE APPROPRIATION ITSELF, MUST CONFORM WITH IHL 166
CONCLUSION ...... 168
IV. ‘THE […] APPROPRIATION WAS EXTENSIVE AND CARRIED OUT WANTONLY’ ...... 169
‘EXTENSIVE’ APPROPRIATION ...... 169
9
1. DRAFTING HISTORY ...... 170
2. JURISPRUDENCE OF INTERNATIONAL TRIBUNALS ...... 170
3. ACADEMIC COMMENTARY ...... 172
4. CONCLUSION ...... 172
WHEN IS AN APPROPRIATION CARRIED OUT ‘WANTONLY’? ...... 173
1. DRAFTING HISTORY ...... 174
2. JURISPRUDENCE OF INTERNATIONAL CRIMINAL TRIBUNALS ...... 174
3. ACADEMIC COMMENTARY ...... 174
4. CONCLUSION ...... 176
V. ‘SUCH PROPERTY WAS PROTECTED UNDER ONE OR MORE OF THE GENEVA CONVENTIONS OF 1949.’ ...... 176
THE HAGUE REGULATIONS AND GCIV...... 178 DISTINGUISHING BETWEEN MOVABLE AND IMMOVABLE PROPERTY ...... 180 DISTINGUISHING BETWEEN PUBLIC PROPERTY AND PRIVATE PROPERTY ...... 181
1. THE FUNCTIONAL TEST ...... 182
2. PRESUMPTION THAT LAND IS PUBLICLY HELD...... 183
WHEN CAN THE OCCUPYING POWER USE PRIVATE IMMOVABLE PROPERTY? ...... 186
1. RELEVANT PROVISIONS ...... 186
2. ‘MAINTAINING PUBLIC ORDER AND SAFETY’: ARTICLE 43 OF THE HAGUE REGULATIONS 187
3. REQUISITIONS DURING AN OCCUPATION ...... 193
4. CONCLUSION ...... 197
WHEN CAN THE OCCUPYING POWER USE PUBLIC IMMOVABLE PROPERTY? ...... 199
1. USUFRUCTUARY RIGHTS AND OBLIGATIONS ...... 200
2. OTHER LAWFUL USES OF PUBLIC PROPERTY...... 207
WHAT USE OF PROPERTY IS PERMITTED (AND IS THEREFORE LAWFUL)? ...... 212
VI. WHEN DOES THE CRIME OCCUR? ...... 213
VII. CONCLUDING REMARKS ...... 215
CHAPTER FOUR: INDIVIDUAL CRIMINAL RESPONSIBILITY ...... 218
I. INTRODUCTION ...... 218
II. SELECTING THE MODE OF LIABILITY ...... 222
10
III. APPLYING COMMON PURPOSE LIABILITY UNDER THE ROME STATUTE 226
DOMINANT APPROACH TO COMMON PURPOSE LIABILITY ...... 229
1. OBJECTIVE ELEMENT: A CRIME WAS ATTEMPTED OR COMMITTED ...... 229
2. OBJECTIVE ELEMENT: THERE WAS A GROUP OF PERPETRATORS, ACTING WITH A
COMMON PLAN OR PURPOSE ...... 230
3. OBJECTIVE ELEMENT: FOR LIABILITY AS A CO-PERPETRATOR UNDER SUBPARAGRAPH (A),
THE PERPETRATOR MADE AN ‘ESSENTIAL’ CONTRIBUTION; FOR LIABILITY UNDER
SUBPARAGRAPH (D), THE PERPETRATOR MADE A ‘SIGNIFICANT’ CONTRIBUTION ...... 232
4. SUBJECTIVE ELEMENT: WHAT DID THE PERPETRATOR HAVE TO INTEND AND KNOW? . 240 ALTERNATIVE APPROACH TO COMMON PURPOSE LIABILITY ...... 243
IV. DEFENCE OF MISTAKE OF LAW ...... 249
V. CONCLUDING REMARKS ...... 258
CONCLUSION ...... 260
I. STATUS OF TERRITORY ...... 262
II. TRANSFER OF POPULATION ...... 263
III. APPROPRIATION OF PROPERTY...... 264
IV. INDIVIDUAL CRIMINAL RESPONSIBILITY ...... 266
V. BROADER IMPLICATIONS ...... 267
BIBLIOGRAPHY ...... 270
A. BOOKS ...... 270 B. ARTICLES ...... 276 C. TREATIES ...... 283 D. UN DOCUMENTS ...... 284 E. REPORTS ...... 287 F. CASES ...... 288 G. DICTIONARY DEFINITIONS...... 292 H. NEWSPAPER ARTICLES ...... 293 I. OTHER SOURCES ...... 296
11
12
AGAMEMNON: I know it’s not perfect. It’s an old idea, that if we all sit together in the same space and listen and consider the problem, suspend our doubt, trust the meaning will come, and we do it for long enough and we look hard enough – in the end, somehow, something will come of that.
ORESTES: It’s – it’s fragile.
MENALAUS: It’s been like that for a long time.1
1 Aeshylus, Oresteia (adapted by Robert Icke, 2015, Oberon Books), 122.
13
INTRODUCTION
It has been just over fifty years since the beginning of the Israeli occupation of the Palestinian Territories. Over six days in June 1967, Israel took control of East Jerusalem and the West Bank, as well as the Gaza Strip, the Golan Heights and the Sinai Peninsula. There have been many changes to these places in the intervening years, including the return of the Sinai Peninsula under a peace agreement with Egypt, but one change is particularly striking: the growth of Israeli settlements in the West Bank and in East Jerusalem. As of the end of 2015, there are now almost 600,000 Israeli settlers living in the West Bank and East Jerusalem,1 and they are supported, protected and maintained by the Israeli state. These settlements, which have been expanding over many decades, are prima facie a breach of the international prohibition on the transfer of population into Occupied Territory.2 But could international criminal law apply to those individuals responsible for allowing for and promoting this growth? In addition, what would this application reveal about the operation of international criminal law?
To address these two questions, this thesis uses a standard doctrinal method of analysis to better understand both the scope and the practical operation of the Rome Statute of the International Criminal Court.3 Through a positivist approach to international criminal law, the thesis applies the relevant provisions of the Statute to the factual situation of Israeli settlements in the West Bank to determine what this application exposes about the Rome Statute regime, and what is says about the Statute’s capacity to meet its aim of establishing a coherent and legally effective system of international criminal justice. This analysis shows that the way some aspects of international humanitarian law, particularly the law of occupation as found in the 1907 Hague Regulations,4 have been incorporated into the Rome Statute crimes analysed by this thesis mean that it is difficult to reach an interpretation of the relevant provisions
1 B’Tselem, Statistics on the Settlements and the Settlement Population (11 May 2017) B’Tselem
14 that is certain enough to conform with the principle of legality. The difficulties caused by this incorporation are, in part, because the Regulations were negotiated and agreed at the beginning of the twentieth century and were intended to apply to the conduct of states, rather than to the conduct of individuals. A criminal trial is a very different context.
The thesis also has two narrower aims. It explores the relevance and coherence of the legal arguments relied on by Israel in defence of the legality of the settlements, and considers how these arguments might apply in the context of the Rome Statute. In addition, if there is ever an investigation or prosecution in relation to the settlements, the thesis will provide a point of comparison to the approach of the Prosecution, the Court and the parties to the critical legal questions. The thesis will enable the Prosecutor of the ICC to make better decisions about what crimes to select when charging individuals, and will allow for those crimes that are beset with legal uncertainty to be avoided.
The first part of this introductory chapter sets out in more detail the approach of the thesis that has been summarised above. The second part provides a brief overview of how Israel came to occupy the West Bank, the growth of the Israeli settlements in the territory, and how the West Bank came under the jurisdiction of the ICC. It then turns to the structure of the thesis, providing a chapter by chapter summary, and explaining how each chapter relates to the broader argument of the thesis. The fourth and fifth parts of the chapter articulate the method of interpretation that the thesis adopts to understand the operation of the Rome Statute. The fourth part sets out the ‘element analysis’ approach to specific crimes, demonstrating that this approach is required by the Statute, and that it is also reflected in the jurisprudence of the Court and in the international criminal law scholarship. Lastly, the chapter explains how the customary international law approach to treaty interpretation and the principles specific to the Rome Statute establish an interpretive methodology that should be used to analyse the crimes. This part sets out the effect of the principle of legality, internationally recognised human rights, and the hierarchy of sources established in article 21(1) of the Rome Statute on the interpretation of the crimes.
15
I. METHODOLOGY
The methodology of this thesis is straightforward: it applies the Rome Statute to a factual situation to determine what this application reveals about both the scope and the practical operation of the Statute. This methodological approach allows for parts of the Statute to be ‘stress-tested’ to see how they meet, or fail to meet, the Statute’s broader aim of establishing a coherent and legally effective international criminal justice system where the law is knowable, predictable, and able to be applied.
This broader aim of the Statute is evident from the fact that the Rome Statute establishes an international court with the function of determining the criminal responsibility of individuals charged with Statute crimes. One of the justifications for the Court having the power to make such a determination is that the Court was established to respect and uphold the values of liberal criminal justice and, in particular, the principle of legality.5 The principle of legality requires that the law be knowable and predictable to a particular offender, allowing them to anticipate in advance what conduct is criminal.6 In addition, the predictability across cases ensures that the system is, and appears to be, fair and impartial. The Court was also intended to be effective in establishing a set of crimes that could actually be prosecuted. The Statute is more than just an aspirational list of crimes that states should implement;7 it is also the constitutive instrument for the first permanent International Criminal Court, established the Court’s Rules of Evidence and Procedure, and includes provisions that facilitate enforcement of serious penalties for conviction including imprisonment and reparations.8 Therefore, the Rome Statute crimes should be able to be interpreted with enough certainty to be capable of practical operation. Given the centrality of these aims to the Rome Statute, it is useful to use the application of a factual situation to test whether specific provisions of the Statute satisfy the requirements of a coherent and legally effective system of criminal justice.
5 Darryl Robinson, ‘A Cosmopolitan Liberal Account of International Criminal Law’ (2013) 26(1) Leiden Journal of International Law 127, 132. 6 See Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge University Press, 2009), 11-45. 7 An example of such a list was International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind: International Law Commission, Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May-26 July 1996, UN GAOR, 51st sess, UN Doc A/51/10. 8 Rome Statute.
16
The identification of this methodological approach was arrived at over the course of writing the thesis. The methodology was initially conceived as a standard overview of the application of the law to a situation that would conclude with some definitive advice about how the law would or should apply. In the context of the Rome Statute, such a standard overview would have established which international crimes would be applicable, and identified individuals who should be targeted for prosecution. The legal analysis would have included an investigation of the situation, a close analysis of the facts, and a systematic examination of the connections between the criminal activity and those ultimately responsible for the crimes. Ideally, it would incorporate scrutiny of primary documents in their original language and interviews with witnesses that could be used as evidence by the Court. However, it readily became apparent that such an exercise is better left to the investigators and prosecutors at the ICC, or other organisations with the resources and expertise necessary to analyse the situation in the level of detail required to reach persuasive conclusions.9 Instead, this thesis addresses an important question that can be answered by a scholar armed with legal knowledge: namely what the application of the Rome Statute to a particular situation reveals about the scope and practical application of the Statute, and whether the Statute provides a coherent and legally effective system of international criminal justice. In this way, my thesis is similar in approach to other academic studies of the Rome Statute that relate to, for example, modes of criminal liability,10 specific crimes or classes of crimes,11 defences,12 and the commentaries to the Statute.13 However, these studies generally
9 While they do not specifically address whether an international crime is being committed, the reports of B’Tselem give a sense of the level of detail that would be required to make a compelling assessment of whether there should be a prosecution: B’Tselem, Encouragement of Migration to the Settlements (1 January 2014) B’Tselem
17 occur in the abstract, with an attempt made to give a summary of every situation where a mode of liability or crime could be applicable. This thesis is much more directed, permitting a detailed focus on a specific situation and specific Statute offences that better exposes weaknesses and limitations in the scope and practical operation of the Statute.
There are many factual situations that could have been selected, and each would reveal something different about the scope and the practical operation of the Rome Statute. This thesis focuses on one: the Israel-Palestine situation and, more specifically, on the settlements in the West Bank. This is an intriguing situation to analyse for many reasons. The conflict is protracted but also magnetic, the subject of intense political and legal controversies,14 countless movies, documentaries, plays, poetry, literature, media reporting and television,15 and a source of ongoing geopolitical tension. It is one of the most prominent and legalised conflicts in international relations.16 The Israeli settlements in the West Bank are one of the most important aspects of this conflict, and their legality has been considered by all major multilateral organisations, by judges in many different international and national jurisdictions, by many diplomats and by
Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016); Kai Ambos, Treatise on International Criminal Law Volume II: The crimes and sentencing (Oxford University Press, 2014). 14 There are many examples that could be given, but two from the time this thesis was written serve to make the point. First, the Boycott, Divestment and Sanctions (BDS) Movement continues to be a source of controversy around the world, and particularly at Universities in the United States: Jennifer Medina and Tamar Lewin, ‘Campus Debates on Israel Drive a Wedge Between Jews and Minorities’, The New York Times, 9 May 2015. Second, there have been disputes in Australian politics about whether the Government should describe the West Bank as ‘disputed’ territory or ‘occupied’ territory: Marty Harris, ‘Australian Government use of the term ‘occupied’ when referring to the West Bank and East Jerusalem’ on FlagPost (6 August 2015)
18 scholars from many nations.17 The question of the legality and potential international criminality of the settlements also confronts the ICC Prosecutor as Palestine joined the Rome Statute in 2015, giving the Court jurisdiction over crimes occurring in the territory.18 It is the sort of situation that international criminal law, and the ICC, were expected to deal with: one involving the most important and grave contemporary breaches of international criminal law.
More importantly, the Israel-Palestine situation poses a challenge to how we think about international criminal justice. The political and temporal aspects of the factual situation are better appreciated than other situations (at least in the Western World and amongst international lawyers) where the ICC Prosecutor has opened an investigation to date, such as in relation to the Ituri conflict in the Democratic Republic of the Congo, or the alleged genocide in the Darfur Region of Sudan. Israel and Palestine are by no means unique in having a long history leading up to the moment of an alleged crime, but in this situation the history of the conflict is more widely understood and more closely followed. It is also not the only situation of belligerent occupation, with other occupations in Azerbaijan, Cyprus, Eritrea, Georgia, Lebanon, Moldova, Syria, Ukraine and Western Sahara.19
However, the widespread appreciation of the historical and political background to the settlements force us to confront the fact that the conduct which could potentially be prosecuted in the ICC is only one small aspect of a much broader history and complex political context, raising questions about what happens to criminal law when it is used
17 For example Human Rights Council, Report of the independent international fact-finding missing to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, GAOR, 22nd sess, Agenda Item 7, UN Doc A/HRC/22/63 (7 February 2013); UN Commission on Human Rights, Resolution 2004/9: Israeli settlements in the occupied Arab territories, Res 2004/9, 49th mtg, UN Doc E/CN.4/RES/2004/9 (16 April 2004); Alan Baker, ‘The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords’ (2011) 23 Jewish Political Studies Review 32; David M. Phillips, ‘The Illegal-Settlements Myth’ (2009) 128(5) Commentary 32; Michael Galchinsky, ‘The Jewish settlements in the West Bank: International law and Israeli jurisprudence’ (2004) 9(3) Israel studies 115; Peter Maurer, ‘Challenges to International Humanitarian Law: Israel’s Occupation Policy’ (2012) 94 International Review of the Red Cross 1503; Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ (2005) 23 Berkeley Journal of International Law 551. 18 See David Bosco, ‘Palestine in the Hague: Justice, Geopolitics and the International Criminal Court’ (2016) 22 Global Governance 155 for an overview of the choices faced by the ICC, and their potential consequences. 19 Annyssa Bellal, The War Report: Armed Conflicts in 2016 (Geneva Academy, 2017) 15.
19 as a vehicle for justice in complex, long-standing, politically divisive situations. In addition, the settlements concern the political and military leadership of a democratic country where the allegedly criminal policy has been in place for decades, across numerous governments of diverse political persuasions, and with the continued assent of the electorate. The policy has the potential to incriminate individuals from the highest level of a democratically elected Western Government. It raises questions about attribution of criminal responsibility that do not arise in the same way in authoritarian regimes that commit crimes, showing how some of the tests that have been developed in international criminal law could be challenged by the limits and checks and balances on collective decision-making in a democratic country.
To address some of the consequences of these aspects of the factual situation, and contribute to the scholarship on the role of law in this situation, the thesis focuses on the potential application of the Statute to the construction and maintenance of the Israeli settlements in the West Bank. Two Rome Statute crimes have been identified as being particularly relevant to the settlements. First, the war crime of transfer of population in article 8(2)(b)(viii), and second, the war crime of unlawful appropriation of property in article 8(2)(a)(iv).20 The texts of these two war crimes in the Rome Statute are taken verbatim from article 49 and article 147 of GCIV respectively.21
The focus on the operation of these crimes shows some of the consequences of these clauses being taken directly from IHL and inserted wholesale into the Rome Statute, without any translation or amendments to recognise that individual criminal responsibility is different from state responsibility. The decisions of international criminal tribunals,22 as well as scholars of international criminal law have long
20 Rome Statute. 21 Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 973 (entered into force 21 October 1950) (‘GCIV’) art 49, 147. 22 One recent example of this difficulty is the ICC Appeal Chamber’s decision in Ntaganda case where Chamber held that rape and sexual slavery of children by members of the same armed group can be charged as war crimes under the Rome Statute. The critical legal question the Appeals Chamber had to decide was whether the war crimes of rape and sexual slavery in articles 8(2)(b)(xxxii) and 8(2)(e)(vi) of the Rome Statute applied when the perpetrator and victim were members of the same armed group. The defence unsuccessfully argued that the victims of these crimes had to be “protected persons” as per the Geneva Conventions, or they had to be people “taking no active part in hostilities” in the sense of common article three. Ntaganda argued that the notion of being a member of an armed force – even if you’ve been forcibly recruited and you are a child – is incompatible with taking no active part in hostilities. The Appeals Chamber ultimately held that as the relevant crimes did not explicitly refer to the
20 grappled with the difficulty of using some parts of IHL to provide the content of criminal provisions due to, for example, “widely-dispersed international law sources.”23 While the commentaries to the Rome Statute do not address the issue explicitly, it comes up as a practical matter in the commentaries to the Rome Statute and is evident from some of the difficulties they have with reaching firm conclusions about the operation of some of the provisions.24 However, the focus on substantive justice, and the relative paucity of international criminal law cases decided on law set out in a comprehensive statute, has meant that it has not been addressed directly. This has obscured how some parts of IHL are inherently ill-suited for criminalisation without further work to determine how the IHL obligations amount to crimes that apply to individuals.
Addressing this gap in the literature by focussing on two specific crimes, this thesis demonstrates how the interface between IHL and international criminal law can be problematic. The adoption of vague and flexible principles from IHL into crimes for which individuals can be held criminally liable has the potential to cause serious inconsistencies between IHL doctrine and the operation of international criminal law. This tension is most particularly evident in the crime of unlawful appropriation of property, which incorporates the relevant provisions of the 1907 Hague Regulations25 relating to the management of property in Occupied Territory into the Rome Statute, and which criminalises breaches of those regulations. The 1907 Hague Regulations were formulated in the early twentieth century and have built-in assumptions about the use and management of property that are ill-suited to modern states and modern military occupations. The interpretation and application of this crime is difficult because of a disjuncture between the modern setting of international criminal law and the content of the much older law of occupation. It also shows how the broad
status requirements from the Geneva Conventions, the restriction did not apply: Ntaganda (Judgment on the appeal of Mr Ntaganda against the ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-02/06 OA5, 15 June 2017). 23 Antonio Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2, 11 24 See for example Cassese et al, above n 13; Schabas, above n 13; Triffterer and Ambos (eds), above n 13. 25 Hague Regulations.
21 principles of occupation law are difficult to translate into criminal offences because the criminal law requires levels of specificity that the law of occupation does not provide.
There are aspects of the study that are more specific to the factual situation. The relevant Rome Statute offences are also noteworthy crimes as the legal regulation that underpins them has long been discussed in connection with the specific factual situation of the Israeli settlements and subject to analysis and dispute by the parties to the conflict. Israel has been consistent in denying that the prohibition on transfer of population from IHL applies to its settlements in the West Bank, justifying the settlements instead on bases, varying and in combination, of national security, a religious right to the land, and even as an example of positive economic development of an occupied territory.26 Thinking through how the Rome Statute regime would meet the legal arguments that have been raised by Israel reveals aspects of the operation of the Statute that would otherwise remain obscured. Similarly, the potential crime of appropriation of property in the context of a decades-long occupation poses questions about if and how using land in occupied territory for the economic benefit of the occupying power has been criminalised.
Finally, in the event of an investigation or prosecution in relation to the settlements, the thesis provides a point of comparison to the legal approaches of the Prosecution and of the Court’s Chambers, allowing for an assessment of each organ in carrying out their respective roles, and providing insight into how each may approach any specific future case. While the thesis does not set out to make a claim about the criminal responsibility of any particular individual, it does in some instances identify the most persuasive legal position to take on the scope and operation of the crimes. Deviation by the Prosecutor or the Judges from these positions could reveal a different attitude to the most persuasive legal position to take but may also suggest something about the priorities and operation of the relevant organs of the Court.
26 The Israeli Ministry of Foreign Affairs sets out these legal arguments extensively on its website: Israel Ministry of Foreign Affairs, Israeli Settlements and International Law, Israel Ministry of Foreign Affairs (30 November 2015)
22
II. OVERVIEW OF THE FACTUAL SITUATION
As the method is based on applying the Rome Statute to a factual situation, it is necessary to provide some background information about the occupation of the West Bank, and how the settlements came to be built in the territory.27 This brief historical overview concentrates on the legal and political status of the territory in the aftermath of the 1967 war, as well as how the settlements in the West Bank are supported by the Government of Israel. The overview also explains how Palestine came to join the Rome Statute so as to bring its territory within the jurisdiction of the ICC.
The War of 1967, the Occupation of Palestine and the Settlements The 1967 conflict that preceded the occupation of the West Bank was brief, and the critical events occurred in under a month. After being incorrectly advised by Soviet intelligence that Israel was planning an invasion of Syria,28 on 16 May 1967 Egypt declared a state of emergency, instructed the United Nations Emergency Force (UNEF) that had provided a buffer between Israel and Egypt to withdraw from the Sinai29 and closed the Strait of Tiran and Gulf of Aqaba to Israeli shipping.30 Israel considered the closure of the shipping lanes as an act of war in violation of international law.31 This closure, as well as statements by Arab leaders and the mobilisation of Arab military forces,32 convinced Israel that the Arab states were preparing to destroy Israel by
27 This overview is brief partly because there are many sources that discuss the history of Israel and Palestine and the settlements, making it unnecessary to canvass in detail in this thesis. See, for example Mark A. Tessler, A History of the Israeli-Palestinian Conflict (Indiana University Press, 2nd ed, 2009); Richie Ovendale, The Origins of the Arab-Israeli Wars (Pearson Education LTD, 4th ed, 2004); William L. Cleveland, A History of the Modern Middle East (Westview Press, 3rd ed, 2004); Neil Caplan, The Israel-Palestine Conflict: Contested Histories (Wiley-Blackwell, 2009); Charles D. Smith, Palestine and the Arab-Israeli Conflict (Bedford/st Martin’s, 7th ed, 2010); Jonathan Schneer, The Balfour Declaration : the Origins of the Arab-Israeli Conflict (Random House, 1st ed, 2010); Gershom Gorenberg, The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (Macmillan, 2006); Idith Zertal and Akiva Eldar, Lords of the Land: The War Over Israel’s Settlements in the Occupied Territories (trans. Vivian Eden, Nation Books, 2007). 28 Tessler, above n 27, 382-4; Ovendale, above n 27, 205; Cleveland, above n 27, 338. 29 Tessler, above n 27, 387; Ovendale, above n 27, 205. 30 Tessler, above n 27, 392; Cleveland, above n 27, 338. Closing the Strait of Tiran and Gulf of Aqaba to Israeli shipping cut off access to the Red Sea and Indian Ocean beyond it, restricting Israeli shipping access solely to the Mediterranean Sea. 31 Ovendale, above n 27, 206. 32 Ibid 206-7.
23 military force.33 After many days of cabinet debate, the Israeli Government resolved that it would have to take pre-emptive military action to respond to the threat.34
On 5 June 1967, Israel launched a devastating attack against the Arab states. The Egyptian air force was decimated in the first few hours of the conflict,35 and in the first two days of the war almost all the other Arab air forces were taken out of action.36 IDF troops quickly occupied Gaza, the Sinai, East Jerusalem, the West Bank and the Golan Heights. By 10 June, all the Arab states had agreed to a ceasefire on terms favourable to Israel.37
The Israeli occupation of the West Bank and the Gaza Strip meant that it now had control over all of the territory that had been allocated to the proposed Jewish and Arab states in the 1947 UN partition plan adopted by the General Assembly in anticipation of British withdrawal from the mandated trust territory of Palestine.38 The West Bank is of significant strategic importance as it surrounds Jerusalem on three sides, and the mountain ridge that runs through the West Bank offers a military advantage for any attack on Israel.39 An Israeli military administration was quickly established for the West Bank and Gaza, applying a combination of martial law and Jordanian law.40 In response to Israel’s military control over all the intended physical territory of Palestine, UN Security Council adopted Resolution 242 and called for a two state solution with Israel and Palestine existing as independent states within the borders existing prior to the 1967 conflict.41
The Israeli government was initially undecided on what to do with the territory that it occupied in the West Bank. It maintained that the territory had been gained not through any plan to expand the borders of Israel, but rather because of a war of self-
33 Tessler, above n 27, 392-5. 34 Ibid 397; Ovendale, above n 27, 207-8. 35 Ovendale, above n 27, 208. 36 Tessler, above n 27, 397. 37 Ibid 397; Cleveland, above n 27, 339. 38 Tessler, above n 27, 401. 39 Ibid 403. 40 Michael Oren, Six Days of War (RosettaBooks, 2010) ch 11. 41 SC Res 242, UN SCOR, 1382nd mtg, UN Doc S/RES/242 (22 November 1967); also see Tessler, above n 27, 420.
24 defence forced upon Israel by the Arab states.42 There were also calls from some quarters that the entire West Bank be retained on religious grounds,43 some going so far as to argue that withdrawal was prohibited by Jewish law.44 Israeli leaders were informed that there could potentially be legal problems if occupied areas were settled. Theodor Meron, who was at that time legal counsel to the Israeli Ministry of Foreign Affairs, wrote an opinion on 14 September 1967 concerning the possibility of Jewish settlements in the West Bank.45 He advised that the prohibition in GCIV against an occupier transferring parts of its population into occupied territory was “categorical and is not conditional on the motives or purposes of transfer”, and was aimed to prevent colonisation.46 If Israel intended to put citizens on occupied territory, it had to be “done by military bodies and not civilian ones … in a framework of bases.”47
Israeli governments between 1967 and 1977 maintained a policy of military occupation of the West Bank, with a small number of settlements in strategically important areas.48 The plan was to implement a defensive perimeter along the Jordan River (the eastern border of the West Bank), with the heavily populated (by Palestinians) central part of the territory returned to Jordan in a negotiated peace settlement.49 The official Israeli position was opaque, but appeared to be that Israel would hold the land it had possessed during the war until the Arab states were willing to negotiate a peaceful recognition involving Israel’s right to exist.50 Until that time, Israel would seek to strengthen its position within the cease-fire lines.51
The election of the right-wing Likud party in May 1977 resulted in a fundamental change in the rate of Israeli settlements in the West Bank.52 Likud had called for the territory in the West Bank and Gaza to be annexed by Israel.53 The new government
42 Ibid 465-6. 43 Cleveland, above n 27, 363. 44 Tessler, above n 27, 411. 45 Gorenberg, above n 27, 100. 46 Ibid 101 47 Ibid. 48 Cleveland, above n 27, 2 49 Tessler, above n 27, 466; Cleveland, above n 27, 264. 50 Gorenberg, above n 27, 123. 51 Ibid 186. 52 Tessler, above above n 27, 499; Cleveland, above n 27, 355. 53 Tessler, above n 27, 499.
25 refused to negotiate withdrawal from the West Bank, and instead sought to extend Israel’s presence in the territory by expanding existing settlements and constructing new ones.54 There was a dramatic increase in the number of settlers and settlements in the West Bank, and from 1977 to 1984 the population of settlers in the West Bank rose from 3,200 to 42,600.55 The Government encouraged the building of settlements in the heavily populated highlands where the majority of Palestinians lived.56 The Government was able to carry out this policy by taking control of significant areas of land, ostensibly for military purposes, and also by controlling water resources.57
Both the settlements and the number of settlers continued to grow throughout the following decades, notwithstanding the First Intifada and the negotiations of the Oslo Accords,58 with Israeli Government policy promoting them through subsidies for education, housing and infrastructure projects, among other supportive policies.59 By the end of 2015, it was estimated that there were 588,000 settlers in the West Bank and East Jerusalem.60 After the election of Donald Trump as President of the United States, some in the Israeli Government called for a further increase in settlement construction and a final abandonment of the two state solution.61
The Israeli Government is responsible for the building of a significant proportion of the settlements in the West Bank, and exercises control of when and where building is permitted and prohibited. A small number of examples from the past decade – which is by no means an exhaustive account of Israeli government activity in approving and supporting settlements – illustrate this point. Most recently, in June 2017 work begun on the new settlement of Amichai in the West Bank that Prime Minister Netanyahu had vowed to build to replace an outpost of settlers that had been declared illegal by
54 Ibid 515-6. 55 Caplan, above n 27, 181. 56 Tessler, above n 27, 521; Cleveland, above n 27, 364. 57 Tessler, ibid. 58 Smith, above n 27, 435-6; Ovendale, above n 27, 283-4; Cleveland, above n 27, 504. 59 Jodi Rudoren, ‘Israeli Decree on West Bank Settlements Will Harm Peace Talks, Palestinians Say’, New York Times (New York), 5 August 2013. 60 B’Tselem, Statistics on the Settlements and the Settlement Population (11 May 2017) B’Tselem
26 the Israeli Supreme Court.62 In January 2013 during an election campaign, Prime Minister Netanyahu promised to carry on building a settlement in the West Bank between Jerusalem and the settlement town of Ma’aleh Adumin, saying that “We will complete the planning, and there will be construction.”63 In April 2012, Israel decided to legalise three outposts in the West Bank that had previously not been approved by the Government.64 In November 2010, Israeli authorities announced they had approved the building of more than 1,800 new homes in settlements in the West Bank and East Jerusalem.65 In light of these events alone, there is a clear connection between the Government of Israel and the construction and maintenance of the settlements.
There have been several reports by human rights organisations that have sought to provide detailed information about the level of government support for the settlements. A Report of the UN Human Rights Committee found that:
Since 1967, the Governments of Israel have openly led and directly participated in the planning, construction, development, consolidation and/or encouragement of settlements by including explicit provisions in the fundamental policy instrument (basic policy guidelines), establishing governmental structures and implementing specific measures. These specific measures include (a) building infrastructure; (b) encouraging Jewish migrants to Israel to move to settlements; (c) sponsoring economic activities; (d) supporting settlements through public services delivery and development projects; and (e) seizing Palestinian land, some privately owned, requisitioning land for “military needs”, declaring or registering land as “State land” and expropriating land for “public needs”.66
The UNHRC report found that investment and support is not explicit in the budget of Israel, but rather “allocated through hidden provisions” and channelled through quasi-
62 The Associated Press, ‘Israeli PM Says Work Begun on New West Bank Settlements’ International New York Times (online) 20 June 2017 < https://www.nytimes.com/aponline/2017/06/20/world/middleeast/ap-ml-israel- palestinians.html> 63 Joel Greenberg, ‘Clearing Palestinian protesters from West Bank site, Netanyahu pledges to build settlement’, The Washington Post (Washington DC), 13 January 2013. 64 ‘Netanyahu accused after legalising settlements’, The Independent (London), 25 April 2012, 36. 65 Trudy Rubin, ‘Israel gives U.S. a thumb in the eye; Netanyahu’s decision to build 1,800 new homes on the West Bank is an insult’, The Gazette (Montreal), 13 November 2010, B.7. 66 Human Rights Council, Report of the independent international fact-finding missing to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, GAOR, 22nd sess, Agenda Item 7, UN Doc A/HRC/22/63 (7 February 2013) [20-23].
27 governmental organisations.67 In addition, there are significant subsidies and incentives that encourage Israeli citizens to move to the settlements, including housing and education subsidies, and incentives to encourage industry, agriculture and tourism in the areas. 68 B’Tselem, an Israeli human rights organisation, reports that Israeli governments have “implemented a consistent and systematic policy intended to encourage Jewish citizens to migrate to the West Bank.”69 Funding is also channelled through the Settlement Division of the World Zionist Organisation, with the entire budget of this Division coming from the Israeli Government.70
Similarly, in a 2010 Report, B’Tselem set out in considerable detail the benefits and economic incentives offered to settlers and settlements.71 The Report explained that civilian settlements are encouraged:
The governments do this by providing immediate, significant financial benefits and incentives to many classes of Israelis – in the form of cheap, quality housing, and benefits in education and welfare that they would not receive in communities inside Israel.72
Benefits are provided directly to the settlers and to Israeli local authorities servicing the West Bank.73 The Report found that most construction in the settlements is initiated by the Construction and Housing Ministry and the Israel Land Administration74 and is completed with investment from the settlers. The Construction and Housing Ministry also provides loans on generous terms to assist in the building of settlements.75 The costs of education and transport to education are substantially reduced for those living in settlements, and teachers working in the settlements are paid more and have their
67 Ibid [20-23]. 68 Ibid [20-23]. Also see B’Tselem, Encouragement of migration to the settlements (1 January 2014) B’Tselem
28 rent and travel subsidised.76 Industry and agriculture in the West Bank is supported, with tax breaks and government grants given to assist businesses.77 These incentives demonstrate that the connection between Israel and the settlements in the West Bank is substantial. However, whether the extent of this connection could amount to a Rome Statute crime is another matter.
Palestine and the ICC Palestine made two attempts to join the ICC, and while the first was unsuccessful,78 the second attempt of 2015 has been accepted by the Office of the Prosecutor (‘OTP’), the Assembly of States Parties and the ICC Registry. On 1 January 2015, Palestine lodged a declaration under article 12(3) accepting the jurisdiction of the Court over alleged crimes “in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014.”79 On 2 January 2015, Palestine lodged an instrument of accession to the Rome Statute and, on 7 January, the President of the Assembly of States Parties “welcomed” the accession and the ICC Registrar accepted the declaration that jurisdiction would be backdated to 13 June 2014.80 Both the article 12(3) declaration and the accession have also been accepted by the OTP as being valid, and the Rome Statute entered into force in Palestine on 1 April 2015.81 It may well be possible to dispute the approach of the OTP and to challenge the validity of both the declaration and accession before the Court. However, without prejudice to any such future challenge and for the sake of the analysis, in the following chapters this thesis is predicated on the validity of both the declaration and accession.
76 Ibid 42. 77 Ibid 42-4. 78 George Fletcher, ‘No Jurisdictional Basis for an Investigation Pursuant to the Palestinian Declaration’ in Richard H. Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill Nijhoff, 2016) 5, 6. Also see Michael Kearney, ‘Palestine and the International Criminal Court: Asking the Right Question’ in Richard H. Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill Nijhoff, 2016), 25; Yaël Ronen, ‘The ICC Should Not Accept the Palestinian Declaration as that of a State’ in Richard H. Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill Nijhoff, 2016) 51. 79 International Criminal Court, Preliminary Examination: Palestine (13 May 2017) International Criminal Court
29
The OTP opened a Preliminary Examination of the situation in Palestine on 16 January 2015.82 This is not an investigation, but rather the process by which the OTP examines the available information in the public domain to determine whether there is “a reasonable basis to believe” that Rome Statute crimes have been committed and so to proceed to the opening of a criminal investigation pursuant to the criteria established by the Statute.83 The OTP’s Preliminary Examination Report to the annual Assembly of States Parties of November 2016 addressed the Palestine situation and specifically the settlement activities in the West Bank. It noted the allegations that the Israeli government has “led and directly participated in the planning, construction, development, consolidation and/or encouragement of settlements on West Bank territory.”84 The Report identified some of the activities that allegedly create and maintain the settlements, including planning and authorisation of new construction, confiscation and appropriation of land, demolition of Palestinian property, and a scheme of subsidies and incentives that encourage migration to the settlements.85 It also referred to the Israeli practice of declaring parts of the West Bank ‘state land’, and the construction of new buildings.86 The Prosecutor is yet to decide whether to seek approval from the Pre-Trial Chamber to open a formal criminal investigation.
III. CHAPTER OVERVIEW
The specific factual situation of the Israeli settlements provides the focus for the legal questions addressed by the thesis. These questions are divided into four parts, each addressed in a different chapter. The first chapter addresses the law applicable to the West Bank. This is a critical question because if the settlements have not been built in the context of an occupation that can be classified as an ‘international armed conflict’, the crimes analysed in this thesis will not apply. While there is near universal acceptance of the relevant body of law applying to the West Bank, it is disputed by Israel. The chapter concludes that the most persuasive view is that the West Bank is a
82 Ibid. 83 Ibid. 84 Office of the Prosecutor, Report on Preliminary Examination Activities 2016 (14 November 2016) International Criminal Court
30 situation of military occupation regulated by the law of international armed conflict and that, as such, the crimes do apply.
The second chapter analyses the crime of transfer of population found in article 8(2)(b)(viii) of the Rome Statute. This crime, which reflects the international law prohibition on the transfer of population into Occupied Territory, is the most obvious candidate for a prosecution based on the settlements in the West Bank. The chapter examines the nature and scope of the crime, identifies the interpretive problems the Court would face in understanding the crime, and articulates a view on what is the most persuasive approach.
The third chapter addresses the crime of unlawful appropriation of property in article 8(2)(a)(iv) of the Rome Statute. This crime could potentially address the conduct leading to the change in control over the land in the West Bank, essential for the development and growth of the settlements. This crime would be difficult to apply as parts of its operation are very unclear. In particular, the requirement that the appropriation of land be ‘unlawful’ requires reference to the regulation of the use of property by the Occupying Power in GCIV and in the 1907 Hague Regulations, a body of law that is uncertain in some critical respects. These uncertainties raise questions about the capacity of the crime to be applied consistently with the principle of legality. Nevertheless, the chapter attempts to provide a view about how these interpretive challenges should be resolved in the context of the settlements in the West Bank.
The fourth and final chapter considers how the principles of individual criminal responsibility established by the Rome Statute and applied by the Chambers of the ICC would be tested by this factual situation. The chapter addresses how the application of common purpose liability in the context of a democratically elected parliamentary system might be difficult to apply, and also how the defence of mistake of law could apply in this situation.
IV. ‘ELEMENT ANALYSIS’ APPROACH
Using Israeli settlements to assess whether the Rome Statute establishes a coherent and legally effective system of criminal justice requires interpreting the Statute. It is necessary to analyse what the words of the war crimes tell us about how they apply to the factual situation. The interpretation of legal texts presents a series of choices: what
31 sources should be considered first? What principles should be used to reach a conclusion in the face of ambiguity? How should these principles be balanced against one another? Each of these choices can shift the conclusion to the interpretive dilemma. Therefore, it is important to have a consistent approach to how these choices are made and to articulate a transparent and defensible method of interpretation. Such an approach guards against unconscious bias by forcing reflection on how and why a text is being interpreted in a particular way, and also reduces the risk of the perception of bias. It promotes certainty, predictability, and the rule of law. Therefore, this part of this introductory chapter explains the approach used to analyse the crimes, identifying the interpretive principles and hierarchy of sources that will be used to interpret the crimes.
The method used in this thesis to analyse these crimes is to identify the elements of each of the two crimes, and consider how the conduct, circumstance and consequence elements would be tested by the policies and acts behind the settlements in the West Bank. The element approach required by the Statute87 is reflected in the Elements of Crimes and is relied upon by the judges of the ICC and in the secondary academic scholarship.88 Analysing the Statute crimes in this way identifies where the most persuasive interpretive answer is relatively clear, and where it is more ambiguous.
The elements of crimes are usually split into two categories: the material and mental elements, or the actus reus and mens rea.89 In other words, it must be proven that the accused both undertook the required acts and had the required intent and knowledge. The design of the Rome Statute reflects the division between mental and material elements.90 Article 30 of the Rome Statute establishes the general rule for the mental elements required for a crime to be committed, a provision that also suggests how to understand the material elements. Article 30 provides that:
87 See Rome Statute, art 30 discussed below. 88 See Finnin, above n 10, 26-7; Kevin Jon Heller, ‘The Rome Statute of the International Criminal Court’ in Kevin Heller and Markus Dubber (eds), The Handbook of Comparative Criminal Law (Stanford University Press, 2010) 593, 603. 89 Schabas, above n 13, 628. 90 Sliedregt, above n 10, 39-40.
32
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.91
This thesis focuses on the elements that are specific to the crimes that are being examined, which are primarily the material elements. While there is no provision setting out the requirements of the material elements equivalent to article 30,92 article 30(2) and (3) both indicate that the material elements consist of a combination of the ‘conduct’ of the accused, the ‘consequence’ of their action or omission,93 and the ‘circumstance’ of the offence.94 The mental elements are more complicated. Different crimes require different degrees of knowledge, with some requiring full intent and knowledge (for the accused to act with the purpose of carrying out the offence); some have the lower requirement of implied (or constructive) knowledge; whereas others only need recklessness or negligence.95 The required mental element differs with the material element it attaches to, as well as the mode of liability selected by the prosecutor.96 As the mental element attaches to the material element, and differs with the mode of liability that is being applied, the analysis of the crimes in this thesis does not address how the default mens rea element in article 30 would apply to all elements that are considered.
91 Rome Statute art 30. 92 See Schabas, above n 13, 623. 93 For more on crimes of omission in the Rome Statute see Sliedregt, above n 10,54-6.. 94 Schabas, above n 13, 630-1. 95 Sliedregt, above n 10, 45. 96 This has been the source of much legal scholarship. See for example Finnin, above n 10; Meloni, above n 10; Sliedregt, above n 10; Olásolo, above n 10.
33
In addition, the first three words of article 30 make it clear that the default rule only applies absent a different indication from other provisions of the Rome Statute.97 The most obvious example of a different indication within a specific provision is article 28, which provides a much lower ‘should have known’ standard for military commanders.98 Another example is one of the crimes considered in this thesis. Article 8(2)(a)(iv) provides that appropriation is a crime if carried out ‘wantonly’, possibly adjusting the level of knowledge and intention required. The meaning of ‘wantonly’ and the extent to which this element constitutes a different indication to the default mental element in article 30 will be discussed further in Chapter Three.
The question of what an individual would have had to have known and intended for each crime will be addressed in Chapter Four, a separate chapter that addresses individual criminal responsibility. It focuses on some of the problems that these crimes and the underlying factual situation present to the framework for individual criminal responsibility established by the Rome Statute and applied by the Court in the cases to date. The conclusion would depend, of course, on the evidence adduced in trial proceedings.
V. INTERPRETATION OF THE ROME STATUTE
Identifying and understanding the elements of specific crimes requires interpreting the provisions of the Rome Statute. The process of interpretation, common to all attempts to understand statutory law, requires determining the likely ‘operative interpretation’ of the law being applied.99 It is fraught with uncertainty, as any act of interpretation will present a range of options. One way of reducing this uncertainty is to be explicit about how the interpretation will occur by setting out the method of interpretation. Articulating a methodology establishes the principles that will be used to guide the reasoning process and identifies the materials or aids which “must, may, and if applicable, may not be taken into account” in support of the process.100 As noted
97 Sliedregt, above n 10, 48-50. There is some debate about whether the Elements of Crimes can also be a source of a different mental element for a crime. See Schabas, above n 13, 628. 98 Schabas, ibid, 628-9. 99 Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (Cambridge University Press, 2014), 3. 100 Leena Grover, ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court’ (2010) 21(3) The European Journal of International Law 543, 546.
34 above, there are a number of advantages in being explicit about the method of interpretation chosen to interpret the Rome Statute. Such an explicit approach promotes the rule of law101 and, consequently, confidence in the system and the legitimacy of the Court.102 Using different methods of interpretation to resolve interpretive problems can look as if the method has been selectively ‘cherry-picked’ to yield a desired outcome.103 If the ICC is not consistent in its interpretive methodology, it can undermine belief in the integrity of the legal system. An explicit approach to interpretation of crimes is particularly important due to the profound consequences the ‘meaning’ of a provision can have on the liberty of an individual, on their personal and professional reputation and, in the case of official government policy, also on the reputation of the State involved.
Unfortunately, there is no established method of interpretation in international criminal law. A wide variety of principles of interpretation have been used, including “literal, logical, contextual, purposive, effective, drafter’s intent, and progressive” with “human rights standards, including fairness to the accused, as well as interpretation most consistent with customary law … invoked as guiding considerations.”104 Grover conducted a study of the interpretive jurisprudence of the ICTY and ICTR, finding that neither tribunal settled on a consistent method of interpretation.105 The failure to apply a consistent hermeneutic “reveals the legal uncertainty that can plague interpretive reasoning when judges are not equipped with a shared legal methodology.”106
To contribute to this discussion, and for the sake of clarity, this section sets out the method that is used in this thesis. The chapter first articulates the role of the customary approach to the interpretation of treaties in interpreting the Rome Statute. The traditional method forms the basis of interpretation, establishing that text, context and the object and purpose of the treaty are the most important markers of statutory meaning. The chapter then addresses the principles specific to criminal law and the
101 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 33. 102 Ibid 2-3. 103 Grover, ‘A Call to Arms’, above n 100, 583. 104 Ibid 548. 105 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 49-62. 106 Ibid 61-2.
35
Rome Statute system: first, the role of the principle of legality; second, the importance of consistency with internationally recognised human rights; and third, the explicit hierarchy of sources established by article 21 of the Statute, including the influence of previous decisions of the ICC. The remaining chapters of this thesis apply this method of interpretation to the material elements of the two war crimes under examination.
Role of the customary approach to the interpretation of treaties The lack of clarity about how international criminal law should be interpreted is partly due to the vagueness of the customary method of treaty interpretation, codified107 in the Vienna Convention on the Law of Treaties 1969108 (VCLT). The VCLT contains contradictory rules that pull in different directions, such as whether to prioritise fidelity to the words themselves or to the effectiveness of the treaty as a whole.109 However, as a reflection of pre-existing customary law, the VCLT applies to treaties that were formulated prior to the Convention’s adoption110 as well as to subsequent treaties and thus is applicable to not only to the Rome Statute, but also to the interpretation of the underlying treaties of IHL.111 The application of the VCLT to the Rome Statute has been accepted by the ICC Appeals Chamber.112
107 Richard K. Gardiner, Treaty Interpretation (Oxford University Press, 2010), 7. Hollis describes the Convention as “supporting and enabling” the interpretation of treaties rather than providing a comprehensive set of rules, and that in practice the interpretative exercise envisaged by the Convention is actually quite flexible: Duncan B. Hollis, The Oxford Guide to Treaties (Oxford University Press, 1st ed, 2012), 477, 492. 108 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (‘VCLT’). 109 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 45-6. Heller has also questioned how the VCLT can be sensibly applied to the ICC given its lack of coherence: Kevin Jon Heller, ‘Syria, Chemical Weapons, and the Incoherence of the VCLT’ on Opinio Juris (23 August 2013)
36
It is therefore necessary to establish in general terms what is required by the VCLT.113 Article 31(1) of the VCLT provides that a treaty “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and its purpose.”114 Article 31(2) and (3) set out what is meant by the ‘context’ of the treaty, which includes any agreement or instrument accepted by the parties as being related or connected to the treaty, as well as any subsequent agreement or practice which shows agreement as to how the treaty should be interpreted. Each of the parts identified by article 31, “the ordinary meaning” of the words, their “context”, and the “object and purpose” of the treaty, should be taken together in the process of treaty interpretation.115 The provision does not establish a hierarchy between these parts, but rather constitutes an accumulation of elements that constitutes a general rule of treaty interpretation.116
Article 32 of the VCLT sets out the circumstances in which it is permissible to consult supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of the conclusion of the treaty negotiations. Article 32 provides that such material may be consulted to “confirm the meaning resulting from the application of article 31” or to “determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”117 The supplementary means in article 32 should only be used in these defined circumstances,118 meaning that many interpretive questions will be resolved by resort to article 31 alone.
The requirement for “good faith” in article 31 does not have an independent function in interpretation, but rather indicates how interpretation should be approached.119 The International Court of Justice (ICJ) has indicated that a “good faith” approach requires
113 See Hollis, above n 107; Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties: a commentary (Springer, 2012); Ulf Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Springer, 2007); Gardiner, above n 107. 114 VCLT. 115 Gardiner, above n 107, 142. 116 Ibid 152. 117 VCLT. 118 Akande, above n 111 argues that Article 32 does not apply in its entirety to the Rome Statute due to it being a criminal statute. 119 Gardiner, above n 107, 152.
37 the interpretation to be carried out in a way that ensures the treaty’s effectiveness at fulfilling its object and purpose.120 This was perhaps best explained by the International Law Commission in its 1966 commentary on the Draft Articles (which later became the VCLT):
When a treaty is open to two interpretations one of which does and the other does not enable a treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted.121
This approach of the International Law Commission raises the more important question of what it means for a treaty to be ‘open’ to an interpretation as it suggests that the text of the treaty might take primacy over the other interpretive tools. However, this is not necessarily the case. The phrase “ordinary meaning” of the words of the treaty does not require a literal approach to interpretation. The ICJ stated in South West Africa, Preliminary Objections that the meaning of the words used in a treaty:
… is not an absolute one. Where such a method of interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it.122
As a single word can have multiple meanings, the ‘ordinary meaning’ is “immediately and intimately linked with context”, and must be considered alongside the other features of a treaty mentioned in article 31.123 The International Law Commission described this process:
All the various elements, as they were present in any given case, would be thrown into the crucible and their interaction would give the legally relevant interpretation.124
The VCLT method of interpretation – the ‘crucible’ approach – does not establish a hierarchy for interpreting the Rome Statute. There is no guidance as to what should be
120 Territorial Dispute (Libyan Arab Jamahiriya/Chad) (Merits) [1994] ICJ Reports 6, 25-6. 121 International Law Commission, ‘Draft Articles on the Law of Treaties with Commentaries’ in International Law Commission, Yearbook of the International Law Commission (1966) vol 2, 187, 219. 122 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1962] ICJ Reports 319, 336. 123 Gardiner, above n 107, 161-2.; Hollis, above n 107, 495. 124 International Law Commission, above n 121, 220.
38 considered first, or what should be determinative.125 The resulting ambiguity may be useful for reaching international agreements and allowing for political resolutions to legal problems, but it is much less helpful in the criminal context. It has resulted in three general approaches to interpretation, none of which took precedence in international criminal law prior to the Rome Statute: the textual approach to interpretation, the intent-based approach, and the object and purpose approach.126
The role of the VCLT in the Court’s interpretation of the crimes is controversial in some quarters,127 but as Sadat and Jolly point out, the Convention is widely recognised as codifying customary international law and is “a persuasive and helpful rubric” for the Court to apply.128 Therefore, the approach of this thesis it to take a VCLT approach within the framework established by the Rome Statute that is discussed below. Even if it does not conclusively resolve every interpretive question, this combination of factors allows for greater certainty in interpretation.129
Principle of Legality The requirement to comply with the principle of legality distinguishes the interpretation of the Rome Statute from other non-criminal international legal instruments. The principle requires a degree of conservatism in interpretation to protect the rights of the accused.130 As discussed above, this principle is a fundamental component of many criminal law systems, ensuring there has been fair notice of the criminal sanction131 and protecting the rule of law by attempting to prevent the
125 In fact, as Koskenniemi points out, it is hard to think of an approach that is not encompassed by the VCLT: Martii Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, International Law Commission, UN GAOR, UN Doc. A/CN.4/L.682 (13 April 2006) 181. 126 Grover, ‘A Call Arms’, above n 100, 547; Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 43. 127 For example Dov Jacobs argues the importance of the principle of legality in the Rome Statute means that the VCLT should not be applied: Dov Jacobs, ‘International Criminal Law’ in Jörg Kammerhofer and Jean D’Aspremont (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press, 2014) 451, 467-70. 128 Leila Nadya Sadat and Jarrod M. Jolly, ‘Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25’s Rorschach Blot’ (2014) 27 Leiden Journal of International Law 755, 760. 129 Ibid 762. 130 Antonio Cassese et al, International Criminal Law: Cases and Commentary (Oxford University Press, 2011), 53-4. 131 For a lengthy discussion of this protection see Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 137-141; Also see Gallant, above n 6, 20-23;
39 arbitrary exercise of judicial discretion.132 The principle of legality maintains the separation of powers between the legislators (in the case of the Rome Statute, the Assembly of States Parties, and, prior to entry into force of the Statute, the delegates present in Rome and throughout the subsequent Preparatory Commission phase) and the judges, leaving the law making to the former and the interpretation of the law to the latter.133 This is not to say that a criminal statute can be “perfectly fixed”, but that rather it “limit[s] judicial discretion to the ‘penumbral zone’ or ‘interstitial area’ so that the law is certain in the great majority of cases.”134 The principle is an important aspect of the rights of the accused, and any interpretation of the Statute should be guided by it.
The importance of the principle of legality is also revealed by the structure of the Rome Statute.135 The Statute sets out, with specificity, the crimes that fall within the jurisdiction of the Court.136 The crimes are detailed and reasonably comprehensive. The move in the Rome Statute towards a stricter legality is a shift from the substantive justice origins of international criminal law.137 Conservative interpretation of the law is encapsulated in article 22(2), which provides that:
The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, persecuted or convicted.138
Antonio Cassese, ‘Nullum Crimen Sine Lege ‘ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press, 2009) 438, 439-40. 132 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 141-2.; Gallant, above n 6, 14-19; Cassese, above n 131, 439-40. 133 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 145-9.; Gallant, above n 6, 24-26; Cassese, above n 131, 439-40. 134 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 151.. Also see Gallant, above n 6, 31-33. 135 Gallant, above n 6, 330-344; Susan Lamb, ‘Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law’ in Antonio Cassese, Paeola Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) 733, 746-56. 136 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 106.; Gallant, above n 6, 335; Lamb, above n 135, 749-51. 137 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 104. 138 Rome Statute.
40
This provision is further buttressed by the prohibitions on retroactive jurisdiction (article 11(1)), conviction of a crime outside the jurisdiction of the Court when it was committed (article 11(2)), and the retroactive application of law prior to judgment unless it is more favourable to the accused (article 24(2)).139
This does not mean that it is appropriate to be absolute about adhering to strict legality. Some of the crimes are vague, and indeed this vagueness is inevitable given the context in which the Rome Statute was drafted.140 A degree of textual indeterminacy will always remain and in such cases the context of the provision, its object and purpose, and even its drafting history will be relevant; but the provisions are not open to an infinite number of meanings. As Grover argues, there should be a balance in method between being faithful to the text of the Statute and recognising that the provisions should be effective.141 An interpretive approach that ‘gutted’ the crimes of their meaning is inappropriate.142 However, the principle of legality should at least require that the text of the statute be prioritised over the other approaches identified in article 32 of the VCLT, namely the context and the object and purpose of the Statute.143
Finding the right balance between allowing for the development of the law and upholding the principle of legality is difficult. Judge Mohamed Shahabuddeen argues that legality is not a bar to the progressive interpretation of the law if the interpretation “is consistent with the essence of the offence” and could be reasonably foreseen.144 The jurisprudence of the European Court of Human Rights offers similar guidance. In SW v UK, the Court considered the impact of the principle of legality on the interpretation of criminal statutes, and held that it:
… cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant
139 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 107; Gallant, above n 6, 331-333; Lamb, above n 135, 751-2. 140 Grover, ‘A Call Arms’, above n 100, 554. 141 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 112. 142 Ibid 109-110. 143 Ibid 110. 144 Mohamed Shahabuddeen, ‘Does the Principles of Legality Stand in the Way of a Progressive Development of Law?’ (2004) 2(4) Journal of International Criminal Justice 1007.
41
development is consistent with the essence of the offence and could reasonably be foreseen.145
Sadat and Jolly also argue this simple prescription should be applied to the Rome Statute, claiming that the principle of legality means the critical constraint is that an interpretation must be “reasonably foreseeable and consistent with the essence of the offence.”146 Therefore, it is apparent that if an interpretation cannot be reconciled with the text, even if it is supported by persuasive teleological reasons, it should not be accepted.147
There are other consequences the importance of the principle of legality has on the task of interpretation. Grover identifies several arguments that undermine legality that she says should only be applied in specific instances, rather than being used more widely. For example, a flexible approach to interpretation has been justified on the basis that the successful prosecution of individuals is preferable, and that the Court should take account of the nature of international law and the difficulty in passing and amending ‘legislation.’148 Connected to this is the idea that ‘higher order justice’ – the injustice of not punishing a person for a crime (such as the Nazis for genocide) – is ranked higher than the principle of legality.149 Sometimes arguments are made for a wide interpretation based on the clearly immoral conduct of the accused,150 the collective goal of ‘peace and security’ and world order,151 claiming that a treaty prohibition of state conduct can be converted into a crime,152 or using interpretive aids and general principles of international law to import new crimes into the Rome Statute.153 While there may be some value to these methods of reasoning, they should be treated with a high degree of caution.154 Sadat and Jolly explain:
145 SW v UK (European Court of Human Rights, Application No. 20166/92, 22 November 1995) [36]. 146 Sadat and Jolly, above n 128, 760. 147 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 110. 148 Ibid 151-2. 149 Ibid 152-4. 150 Ibid 154-156. 151 Ibid 157-8. 152 Ibid 159-61. 153 Ibid 174-82. 154 See ibid 402-3.
42
International criminal law is still a relatively new field of law and gap-filling is inevitable. At the same time, making unjustified interpretive leaps in order to ‘end impunity’ risks destroying the legitimacy of the endeavour by subjecting individuals to definitions of crimes that could not possibly have been foreseen.155
Sadat and Jolly conclude that a conservative interpretive approach means that the provisions of the Rome Statute affecting the liability of the accused should be “strictly construed to give a meaning that is predictable and reflective of the basic tenets of domestic criminal law systems.”156 This includes any creative interpretations that attempt to retroactively render behaviour criminal.157
Complying with the principle of legality should be one of the most important considerations of the interpreter. Such compliance has important ramifications as adherence to the principle of legality has the potential to change the outcome from a straightforward application of the VCLT.
Role of ‘Internationally Recognised Human Rights’ The principle of legality is not the only human rights issue that should be recognised in the interpretive process. The Statute provides for a wider consideration of human rights principles with article 21(3) providing that the Rome Statute must be interpreted consistently with “internationally recognised human rights” and “without any adverse distinction on grounds such as gender … age, race, colour, language, religion or belief, political or other opinion, national ethnic or social origin, wealth, birth or other status.”158 It is uncontroversial to assert that this extends to ensuring the rights of the accused are considered in any interpretation, as their rights (particularly the right to liberty) are at stake.159
However, article 21(3) does not just require the interpreter to consider the human rights implications for the accused. The provision is not explicitly limited to the purpose of protecting the rights of the accused, but rather is directly applicable to all of
155 Sadat and Jolly, above n 128, 768. 156 Ibid. 157 Ibid. 158 Article 21(3) of the Rome Statute 159 Sadat and Jolly, above n 128, 768; Margaret M. deGuzman, ‘Article 21: Applicable Law’, in Otto Triffterer Kai Ambos (eds), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016) 932, 947.
43 the Statute, even those provisions that do not specifically relate to the rights of the accused.160 The rights of the other participants in the Trial Process, namely the victims and the witnesses,161 as well as the wider community, are also relevant. Consideration of such issues includes ensuring that an interpretation does not discriminate on the grounds listed in article 21(3), such as gender.162
It is important to note that considering international human rights does not mean that the other interpretative factors identified above would be subservient to “internationally recognised human rights.”163 The principle of legality, and the respect for the rights of the accused, means that a cautious approach to interpretation is appropriate.164 Grey argues that while the principle of legality might limit “the creative license that the Court can take when interpreting a crime”, it does not preclude a consideration of whether a proposed interpretation is discriminatory, or should be more inclusive.165 She illustrates how it can provide a mechanism to adjust an interpretation to ensure it does not discriminate against female victims.166 The same should be true for all categories of victims and other participants.
Hierarchy of sources for interpreting crimes in the Rome Statute While it does not go so far as to impose an interpretive methodology on the Court,167 article 21(1) of the Rome Statute establishes a hierarchy of sources for its interpretation that takes precedence over the VCLT as the lex specialis for the interpretation of the Rome Statute.168 Article 21(1) of the Rome Statute provides that:
160 Mahnough Arsanjani, ‘The Rome Statute of the International Criminal Court’, (1999) 91(3) American Journal of International Law 22, 29. Also see Lubanga (Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute) (International Criminal Court, Appeals Chamber, Case No ICC-01/04/01/06-772, 14 December 2006) [37]. Also see Rosemary Grey, ‘Interpreting International Crimes from a ‘Female Perspective’: Opportunities and Challenges for the International Criminal Court’ 17(2) International Criminal Law Review 325, 335. 161 Sadat and Jolly, above n 128, 768. 162 See Grey, above n 160, 335. 163 Dapo Akande, above n 111, 46-7. 164 Grey, above n 160, 336. 165 Ibid 336-7. 166 Ibid 337-49. 167 Sadat and Jolly, above n 128, 759. 168 Christopher J Borgen, ‘Treaty Conflicts and Normative Fragmentation’ in Duncan Hollis (ed), The Oxford Guide to Treaties (Oxford University Press, 2012), 466-7.
44
1. The Court shall apply: a. In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; b. In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; and c. Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognised norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. […]
Article 9(3) clarifies the status of the Elements of Crimes, providing that they “shall be consistent” with the Statute, identifying them as a subsidiary source of law.169
These articles of the Statute are reflected in the interpretive method applied by this thesis. Article 21(1) establishes a hierarchy of sources, making it clear that the text of the Statute, as well as the Elements of Crimes and the Rules of Evidence and Procedure should be given the most weight in interpretation. After these primary legal sources, the interpreter can then apply applicable treaties and customary international law, including IHL. The last resort is the general principles of law derived from national laws. This hierarchical approach has been endorsed by the ICC Appeals Chamber, which held the sources of law in article 21(1)(b) and (c) should only be applied where there is a lacuna in the text of the Statute.170
(a) ‘The Statute, the Element of the Crimes, and the Rules of Evidence and Procedure’ The application of the principle of legality in combination with article 21(1) suggests that the first stage of interpretation at the ICC should be a close examination of the text to ascertain the plain meaning of the words.171 This approach has the added benefit of
169 Sadat and Jolly, above n 128, 760. 170 Lubanga (Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute) (International Criminal Court, Appeals Chamber, Case No ICC-01/04/01/06-772, 14 December 2006) [34]. Also see Sadat and Jolly, ibid 767. 171 Sadat and Jolly, ibid 765. Also see Akande, above n 111, 44-5.
45 emphasising the importance of the principle of legality and retaining fidelity to the text of the statute. Dictionary definitions may be a useful starting point, but will not be determinative as the Statute is authentic in six languages, and the meaning of the words will be dependent on the context of the provision. As the Appeals Chamber recognised, the task is to analyse the “sub-section of the law [in question] read as a whole in conjunction with the … enactment in its entirety.”172 Sadat and Jolly argue that a provision should also be “read and understood against the backdrop of the international legal order from which it both emanates and to which it contributes.”173 After the plain meaning of the text has been assessed, the context, object and purpose of the provision should be considered. This is essentially the same as the normal approach under article 32 of the VCLT, with sole the exception that the text of the specific provisions of the Rome Statute is accorded priority.
As per the VCLT, it is only after the analysis of the plain meaning of the text of the provision has been completed, and where there remains some ambiguity about the meaning of the provision, that subsidiary sources should be consulted.174 An ambiguity arises where there are two or more “equally valued” possible meanings, each with a reasonable degree of probability of being accepted.175 The examination of the subsidiary sources should include the drafting history of the Rome Statute, but with the recognition that its value will be limited. The drafting history should be used “with an eye towards confirming understandings of the text arrived at through less problematic means of analysis”, and focus on the way the provision evolved rather than the statements of individual delegates.176
The role of the Elements of Crimes and Rules of Procedure in interpretation is more controversial. In the Al Bashir Arrest Decision, the majority of the Pre-Trial Chamber I (PTC I) held that the Elements of Crimes and the Rules must be applied unless an
172 Situation in the Democratic Republic of Congo (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-168, 13 July 2006) [33] 173 Sadat and Jolly, above n 128, 765. 174 Ibid 765. 175 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 393. 176 Sadat and Jolly, above n 128, 766.
46
“irreconcilable contradiction” with the Statute was found.177 Similarly, Sadat and Jolly describe the Elements and the Rules as completing the meaning of the Statute,178 suggesting they are on almost equal grounds with the Statute.179 Grover argues that this approach is mistaken, as it fails to give proper consideration to the requirement of article 9(3) that the Elements be consistent with the Statute.180 In contrast, Grover argues they should be treated as an “authoritative non-binding aid”, and of the same value as a subsequent agreement by the parties to a treaty pursuant to article 31(3) of the VCLT.181 This thesis takes the same view: the Elements assist, but the judges of the ICC, as the interpreters of the Rome Statute, should come to their own understanding and decision on the scope and practical operation of the provisions of the Statute.182
(b) ‘Applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict’ If the application of article 21(1)(a) fails to yield an answer, other sources can be considered. It is generally accepted that the phrase “applicable treaties and principles and rules of international law” in article 21(1)(b) refers to both treaties and customary international law, bringing them into the Rome Statute.183 Reference to relevant treaty and customary international law is necessary because many of the crimes in the Statute are incomplete, and cannot be understood without reference to these external sources.184 Similarly, it suggests that the ‘parent’ treaty of a particular provision should be used in interpretation where the wording of the Rome Statute mirrors the language of the treaty.185 The interpretation of the parent treaty should occur according to the
177 Prosecutor v. Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) (International Criminal Court, Pre-Trial Chamber I, Case No. ICC-02/05-01/09) [128]-[129]. 178 Sadat and Jolly, above n 128, 765. 179 Also see Akande, above n 111, 47-8. 180 Grover, ‘A Call Arms’, above n 100, 574. 181 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 363-5. 182 Ibid 366. 183 Sadat and Jolly, above n 128, 761; Guzman, above n 159, 706-7; Schabas, above n 13, 519-20. Cf. Alessandro Bufalini, ‘The Principle of Legality and the Role of Customary International Law in the Interpretation of the ICC Statute’ (2015)(14) The Law and Practice of International Courts and Tribunals 233, 241. 184 Bufalini, ibid, 243. 185 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 359-60.
47 principles recognised in the VCLT. It is more uncertain as to how to resolve a conflict between the Statute and a customary rule.186 Grover, as well as Sadat and Jolly, argue that in the case of conflict, the text of the Statute should prevail.187 Given the hierarchy revealed by article 21, this position should be accepted.
A more likely scenario is that there is a conflict between the Elements of Crimes and customary international law, or a parent treaty provision. The answer to this question will depend on whether the Statute is conceptualised as just a codification of existing international law, or a more progressive development.188 If it is a codification, it suggests that referring to custom in interpretation would be mandatory; whereas if it is a ‘sealed-off’ sub-regime of international law that is a progressive development of existing law, custom will have a much less substantial role.189 The latter possibility would mean that, if the Elements of Crimes and customary law pulled in two different directions, it would be the interpretation suggested by the Elements that would prevail.190
After a significant study of the links between the Statute and customary law, Grover concludes that the crimes in articles 6, 7, 8 and 8 bis are “largely reflective of custom.”191 She argues the consequence of this finding is that, in light of the interpretive principles of the VCLT, “judges should recognise a rebuttable presumption of interpretation consistent with custom” for the crimes.192 The presumption would:
… result in an interpretive relationship between the Rome Statute and custom that is theoretically coherent, consistent with the existing legal framework established by the
186 Grover, ‘A Call Arms’, above n 100, 564. 187 Sadat and Jolly, above n 128, 761. 188 Grover, ‘A Call Arms’, above n 100, 565. 189 Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, above n 99, 220-1. Another possibility that has been raised is that the drafting of the novel provisions of the Rome Statute constituted ‘instant custom’ because of the large number of States voting for adoption of the Statute and then implementing its provisions through domestic legislation. 190 Ibid 223-4. 191 Ibid 301-2. 192 Ibid 351-2.
48
Rome Statute, reconcilable with alternative conclusions justifiably reached in specific cases.193
According to Grover’s approach, the interpretation still has to be sourced in the text, with any use of customary law respecting the principle of legality.194 She says the presumption would be rebutted when the customary law is different to the Rome Statute, broadening or narrowing the scope, or using wording that suggested something had been deliberately excluded.195 While Sadat and Jolly’s prescription is not as detailed, they also argue that the ICC judges should “align their jurisprudence with customary international law to avoid the fragmentation of international criminal law,”196 which supports Grover’s approach. This thesis takes the same view.
(c) ‘General principles of law derived by the Court from national laws of legal systems of the world’ The final level of the interpretive hierarchy is the general principles of law derived from national laws. The reference to general principles has been described by Schabas as an “invitation to consult comparative criminal law as a subsidiary source of norms.”197 This should be done in a way that involves a thorough comparative legal analysis and not an overly simplistic reliance on sources from one country or legal system of which an individual judge is particularly familiar.198
(d) Previous decisions of the ICC Article 21(1) provides that the Court ‘may’ apply the previous decisions of the ICC, and, as such, they are not binding on future decisions. Nevertheless, the understandable practice of the Court so far shows that previous decisions will be highly influential.199
193 Ibid 352. 194 Ibid 353. 195 Ibid 354-5. 196 Sadat and Jolly, above n 128, 761. 197 Schabas, above n 13, 525. Also see Neha Jain (‘Judicial Lawmaking and General Principles of Law in International Criminal Law’ (2016) 57(1) Harvard International Law Journal 111) who argues that the use of general principles in ICL jurisprudence has been problematic. 198 Sadat and Jolly, above n 128, 767; Jain, ibid, 111. 199 An example of this is the development of common purpose liability at the ICC, discussed at length in Chapter Four.
49
Interpreting crimes This section has identified the interpretive methodology that will be used in this thesis. As required by the Statute, and consistent with the jurisprudence and commentary, the adopted methodology will utilise an element analysis approach to assess each crime and consider how they could apply to the construction or maintenance of the settlements in the West Bank. Each element will be analysed using an interpretive methodology that combines the rules of the VCLT, the principle of legality and internationally recognised human rights and, most importantly, the hierarchy of sources established by article 21(1) of the Rome Statute. The hierarchy and the principle of legality require the text of the crime to be considered first but, as per the VCLT, the context, object and purpose of the Statute are also relevant. If an ambiguity persists, it is then permissible to consider subsidiary sources, treaties and customary international law, and finally the practice of national jurisdictions.
The application of this method of interpretation does not allow for every interpretive issue to be resolved. Even when the text of a provision appears relatively clear, reasonable minds may still reach different conclusions. This is an unavoidable characteristic of interpreting law. Nevertheless, being transparent about the method used to reach a conclusion promotes the predictability of interpretation, and therefore the principle of legality and the rule of law.
VI. CONCLUDING REMARKS
The following chapters show that the straightforward methodology adopted by this thesis – the application of the Rome Statute to the factual situation of the settlements in the West Bank to determine what it exposes about the Statute – reveals important issues with the scope and practical operation of the relevant crimes. Rather than the factual focus necessary to make an argument about whether an individual is innocent or guilty, this legal focus allows for aspects of the Statute to be tested in different ways from the abstract analyses of the Rome Statute commentaries. It illustrates the problems with the translation of IHL and occupation law into these two crimes. It also shows how the legal arguments that have been raised by Israel in other contexts could apply to the crimes under consideration. In the event of an investigation or prosecution at the ICC, it will also provide a point of comparison to the decisions of the Prosecution and the Chambers that could reveal something about the nature of those decisions.
50
The interpretive approach that will be used to apply the methodology has been selected according to the requirements of the Rome Statute and the VCLT, and the thesis is a testament to the merit of this approach. This introductory chapter explained that the thesis will identify the relevant elements of each crime and assess how the elements could apply to the factual situation. Not all the legal questions about the operation of the crimes that this thesis addresses can be answered. This is revealing: if the interpretive process does not yield a persuasive answer and there is significant difficulty in reaching a reasonably secure conclusion, it raises the question of whether the crime is certain enough to comply with the principle of legality and the rights of the accused to know the law before any charges are laid.
The elements of the two crimes considered will be identified through interpreting the Rome Statute according to the VCLT and the hierarchy established by the Statute. This requires considering the text of the provision first, then examining the object, purpose and context of the provision and its place in the Statute more generally. If an ambiguity persists, then subsidiary sources including the drafting history of the Rome Statute, international treaties and customary law, and general principles of domestic law can be used to assist. Importantly, the Rome Statute requires the interpretation to be guided by the principle of legality and internationally recognised human rights. Resort to these sources may have a determinative impact in resolving some interpretive dilemmas.
51
CHAPTER ONE: LAW APPLICABLE TO THE WEST BANK
I. INTRODUCTION
The two crimes analysed in this thesis share a threshold circumstance element: they must be committed during an ‘international armed conflict’. Thus, it is necessary to establish the legal status of the parts of the West Bank where the settlements have been built to determine if this circumstance element would be satisfied. If the situation in these places does not amount to an ‘international armed conflict’, the crimes analysed in this thesis will not apply.
As will be explained, the crimes share this circumstance element because they are found in article 8 of the Rome Statute, the provision that sets out the ‘war crimes’ amenable to the jurisdiction of the ICC. War crimes can only be committed in the situations regulated by international humanitarian law (IHL). Treaties and customary international law provide that there a few different kinds of situations where IHL applies: during an international armed conflict, during a non-international armed conflict, and during an occupation. Each situation has a different set of applicable rules, with some rules being shared and some specific to a context. The crimes that apply during international armed conflict are more extensive than those that apply to non-international armed conflict. In the case of these two crimes, the critical question is whether the Israeli control of parts of the West Bank is an ‘occupation’ capable of fulfilling the circumstance element requiring the existence of an ‘international armed conflict’.
The correct answer to this legal question is disputed by the parties to the conflict. This chapter will explore and assess the arguments put forward both in favour of and against the situation in the West Bank constituting an ‘international armed conflict’ and ‘occupation’. There are multiple sources of IHL relevant in this context. Along with customary international law, the relevant IHL treaties are the Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention IV of 1907 (the ‘Hague Regulations’), the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 (‘GCIV’) and the Protocol Additional to the Geneva Conventions of 12 August
52
1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 1977 (‘API’).1
The most widely accepted view is that the areas where the settlements have been built in the West Bank are ‘occupied territory’ and therefore subject to occupation law. Israel has disputed this characterisation of the West Bank since soon after it took possession of the territory in 1967. This chapter will consider in detail whether the law of occupation, and in particular the Hague Regulations and GCIV, apply to the places where the settlements have been built. In doing so, it will address the arguments raised by and on behalf of Israel to determine whether they are persuasive.
The chapter will first provide an overview of the relationship between the article 8 crimes in the Rome Statute and IHL, setting out more specifically the source of the circumstance element requiring the crimes to be committed during an international armed conflict or military occupation. The chapter will then consider the relevant test for determining whether the Hague Regulations apply, and conclude that the most persuasive legal view is that Israel’s conduct in controlling the relevant parts of the West Bank is regulated by the Hague Regulations.
It is argued by some that a situation can amount to an ‘occupation’ under the Hague Regulations, but not satisfy the requirements for an ‘occupation’ under GCIV. If this view is accepted, it limits the legal obligations the Occupier has over the territory to those provided by the Hague Regulations and customary international law, a body of law that some view as allowing for greater flexibility for the Occupying Power and less protection for the population under occupation. Importantly for this context, it is argued by some that, if GCIV does not apply, it could mean that neither of the two crimes apply. As such, this chapter also assesses whether GCIV applies to the West Bank.
The applicability of GCIV is governed by article 2, common to all four Geneva Conventions. Article 2 is subject to several competing interpretations. The chapter will
1 Regulations concerning the Laws and Customs of War on Land (‘Hague Regulations’), annexed to the Convention (IV) Concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 ConTS 277 (entered into force 26 January 1910); Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) ‘GCIV’; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 17512 (entered into force 23 January 1979) ‘API’.
53 focus on two interpretations. First, the orthodox interpretation is that, for the Convention to apply, all that is required is the existence of an armed conflict between two High Contracting Parties (an ‘international armed conflict’). It holds that any territory occupied during such a conflict will be subject to GCIV. The second interpretation, preferred by Israel, is more restricted. Israel argues that, as the West Bank had no legitimate sovereign prior to 1967, GCIV does not apply as it is not an occupation that can be classified as an ‘international armed conflict’. It will be shown that the orthodox position is more persuasive. In addition to these two interpretations, the concepts of ‘defensive conquest’ and a ‘sui generis’ occupation will be considered and assessed. The purpose of this analysis is to elaborate on the arguments made regarding the application of occupation law that may be relevant to ICL and, in particular, a case before the ICC based on the settlements in the West Bank. A comprehensive overview of contemporary debates about the role of occupation law and IHL in the West Bank and Occupied Palestinian Territories more generally – such as the status of Gaza in light of Israel’s unilateral disengagement - is beyond the scope of the thesis.
The chapter will conclude by applying the most compelling interpretation of common article 2 to the situation in the West Bank. The analysis demonstrates that the Court should, in any prosecution regarding events in the territory, accept that IHL, including GCIV, applies, and that the circumstance element of the two crimes is established.
II. ARTICLE 8 OF THE ROME STATUTE
It is necessary to first explain why determining the status of the West Bank is crucial. As explained above, the circumstance element of the two crimes is that they be committed during an international armed conflict. The placement of the two crimes in article 8(2)(a) and (b) of the Rome Statute respectively, determines the precise circumstance element.2 Each subparagraph of article 8(2) has a different threshold circumstance element that must be satisfied before the crime will apply. The crimes in article 8(2)(a) and (b) both apply to conduct during an international armed conflict (which, as will be shown, extends to military occupations); and the crimes in article 8(2)(c) and (e) apply to conduct during non-international armed conflicts (which does
2 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), art 8(2) (‘Rome Statute’).
54 not include military occupations). This thesis only addresses crimes in subparagraphs (a) and (b).
The circumstance element of an international armed conflict is found in the text of article 8(a) and (b). Before listing a series of acts which constitute war crimes, article 8(2)(a) explains that they are all “Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention..3 Grave breaches are particularly serious breaches of the four Geneva Conventions.4 This means that all the crimes in article 8(2)(a), including the crime of the unlawful appropriation of property,5 must be committed against “persons or property” protected by the Geneva Conventions.6 Therefore, a precondition for the crimes being applicable is that the territory is subject to the relevant provisions of the Geneva Conventions, which as will be explained below, requires the existence of an international armed conflict or a subsequent military occupation.7
Article 8(2)(b) contains a more extensive list of crimes. Before listing the conduct that constitute war crimes, the provision explains that the crimes are “[o]ther 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.”8 This list includes crimes sourced from obligations in the Geneva Conventions, the Hague Regulations, and customary international law including the crime of transfer of population. The opening clause of article 8(2)(b) states that, to be a crime, the conduct must amount to a violation of the laws of international armed conflict. The law of international armed conflict only applies during certain kinds of armed conflict and occupations, therefore imposing the requirement that the crime occur in one of these situations. Unlike article 8(2)(a), article 8(2)(b) does not explicitly require that the Geneva Conventions be applicable, leaving open the possibility that it could also apply
3 Ibid art 8(2)(a). 4 See Knut Dörmann, ‘B. Article 8 para. 2: Meaning of ‘war crimes’’ in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court: A Commentary (C.H.Beck, Hart and Nomos, 3rd ed, 2016) 322, 323. 5 Rome Statute art 8(2)(a)(iv). 6 Dörmann, ‘B. Article 8 para. 2: Meaning of ‘war crimes’’, above n 4, 322-9. 7 In any case where an accused is charged under this section, the prosecution has to prove a nexus with an international armed conflict: ibid 323. 8 Rome Statute, art 8(2)(b).
55 to persons or property only protected by the Hague Regulations and/or customary international law.
It is clear that “the laws of international armed conflict” in article 8(2) includes the law of occupation.9 This is apparent from one of the crimes that is analysed in this thesis. The crime of transfer of population in article 8(2)(b)(viii) provides that the conduct in question be committed by the “Occupying Power” in “occupied territory”. This crime would be rendered otiose if “the laws of international armed conflict” in article 8(2)(b) did not apply to conduct during occupations. It is also clear from the Elements of Crimes10 and the jurisprudence of the ICC. To support this point, two examples from the jurisprudence of the ICC will suffice. In the Lubanga Decision on the Confirmation of Charges, PTC I set out a definition for international armed conflict. The Chamber explained a conflict was international if “it takes place between two or more States” and “extends to the partial or total occupation of another state.”11 More recently, in the Situation in Georgia: Decision on the Prosecutor’s request for authorization of an investigation, PTC I was satisfied the Court would have jurisdiction over any war crimes committed in Georgia due to the clear existence of an international armed conflict and following Russian military occupation in certain Georgian territory.12 Therefore, the possibility that an international armed conflict does not include occupations in the context of the Rome Statute can be safely rejected.
One other aspect of article 8(2)(b) is worth noting. It provides that the enumerated crimes are also violations “within the established framework of international law”, which, if interpreted restrictively, could be seen to require the crime to also amount to a breach of the underlying obligation of international law. It means the Court could have to consider whether the body of law which is the source of the crime would apply to the conduct in question. If it did not, then it could be argued that the violation was not within the established framework. This could be particularly important for the
9 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010), 203. 10 International Criminal Court, Elements of Crimes, Doc No ICC-ASP/1/3 (part II-B) (adopted 9 September 2002), art 8 (‘Elements of Crimes’) 11 Lubanga (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803-tEN, 29 January 2007) [209]. 12 Situation in Georgia (Decision on the Prosecutor’s request for authorization of an investigation) Pre- Trial Chamber I, Case No ICC-01/15-12, 27 January 2016) [27].
56 crime of transfer of population, which is derived from article 49 of GCIV that applies during occupations.
Therefore, if we adopt the most restrictive interpretation of the circumstance requirements of article 8(a) and (b), for the crime of unlawful appropriation of property and the crime of transfer of population to be applicable, the Court would have to be satisfied that GCIV applies to the relevant parts of the West Bank. It means the Court would have to determine whether the situation in the West Bank amounted to an international armed conflict or occupation subject to the regulation of IHL. This is the subject matter of the present chapter: first, the applicability of the Hague Regulations, and second, the applicability of GCIV.
III. THE HAGUE REGULATIONS
The first source of law that will be addressed is the Hague Regulations. The Regulations Concerning the Laws and Customs of War on Land were part of a series of treaties concluded by the Peace Conferences in The Hague in 1899 and 1907.13 Section III of the Hague Regulations (articles 42 through to 56) relate to belligerent occupation.14 The Hague Regulations form the basis of the law of belligerent occupation, and have been recognised by the post-World War Two International Military Tribunals and the ICJ as declaratory of customary international law.15 As custom, they are binding on all states regardless of whether they are Contracting Parties to the Regulations. The test for the applicability of the Hague Regulations is a functional test of whether there is actual or potential control over the territory. It seems clear that the Hague Regulations apply to the relevant parts of the West Bank.
13 Hague Regulations. Also see Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009), 4-5. 14 Dinstein, above n 13, 5. 15 International Military Tribunal (Nuremberg) Judgment and Sentences, reproduced in ‘Judicial Decisions’ [1947] 41 American Journal of International Law 172, 248; In Re Hirota and Ors (1948) 15 ILR 356, 365-6; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168, [172] (‘Armed Activities in the Congo’); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, [89] (‘Wall Advisory Opinion’). Also see Dinstein, above n 13, 5.
57
A. Relevant provisions Section III of the Hague Regulations regulates how military authority over the territory of a hostile state (an ‘occupation’) is to be exercised. The only treaty definition of what amounts to an ‘occupation’ is provided by article 42 of the Hague Regulations16:
Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.17
There is some question about what article 42 requires. The relationship between the two sentences of the provision is somewhat ambiguous. Both seem to refer to the same factual situation. Benvenisti notes that, if the territory is actually under the authority of the hostile army as per the first sentence, it would appear that the second sentence would also be fulfilled and that authority would be able to be exercised.18 It raises the question of whether both sentences need to be fulfilled; whether the second sentence is redundant, requiring the same factual scenario as the first sentence.19
On its face, it appears article 42 has two requirements for territory to be considered occupied: first, that the territory is under the authority of the hostile army; and second, that the occupying power can actually exercise that authority over the territory. Therefore, the Hague Regulations require a “factual determination of the occupant’s effective control over certain territory.”20 The authority must have been established in fact, and the occupying power must have the ability to exercise that authority. The cumulative test is problematic in that it would appear not to apply to an occupant that
16 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (Cambridge University Press, 2nd ed, 2016) [294] ‘ICRC GCI Commentary 2nd ed’ 17 Hague Regulations art 42. 18 Eyal Benvenisti, The International Law of Occupation (Oxford University Press, 2nd ed, 2012), 44. 19 The drafting history of the provision helps explain the formulation of the article. The definition of occupation was taken from the 1874 Brussels Declaration, and reflects a difference in opinion about between the smaller and larger negotiating powers. The issue was whether occupations should be taken to begin when the hostile army first captures the strategic military objectives in the territory, or at the later point of when the hostile army sends in further troops to take control of the governing of the territory. The provision that ended up being included in the Hague Regulations represents a compromise between these two positions. See Benvenisti, ibid, 44-6; Shane Darcy and John Reynolds, ‘An enduring occupation: the status of the Gaza strip from the perspective of international humanitarian law’ (2010) 15(2) Journal of Conflict and Security Law 211, 217. 20 Benvenisti, above n 18, 43. Also see Dinstein, above n 13, 42-45.
58 controls an area but chooses not to actually exercise authority over the civilians living in that area.21 This leads to the question of whether actual control over the territory and population is required, or whether it is enough that the occupier has effective control over the territory and the potential to exercise control over the population whenever it chooses to do so.22 This question is unnecessary to resolve, as the stricter requirement would be met in the parts of the West Bank where the settlements have been built.
The Hague Regulations cease to apply to territory when it stops being occupied. It is well accepted that this can occur if the occupant ceases to have control over the territory (and thus the above test ceases to be met), gains the consent of the legitimate sovereign, or transfers its authority to an indigenous government endorsed by the local population.23
B. Do the Hague Regulations apply? The question is therefore whether Israel, the hostile power, is exercising control over the territory. The focus on the settlements means it is not necessary to consider the territory as a whole, only those parts where the settlements have been or are being built. In this situation, it is unnecessary to determine whether the potential to exercise authority is sufficient for the Regulations to apply, as the higher standard of actual authority is met in the case of the land on which the settlements have been built and Israel exercises full civil and military control.24
21 Benvenisti, above n 18, 46-7. Also see International Committee of the Red Cross, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (Cambridge University Press, 2nd ed, 2016) [301]-[313]. 22 There is substantial dispute about this question, with the US Military Tribunal in Nuremberg in The Hostages Case preferring a test of effective control over the population and the ICJ in Armed Activities in the Congo adopting a requirement for actual control over the population. See The Trial of Wilhem List and Others (United States Military Tribunal, Nuremberg, 1948) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 9, 56-7 (‘The Hostages Case’); Armed Activities in the Congo) [2005] ICJ Reports 168, [173]. After considering these two judgments and considering the views of scholars, Benvenisti concludes that the best view is that “the test for occupation therefore stipulates that occupation begins when the foreign army is in actual control over enemy territory, and is in a position to establish, if it so wishes, an authority of its own over the population. It is irrelevant whether the army actually does so. By assuming control over the land the occupant assumes responsibility over the population situated on that land”: above n 18, 50. Dinstein seems to take the opposite position, arguing the Occupying Power must be actually exercising its authority: Dinstein, above n 13, 42. 23 Benvenisti, above n 18, 56; Dinstein, above n 13, 270-85. 24 See B’Tselem, What is Area C? (18 May 2014) B’Tselem
59
The West Bank came under the control of the IDF during the 1967 conflict. If we limit the analysis to the territory where the authorised settlements have been built, which is in Area C under the Oslo Accords,25 it is abundantly clear that Israel not only has the potential to exercise authority, it is in fact controlling the territory. It is able to protect and manage the settlements, control the local population, and has completely taken over the civil government in East Jerusalem.26 Israel has remained in effective control of these parts of the West Bank since 1967, and there have been no diplomatic agreements or other events that would change the nature of the IDF from a “hostile army” into something else. The local population has not given its permission to Israel to continue its control of the West Bank.
Israel has not taken a consistent position as to whether the Hague Regulations apply to the West Bank, and scholars have read different views into the approach of the Government. Nissim Bar-Yaacov found that Israel does not draw a distinction between customary rules and the rules from GCIV and the Hague Regulations, and that according to the Government the application of both is doubtful.27 Kretzmer sees the position of the Government slightly differently, noting that the Government has never formally contested the application of the Hague Regulations, and has in fact relied on them before the Israel Supreme Court to justify some of its actions.28 Regardless of the position of the Government, the Supreme Court of Israel has recognised that the Hague Regulations are declaratory of customary international law, and apply to, and regulate the conduct of the IDF in, the West Bank.29
sovereignty over Area C’, The Jerusalem Post (online) (Jerusalem), 17 June 2013
60
Given this, there can be no serious doubt that the Hague Regulations apply to the parts of the West Bank where the settlements have been built. It is an occupation according to the test set by article 42. The question remains, however, as to whether GCIV applies in its entirety to also regulate the conduct of Israel in the West Bank.
IV. GCIV AND ADDITIONAL PROTOCOL I
Adopted in 1949, GCIV also regulates how occupying powers are to manage occupied territories, setting minimum standards for how the civilian population is to be treated.30 It, like the other three Geneva Conventions, has received the assent of all States, but it is not clear whether all its provisions reflect customary international law.31 Israel, Jordan and, in 2014, Palestine, have ratified GCIV without any reservations.
The status of API32 is more ambiguous. It is not universally accepted, with a small group of states, including the US and Israel, refusing to ratify the Convention.33 Palestine acceded to the treaty in 2014. Nevertheless, the ICRC has argued that many of the provisions of API represent customary law and as such bind all states, whether they have ratified the treaty or not.34
The Hague Regulations and GCIV are closely connected. Article 154 of GCIV explains that it is “supplementary” to the Hague Regulations.35 The 2016 ICRC GCI Commentary explained that GCIV “builds on the Hague Regulations but does not replace them for the purposes of defining the notion of occupation.”36
30 GCIV. 31 Dinstein, above n 13, 7. 32 API. 33 Dinstein, above n 13, 7. 34 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (Cambridge University Press, 2005). Also Dinstein, above n 13, 8. 35 GCIV. Dinstein explains that “In other words, the Convention builds on the Hague Regulations – either by extending their scope or by fleshing out their somewhat vague structures – but it does not supersede them”: above n 13, 6. 36 ICRC GCI Commentary 2nd ed, above n 16, [296]. The Hague Regulations have a different focus to the GCIV and API. The former emphasises the protection of the power of the displaced sovereign and maintaining property rights; the latter the wellbeing of the civilian population under occupation: Benvenisti, above n 18, 11-12; Dinstein, above n 13, 6.
61
GCIV explicitly sets out when it will apply. Article 2 of the Convention (an article common to all four Geneva Conventions37) provides:
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the later accepts and applies the provisions thereof.38
Article 2 sets out when the Convention starts applying to a territory. Article 6 sets out when the application ceases to apply. It provides that:
The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.
In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.
In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying power shall be bound, for the duration of occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.
37 Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field of 12 August, 1949, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 12 August 1959, 75 UNTS 135 (entered into force 21 October 1950); GCIV (collectively, ‘Geneva Conventions’). 38 GCIV, art 2.
62
[…]39
If the requirements of article 2 are met, then the operation of article 6 must be considered. This is discussed in more detail at the end of this chapter.
The factual situation at the beginning of Israel’s possession of the West Bank is reasonably clear: there is no doubt that Israel was engaged in an armed conflict with Jordan,40 a High Contracting Party to the Geneva Convention. As will be seen, for the majority of the international community, including the UN General Assembly (‘UNGA’) and Security Council (‘UNSC’), the International Court of Justice (‘ICJ’) and the ICRC, this armed conflict is enough to trigger the application of GCIV by virtue of the first paragraph of article 2. However, Israel disputes this interpretation, instead arguing that, for the Convention to apply to the territory it is necessary for the territory to have been taken from the legitimate sovereign of the territory.
This section will outline the arguments put forward regarding the applicability of GCIV, and the bases on which they are made. The two arguments that will be considered are:
1. The orthodox view that GCIV applies due to the first paragraph of article 2. 2. The view of the Israeli Government that GCIV does not apply because, in 1967 no, High Contracting Party to the Geneva Conventions was the legitimate sovereign of the West Bank.
After these arguments have been explained, this thesis will analyse the text and other relevant features of article 2, and set out the preferable approach to its interpretation.
A. The orthodox view The orthodox view within the international community is that GCIV applies to the West Bank on the basis of the first paragraph of article 2.41 According to this
39 Ibid. 40 In 1967, Israel was not just at war with Jordan, but also Egypt, Syria and Iraq. However, for the purposes of this analysis the critical state is Jordan as it was in possession of the West Bank. See Mark A. Tessler, A History of the Israeli-Palestinian Conflict (Indiana University Press, 2nd ed, 2009), 392-7; Ritchie Ovendale, The Origins of the Arab-Israeli Wars (Pearson Education Ltd, 4th ed, 2004), 207-8; William L. Cleveland, A History of the Modern Middle East (Westview Press, 3rd ed, 2004), 399. 41 Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ (2003) 44 Harvard International Law Journal 65, 95; Richard Falk and Burns H. Weston, ‘The
63 interpretation, all that is necessary for the Convention to apply to an occupation is that it commenced during an international armed conflict between two High Contracting Parties. As the West Bank was occupied by Israel during an armed conflict with Jordan and allied neighbouring Arab states, the Convention applies to the territory. According to this interpretation, the prior status of the West Bank is irrelevant for the purposes of article 2.
In this part, the view of the International Court of Justice, both the UNSC and UNGA, and other relevant international bodies will be set out. Then, the approach of the Supreme Court of Israel will be addressed.
International Court of Justice
The ICJ in the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Palestinian Territories (‘Wall Advisory Opinion’) considered in detail the status of the West Bank in international law.42 While the Opinion remains somewhat controversial,43 as the ICJ is the preeminent judicial organ of the international legal system, it is necessary to set out the parts of the Opinion that relate to the application of GCIV in some detail.
The case came before the Court as a request from the UN General Assembly to render an advisory opinion on the “legal consequences arising from the construction of the wall” that was being built in the West Bank by Israel.44 Israel did not participate fully in the hearings, and its input was limited to submitting a written statement on jurisdiction and judicial propriety.45 Having decided that it had jurisdiction to provide
Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada’ (1991) 32 Harvard International Law Journal 129, 140; Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967’ above n 29. 42 Wall Advisory Opinion [2004] ICJ Rep 136. 43 See Ardi Imseis, ‘Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’ (2005) 99(1) American Journal of International Law 102; David Kretzmer, ‘The Advisory Opinion: The Light Treatment of International Humanitarian Law’ (2005) 99(1) American Journal of International Law 88; Djamchid Momtaz, ‘Israel and the Fourth Geneva Convention: On the ICJ Opinion Concerning the Separation Barrier’ (2005) 8 Yearbook of International Humanitarian Law 344. 44 Wall Advisory Opinion [2004] ICJ Rep 136 [15-17]. This request was made by the General Assembly on 8 December 2003, and the decision was handed down by the Court on 9 July 2004. 45 Ibid [57].
64 such an advisory opinion,46 and that the General Assembly had the power to make such a request,47 the Court turned its attention to the history of the West Bank in order to determine what body of law applied to the territory.
The Court explained that the events leading up to the occupation and subsequent to it had not changed the status of the territories:
[The West Bank was] occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories … have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying power.48
The Court begun its analysis of the relevant principles of international law by reiterating that territorial acquisition by force was prohibited under customary international law.49 Further, the Court noted that the right of people to self- determination had the status of a right erga omnes.50
The Court held that both the Hague Regulations (as part of customary international law)51 and GCIV applied to the West Bank.52 The Opinion set out in some detail the Court’s negative assessment of the argument raised by Israel against the application of the Convention. The Court explained that article 2 provides that GCIV applies when:
… two conditions are fulfilled: that there exists an armed conflict (whether or not a state of war has been recognised); and that the conflict has arisen between two contracting parties. If those two conditions are satisfied, the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties.53
46 Ibid [4]. 47 Ibid [28]. 48 Ibid [78]. 49 Ibid [87]. 50 Ibid [88]. 51 Ibid [78], [89]. 52 Ibid [90]. This was the view of all of the judges, including Judge Buergenthal (at [2]) who dissented on many of the other substantive international law issues. 53 Ibid [95].
65
As such, the Court found that GCIV applied to the territory due to the first paragraph of article 2, noting that this interpretation was consistent with the intention of the drafters of the Convention.54 Jordan and Israel were parties to the Convention when the 1967 armed conflict broke out and, therefore, any land taken by Israel during the conflict between them is “occupied”55 regardless of the prior status of those territories.56
United Nations
Numerous UN Security Council and General Assembly resolutions have described the territories that came under Israel’s control in 1967 as “occupied”57 and have stated that GCIV applies to those territories.58 It should be noted that these resolutions do not explain the basis on which the Convention applies; only that it does. One example is Security Council Resolution 605 of December 1987, which described the territories taken by Israel in 1967 as “occupied” and reaffirmed that GCIV was applicable to the Palestinian Territories (which includes the West Bank).59
The most important UN Security Council Resolution is 242 of 22 November 1967. This resolution was highly significant politically, and its meaning and import continues to be disputed. While this resolution does not mention GCIV, it does refer to the territories as being “occupied”. 60 It further emphasises the “inadmissibility of the acquisition of territory by war” and affirms that, in order for a “just and lasting peace” Israel must withdraw from “territories occupied in the recent conflict.”61 The Resolution also affirms the right of all states to “live in peace within secure and
54 Ibid. 55 Ibid. 56 Ibid [101]. 57 SC Res 242, UN SCOR, 1382nd mtg, UN Doc S/RES/242 (22 November 1967). 58 SC Res 237 UN SCOR, 1361st mtg, UN Doc S/RES/237 (14 June 1967); SC Res 681, UN SCOR, 2970th mtg, UN Doc S/RES/681 (20 December 1990); SC Res 442, UN SCOR, 2134th mtg, UN Doc S/RES/442 (22 March 1979); SC Res 799, UN SCOR, 3151st mtg, UN Doc S/RES/799 (18 December 1992); SC Res 904, UN SCOR, 3351st mtg, UN Doc S/RES/904 (18 March 1994); SC Res 1322, UN SCOR, 4205th mtg, UN Doc S/RES/1322 (7 October 2010); SC Res 1544, UN SCOR, 4972nd mtg, UN Doc S/RES/1544 (19 May 2004); SC Res 1435, UN SCOR, 4614th mtg, UN Doc S/RES/1435 (24 September 2002). 59 SC Res 605, UN SCOR, 2777th mtg, UN Doc S/RES/605 (22 December 1987). 60 SC Res 242, UN SCOR, 1382nd mtg, UN Doc S/RES/242 (22 November 1967). 61 Ibid.
66 recognised boundaries free from threats or acts of force.”62 Most recently, Resolution 2334 of 23 December 2016 reaffirmed “the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention.”63
Similarly, the General Assembly has adopted many resolutions affirming that GCIV applies to the territories occupied by Israel in 1967.64 For example, in Resolution 60/105 of January 2006, the Assembly demanded that Israel “accept the de jure applicability” of the Convention in the relevant territories.65
Other international bodies
The State parties to GCIV approved the orthodox interpretation in a statement in 2001, affirming the applicability of the Convention to the West Bank.66 The ICRC, which has a special position with respect to the Geneva Conventions,67 has consistently stated that the Convention applies to the territory.68 In a statement in 1997, the ICRC said:
In its capacity as the custodian of international humanitarian law and in agreement with the international community, the ICRC has always affirmed the applicability of the Fourth Geneva Convention to the territories occupied by Israel in 1967. Today, the ICRC considers that Israel remains bound by the provisions of that Convention, in
62 Ibid. 63 SC Res 2334, UN SCOR, 7853rd mtg, UN Doc S/RES/2334 (23 December 2016). 64 Examples include: GA Res 59/124, UN GAOR, 59th sess, 71st plen mtg, Agenda Item 76, UN Doc A/RES/59/124 (25 January 2005); GA Res 62/109, UN GAOR, 62nd sess, 75th plen mtg, Agenda Item 33, UN Doc A/RES/62/109 (10 January 2008); GA Res 64/92, UN GAOR, 64th sess, 62nd plen mtg, Agenda Item 32, UN Doc A/RES/64/92 (19 January 2010); GA Res 32/91, UN GAOR, 32nd sess, 101st plen mtg, UN Doc A/RES/32/91 (13 December 1977); GA Res 33/113, UN GAOR, 33rd sess, 87th plen mtg, Agenda Item 55, UN Doc A/RES/33/113 (18 December 1978); GA Res 44/48, UN GAOR, 44th Sess sess, 78th plen mtg, Agenda Item 77, UN Doc A/RES/44/48 (8 December 1989). 65 GA Res 60/105, UN GAOR, 60th sess, 62nd plen mtg, Agenda Item 31, UN Doc A/RES/60/105 (18 January 2006). 66 Conference of High Contracting Parties to the Fourth Geneva Convention, ‘Declaration’ (Geneva, 5 December 2001) included in Pierre-Yves Fux and Mirko Zambelli, ‘Mise en oeuvre de la Quatrième Convention de Genève dans les territoires palestiniens occupés: historique d’un processus multilatéral (1997-2001)’ (2002) 847 International Review of the Red Cross 661, Annex 1, 683. 67 GCIV art 142. 68 See more recently International Committee of the Red Cross, ICRC Annual Report 2013 (2014) 484.
67
particular as concerns the territorial and administrative powers it is actually exercising there.69
The President of the ICRC, Peter Maurer, wrote in 2012 that:
In the Occupied Palestinian Territory – that is, the West Bank, East Jerusalem, and the Gaza Strip – the applicable legal framework is the law of belligerent occupation. This consists of the rules enshrined in the 1907 Hague Regulations, the Fourth Geneva Convention, and customary IHL. The latter provides a critically and universally accepted legally binding framework to ensure respect for the life and dignity of people living under military occupation.70
President Maurer stated that the application of the Convention to the situation in the West Bank was, in the ICRC’s view, “beyond doubt.”71
The UN Human Rights Council and its predecessor, the UN Commission on Human Rights, have adopted numerous resolutions affirming that GCIV applies to the West Bank. While these bodies have been criticised, sometimes fairly, for anti-Israel bias,72 as the UN institutions set up to specifically focus on human rights concerns, the views they express are worth considering. A few examples will suffice. In a 1977 Resolution, the Commission deplored:
… Israel’s continued violations, in the occupied Arab territories, of the basic norms of international law and of the relevant international conventions, in particular, Israel’s grave breaches of the [GCIV] which are considered as war crimes and an affront to humanity, as well as Israel’s persistent defiance of the relevant resolutions of the United
69 ICRC, ‘Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory’ (Statement, 13 November 1997)
68
Nations and its continued policy of violating the basic human rights of the inhabitants of the occupied Arab territories.73
In Resolution 1992/2, the Commission reaffirmed that GCIV was applicable to the West Bank, and called upon Israel to comply with its international commitments.74 In Resolution 2004/9, the Commission expressed its “grave concern” at the continued expansion of the settlements in the West Bank, categorised as “in violation” of GCIV.75 In Resolution S-12-1 of October 2009, the Human Rights Council affirmed the applicability of GCIV to the Palestinian territories.76
Supreme Court of Israel
The Supreme Court of Israel has been required on numerous occasions to rule on the conduct of the Israel Defence Forces in the West Bank.77 This, of course, has required the Court to determine what body of law applies. To this end, the Court has consistently found that the West Bank was, and remains, subject to the customary international law of belligerent occupation, but that the question of whether GCIV applies de jure is not justiciable.78 In numerous cases the Court has stated unambiguously that the right of the military commander to control the area and
73 UN Commission on Human Rights, Question of the Violation of Human Rights in the Territories Occupied as a Result of Hostilities in the Middle East, 33rd sess, UN Doc E/CN.RES/1/(XXXIII) (15 February 1977). 74 UN Commission on Human Rights, Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine, 27 mtg, 48th sess, UN Doc EN/CN.4/RES/1992/2 (14 February 1992). 75 UN Commission on Human Rights, Israeli Settlements in the Occupied Arab Territories UN Doc E/CN.4/RES/2004/9 (15 April 2004). 76 Human Rights Committee, The Human Rights Situation in the Occupied Palestinian Territory, including East Jeruslaem, 12th special sess, UN Doc A/HRC/RES/S-12/1 (16 October 2009). 77 See David Kretzmer, ‘The Law of Belligerent Occupation in the Supreme Court of Israel’ (2012) 94(885) International Review of the Red Cross 207 and Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, above n 28 for further detail about how the Court has dealt with these cases. 78 Dinstein, above n 13, 23; Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, above n 28, 39; Yutaka Arai, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Martinus Nijhoff Publishers, 2009), 49-50. This approach has been criticised on the basis that the Convention was not applying to the internal law of Israel, but to the West Bank which was external to Israel: Amnon Rubinstein, ‘The Changing Status of the Territories (West Bank and Gaza): From Escrow to Legal Mongrel’ (1988) 8 Tel Aviv U.Stud.L. 59, 66.
69 institute military government is based on the rules of customary international law as expressed by the Hague Regulations, and that this law binds the IDF.79
In Ayyub v Minister for Defence80 (the ‘Beth El case’), Justice Witkon considered the nature of the Israeli possession of the West Bank and concluded that it was “one of belligerency, and the status of the respondents in respect of the occupied territory is that of an occupying power.”81 His Honour applied the Hague Regulations to judge the conduct of the IDF, but decided that he was unable to rule on the basis of GCIV.82 In the same case, Justice Landau referred to the arguments about the applicability of GCIV83 but declined to make a determination on the basis that it was not part of the municipal law of Israel because it was conventional (as opposed to customary) international law.84 As such, it needed to be incorporated by the legislature in order to become part of the law of Israel enforceable by the Supreme Court.
In Dweikat v Government of Israel85 (the ‘Elon Moreh’ case), the legality of a requisition order of private land for civilian settlements was challenged. Deputy President Landau again found that the applicability of GCIV was not justiciable, as it was not part of domestic Israeli law.86 He instead judged the legality of the requisition order on the law “by which the Commander who issued it derives his powers,” which was a combination of Israeli municipal law and the Hague Regulations (as international customary law).87 Similarly, Justice Witkon held that whether the requisition was legal under GCIV was not justiciable.88 He explained the basis on which he reached this conclusion:
79 Haetzni v Minister of Defense (1980) 34(3) PD 595, 597 cited in Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, above n 28, 39. 80 Dweikat v Government of Israel translated in ‘Appendix A: Selected Judgments of the Supreme Court of Israel’ in Meir Shamgar (ed), Military Government in the Territories Administered by Israel 1967 - 1980: The Legal Aspects (Hebrew University, 1982) vol I, 371-97. 81 Ibid 374. 82 Ibid 381-3. 83 Ibid 387-9. 84 Ibid 389. 85 Ibid 404-441. 86 Ibid 418-9. 87 Ibid 417-8. 88 Ibid 337.
70
… we distinguish between customary international law and conventional international law. The former is part of municipal law and the latter is not, unless adopted by national legislation. The Hague Rules are part of customary international law and therefore there is occasion for the Court to examine the legality of the requisition [under the Hague Regulations].89
However, Justice Witkon went on to note that this did not mean that GCIV and the Hague Regulations did not apply:
It is a mistake to think (as I read recently in a newspaper) that the Geneva Convention does not apply to Judea and Samaria. It applies, even though, as I said above, it is not “justiciable” in this Court. Nor would I say that the “humanitarian” provisions of the Convention are intended solely to protect the life, health, freedom or honour of a person and not property. Who like us knows the value of possession?90
This has continued to be the approach in more modern cases. In Public Committee against Torture in Israel and Anor v Government of Israel and Ors (the ‘Targeted Killings Case’),91 the Supreme Court considered whether Israel’s policy of targeted killing in the West Bank was lawful. President Barak held that the relevant legal standards to be applied to the conduct of the IDF were found in customary IHL, including the Geneva Conventions and Hague Regulations.92 His Honour held that the conflict between Israel and the terrorist groups in the West Bank was an international armed conflict, and the parties had all the rights and duties that followed from such a categorisation.93 He did not, however, make a finding about whether GCIV applied de jure to the West Bank. He explained that:
As is well known, the position of the Government of Israel is that, in principle, the laws of belligerent occupation in The Fourth Geneva Convention do not apply regarding the area. However, Israel honors the humanitarian provisions of that convention. That is sufficient for the purposes of the petition before us.94
89 Ibid 437. 90 Ibid. 91 Public Committee against Torture in Israel v Israel (2007) 46 ILM 375. 92 Ibid [20-1]. 93 Ibid [21]. 94 Ibid [20] (citations omitted).
71
President Barak did not go on to decide which parts of GCIV were the “humanitarian” provisions. It is perhaps possible to detect some hypocrisy in allowing the Government to claim the military freedom the law of armed conflict offers military forces without also recognising all the protections that the same body of law provides to civilians subject to a military occupation.95
B. Narrow view of Article 2 The position taken by the Government of Israel is contrary to the orthodox position and finds very little support in the scholarship of international law. Given the importance of determining whether GCIV applies to the West Bank, it is necessary to closely analyse the arguments that have been raised by Israel, and the arguments that could be made in its favour. This part will explain the official position of the Government of Israel that, for the Convention to apply, the ‘occupied’ territory must have been taken from the legitimate sovereign of that territory. It will then examine the legal arguments used to support this position. These arguments are made on two grounds: first, the purpose of the Convention requires this limitation, and second, it is required by the text of the second paragraph of article 2.
This section will refrain from critiquing the arguments raised against the application of the Convention, but rather focus on ensuring they are represented fairly. The purpose of this approach is to ensure that the arguments are both understood as their proponents put them, and so are tested by this thesis at their most persuasive.
Position of the Government of Israel
Israel has maintained since 1967 that GCIV does not apply to its possession of the West Bank.96 This legal position is based on the view that, for GCIV to apply, it is necessary for the territory in question to have been ‘taken’ from the legitimate sovereign of the
95 The Court relied on the consent of the representative of the State to apply the Convention – an approach that has been criticised by members of the Court. See Justice Witkon said in Hilu et al. v Government of Israel et al (1973) 27(ii) P.D. 169, 181 as quoted in Ruth Lapidoth, ‘International law within the Israel legal system’ (1990) 24 Israel Law Review 451, 472. 96 Rubinstein, above n 78, 60. Rubinstein reports in the period immediately following the 1967 conflict there was strict adherence to the rules of international law (including the application of the GCIV), but that this quickly came to an end. Also see Meron, above n 29, 5-6.
72 territory.97 According to Israel, as Jordan controlled the West Bank, but was not the legitimate sovereign of the territory,98 article 2 does not trigger the application of GCIV.
The Israel Ministry of Foreign Affairs (IMFA) has set out in detail the argument supporting this legal position. First, IMFA argues that the situation in which Israel came to control the territory has some legitimacy, stating that Israel gained control over the West Bank in a war of self-defence where Israel’s “very existence was threatened.”99 As the war was one of self-defence, and the Palestinians have failed to reach a peace agreement with Israel, it argues that “Israel’s claim to this disputed territory is no less valid than that of the Palestinians.”100 This appears to be based not on a legal argument, but on the historical connection the people of Israel have with the land of the West Bank. Referring to the territory by its biblical name, IMFA says that ‘Judea and Samaria’ was “the cradle of Jewish civilisation during biblical times” and that “Jewish communities existed there over thousands of years.”101
After this statement, IMFA is careful to point out that the claim to the territory is “also firmly grounded in international law and custom.”102 It is best to set out the argument in the words of IMFA:
Israel’s presence in the territory is often incorrectly referred to as an “occupation.” However, under international law, true occupation occurs only in territories that have been taken from a recognised sovereign. The last recognised sovereign of the West Bank and Gaza was the Ottoman Empire, which ceased to exist following the First World War. The Jordanian and Egyptian control over the West Bank and Gaza respectively following 1948 resulted from a war of aggression aimed at destroying the newly established Jewish state. Their attacks plainly violated UN General Assembly Resolution 181 from 1947 (also known as the Partition Plan). Accordingly, the Egyptian
97 This position is also adopted by a limited number of authors including Alan Baker, ‘International humanitarian law, ICRC and Israel’s status in the Territories’ (2012) 94 International Review of the Red Cross 1511 and David M. Phillips, ‘The Illegal-Settlements Myth’ (2009) 128(5) Commentary 32. 98 See history chapter for further detail. 99 Israel Ministry of Foreign Affairs, Israel, the Conflict and Peace: Answers to Frequently Asked Questions, (30 December 2009) Israel Ministry of Foreign Affairs
73
and Jordanian control over the territories was never recognised by the international community. Furthermore, no sovereign Palestinian state has ever existed, neither in the West Bank nor anywhere else.
As the West Bank had no prior legitimate sovereign, under international law these areas cannot be considered as “occupied” Arab or Palestinian lands, and their most accurate description would be that of disputed territories.103
While it does not mention GCIV explicitly, the implication is clear: it does not apply because a ‘true occupation’ only occurs when the territory is taken from a ‘recognised sovereign’.104 One reason for the reluctance to recognise the applicability of GCIV is the fear that to do so would be an implicit acceptance of Jordanian sovereignty over the West Bank.105
Israel has always been careful to point out that despite this view, Israel has always applied the ‘humanitarian provisions’ of GCIV to the West Bank. It is not clear what parts of GCIV are considered the ‘humanitarian provisions’, and the ambiguity essentially allows Israel to determine which provisions of the Convention to apply and which to ignore.106
103 Ibid. 104 This has been the Israeli position since soon after the 1967 conflict. It is consistent with a 1971 paper by Meir Shamgar, then Attorney General of Israel from 1968 to 1975, and later the President of the Supreme Court of Israel, which set out a legal basis for Israel’s rejection of the applicability of GCIV to the West Bank. Prime Minister Rabin and Defense Minister Peres used it in a meeting in 1976 with US Senator Mathias and US Ambassador Toon. Israeli representatives to the UN have used it on several occasions to explain why GCIV does not apply. See Bar-Yaacov, above n 27; Meir Shamgar, ‘The observance of international law in the administered territories’ in Yoram Dinstein and Fania Domb (eds), The Progression of International Law: Four Decades of the Israel Yearbook on Human Rights - An Anniversary Volume (University of Israel, 2011) 429; Pnina Sharvit Baruch, ‘Understanding the Settlements Debate’ (2017) 111 AJIL Unbound 36. 105 Meir Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government - The Initial Stage’ in Meir Shagmar (ed), Military Government in the Territories Administered by Israel, 1967- 1980: The Legal Aspects (Hebrew University Jerusalem, Faculty of Law, Harry Sacher Institute for Legislature Research and Comparative Law, 1982) 13, 37. Also see Bar-Yaacov, above n 27, 492. 106 Bar-Yaacov, above n 27, 493. Another component of this debate that is worth noting (but that is beyond the scope of this thesis) is the complex question of the extent to which internationally recognised human rights is applicable during an occupation and therefore to the West Bank, and the relationship between this body of law and IHL.
74
Yehuda Blum: ‘The Missing Reversioner’
The Israeli argument is an adapted version of the ‘missing reversioner’ argument first formulated by Yehuda Blum.107 To properly understand his position, it is first necessary to set out the factual assumptions made by Blum. He argued that Jordan never acquired ‘legitimate’ sovereignty over the West Bank as it took the land during an illegitimate military intervention in 1948, an act that constituted a use of force contrary to article 2(4) of the UN Charter.108 According to Blum, this act could not give rise to any valid legal title.109 Rather, Blum concluded that the “most favourable construction” that can be placed on the Jordanian possession of the West Bank in 1948 is that Jordan “enjoyed the rights of a belligerent occupant.”110 As this kind of possession does not displace the existing sovereign of the territory, the purported annexation of the West Bank by Jordan in 1950 had no validity in international law.111
Blum went on to consider the possession of the West Bank by Israel. He saw the fact that Jordan was not the legitimate sovereign of the West Bank as crucially important: his view is that for a party to a conflict to be considered a ‘belligerent occupant’, it must have ousted a legitimate sovereign from the territory it has taken into possession.112 He argued that protection of the legitimate sovereign’s rights is at the “root” of the rules of belligerent occupation.113 In situations where the ousted State was not the legitimate sovereign, “those rules of belligerent occupation directed to safeguarding that sovereign’s reversionary rights have no application.”114
Blum argued that this means that the only part of the law of belligerent occupation that will apply is that which protects the humanitarian rights of the occupied population.115
107 Yehuda Blum, ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’ (1968) 4 Israel Law Review 279. For a comprehensive critique of Blum’s argument see Eyal Benvenisti, ‘The Missing Argument: The Article that Changed the Court of History?’ (2017) 111 AJIL Unbound 31. 108 Ibid. 109 Ibid 283. Blum’s opinion was shared by the majority of the international community with only Britain, Pakistan and Iraq recognising Jordan as the sovereign of the West Bank: see Benvenisti, above n 18, 202. 110 Blum, above n 107, 288. 111 Ibid 289. 112 Ibid 293. 113 Ibid. 114 Ibid. 115 Ibid 294.
75
Blum did not go on to identify which particular rules of belligerent occupation protect the ‘humanitarian rights’ of the occupied population. Blum concluded that the position of Israel was a State “lawfully in control of territory in respect of which no States can show better title”; or “at the very least that of a belligerent occupant of territory in respect of which Jordan is not entitled to the reversionary rights of a legitimate sovereign.”116 Thus, as no other State can show better title, Israel is not subject to all the rules of GCIV.
Limitation of second paragraph of article 2
This argument was refined by Meir Shamgar when he was Attorney-General of Israel in the early 1970s. Rather than basing his conclusion on the purported purpose of the Convention, Shamgar focused on the text of the second paragraph of article 2. From that paragraph, he concluded that for the Convention to apply the territory must be “under the sovereignty of another High Contracting Party prior to its occupation.”117 His argument was also adopted by Julius Stone to deny that GCIV applied to the West Bank.118
Shamgar and Stone based their conclusion on a close and formalistic interpretation of the words of article 2, arguing that the first paragraph deals with situations of armed conflict that do not involve military occupation, with the second paragraph dealing specifically with all cases of occupation.119 In the alternative, Shamgar posited that, even if the view is taken that the Convention applies to every armed conflict and any consequences of that conflict (such as occupation), and the second paragraph is only “complementary”, article 2 still places a limit on the kinds of occupation that will be
116 Ibid. 117 Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government - The Initial Stage’ above n 105, 33. 118 Julius Stone, Israel and Palestine: Assault on the Law of Nations (John Hopkins University Press, 1981), 177-8. It was also restated by in David Ball, ‘Toss the Travaux? Application of the Fourth Geneva Convention to the Middle East Conflict - A Modern (Re)Assessment’ (2004) 79 New York University Law Review 990. Ball made some effort to tie his argument to the negotiating history of the Convention, but his argument still relied upon the same close textual analysis put forward by Shamgar. 119 Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government - The Initial Stage’ above n 105, 38.
76 regulated by GCIV. In this way, he saw the provision as the definition setting the boundaries of what amounts to a belligerent occupation.120
Disagreeing explicitly with the official commentary of the ICRC, Shamgar used a close analysis of the text of article 2 to arrive at this conclusion:
[T]he general context, the syntax of the sentence and the use of the word “even” in the last clause of the second paragraph contradict the argument that the second paragraph adds to the Article only the specific situation mentioned in its last clause (starting with “even”). Would the paragraph refer only to the situation where occupation is not met with resistance, the word “even” would have been entirely superfluous. In other words, the text adopted accords a more general meaning to the second paragraph than the one connected with its final cause only, whatever the meaning intended to be conferred upon it by its draftsmen.121
Shamgar claimed that, even if it was accepted that the second paragraph only referred to situations where an occupation takes place without armed conflict, the reference to the territory being “of another High Contracting Party” could not be ignored.122 He warned that, if it was ignored, it could lead to a situation where the applicability of the Convention depended on whether there had been armed conflict, and in cases where there was no armed conflict, the test would be more restrictive.123
Shamgar was particularly concerned that accepting that the Convention applied would necessarily amount to recognition that Jordan and Egypt were the legitimate sovereigns of the West Bank and Gaza Strip prior to 1967, which would then impose an obligation on Israel to protect their respective reversionary rights.124
V. WHAT INTERPRETATION OF ARTICLE 2 SHOULD BE PREFERRED?
This section will set out the preferable approach to the interpretation of article 2 of GCIV at international law. The article will be considered according to the accepted principles of international treaty interpretation, which, as explained in the section in
120 Ibid 38-9. 121 Ibid 39. 122 Ibid 40. 123 Ibid. 124 Ibid 33-34, 37
77 the introductory chapter establishing the method of interpretation, require that the text, object and purpose, and context of article 2 be taken together and not considered in isolation. In addition, the provision must be interpreted with ‘good faith’. Therefore, while each aspect will be addressed separately for ease of analysis, the conclusion on the interpretation of article 2 will be drawn from bringing all the strands together.
This section of the chapter will first consider the object and purpose of the Convention as a whole, and then the drafting history of article 2. It will then address the first and second paragraph of the article, and consider the text and other relevant factors. It will be concluded that the orthodox view of the interpretation of article 2 is overwhelmingly persuasive.
A. Object and Purpose of the Convention The primary object and purpose of GCIV is to protect civilians during armed conflicts and when they are under occupation by a hostile power.125 There is ample evidence to support this proposition. Theodor Meron, himself the Legal Advisor to the Israeli Ministry of Foreign Affairs in 1967 when Israel first took control of the West Bank, wrote:
It must be remembered that, as a humanitarian convention par excellence, the Fourth Geneva Convention is concerned primarily with people, rather than territory; with human rights, rather than with legal questions pertaining to territorial status.126
As set out above, Blum and Shamgar incorrectly identified the predominant purpose of GCIV and occupation law more generally as protecting the “reversionary rights” of the legitimate sovereign of the territory.127 While this may have been true for the Hague Regulations, and while protecting the rights of the “legitimate sovereign” is a factor behind some of the provisions of GCIV,128 the following will show that the
125 Benvenisti, above n 18, 207; Dinstein, above n 13, 6. 126 Theodor Meron, ‘West Bank and Gaza: Human Rights and Humanitarian Law in the Period of Transition’ (1979) 9 Israel Yearbook on Human Rights 106, 109. Meron further sets out the basis for his argument that it is primarily a humanitarian convention in n 29, 10-14. 127 Blum, above n 107; Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government - The Initial Stage’ above n 105. Also see Ball, above n 118. 128 See for example GCIV art 54 and 64.
78 humanitarian concerns come first. This primary purpose severely undermines the persuasiveness of the argument raised by Israel against the application of GCIV.
Multiple aspects of GCIV illustrate this point. Its full title is the ‘Geneva Convention relative to the Protection of Civilian Persons in Time of War’. Other provisions of the Convention demonstrate that the primary purpose is to protect individuals. Article 4 ensures that the application of the Convention is broad and inclusive, providing that:
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.129
Furthermore, article 47 shows that protecting individuals is a higher priority than the sovereignty of the parties responsible for the territory. This article ensures that changes to the way that the territory is governed do not reduce the protections available to protected persons under GCIV. It provides that:
Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.130
Article 47, like article 2, is intended to ensure that the Convention’s scope is broad enough to adequately protect people during armed conflict and any subsequent occupation. It indicates that the central purpose of the Convention is the protection of individuals.
This view is supported by the 1958 ICRC Commentary to GCIV. The introduction to the Commentary explains that the Convention was drafted to cover gaps in the protections afforded to civilians under the existing IHL treaties.131 Civilians in occupied countries had been left without protection and “at the mercy of the enemy power and were liable to be deported, taken as hostages, or interned in concentration camps.
129 GCIV art 4. 130 GCIV art 47. 131 Jean Pictet (ed), Commentary to IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC, 1958), 3-5.
79
Hundreds of thousands among their number met with a ghastly death.”132 The introduction goes on to explain:
The Convention does not, strictly speaking, introduce any innovations in international law. It does not put forward any new ideas. But it reaffirms and ensures, by a series of detailed provisions, the general acceptance of the principle of respect for the human person in the very midst of war – a principle on which too many cases of unfair
treatment during the Second World War appeared to have cast doubt.133
The drafting history of the Geneva Conventions is also instructive as to its overall purpose. The XVIIth International Red Cross Conference, which met in 1948 in Stockholm and approved the Draft Conventions prepared by the ICRC, passed a resolution explaining that the Convention “correspond[s] to the fundamental aspirations of the peoples of the world and that they define the essential rules for that protection to which every human being is entitled” and reiterated the “urgent necessity of ensuring the effective protection of civilians in time of war by a Convention.”134
B. Drafting history of Article 2 The drafting history of article 2 indicates that it was designed to ensure that the Geneva Conventions applied broadly to all situations of armed conflict and occupation. It illustrates that an interpretation of the article that prevents GCIV from applying on formalistic legal grounds, such as if territory was held by a High Contracting Party prior to occupation, is inappropriate. It will be seen that article 2 of the Convention was drafted in such a way as to preclude State parties from using legalistic arguments to avoid their obligations.
The 1946 Report on the Work of the Preliminary Conference of National Red Cross Societies for the Study of the Conventions and of Various Problems Relative to the Red Cross and the 1947 Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims record the negotiations that led to the draft Conventions that formed the basis of the Geneva Conventions.135 Each Report set out the results of a
132 Ibid 5. 133 Ibid 9. 134 See ICRC, Seventeenth International Red Cross Conference: Report (1948) and ICRC, Final Record of the Diplomatic Conference of Geneva of 1949, (1949) vol 1. 135 ICRC, Report on the Work of the Preliminary Conference of National Red Cross Societies for the Study of the Conventions of Various Problems Relative to the Red Cross, Geneva, July 26 - August 3,
80 series of Commissions that had investigated what the new treaties should contain and how the provisions should be drafted. As such, these reports shed some light on the background to article 2 and how the provision was ultimately formulated.
The Report of the First Commission in 1946 recommended that an article be included in the Convention for the Relief of the Wounded and Sick in Armies in the Field (first drafted in 1929) which explicitly provided that it applied to all cases of armed conflict between states, even if there was no declaration of war, and also to cases of civil war.136 The Third Commission of the same year, which considered a treaty to protect civilians in time of war, recommended explicitly extending the application of the Conventions to situations of occupation. It suggested the addition of a paragraph to the article that provided that “the Convention is applicable also in the event of territorial occupation in the absence of any state of war.”137
The First Commission of Government Experts in 1947 recommended some minor changes to the draft article put forward in the 1946 report.138 It also explained that the article was drafted to ensure that the Convention was applicable to all cases of armed conflict to ensure “the humanitarian principles contained therein should be respected in all circumstances.”139 The Second Commission of 1947, which specifically considered the Convention applicable to the Protection of Enemy Aliens in Time of War (the predecessor to GCIV), also made minor changes to the drafting of this article.140 The paragraph relating to occupation provided that the Convention was applicable “also in the event of territorial occupation in the absence of any state of war.”141 The Second Commission explained that this article was adopted to ensure that the Convention was “applicable
1946 (1947); ICRC, Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14-26, 1947 (1947). For a detailed explanation of the drafting process see ICRC, Draft Revised or New Conventions for the Protection of War Victims (1948), 2. 136 ICRC, Report on the Work of the Preliminary Conference of National Red Cross Societies for the Study of the Conventions of Various Problems Relative to the Red Cross, Geneva, July 26 - August 3, 1946 (1947), 14-5. 137 Ibid 272. 138 ICRC, Report on the work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14-26, 1947 (1947). 139 Ibid 8. 140 Ibid 272. 141 Ibid.
81 to all cases of armed conflict, whatever their juridical nature, and to every occupation of territories, even should this occupation not be forcible.”142
The Second Commission also made observations in its Preamble to the draft convention setting out why it was considered necessary to have an article that determined the circumstances in which the Convention applied. The Preamble explained that the Conference was concerned that existing treaties provided for a legal definition of a state of war, but that these definitions had not always applied to situations that, in reality, corresponded to a state of war.143 The Second Commission identified the situation that the drafting of the Convention was trying to avoid:
In certain cases the aggressors eluded the obligations of implementing the Conventions to which they were signatory, by refusing to recognise the existence of a state of war. At other times, the setting up of puppet Governments served to disguise a de facto state of war under apparently legal conditions of peace. In yet other instances, a legal state of war subsisted – since hostilities had not been brought to a conclusion by recognised legal procedure, although existing conditions were no longer, in reality, conditions of war.
The Conference considered itself unable to make recommendations of any value unless these referred to a factual state of war, even if this state of war were defined by the Powers concerned in terms that implied no recognition of any such state. The Conference had in mind, in particular, terms like “legitimate self defence”, “penetration”, “protection”, “necessity for the maintenance of internal security” and “factual armed conflicts”, including civil wars.144
The first two paragraphs of article 2 were not changed during the 1949 conference in Geneva, and remained in the form set out by the draft conventions prepared by the XVIIth International Red Cross Conference in 1948 and submitted to the Geneva negotiations.145 The discussion recorded in the travaux préparatoires does not shed any light on why the paragraph relating to occupation was changed to refer specifically to the territory of “a High Contracting Party” rather than just “occupation of
142 Ibid. 143 Ibid 270. 144 Ibid. 145 ICRC, Final Record of the Diplomatic Conference of Geneva of 1949, (1949) vol 1.
82 territories.”146 Furthermore, there is no record of any discussions on how the first two paragraphs of article 2 would apply in practice.147 From the history, it appears that article 2 was drafted to ensure that the Convention applied broadly to factual situations of conflict or occupation, and that this application was not dependent on the categorisation of a conflict or occupation by a High Contracting Party.
C. First paragraph of Article 2 As set out above, the first paragraph of article 2 provides:
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The question that must be resolved is whether this provision covers the Israeli control of the West Bank which began in 1967. It should be remembered that Israel argues that the Convention does not apply de jure to the territory due to the second paragraph of article 2, which is discussed below. The prima facie scope of the first paragraph will be addressed before the effect of the second paragraph is considered.
The plain meaning of the first paragraph of article 2 of GCIV is reasonably unambiguous: it states that the Convention applies to “all cases of declared war or any other armed conflict” that occur between “two … High Contracting Parties.” The first paragraph appears to be the general rule specifying when the Convention applies.148 It does not refer to any exceptions to this general rule. There is no reference in the first paragraph to the territory where the conflict occurs, and no basis on which it seems necessary to assume that this would be a relevant fact for the purposes of the paragraph. Therefore, the text of the first paragraph indicates there is no need for any formal requirements for the commencement of a war for the Convention to apply; the fact that there are hostilities amounting to armed conflict is enough. Furthermore, once
146 ICRC, Draft Revised or New Conventions for the Protection of War Victims (1948), 6. Cf. Ball, above n 118 makes much of the fact that the very use of the term “High Contracting Party” suggests the state-centric focus of the Convention, further relying on the absence of an agreement on a preamble to argue that the state parties “had no common goals at all”. In the light of the evidence put forward in this chapter, putting such weight on the absence of a preamble seems far-fetched. 147 See ICRC, Final Record of the Diplomatic Conference of Geneva of 1949 (1949). 148 Dinstein, above n 13, 21; Arai, above n 78, 50.
83
GCIV has begun to apply, it continues to apply according to the terms of article 6: until the close of military operations, or until the end of the occupation (albeit in restricted form).149
The overall purpose and object of article 2 has been set out in detail above. Consistently with the overall purpose, the ICRC Commentaries of 1958 explain that the first paragraph “deprives belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations.”150 As set out above, this is consistent with the aim of the provision: to ensure that the Geneva Conventions are of broad application not depending on formalities for it to apply. The Commentary does not, however, explicitly address the possibility of a conflict occurring between High Contracting Parties on the territory that does not ‘belong’ to one of the High Contracting Parties.
D. The second paragraph of Article 2 The second paragraph of article 2 provides:
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
The argument raised in Israel’s favour hinges on the operation of this paragraph. The claim is that the second paragraph operates as a limitation of the first paragraph of article 2, requiring the territory taken in any armed conflict to be that over which a High Contracting Party is the legitimate sovereign.151 Accordingly, as Jordan was not the legitimate sovereign over the West Bank (it was not recognised by the international community, and only acquired control over the territory of the West Bank as a result of conquest),152 GCIV does not apply to Israel’s possession of the territory.
It is worth briefly articulating the preconditions for this argument to succeed. If the second paragraph has this effect, the words “partial or total occupation of the territory
149 GCIV art 6. The application of article 6 is addressed in more detail later in this chapter. 150 Pictet (ed), above n 131, 20. This is also endorsed by the 2016 ICRC commentary: ICRC, Commentary on the First Geneva Convention, above n 16, [285-6]. 151 See above description of the arguments raised by Israel, and in particular Israel Ministry of Foreign Affairs, Israel, the Conflict and Peace: Answers to Frequently Asked Questions, above n 99; Blum, above n 107; Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government - The Initial Stage’ above n 105, 13. 152 Blum, above n 107, 290.
84 of a High Contracting Party” in the second paragraph should be read to apply to the situations described in both the first and second paragraphs. Additionally, and alternatively, if the predominant purpose of GCIV is to protect the rights of the legitimate sovereign, a limitation could be implied to ensure that, where there is no legitimate sovereign to protect, GCIV does not apply.
As will be shown, this interpretation is difficult to accept for several reasons. First, there is nothing in the text of the article that suggests such a conclusion is necessary. Second, both arguments are contrary to the object and purpose of GCIV as both operate to restrict the protection GCIV provides to civilians. Third, neither argument finds support in the ICRC commentary nor in the historical genesis of the provision. Finally, both arguments are contrary to the opinion of most of the international community and of prominent international legal scholars.
Textual analysis
The plain meaning of the text of the second paragraph of article 2 is straightforward. It extends the application of the Convention to all cases of occupation, regardless of whether the occupation has met with any armed resistance. There is nothing in the text of the second paragraph of article 2 itself that suggests a more restrictive reading is necessary. As set out above, the first paragraph provides that the Convention applies to all cases of declared war or other armed conflict between two High Contracting Parties. There is no exception to this general rule in the first paragraph. The second paragraph ensures that, in situations where there is no armed conflict but there is an occupation, the Convention also applies.
To consider the words used in more detail, the second paragraph provides that the Convention also applies to cases of occupation of the territory of a High Contracting Party, even if it has been met with no armed resistance. The word ‘also’ indicates that this paragraph is ‘in addition’153 to the first paragraph, not a limitation to it. If it had been intended to limit the first paragraph, it could have been much more explicit – say, for instance, if, instead of providing that the Convention “shall also apply” to all cases
153 “also, adv. and n.” OED Online (Oxford University Press, 2017). See Arai, above n 78, 51; Meron, above n 29, 7.
85 of the occupation of the territory of a High Contracting Party, it had provided that the Convention “shall only apply” to such cases.
Shamgar argued that the use of the word ‘even’ in this context indicated that the second paragraph applied to all cases of occupation and that therefore the occupied territory had to be that of a High Contracting Party.154 However, this interpretation is not demanded by the text of the article. The word ‘even’ could equally be understood as being used in the sense of emphasising something surprising or extreme, “intimating that the sentence expresses an extreme case of a more general proposition”.155 If it is understood in this way, the use of ‘even’ makes it clear that the Convention would still apply in the unusual situation of an occupation occurring without armed resistance. The inclusion of the word ‘even’ ensures that a State cannot dispute the applicability of the Convention on the basis that there was no armed resistance – a conclusion that is supported by the object and purpose of GCIV, and the drafting history that has been set out above.156
Finally, even if it was accepted that the second paragraph of article 2 limited the first, and that an occupation had to be ”of the territory of a High Contracting Party” for the Convention to apply, there is nothing in the paragraph that indicates that this should be the full legal title of a ‘legitimate’ sovereign rather than a de facto title. It is arguable that the use of the word ‘territory’ in the second paragraph could refer to that possessed by a State in an illegal occupation.157 Mallison and Mallison argue that, in fact, it has never been doubted that ‘territory’ in the provision encompasses de facto territory, and correctly note that the words ‘legitimate sovereign’ do not appear in the Convention or in its negotiating history.158
154 Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government - The Initial Stage’ above n 105, 39. 155 “even, adv.” OED Online (Oxford University Press, 2017). 156 See Ball, above n 118 for a contrary view. 157 See Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ (2005) 23 Berkeley Journal of International Law 551, 567; Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ above n 41, 95. 158 W. Thomas Mallison and Sally V. Mallison, The Palestine Problem in International Law and World Order (Longman, 1986), 255. Also see Imseis, ‘Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’, above n 43, 104.
86
Other factors
It has been shown that the overall object and purpose of the Convention is to protect individuals who suffer the consequences of armed conflict. While the drafting history set out above does not record the discussions surrounding the formulation of the paragraph, it is reasonably clear that the second paragraph is consistent with this purpose. GCIV sought to ensure the protection of people under occupation, regardless of the circumstances in which the occupation arose.159
This is the view taken by both the ICJ and the ICRC Commentary of 1958 and 2016. The ICJ in the Advisory Wall Opinion came to a similar view as to the object and purpose of the second paragraph of article 2:
The object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met with no armed resistance, the Convention is still applicable.160
The ICJ justified this interpretation by reference to the intention of the drafters of GCIV of protecting the inhabitants of occupied territory as well as the rights of the state whose territory was occupied. The ICJ explained that this interpretation is consistent with the drafters’ intention:
Whilst the drafters of the Hague Regulations in 1907 were as much concerned with protecting the rights of a State whose territory is occupied, as with protecting the inhabitants of that territory, the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians in time of war, regardless of the status of the occupied territories, as is shown in Article 47 of the Convention.
… The drafters of the second paragraph of Article 2 thus had no intention, when they inserted that paragraph into the Convention, of restricting the latter’s scope of application. They were merely seeking to provide for cases of occupation without combat, such as the occupation of Bohemia and Moravia by Germany in 1939.161
159 See Benvenisti, above n 107. 160 Wall Advisory Opinion [2004] ICJ Rep 136 [95]. 161 Ibid [95].
87
The 1958 ICRC Commentary explains that the second paragraph was intended to cover a gap left by the first paragraph, ensuring the Conventions applied in cases where a State took possession of enemy territory without facing any armed resistance.162 The Commentary sets out the function of the second paragraph:
The sense in which the paragraph under consideration should be understood is thus quite clear. It does not refer to cases in which territory is occupied during hostilities; in such cases the Convention will have been in force since the outbreak of hostilities or since the time war was declared. The paragraph only refers to cases where the occupation has taken place without a declaration of war and without hostilities, and makes provision for the entry into force of the Convention in those particular circumstances.163
The 2016 ICRC Commentary also adopted the same view.164 It says that the argument that GCIV only applies to territory over which the sovereignty of a State had been established “goes against the spirit of the law of occupation”, adding:
Indeed, the unclear status of a territory does not prevent the applicability of the rules of the Fourth Convention, including those relating to occupied territory. For [GCIV] to apply, it is sufficient that the State whose armed forces have established effective control over the territory was not itself the rightful sovereign of the place when the conflict broke out or when the invasion meeting no armed resistance took place. Occupation exists as soon as a territory is under the effective control of a State that is not the recognized sovereign of the territory. It does not matter who the territory was taken from. The occupied population may not be denied the protection afforded to it because of disputes between belligerents regarding sovereignty over the territory concerned.165
The Commentary points out that this would lead to the ‘unreasonable’ result that the invading State could avoid its obligations by reference to its own subjective considerations.166
162 Pictet (ed), above n 131, 21-2. 163 Ibid 21. 164 ICRC, Commentary on the First Geneva Convention, above n 16, [286]. 165 Ibid [324]. 166 Ibid [327]
88
In contrast to the interpretation favoured by Israel, the above analysis shows that its argument put forward regarding the interpretation of the operation of the second paragraph of article 2 is not consistent with the purpose of the Convention. This is also the view of a number of prominent scholars of international law, who have argued that this interpretation of the second paragraph of article 2 should be rejected due to the inconsistency with the purpose of GCIV.167 Imseis observes that, if the Shamgar argument is accepted, it means that any belligerent occupier could avoid the requirements of the Convention by contesting the validity of the legal title of the ousted power to the territory.168 Allowing a state to object to the application of the Convention in this manner is very difficult to reconcile with its purpose of protecting individuals. Roberts also notes that Shamgar’s argument is inconsistent with the custom of “viewing the laws of war, including the law of occupations, as formally applicable even in cases which differ in some respect from the conditions of application as spelt out in the Hague and Geneva Conventions.”169
In addition, the interpretation preferred by Israel leads to a reduction in the protection of individuals under occupation. If the Israeli official position were to be accepted, it would mean that being the subject of an act of aggression by Jordan in 1948, the people of the West Bank lost the protections of GCIV when Israel took the territory in 1967.170 This would lead to the plainly absurd result that, by being subject to two occupations, the people who live in the West Bank lost their protection under international humanitarian law.171 It is clear that such an interpretation is contrary to the purposes and objects of GCIV, and could only be supported if the plain meaning of the text compelled that interpretation. As the text does no such thing, this restrictive interpretation should be rejected.
167 Ben-Naftali, Gross and Michaeli, above n 157, 568; Mallison and Mallison, above n 158, 257-8; Falk and Weston, above n 41, 140; Benvenisti, above n 107; Meron, above n 29. 168 Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ above n 41, 95. 169 Adam Roberts, ‘What is a Military Occupation?’ (1984) 55(1) British Yearbook of International Law 241, 282. 170 Mallison and Mallison, above n 158, 256-7. 171 Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ above n 41, 96.
89
Conclusion
The preferable interpretation of article 2 is that the first paragraph provides the general rule that GCIV applies in all cases of armed conflict, and the second paragraph extends the application to situations of occupation including those military occupations which have occurred in the absence of any armed conflict. The second paragraph supplements the general rule, rather than circumscribing it.172 This interpretive approach is consistent with the plain meaning of the words of both the first and second paragraphs of article 2 and with the object and purpose of the Convention and the object and purpose of article 2 in the context of GCIV. This interpretation is also consistent with the requirement for a ‘good faith’ interpretation of the provisions and is the most persuasive reading of the text of the first two paragraphs of the article.
As Israel took physical control of the West Bank during an armed conflict with a number of other High Contracting Parties, GCIV applies to the territory. The previous legal status of the occupied territory is irrelevant unless of course the conflict results in a previously ousted sovereign regaining physical control of its own sovereign territory. In the case of Palestine, it was the existence of an international armed conflict when the occupation first began that is determinative. As set out above, this is the view that is supported by the clear majority of the member states of the United Nations, is consistently found in resolutions of the UNSC and UNGA, and has been adopted by both the ICJ and the ICRC. It is also the view of many prominent scholars in international law.173
VI. ARGUMENTS NOT BASED ON ARTICLE 2 OF GCIV
This chapter will now briefly address the arguments that have or could be raised against the application of the Convention not based on article 2. The purpose of this overview is not to look comprehensively at contemporary debates about the role of
172 Arai, above n 78, 50-1. 173 See for example Roberts, ‘What is a Military Occupation?’ above n 169; Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967’ above n 29, 64.; Arai, above n 78, 50-2; Darcy and Reynolds, above n 19, 223; Falk and Weston, above n 41, 140; Dinstein, above n 13, 22-3; Benvenisti, above n 18, 207; Ben Saul, ‘Julius Stone and the Question of Palestine in International Law’ in Helen Irving; Jacqueline Mowbray; Kevin Walton (ed), Julius Stone: A Study in Influence (The Federation Press, 2010); Mallison and Mallison, above n 158; Bar- Yaacov, above n 27; Kretzmer, ‘The Advisory Opinion: The Light Treatment of International Humanitarian Law’, above n 43; Meron, above n 29, 6-7.
90 occupation law and IHL in the West Bank, but rather to elaborate on those arguments regarding the application of occupation law that might be relevant to ICL. Four such arguments will be covered: first, whether the ‘defensive conquest’ of the West Bank in 1967 means Israel is not bound by the normal obligations of the occupying power; second, whether Israel is the ’trustee-occupant’ of the West Bank, rather than the occupier; third, whether the protracted duration of Israel’s possession of the West Bank has altered its status as an Occupying Power; and finally, that the situation is ‘sui generis’ and that, as such, the Convention does not apply.
A. Defensive conquest A less common justification that may be used by Israel to support its possession of the West Bank is a concept known as ‘defensive conquest’. Writing in 1970, Stephen Schwebel sought to distinguish Israel’s possession of the West Bank (and the other territories taken in 1967) as a defensive, rather than an aggressive, conquest.174 According to Schwebel, while the UN Charter forbids the acquisition of territory through conquest, it is necessary to draw a distinction between the taking of territory legally held, and the taking of territory illegally held.175 He argued that “where the prior holder of the territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defence has, against that prior holder, better title.”176
Schwebel applies this to the situation in the West Bank, arguing that, as the West Bank was taken illegally by Jordan during the 1948 conflict, and as Israel was acting in self- defence in the 1967 conflict, Israel has better title to the West Bank than Jordan.177 He refers to a quote of Elihu Lauterpacht pointing out that if all forms of territorial acquisition by the use of force is unlawful, then “if territory has once changed hands as the result of the unlawful use of force, the illegitimacy of the position thus established is sterilised” by the prohibition, as it would prevent the use of force to restore the legitimate sovereign.178
174 Stephen M. Schwebel, ‘What Weight to Conquest?’ (1970) 64(2) American Journal of International Law 344. 175 Ibid 345. 176 Ibid. 177 Ibid. 178 Ibid 347.
91
There are many problems with this line of argument. First, regardless of the strength of the ‘defensive conquest’ argument, it is difficult to see what relevance it has to the question of whether GCIV applies. The argument does not seem to be that Israel has ‘full’ title to the land, but just that its claim is better than Jordan’s. Given Jordan has renounced its claim to the West Bank, this is not as helpful to Israel as it might have once been. More importantly, if the argument is available to give Israel’s claim to the West Bank priority over all others, it would completely ignore the rights the Palestinian people have to self-determination and to the land in the West Bank.179 As such, it is inconceivable that the Court would find that GCIV does not apply on the basis of defensive conquest.
Second, ‘defensive conquest’ runs counter to the prohibition against the acquisition of territory through force.180 Mallison and Mallison are damning in their assessment of the position, persuasively arguing that:
The customary law of self-defence as incorporated in Article 51 of the United Nations Charter gives clear indication that national self-defence is limited to the conservation of existing values or interests and does not provide any basis for an extension of values by the acquisition of title to enemy territory. A state exercising national defense may go beyond its borders to repel an attack, but it may not go beyond its national boundaries to acquire territory. Article 2(4) of the United Nations Charter specifically prohibits “the threat or use of force against the territorial integrity of any state…”. If international law provided for an exception to this basic rule under the heading of ‘defensive conquest,’ it would provide to be an irresistible attraction for a militaristic and expansionist state.181
In addition, as Ben-Naftali, Gross and Michaeli argue, article 51 of the UN Charter is an exception to the rule in article 2(4) that prohibits the use of force, and should therefore be construed narrowly to limit the right to self-defence “only as a means to restore the status quo.”182 Moreover, UNSC Resolution 242 clearly precludes Israel from gaining valid title to the land it conquered in the West Bank by emphasising both the
179 Ben-Naftali, Gross and Michaeli, above n 157, 568. 180 Imseis, ‘Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’, above n 43, 105; Ben-Naftali, Gross and Michaeli, above n 157, 571. 181 Mallison and Mallison, above n 158, 259. 182 Ben-Naftali, Gross and Michaeli, above n 157, 571.
92
“inadmissibility of the acquisition of territory by war” and that Israel was required to withdraw from “territories occupied in the recent conflict.”183
It is not necessary to go into the matter further because even if the limited form of the argument was accepted – that Israel’s title was better than Jordan’s – there is no reason why this would have an impact on the application of GCIV to the West Bank.
B. A ‘sui generis’ occupation Alan Baker, former legal advisor of Israel’s Ministry of Foreign Affairs and former Israeli ambassador to Canada, argued that the situation of the West Bank is sui generis and the argument that GCIV applies to the territory “would appear to ignore [the] unique situation.”184 He says that the situation is ‘unique’ due to the agreements made pursuant to the Oslo Accords in 1995 between Israel and the Palestine Liberation Organisation to divide the West Bank into Areas A, B and C, with Israel retaining effective control over only Area C, and that, as such, the whole territory is not occupied.185 According to Baker, these agreements have produced a “special independent regime – a lex specialis – that governs all aspects of the relationship between them, including the respective status of each party vis-à-vis the territory.”186 He further explains:
The unique historic and legal nature of the West Bank territories of Samaria and Judea and eastern Jerusalem, with basic historic rights emanating from time immemorial and encapsulated legally in official, binding and still valid international documents, inevitably render these territories as sui generis, and thus run against any attempt to use standard, loaded and inappropriate definitions such as ‘occupied territories’ to designate or describe their status.187
Baker’s argument should not be accepted. While Israel has relinquished aspects of its control of parts of the West Bank, he admits that it retains effective control over at least Area C.188 He further admits that the territorial dispute continues, with no final
183 SC Res 242, UN SCOR, 1382nd mtg, UN Doc S/RES/242 (22 November 1967). 184 Baker, above n 97, 1515. 185 Ibid 1514. 186 Ibid 1515. 187 Ibid 1516. 188 Ibid 1514.
93 diplomatic settlement between Israel and the Palestinians.189 Aside from the argument of the Israeli government canvassed in some detail above, he does not offer any further legal basis to support his claim that the Convention does not apply. This Chapter has set out in considerable detail the test for the application of both the Hague Regulations and GCIV to occupation. Every situation is, to a degree, sui generis, and it has been shown that the test for application is broad and relatively straightforward to ensure that civilians are protected where an occupation persists. Israel’s possession and control of the West Bank meets the test, and so it should be accepted that the Convention applies.
C. Cessation of Application of the Convention It has been 50 years since Israel first took possession of the West Bank. An obvious question that could be raised is whether the status of Israel with respect to the West Bank has changed with the passage of time, or whether the application of the Convention has lapsed. It is necessary to consider the impact of Jordan abandoning its claim to the West Bank in 1988 in favour of the Palestinian’s right to self- determination.190 There have not been, however, any final diplomatic peace treaties,191 or any evidence of the consent of the population of the West Bank, which would indicate that Israel has permission to govern the territory or that the ‘occupation’ has otherwise ended.192
Critical in this context is article 6 of GCIV. This article sets out when the Convention will stop applying to a territory, providing:
The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.
189 Ibid 1516. 190 Jordan, ‘Statement Concerning Disengagement from the West Bank and Palestinian Self- Determination’ (1988) 27 International Legal Materials 1637. 191 The 1994 peace treaty between Israel and Jordan stated it was done “without prejudice to the status of any territories that came under Israeli military government control in 1967”: Israel- Jordan, ‘Treaty of Peace’ (1994) 34 International Legal Materials 43. 192 For a discussion of the various ways an occupation may come to an end see Dinstein, above n 13, 270-80; Benvenisti, above n 18, 56-7; Adam Roberts, ‘Occupation, Military, Termination of’, Max Planck Encyclopedia of Public International Law (Oxford University Press, 2009).
94
In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.
In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying power shall be bound, for the duration of occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.
[…]193
Therefore, if the territory was considered ‘occupied’ immediately after Israel took possession, Israel remains bound by the articles identified in article 6 as long as the occupation continues and “to the extent” that it “exercises the functions of government in such territory.” The Hague Regulations would also continue to apply.
The fact that there has not been a comprehensive peace treaty does not mean that “military operations” are still ongoing. The travaux préparatoires reveals that the phrase “close of military operations” was understood as being “when the last shot has been fired.”194 The ICRC Commentary set out how to identify when the “general close of military operations” occurs:
When the struggle takes place between two States the date of the close of hostilities is fairly easy to decide: it will depend either on an armistice, a capitulation or simply on deballatio. On the other hand, when there are several States on one or both of the sides, the question is harder to settle. It must be agreed that in most cases the general close of military operations will be the final end of fighting between all concerned.195
In respect of the armed conflict between Israel and the Arab states, there can be no serious doubt that the “general close of military operations” would have occurred at the moment when the militaries ceased fighting in 1967, or soon after. In any event, the question of the year in which all GCIV applied is not relevant for this thesis, only that
193 GCIV art 6. 194 ICRC, Final Record of the Diplomatic Conference of Geneva of 1949 (1949) vol 2A, 815. 195 Pictet (ed), above n 131, 62.
95 the year must have now passed, and the only provisions that may still apply are those set out in article 6.196
The next question is whether Israel has continued to exercise the “functions of government” over the territory and, if so, the extent of that control. This first requires determining what the “functions of government” are. It is best understood through considering the drafting history of the provision, which makes it clear that the phrase was included to ensure the obligations of the Occupying Power reflected the level of control they exercised over the occupied territory.
The draft text prepared by the ICRC for the Convention provided that it would only cease to apply when the occupation actually ended.197 During negotiations, it was pointed out by some delegations that “a time would doubtless come when the application of the Convention was no longer justified, especially if most of the governmental or administrative duties … had been handed over to the authorities of the occupied territory.”198 The travaux préparatoires record how the drafters sought to resolve this issue:
From that time on, the Occupying Power will, of course, no longer be in a position to undertake all the duties for which it was responsible as long as it continues to exercise the full prerogatives of the occupied State. A choice should therefore be made to protect the population of the occupied territory while occupation continues, and those, on the contrary, which should cease to apply as soon as the justification for them, namely, the exercise of powers by the Occupying Power, has ceased to exist.199
The historical context is important for appreciating why this was a concern. At the time, the militaries of the Allied Powers still had a substantial presence in both Germany and Japan but had handed over much of the responsibility of government to local authorities.200 As such, the agreed clause recognised that the Convention would fully apply for one year, and after that the Occupying Power “would only be bound by
196 While it is not critical for the questions addressed in this thesis, it should be noted that the operation of article 6 of GCIV is contested. See Tristan Ferraro, Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory (ICRC, 2012) 30-1. 197 ICRC, Draft Revised or New Conventions for the Protection of War Victims (ICRC, 1948). 198 Pictet (ed), above n 131, 62. 199 ICRC, Final Record of the Diplomatic Conference of Geneva of 1949, (1949) vol 2A, 815. 200 Pictet (ed), above n 131, 62.
96 it in so far as it continued to exercise governmental functions.”201 Article 6 was thus designed to ensure that the Convention did not operate in circumstances when it would not be justified by reference to the amount of control the occupying power had over the territory.
As stated above, Jordan has renounced its claim over the West Bank. However, there is nothing in article 6 which suggests that a change to the claims made by the State that previously held the territory prevents the Convention from applying. The focus is squarely on the nature of the occupying power’s control over the territory, and the extent to which it is exercising the functions of government. In the case of Israel’s possession of the West Bank, and in particular those parts of the territory where the settlements have been built, the answer to this is clear: Israel controls all aspects of how the land is used and applies military law to its dealings with the Palestinian people in Area C of the West Bank.202 It is therefore exercising all the functions of government in these areas. As such, if the West Bank was ‘occupied’ in 1967, then the specific provisions of the Convention identified in article 6 continue to apply. This was the view of the ICJ in the Wall Advisory Opinion, which held:
Since the military operations leading to the occupation of the West Bank in 1967 ended a long time ago, only those Articles of the Fourth Geneva Convention referred to in Article 6, paragraph 3, remain applicable in that occupied territory.203
Nevertheless, there are indications that in fact the entirety of the law of occupation would apply for the duration of the occupation. Article 3 of API, for example, in contrast to article 6 of GCIV, provides that the law applies to occupied territories until “the termination of the occupation.” Adam Roberts argues that this “abrogates” and “effectively rescinds” the limitation of the one-year period in article 6 and ensures that the law of occupation applies in its entirety until the end of the occupation.204 As Israel has not ratified the Protocol, the application of article 3 of API would depend on whether this extension beyond article 6 of GCIV is now reflective of customary international law.
201 Ibid 62-3. 202 See B’Tselem above n 24. 203 Wall Advisory Opinion [2004] ICJ Rep 136, [125]. 204 Roberts, ‘Occupation, Military, Termination of’, above n 192, [13].
97
Article 47 of GCIV is also relevant in this context as it indicates that the protections remain in place for the duration of the occupation. It provides additional protection for people who are in occupied territory:
Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.
This ensures that changes to the way in which the territory is governed do not change the protections available to persons in the occupied territory. The statements of the Occupying Power, or the changes that Power makes in the administration of the territory, will not prevent the Convention from applying.205
The question of whether the whole or only part of GCIV continues to apply to the West Bank is unnecessary to resolve for the purposes of this thesis. Article 49, prohibiting the transfer of population into the occupied territory, is one of the provisions included in article 6(3). Similarly, the restrictions on the use of property from the Hague Regulations will still apply. As such, even if article 6 does determine what parts of the Convention are applicable from one year after the close of hostilities, Israel remains prohibited from breaching these obligations. This means the two crimes that are analysed by this thesis are relevant to the conduct of Israel in the West Bank.
VII. CONCLUDING REMARKS
It is clear that articles 8(2)(a) and (b) of the Rome Statute are applicable to the parts of the West Bank where the settlements have been built.206 The circumstance element of a situation of ‘international armed conflict’, common to all three crimes analysed by this thesis, is satisfied. This is because these areas are ‘occupied’ by Israel, and as such the Hague Regulations, GCIV and customary international law all apply. This chapter has
205 Ibid [12]. 206 It should be noted that this does not preclude the possibility that there might be some uncertainty about the status of some parts of the West Bank where the Palestinian Authority has more control. The legal status of these parts of the West Bank may be more akin to the legal status of Gaza which is a subject of substantial scholarly debate. This debate, and how it might apply to the parts of the West Bank that are not settlements is beyond the scope of this thesis.
98 shown that this status ensues because these areas were occupied during an international armed conflict between Israel and its neighbours in 1967, and that the occupation has continued since then.
The chapter has shown why the clear majority of the international community rightly rejects the arguments raised by Israel against the application of GCIV to the West Bank. The rejection of the Israeli view is based on a conservative view of the relevant rules of international law. Article 2 of GCIV provides that, for it to apply, all that is required is that the occupation occurred during an armed conflict between two High Contracting Parties. This requirement is clearly met in the case of the West Bank. The other possible arguments against the applicability of occupation law, including the concepts of ‘defensive conquest’ and a ‘sui generis’ occupation, should be rejected. The Court should, in any prosecution regarding events in the territory, accept that IHL, and in particular GCIV, applies and that the circumstance element of the two crimes is established. This is, however, only one element among many. It is necessary to ask what else must be satisfied for the Court to successfully prosecute these two crimes. It is to that more difficult question that we now turn.
99
CHAPTER TWO: CRIME OF TRANSFER OF POPULATION
I. INTRODUCTION
The crime of transfer of population in article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court (‘Rome Statute’)1 is the most obvious option for a prosecution based on the settlements in the West Bank. The crime reflects the international prohibition on the transfer of citizens of the Occupying Power into Occupied Territory - the reason most commonly cited that the settlements in the West Bank are unlawful. This chapter will examine the nature and scope of this crime and the underlying prohibition, focusing on how it should be understood by the International Criminal Court (‘ICC’). It will set out the interpretive problems the Court would face in determining what the crime entails, and then offer a view about what is the most persuasive approach.
The transfer of population into occupied territory was first explicitly prohibited by article 49(6) of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 (‘GCIV’)2, elevated to a grave breach of IHL by Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 1977 (‘API’) in article 85(4)(a),3 and made a crime punishable at the ICC by article 8(2)(b)(viii) of the Rome Statute. While article 49(6) and article 85(4)(a) are relevant as the source of the prohibition, it is, of course,
1 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), art 8(2) (‘Rome Statute’). 2 Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) ‘GCIV’, art 49. 3 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 17512 (entered into force 23 January 1979) ‘API’, art 84(4)(a). Yaël Ronen (‘Taking the Settlements to the ICC? Substantive Issues’ (2017) 111 AJIL Unbound 57, 58-9) argues that while the prohibition on transfer of population is cusomtary international law, it is not clear that there is a customary norm which creates a criminal prohibition and that if it is, Israel would have a good case as a persistent objector. However, she notes this does not mean that it will not be binding on Israelis as long as ICC jurisdiction is grounded on Palestine’s acceptance of the Rome Statute, but that it could have “implications ratione temporis and ratione loci”. As this is a question about the jurisdiction of the ICC rather than about the operation of the crimes, it is beyond the scope of this thesis to address it further.
100 article 8(2)(b)(viii) that is the most important for the purposes of this chapter. This article criminalises:
The transfer, directly or indirectly, 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 Elements of Crimes provides the following:
1. The perpetrator: a. Transferred, directly or indirectly, parts of its own population into the territory it occupies; b. Deported or transferred all or parts of the population of the occupied territory without or outside this territory. 2. The conduct took place in the context of and was associated with an international armed conflict. 3. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.4
The critical question for this chapter is what is covered by the conduct described in Element 1(a). The crime of transfer of population out of the occupied territory, covered by Element 1(b), is beyond the scope of the thesis as it does not directly concern the construction and maintenance of the settlements. Element 2 has already been addressed in Chapter One, and element 3 does not address the criminal conduct, but rather the awareness of the accused of a situation of armed conflict. One single element then remains to be analysed.
The words of the crime itself and of Element 1(a) are deceptively straightforward. It is only on close examination that the difficulties become apparent. There are several interpretative questions. First, does the word ‘transfer’ cover the voluntary movement of citizens into the Occupied Territory, or does coercion have to be present to render a transfer unlawful? Second, to what extent does the Occupying Power have to be involved in the movement of its citizens into Occupied Territory? Third, is just one person enough, or does it have to be a group of people of some minimum size? How many people must be transferred to breach the prohibition? Finally, when does the
4 International Criminal Court, Elements of Crimes, Doc No ICC-ASP/1/3 (part II-B) (adopted 9 September 2002) (‘Elements of Crimes’), art 8(2)(b)(viii).
101 crime of ‘transfer of population’ occur? Is it the continuing presence of the transferees in the Occupied Territory, or is it only the initial transfer that is criminalised? This final question is particularly important due to the temporal limitations of the jurisdiction of the ICC.
This chapter will address these interpretive difficulties in detail. As set out in the methodology chapter, they will be addressed using a combination of the rules of the Vienna Convention on the Law of Treaties (‘VCLT’), the principle of legality, considerations of international human rights law, and, critically, the hierarchy of sources established by article 21(1) of the Rome Statute. Article 21(1) and the principle of legality require that the text of the crime be the primary consideration, but other factors such as the context, object and purpose, as well as the drafting history of article 8(2)(b)(viii) and its source in IHL are also relevant. This interpretive process will identify the most persuasive interpretation of the prohibition, and the limits of its reach. My conclusion explains how article 8(2)(b)(viii) should be interpreted and applied by the Court.
The analysis shows that, while the identified relevant questions are all challenging, the fundamental content of the crime is reasonably ascertainable. Unlike the crime of appropriation of property, addressed in the following chapter, none of these interpretive questions rely completely on a body of law separate to the Rome Statute to provide the content of the criminal prohibition. It is therefore possible to reach sensible legal conclusions to the questions based primarily on the Rome Statute in a way that respects the principles set out in the interpretative methodology. More specifically, the crime is drafted in a way that respects the principle of legality.
II. PROHIBITION ON THE TRANSFER OF POPULATION
Article 8(2)(b)(viii) provides that the following is a war crime at the ICC:
The transfer, directly or indirectly, 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 first part applies to the movement of the civilian population of the Occupying Power, and the second part to the movement of the occupied civilians within and out
102 of the Occupied Territory. It is the first part of the provision that is relevant to this thesis.5
It is useful to begin with a brief analysis of the text of the provision, as well as an overview of its predecessors, to scope out the legal questions. ‘Deport’ and ‘transfer’ are the operative words in the provision. The Oxford English Dictionary defines ‘deport’ in this context as “[t]o carry away, carry off, remove, transport; esp. to remove into exile, to banish.”6 A deportation involves the movement of a person, and has a coercive element as it involves being carried away or removed or exiled – it is an act done to someone, rather than with them. It occurs regardless of the consent of the person being moved.
The ordinary meaning of the word ‘transfer’ does not appear to have this same coercive element. It is defined as “[t]o convey or take from one place, person, etc. to another; to transmit, transport; to give or hand over from one to another.”7 According to the dictionary definition, ‘transfer’ does not require coercion, but rather it is the conveying, transmission or transport of a person to another place. Dinstein argues that the distinction between ‘deportation’ and ‘transfer’ is that the former requires an element of compulsion, whereas transfer is more “malleable.”8
Article 8(2)(b)(viii) is more specific than its predecessors in GCIV and API, criminalising the transfer of civilians into the occupied territory whether it occurs “directly or indirectly.” A ‘direct’ transfer is easy to envisage: it would occur when the Occupying Power is directly responsible for the movement of people, such as organising transport and constructing dwellings. There is some ambiguity regarding what level of involvement by the Occupying Power in the movement of civilians would amount to an ‘indirect’ transfer, and whether subsidies and other forms of government support and inducements are sufficient to constitute prohibited conduct.
5 It is possible that deportations by Israeli Government of people out of the Occupied Territory could fall foul the second half of article 8(2)(b)(viii), but as it does not relate directly to the settlements, it is beyond the scope of this paper. 6 “deport, v.1” OED Online (Oxford University Press, 2017). 7 “transfer, v.”OED Online (Oxford University Press, 2017). 8 Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009), 239.
103
This crime is sourced directly from the prohibition in article 49(6) of GCIV. The Elements of Crimes (which have been set out above) explain in a footnote that the “term ‘transfer’ needs to be interpreted in accordance with the relevant provisions of international humanitarian law.”9 The drafters of the Elements saw there was a connection between the Rome Statute and its source in article 49(6) of GCIV, and explicitly opened the possibility that any limitation on the latter will apply to both. It makes the consideration of the predecessor provisions from IHL important for understanding the crime in the Rome Statute.
Article 49(6) of GCIV prohibits the Occupying Power from deporting or transferring parts of its own civilian population into Occupied Territory. Despite the sixth paragraph being the focus of this chapter, it is worth reproducing the article in its entirety. It provides:
(1) 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.
(2) Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the Occupied Territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
(3) The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.
(4) The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.
9 Elements of Crimes, article 8(2)(b)(viii).
104
(5) The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.
(6) The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.10
Article 49(6) differs from the rest of article 49 in that it focuses on the movement of the citizens of the Occupying Power into the Occupied Territory, rather than the movement of civilians in occupied territory out of the Occupied Territory. The object and purpose of GCIV was discussed in detail in Chapter One, and it was concluded that its aim was to protect civilians in armed conflict or when under occupation by a hostile power. Consistently with this, the purpose of article 49(6) is not to protect the citizens or civilians of the Occupying Power, but rather to protect the civilians in the Occupied Territory from the transfer of people into the territory. As Cottier and Baumgartner point out, such transfers have lasting consequences:
Such transfers not only change the demographic composition within the occupied territory, but experience shows that they often lead to restrictions of the original inhabitants’ free movement as well as constraints of property and other fundamental rights. In addition, inhabitants of the occupied territory that may have become refugees or been internally displaced during the prior armed conflict may encounter difficulties to return because of the transfers. The new settlers may defend, often protected by the Occupying Power, their new housing and settlements and resist the original inhabitants’ return and reappropriation of property and housing.11
The placement of article 49(6) within GCIV of the provision also supports the idea that it protects people living in occupied territory, rather than protecting all civilians in a time of armed conflict or occupation.12 It is found in Part III, Section III of the Convention, titled “Occupied Territories” rather than in Part III, Section I titled “Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories.”
10 GCIV art 49. 11 Michael Cottier and Elisabeth Baumgartner, ‘Prohibited Deportations and Transfers in Occupied Territories’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016), 405. 12 Jean-Marie Henckaerts, ‘Deportation and Transfer of Civilians in Time of War’ (1993) 26 Vanderbilt Journal of Transnational Law 469, 478.
105
The 1958 ICRC Commentary to GCIV explains that the prohibition in article 49(6) prevents the Occupying Power from changing the demographics of the Occupied Territory for its own purposes:
It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to Occupied Territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.13
The prohibition was not included in the list of grave breaches found in article 147 of GCIV, but was elevated to that status by article 85(4)(a) of API in 1977. Article 85(4)(a) identifies the following as a grave breach of IHL:
[T]he 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, in violation of Article 49 of the Fourth Convention.14
The elevation to the status of ‘grave breach’ did not mean that there was automatically international criminal liability for its breach. Rather, as Örberg explains, grave breaches:
… constituted a category of violations … considered so serious that states agreed to enact domestic penal legislation, search for suspects, and judge them or hand them over to another state for trial.15
In contrast, it was left to states to determine what domestic sanctions to put in place for breaches of the Convention that were not listed as being ‘grave’.16
From this overview of article 8(2)(b)(viii) and its predecessors, it is possible to identify several elements of the crime that appear uncontroversial. The words ‘deport’ and
13 Jean Pictet (ed), Commentary to IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC, 1958), 283. 14 API art 85(4)(a). 15 Marko Örberg, ‘The Absorption of Grave Breaches into War Crimes Law’ (2009) 91 International Review of the Red Cross 163, 165. 16 Ibid 166. Aside from this distinction, and indicating the level of seriousness of the prohibition, the designation in API of the transfer of population as a grave breach does not add much to the interpretation of the provisions.
106
‘transfer’ indicate that there must be a ‘physical displacement’ of people for a ‘certain duration’ of time.17 A short-term stay in the Occupied Territory as a tourist or other visitor will not be covered by the crime18 as the essence of the proscribed conduct involves more than just the physical movement across a border into the Occupied Territory. Instead, the offence is directed at the detrimental impact caused by a continuous presence of settlers.19 However, the requirement that the transfer be for a particular ‘duration’ should not require proof that the transferees have lived in the Occupied Territory for a number of years. Such a requirement would make it very difficult to determine when the crime happened. Instead, the Court should assess the ‘duration’ and permanence of the transfer by looking to factors that indicate people are moving into the Occupied Territory on an indefinite basis. This might include individuals moving with their families, the establishment of schools and other important civilian infrastructure, as well as the broader social and political context. It is also apparent that the transferees must belong to the Occupying Power’s civilian population, and therefore, the stationing of military forces in the Occupied Territory to carry out military tasks is not criminalised.20
It is, therefore, reasonably easy to understand the sort of conduct that would clearly fall foul of the crime in article 8(2)(b)(viii) of the Rome Statute. It would be unlawful for an Occupying Power to use its military to build a town in the Occupied Territory, and then compel its own citizens to live there. It would be unlawful to forcibly deport parts of its own civilian population to live in camps in the Occupied Territory. It would also be unlawful for the Occupying Power to deport civilians from villages in the Occupied Territory and to then transport its own citizens into the Occupied Territory to forcibly take up residence in the now vacated homes of the deportees. It becomes more difficult when we try to determine what exactly is encompassed by the word ‘transfer’. Does it require the movement of people to be forced, or can the movement be voluntary? What sort of action (or inaction) by the Occupying Power amounts to a ‘transfer’? These questions, and the issues they raise, will be explored in more detail below.
17 Cottier and Baumgartner, above n 11, 410. Similarly, Dinstein argues it is necessary that the people moving into the territory intend to move there on a permanent basis: above n 8, 240. 18 Cottier and Baumgartner, above n 11, 410. 19 Ronen, above n 3, 60. 20 Ibid; Dinstein, above n 8, 240.
107
III. INTERPRETIVE AMBIGUITIES
This basic analysis does not provide a comprehensive picture of what is criminalised by article 8(2)(b)(viii). The difficulties in interpretation need to be resolved for a full understanding of what actions or omissions may give rise to individual criminal liability. The single element of the crime that addresses the core of the crime – Element 1(a) – only restates the text of the crime and fails to clarify any of the critical interpretive issues. The following questions must be addressed:
A. Is the voluntary movement of people into occupied territory covered by the crime? B. What level of support by the Occupying Power is required? C. How many people must be transferred for a crime to occur? D. When does the transfer occur?
Each of these important questions will be addressed in turn.
A. Is the voluntary movement of people covered by article 8(2)(b)(viii) of the Rome Statute? Does the crime in article 8(2)(b)(viii) cover the voluntary movement of people into the Occupied Territory? The prevailing view is that it does; but this is not a universally held position. Israel argues that the crime only applies to the coerced movement of civilians into Occupied Territory. The advantages to Israel in taking this position are apparent: the vast majority of Israeli citizens that move into the West Bank appear to do so voluntarily. There is no evidence of Israel coercing its citizens to transfer into the West Bank. As such, if the prohibition does not cover the voluntary movement of people, a prosecution under article 8(2)(b)(viii) would be unlikely to succeed. This section will first set out the basis for this restrictive reading of article 8(2)(b)(viii), and then explain why it is not persuasive.
1. Voluntary transfer and article 49(6)
The argument that it is only the forcible transfer of population that is criminalised by the Rome Statute and prohibited under IHL is based on the historical context as well as what is purported to be a close reading of article 49(6) of GCIV. Then, it is argued this restriction should be incorporated into the interpretation of article 8(2)(b)(viii) so that it is consistent with the underlying obligations of IHL. Such an argument could be seen
108 as particularly important in this context because Element 1(a) of article 8(2)(b)(viii) has a footnote on the word ‘transferred’ that “the term ‘transfer’ needs to be interpreted in accordance with the relevant provisions of international humanitarian law.”21 It could be argued that, if it is accepted that article 49(6) of GCIV requires coercion of the transferees, this footnote imports a similar restriction into article 8(2)(b)(viii).22
The argument for a coercive aspect to the transference relies on a restrictive reading of article 49(6) that the transfer of population into the Occupied Territory must be ‘forcible’ or in some way coerced. Perhaps unsurprisingly, this is the position adopted by the Israel Ministry of Foreign Affairs (‘IMFA’), which explain that this interpretation of the provision is underscored by the historical context surrounding the proscription of the conduct:
[Article 49(6)] was intended to protect the local population from displacement, including endangering its separate existence as a race, as occurred with respect to the forced population transfers in Czechoslovakia, Poland and Hungary before and during the war. Quite apart from the question of whether the Fourth Geneva Convention applies de jure to territory such as the West Bank over which there was no previous legitimate sovereign, the case of Jews voluntarily establishing homes and communities in their ancient homeland, and alongside Palestinian communities, does not match the kind of forced population transfers contemplated by Article 49(6).23
The argument is that Israel’s settlement of the West Bank is so different from the policies of Germany in WWII that a prohibition could not possibly cover both policies.24 In this regard, the IMFA puts significant emphasis on the fact that the settlers
21 Elements of Crimes, art 8(2)(b)(viii). 22 See for example Arthur Lenk, ‘Political Misuses of International Law: The Development of the Crime of Population Transfer in International Criminal Law’ (2004) 1(1) Eyes on the ICC 71, 83. He argues that if the provision is to be interpreted “in accordance with the provisions of international humanitarian law” it would require any limitations on the application of Article 49(6) to also apply to Article 8(2)(b)(viii). 23 Israel Ministry of Foreign Affairs, Israeli Settlements and International Law, Israel Ministry of Foreign Affairs (30 November 2015)
109
‘volunteer’ to move into the West Bank, particularly given the that settlers’ ‘ancestors’ may have lived there in the past. The IMFA explains:
The provisions of the Geneva Convention regarding forced population transfer to occupied sovereign territory cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted. Nor does it prohibit the movement of individuals to land which was not under the legitimate sovereignty of any state and which is not subject to private ownership.
In this regard, Israeli settlements have been established only after an exhaustive investigation process, under the supervision of the Supreme Court of Israel, designed to ensure that no communities are established on private Arab land.25
Some legal scholars have also adopted this argument. They point to the first paragraph of article 49 as proof.26 For example, Phillips argues that reading article 49(1) in conjunction with article 49(6) indicates that the transfer of civilians must be forcible.27 Article 49(1) provides that ‘forcible transfers’ of protected persons from the Occupied Territory to other territory is prohibited. Phillips argues that the requirement that the transfer be forcible – therefore requiring some coercion – should be applied to all uses of the word ‘transfer’ in article 49. He explains:
It’s a matter of simple grammar that when similar language is used in several different paragraphs of the same provision, modifying language is omitted in later paragraphs because the modifier is understood. To Julius Stone, an international-law scholar, “the word ‘transfer’ [in 49(6)] in itself implies that the movement is not voluntary on the part of the persons concerned, but a magisterial act of the state concerned.”28
Accordingly, Phillips argues that it is evident that article 49 is not relevant to the settlements in the territories. The existence of Jewish settlements in these areas is a continuation of a long-standing Jewish presence. Moreover, the movement of individuals to these areas is entirely voluntary; the settlements themselves are not intended to displace Arab inhabitants, nor do they do so in practice. Thus, he is making
25 Israel Ministry of Foreign Affairs, above n 23. 26 Alan Baker, ‘The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords (2011) 23 Jewish Political Studies Review 32-39, 35; Eugene V. Rostow, ‘Correspondence’ (1990) 84 American Journal of International Law 717, 719; Julius Stone, Israel and Palestine: assault on the law of nations (John Hopkins University Press, 1981), 177-9. 27 David M. Phillips, ‘The Illegal-Settlements Myth’ (2009) 128(5) Commentary 32, 35. 28 Ibid 35.
110 two related arguments. First, it is not a prohibited transfer as the people who live in the settlements already lived in the territory or had a right to live there; and second, as the settlers moved to the territory voluntarily, the provision does not apply.
There are some major factual problems with the argument of Israel and its supporters. To begin with, the Israeli summary of the historical context of article 49 is inadequate, and does not properly capture the policies of Nazi Germany with regard to the territory it occupied. These policies included more than just the forced expulsion of people from occupied territory, but also the ‘Germanization’ of those territories by transferring German civilians into the territories. The indictment in the Case of the Major War Criminals before the International Military Tribunal in Nuremberg in 1945 set out the policies of Nazi Germany that were being prosecuted by the Tribunal. Under the heading ‘Germanization of Occupied Territories’, the indictment explained:
In certain occupied territories purportedly annexed to Germany the defendants methodically and pursuant to plan endeavoured to assimilate those territories politically, culturally, socially, and economically into the German Reich. The defendants endeavoured to obliterate the former national character of these territories. In pursuance of these plans and endeavours, the defendants forcibly deported inhabitants who were predominantly non-German and introduced thousands of German colonists.29
This included the apparently voluntary movement of German civilians into the occupied territory in Eastern Europe. In the Department of Upper Rhine, Lower Rhine and Moselle, the Nazi Government expelled 70,000 local civilians and transferred 80,000 Germans into the area.30 This movement of persons was encouraged through financial incentives.31 The Order concerning Tax Abatement for the Benefit of the Incorporated Eastern Territories of 9 December 1940 provided that, in order to “establish and promote Germanism in the Incorporated Eastern Territories through taxation measures”, “German nationals and persons of German origins” would receive exemptions from income, defence, property, sales and inheritance taxes, as well as
29 International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946 (International Military Tribunal, Nuremberg, 1947), vol. 1, 63-5. 30 Ibid 64. 31 John Quigley, ‘Living in Legal Limbo: Israel’s Settlers in Occupied Palestinian Territory’ (1998) 10 Pace International Law Review 1, 12.
111 significant incentives for corporations and other businesses.32 It is therefore clear that the historical record of Nazi policies during WWII did not uniformly involve coercive transfer, and to suggest otherwise in support of coercion as a fundamental element of the prohibition in article 49(6) of GCIV is fallacious.33
The second problem relates to the use of the historical connection of Jewish people to the West Bank as a basis for the claim that there is no transfer occurring. There are examples of settlements in the West Bank that were founded prior to the existence of Israel by the legal purchase of land, which were abandoned during the years that the territory was controlled by Jordan, and then re-inhabited after 1967.34 It is possible that some of the people who re-inhabited the settlements were those who legally acquired the land, or the descendants of those settlers who have a legal claim to the land.35 These people may well be in a different legal position from other settlers who have arrived post-1948 and, in many cases, only in the last few years. Despite this, it is abundantly clear that most of the settlers in the West Bank do not meet these criteria, as many of the settlements are built on land where there were no houses before – land identified as ‘public’ land.36 There is also no information that would suggest that the Israeli Government requires the settlers to prove they have a personal legal claim to the land to receive government support for settling in the West Bank. As such, this is an unconvincing basis to claim that there is no transfer of people occurring.
The argument, however, is also put more broadly than this. The IMFA refers to the ancient connection the Jewish people have with the land of the West Bank:
Many contemporary Israeli settlements have actually been re-established on sites which were home to Jewish communities in previous generations, in an expression of the Jewish people’s deep historic and abiding connection with this land - the cradle of
32 Extracted in Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Carnegie Endowment for International Peace, Division of International Law, 1944), 516-20. 33 Also see Theodor Meron, ‘The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six Day War’ (2017) American Journal of International Law 1 34 Gush Etzion, Neve Ya’acov and Hebron: Israel Ministry of Foreign Affairs, above n 23. 35 Phillips, above n 27, 37. See Gershom Gorenberg, The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (Macmillan, 2006) for more detail about the origins of the first settlements in the West Bank. 36 Eyal Hareuveni, By Hook and By Crook: Israeli Settlement Policy in the West Bank (Zvi Schulman trans, B’Tselem, 2010).
112
Jewish civilization and the locus of the key events of the Hebrew Bible. A significant number are located in places where previous Jewish communities were forcibly ousted by Arab armies or militia, or slaughtered, as was the case with the ancient Jewish community of Hebron in 1929.37
There have been Jewish people living in the West Bank for thousands of years, but this does not mean that the prohibition in article 49(6) does not apply to the modern state of Israel. The duties and obligations of an Occupying Power remain the same, even if the predominant ethnic or religious group of the Occupying Power is also present in the Occupied Territory. The historical context of article 49 is illustrative: there were ethnic Germans living throughout Europe prior to 1939, but this did not justify or excuse Germany’s ‘Germanization’ of the European territories it occupied.
The historical context of article 49(6) also fails to address a more important issue: the textual analysis of the provision itself. As seen above, the ordinary meaning of the word ‘transfer’ does not in itself include an element of coercion. The dictionary definition makes it clear that it is a wide enough concept to encompass both a coerced act and a voluntary act. However, for Baker, Rostov, Phillips and Stone, the use of ‘forcible’ in article 49(1) means that all subsequent references to ‘transfers’ in article 49 must also be coerced.38 It cannot be doubted that the use of the modifier ‘forcible’ in the first paragraph means that only a coercive transfer out of the Occupied Territory is prohibited by the first paragraph of article 49: if the residents of the Occupied Territory choose to move, the Occupying Power will not be in breach of the article. But does this modifier also restrict the application of the sixth paragraph?
Three things must be borne in mind when assessing this assertion. First, article 49(1) and article 49(6) prohibit different acts: one concerns the movement of people out of the Occupied Territory, the other concerns the movement of people into the territory. While they are part of the same article, they offer different protections to the people
37 Israel Ministry of Foreign Affairs, above n 23. 38 Phillips, above n 27, 719; Stone, above n 26, 177-9; Alan Baker, ‘International Humanitarian Law, ICRC and Israel’s Status in the Territories’ (2012) 94 International Review of the Red Cross 1511, 1518.
113 living in the Occupied Territory and, consequently, it is not logically inconsistent for each to involve a different test.39
Second, it must be remembered that the object and purpose of GCIV is to protect the civilians in the Occupied Territory, not the citizens of the Occupying Power.40 This could explain why the ‘forcible’ in the first paragraph does not apply to every use of ‘transfer’ in article 49, and is not included in article 49(6). The part of GCIV where article 49 sits – Part III, Section III – is concerned with the protections for people in occupied territories.41 Furthermore, the Convention explicitly states that it does not regulate the treatment of the nationals of the Occupying Power inside its own territory: article 4 defines protected persons as those persons who find themselves “in the hands of … [the] Occupying Power of which they are not nationals.”42 As such, when assessing compliance with article 49(6), the circumstances of the transfer of population should only be relevant insofar as it shows that the Occupying Power is somehow responsible for the movement of those people. The acts or omissions that amount to responsibility for the movement of people will be analysed in further detail below, but suffice to say, if the movement was coerced it would be simple to show a link between the Occupying Power and the movement of people. Where there is no coercion, proving that the Occupying Power is responsible for the movement would be more difficult, but it may still be possible.
Third, a requirement of coercion would substantially reduce the protection offered by the provision. As explained above, the purpose of article 49(6) is to protect the civilians in the Occupied Territory from the Occupying Power carrying out a demographic change to the Occupied Territory. According to the interpretation preferred by Israel, if the civilians of an Occupying Power support their government in changing the demographics of the territory and voluntarily move into the territory, the prohibition
39 This is not to say it would not be clearer if it article 49(6) was instead a completely different provision – it obviously would be. The fact that the drafters included two tests in the one article is regrettable. In the 1958 ICRC Commentary Pictet oberved that “it would therefore appear to have been more logical - and this was pointed out at the Diplomatic Conference - to have made the clause in question into a separate provision distinct from Article 49”: above n 13, 283. 40 See section in Chapter One on the applicability of the Fourth Geneva Convention on the object and purpose of the Convention. Also see Henckaerts, above n 12, 477 and Dinstein, above n 8, 238-9. 41 GCIV. See Jean-Marie Henckaerts, Mass Expulsion in Modern International Law and Practice (Martinus Nijhoff Publishers, 1995), 149. 42 GCIV.
114 in article 49(6) does not apply. This would constitute a significant lacuna in the scope of the protection in the provision. All an Occupying Power would have to do to change the demographics of an Occupied Territory would be to find members of its own civilian population willing to move into the territory. History shows this would not be overly difficult.43 As such, Israel’s preferred interpretation would defeat the object and purpose of protecting the occupied population.
It seems just as plausible that the absence of the word ‘forcible’ in article 49(6) was intended to distinguish it from article 49(1), making it plain that the former included transfers that were not forced. This is the position adopted by Dinstein, who argues that the use of the word forcible in article 49(1) but its omission from article 49(6) indicates that article 49(6) covers situations where the nationals of the Occupying Power who are being transferred into the Occupied Territory are doing so willingly.44 This is persuasive: the drafters had already used the term once in the provision - why would they not use it again if they intended the sixth paragraph to only prohibit coerced transfers? The firm conviction that ‘forcible’ applies to any transfers covered by each of the subsequent paragraphs throughout the whole provision due to ‘simple grammar’ is not justified.
For the sake of completeness, it is worth considering whether the drafting history of article 49(6) sheds any light on this issue. Sadly, the results of this examination do not really assist in clarifying whether the provision applies to the voluntary movement of people. The draft article 49 (which was at that stage article 45) proposed by the Government Experts to the Stockholm Conference did not have a provision directed to preventing the Occupying Power from changing the demographics in the Occupied Territory. The draft article provided:
Deportations or transfers of protected persons out of Occupied Territory, whether individual or collective, and whatever their motive, are prohibited.
The occupying Power shall carry out no evacuation, total or partial, of a given area, unless the security of the population or imperative military considerations require.
43 The record of colonisation by free settlers in places like Australia is testament to this. 44 Dinstein, above n 8, 239-40.
115
Such evacuations may only take place within the Occupied Territory, except in cases of material impossibility.
The occupying Power shall undertake such transfers and evacuations only after ensuring to the protected persons proper accommodation to receive them. Such removals shall be effected in satisfactory conditions of hygiene, salubrity, security and nutrition. Members of the same family shall not be separated.
The Protecting Power shall be informed of any proposed transfers and evacuations. It may supervise the preparations and the conditions in which they are carried out.45
The remarks on the draft explained that the article drew a “very clear distinction” between deportation of protected persons, which was strictly prohibited, and evacuations of areas for reasons of security or military necessity.46
The critical paragraph providing that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies” was inserted at the Stockholm Conference.47 The draft of GCIV considered by the 1949 Conference had a provision identical to the final paragraph of article 49.48
The records of the 1949 Diplomatic Conference indicate that the scope and meaning of the last paragraph of article 49 was not discussed at length. The only comment was from the Italian delegate, Mr Maresca, who said that “the term ‘deportation’ in the last paragraph of the article had better not be used, as ‘deportation’ was something quite different.”49 The delegates were, therefore, put on notice of the potential interpretative problems the inclusion of article 49(6) would have, but nevertheless decided to approve the article in that form. This does not, however, indicate that one interpretation should be favoured over the other, only that it was recognised by one delegate that the word ‘deportation’ did create a level of ambiguity.
The 1958 ICRC Commentary provides an account of how the final paragraph of article 49 came to be included. It says that the clause was “adopted after some hesitation” by
45 ICRC, Draft Revised or New Conventions for the Protection of War Victims (ICRC, 1948), 173. 46 Ibid. 47 See the difference between article 45 in ICRC, Draft Revised or New Conventions for the Protection of War Victims (ICRC, 1948) and the draft in ICRC, Final Record of the Diplomatic Conference of Geneva of 1949 (1949) vol 1. 48 ICRC, Final Record of the Diplomatic Conference of Geneva of 1949 (1949) vol 1, 121. 49 Ibid, vol 2A, 664.
116 the 1949 Conference.50 The Commentary explained that it was intended to prevent the practice from World War II when “certain Powers” transferred parts of their own population into Occupied Territory to colonise that territory; transfers that “worsened the economic situation of the native population and endangered their separate existence as a race.”51
It described the paragraph as providing “protected persons with a valuable safeguard.”52 Further, it said that it “should be noted” that the words ‘transfer’ and ‘deport’ were used in a different way than in the other parts of article 49 “since they do not refer to the movement of protected persons but to that of nationals of the occupying Power.”53 The Commentary notes that this was perhaps not the most logical way of drafting the provision:
It would therefore appear to have been more logical – and this was pointed out at the Diplomatic Conference – to have made the clause in question in a separate provision distinct from Article 49, so that the concepts of “deportations” and “transfers” in that Article could have kept throughout the meaning given them in paragraph 1, i.e. the compulsory movement of protected persons from Occupied Territory.54
Aside from again illustrating that the purpose of the provision is to protect the people living in Occupied Territory, the drafting history does not really add anything to clarify the interpretation of article 49(6). It does not provide any evidence either for or against whether ‘coercion’ of the transferees is necessary to breach the prohibition. However, given that the analysis of the text and the object and purpose of the article both suggest otherwise, such an element should be rejected.
This question was considered by the ICJ in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (‘Wall Advisory Opinion’), which held that there was no requirement for coercion to breach the prohibition in article 49(6). The Court explained its view on the operation of the sixth paragraph of the article:
50 Pictet, above n 13, 283. 51 Ibid. 52 Ibid. 53 Ibid. 54 Ibid.
117
That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the Occupied Territory.55
This also appears to be the view of the United Nations Security Council (‘UNSC’) and the United Nations General Assembly (‘UNGA’). They have not drawn a distinction between those measures that alter the demographics of the territory that are coercive, and those that are not. The 2016 UNSC Resolution 2334 condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967.”56 Similarly, the 1980 UNSC Resolution 465 condemned “all measures” taken by Israel to alter the demographic composition of the Palestinian Territories, and that “Israel’s policy and practices of settling parts of its population and new immigrants” in those areas constituted a “flagrant violation” of GCIV.57 There are also a number of UNGA Resolutions that do not express a requirement that the prohibited transfer of population be coerced.58
The argument that article 49(6) also covers the voluntary movement of people into the Occupied Territory is compelling. A concise summary of the legal situation was provided in 1978 to the US House Committee on Foreign Affairs by Herbert Hansell, US State Department Legal Advisor. His view of the operation of article 49(6) constitutes a succinct and persuasive assessment of the boundaries of the provision:
Paragraph 6 appears to apply by its terms to any transfer by an Occupying Power of parts of its civilian population, whatever the objective and whether involuntary or voluntary. Paragraph 1 of article 49 prohibits “forcible” transfers of protected persons out of the Occupied Territory; paragraph 6 is not so limited. It seems clearly to reach
55 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Reports 136, 183. Aside from noting this underpinned the Security Council view of the Israeli Settlements in the West Bank, the ICJ did not refer to any other sources to support this conclusion. 56 SC Res 2334, UN SCOR, 7853rd mtg, UN Doc S/RES/2334 (23 December 2016). 57 SC Res 465, UN SCOR, 2203rd mtg, UN Doc S/RES/465 (1 March 1980). Also see SC Res 476, UN SCOR, 2242nd mtg, UN Doc S/RES/476 (30 June 1980). 58 For example GA Res 66/78, UN GAOR, 66th sess, 81st plen mtg, Agenda Item 53, UN Doc A/RES/66/78 (12 January 2012); GA Res 63/97, UN GAOR, 63rd sess, 64th plen mtg, Agenda Item 30, UN Doc A/RES/63/97 (18 December 2008); GA Res ES-10/6, UN GAOR, 10th emergency special session, 12th plen mtg, Agenda Item 5, UN Doc A/RES/ES-10/6 (24 February 1999); 53
118
such involvements of the Occupying Power as determining the location of the settlements, making land available and financing of settlements, as well as other kinds of assistance and participation in their creation. And the paragraph appears applicable whether or not harm is done by a particular transfer. The language and history of the provision lead to the conclusion that transfers of a belligerent occupant’s civilian population into Occupied Territory are broadly proscribed as beyond the scope of interim military administration.59
Dinstein argues that “[the transferees’] voluntary cooperation in the transfer does not diminish from its illicit character … as long as the Occupying Power stands behind the project.”60 Momtaz also supports this reading of the provision, as it “takes into account the essential purpose of the provision” which is to “avoid the ethnic identity of the indigenous population being endangered by those transferred.”61 This conclusion is convincing and best meets the plain meaning of the text, as well as the object and purpose of article 49(6). It should be accepted.
2. Voluntary transfer and article 8(2)(b)(viii)
In any case, the text of article 8(2)(b)(viii) does not have the same potential for ambiguity as article 49(6). The provision explicitly provides that the transfer by the Occupying Power can be done ‘directly’ or ‘indirectly’. A population transfer coerced by the Occupying Power would necessarily be a ‘direct’ transfer, as the movement would be directly and immediately due to the coercion of the transferee.62 As a coerced transfer could not be ‘indirect’, if ‘indirect’ is to have any substantive contribution to the article, it must cover forms of population transfer that are not coerced. This is particularly obvious when the definition of ‘indirect’ is considered. It is defined as “[n]ot directly aimed at or attained; not immediately resulting from an action or cause.”63 If this is applied to a population transfer, it is apparent that an indirect
59 Extracted in Awn Shawhat Al-Khasawneh, The Human Rights Dimensions of Population Transfers, Including the Implantation of Settlers, E/CN, 46th sess, Agenda Item 8, UN Doc E/CN.4/Sub.2/1994/18 (30 June 1994) [84]. 60 Dinstein, above n 8, 239-40. 61 Djamchid Momtaz, ‘Israel and the Fourth Geneva Convention: On the ICJ Opinion Concerning the Separation Barrier’ (2005) 8 Yearbook of International Humanitarian Law 344, 351. 62 It would also be possible for a voluntary transfer to be a ‘direct’ transfer as the distinction between ‘direct’ and ‘indirect’ depends not on the consent of the transferee, but rather the actions of the Occupying Power. 63 “indirect, adj.” OED Online (Oxford University Press, 2017).
119 transfer could be a policy that does not in itself cause the movement of people into the territory (in the way that forcing people onto a bus and driving into the territory would ‘cause’ movement), but rather creates the circumstances in which a transfer is incentivised or induced – where a transfer becomes more likely. The text of article 8(2)(b)(viii) is clear and is consistent with the object and purpose of protecting people in Occupied Territory. The interpretation does not offend the principle of legality as the meaning of the word ‘indirect’ is transparent, and it does not extend the scope of the crime in an unjustified way. Given all these elements of interpretation point so clearly in one direction, the Court could conclude its examination of this legal question at this point.
However, this interpretive conclusion is strengthened by the drafting history of article 8(2)(b)(viii). The wording of the article is drawn from article 85(4)(a) of API. The prohibition of transfer of population into Occupied Territory appeared in various forms in a number of the early draft instruments prepared by the International Law Commission (‘ILC’) as a “well established war crime.”64 Article 22(2) of the 1991 Draft Code of Crimes Against the Peace and Security of Mankind (‘1991 Draft Code’) of the ILC, for example, provided that the “establishment of settlers in an Occupied Territory and changes to the demographic composition of an Occupied Territory” was unlawful.65 The ILC explained in the accompanying Commentary that “establishing settlers” was a “particularly serious misuse of power” since “such an act could involve the disguised intent to annex the Occupied Territory.”66 The 1996 Draft Code of Crimes Against the Peace and Security of Mankind (‘1996 Draft Code’) included the war crime of “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies.”67
The inclusion of the prohibition of transfer of population into the Rome Statute was strongly opposed by Israel on the basis that it was not part of customary international
64 Cottier and Baumgartner, above n 11, 407. 65 International Law Commission, Report of the International Law Commission on the Work of Its Forty-Third Session, 29 April – 19 July 1991, UN GAOR, 46th sess, Supp No 10, UN Doc A/46/10, ch IV D. 66 Ibid 105. 67 International Law Commission, Report of the International Law Commission on the Work of Its Forty-Eighth Session — 6 May – 26 July 1996, UN GAOR, 51st sess, Supp No 10, UN Doc A/51/10 ch II D, article 20(c)(j).
120 law.68 The “overwhelming majority of delegations” rejected Israel’s submission.69 The Conference considered four options for the definition of the Crime:
Option 1: the transfer by the Occupying Power of parts of its own civilian population into territory it occupies;
Option 2: the 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;
Option 3: (i) the establishment of settlers in an Occupied Territory and changes to the demographic composition of an Occupied Territory;
(ii) the 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;
Option 4: no paragraph [addressing the transfer of population].70
The Arab delegations wanted to ensure that the provision was drafted in a way to capture transfers that were directly organised by the Occupying Power as well as transfers that were indirectly encouraged, facilitated or promoted by the Occupying Power.71 This proposal was accepted by the Rome Conference despite Israeli opposition, with “most states that expressed their opinion at the negotiation” considering the additional words ‘directly’ and ‘indirectly’ to reflect the pre-existing state of customary international law.72 This is persuasive evidence that the inclusion of ‘indirect’ transfer was explicitly designed to capture the voluntary transfer of population into Occupied Territory.
Arthur Lenk, current Israeli Ambassador to South Africa and former Legal Advisor to IMFA, concurred with this analysis of the provision. He conceded that article
68 Cottier and Baumgartner, above n 11, 407. 69 Ibid. 70 Preparatory Committee (Consolidated) Draft quoted in Cottier and Baumgartner, above n 11, 407. 71 Cottier and Baumgartner, above n 11, 407. 72 Ibid 407-8.
121
8(2)(b)(viii) extended the prohibition beyond the “traditional version” of article 49 of GCIV which he argued required coercion:
The words “directly or indirectly” clarify that there is no requirement that parts of the Occupying Power’s population be physically forced or otherwise compelled to transfer. Inducements or facilitations such as subsidies, tax benefits would be criminalized.73
He further conceded that importing a requirement for coercion based on the footnote in the Elements of Crimes would be unlikely to be accepted by the Court.74
In addition, even if it was accepted that article 49(6) was limited to coercive transfers, this limitation should not be imported into the Rome Statute. An interpretation of ‘transfer’ that requires coercion would severely strain the interpretation of ‘indirectly’. A footnote in the Elements of Crimes should not be held to override the words of the Statute itself.
3. Summary
The best view is that the crime of transfer of population in article 8(2)(b)(viii) does not require the transferees to be coerced into moving. If the other elements are met, the voluntary movement of nationals of the Occupying Power may amount to a crime. The interpretation of article 49(6) of GCIV that is the basis for an element of coercion in the crime is not persuasive. The ordinary meaning of the text of the provision, as well as its context in GCIV and its broader object and purpose, make it clear that article 49(6) prohibits the voluntary transfer of civilians.75 It accords to the ordinary meaning of the word ‘transfer’ and ensures that the people of the Occupied Territory are protected from having the demographics of the territory changed by the Occupying Power consistently with the underlying rationale of the law of occupation. Besides, even if the restrictive view of article 49(6) was accepted, the inclusion of the word ‘indirectly’ in
73 Lenk, above n 22, 80. 74 Ibid 83. 75 It is the view of Henckaerts, Mass Expulsion in Modern International Law and Practice, above n 41, 149; Melanie Jacques, The Protection of Refugees and Displaced Persons under International Humanitarian Law (Cambridge University Press, 2012), 91; Dinstein, above n 8, 239-40; Momtaz, above n 61, 351; Quigley, above n 31, 14; Eyal Benvenisti, The International Law of Occupation (Oxford University Press, 2012), 240.
122 article 8(2)(b)(viii) of the Rome Statute would override this restriction and extend the scope of the prohibition at the ICC.
B. What level of support by the Occupying Power is required to breach the prohibition? If the voluntary movement of people into the Occupied Territory can amount to a breach of article 8(2)(b)(viii), the question becomes what level of support of the movement by the Occupying Power is required. Is any support at all enough to breach the prohibition? Or is something more required? Does the crime only prohibit the Occupying Power from substantially supporting the movement of people with the clear and unequivocal aim of the Occupying Power changing the demographics of the Occupied Territory? The answer to this question will have a significant impact on the difficulty of proving the crime before the Court.
1. Is any support necessary?
Some level of support by the Occupying Power is necessary to breach the prohibition. The provisions make it clear that there must be a causal connection between the actions of the Occupying Power and the transfer of people into the Occupied Territory. Article 8(2)(b)(viii) of the Rome Statute states that it is a crime if there is a transfer of population ‘by the Occupying Power.’ The word ‘by’ is a preposition that identifies “the principal agent”76 and indicates that some action must be done by the Occupying Power to breach the prohibition. As such, if the movement of people is entirely voluntary and happens without any support or encouragement by the Occupying Power, it is difficult to see how the provision would be breached.
A finding to the contrary would have to accept that the only necessary link would be that the people moving are nationals of the Occupying Power. This would be an unjustified expansion of the crime as it would render the phrase ‘by the Occupying Power’ devoid of meaning. It would extend beyond only addressing acts by the Occupying Power, and could end up covering legitimate forms of population movement. It should be rejected, as it is contrary to the plain meaning of the text of the Rome Statute. It is also contrary to the principle of legality. Besides, if it had been
76 “by, prep. and adv.” OED Online (Oxford University Press, 2017).
123 intended to apply more broadly, the crime could have explicitly absolutely prohibited the movement of nationals of the Occupying Power into the Occupied Territory.
While we can draw this conclusion from the text of the crime, and the use of the phrase ‘by the Occupying Power’, this approach is consistent with general international law, where is it accepted that attribution requires more than just nationality. The ILC Draft Articles on State Responsibility illustrate that more than just nationality or citizenship is needed in international law for conduct to be attributable to a state. The commentary to the Draft Articles explains:
In theory, the conduct of all human beings, corporations or collectivities linked to the State by nationality, habitual residence or incorporation might be attributed to the State, whether or not they have any connection to the Government. In international law, such an approach is avoided, both with a view to limiting responsibility to conduct which engages the State as an organization, and also so as to recognize the autonomy of persons acting on their own account and not at the instigation of a public authority. Thus, the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State.77
Articles 4 to 11 of the Draft Articles set out the circumstances when conduct will be attributed to a State.78 In each of the Draft Articles, some connection beyond mere nationality must be shown between the people or organisations responsible for the action and the relevant state. The Draft Articles cover the “organs” of the state that exercise the legislative, executive or judicial function of that state;79 people or entities exercising governmental authority;80 conduct that is “directed or controlled” by the state;81 and conduct that is “acknowledged and adopted” by the state.82 Nationality alone is not enough.
Therefore, the prohibition in article 8(2)(b)(viii) should not be considered to extend to cover nationals of the Occupying Power purchasing land from residents of the
77 International Law Commission, Draft Articles on Responsbility for Internationally Wrongful Acts, UN GAOR, 56th sess, Supp No 10, UN Doc A/56/10 (3 August 2001), 80. 78 Ibid 84-122. 79 Ibid 84. 80 Ibid 92. 81 Ibid 103. 82 Ibid 118.
124
Occupied Territory, when such a purchase occurs lawfully, without coercion or other support from the Occupying Power.83 Michael Cottier and Elisabeth Baumgartner, writing on the scope of article 8(2)(b)(viii), argued that the “Occupying Power” must have some involvement in the transfer:
[The article] criminalizes the transfer of the population ‘by the Occupying Power’ without specifying for which precise conduct criminal responsibility incurs for an individual. However, the wording implies some involvement of the state. Settlements in occupied territory thus appear to only amount to war crimes if the Occupying Power’s authorities are involved. Isolated individuals buying a house in accordance with the applicable rules (including the law of the occupied territory) and in a wholly private capacity without any incentive by the Occupying Power or coercive measures by that power vis-à-vis the local population, would not appear to qualify under [the article].84
The focus of article 8(2)(b)(viii) (and article 49(6) of GCIV) on the actions of the Occupying Power mean that, where individuals act wholly by themselves, there is no breach of the prohibition.
This means that a failure by the Occupying Power to take effective steps to prevent its population from moving into the territory should not give rise to criminal responsibility.85 While an expansive interpretation of article 8(2)(b)(viii) that it extends to transfers of nationals from the Occupying Power into the Occupied Territory resulting from a failure by the Occupying Power to take effective steps to prevent the transfer could increase the protection the provision offered to the occupied population,86 the requirement that there actually be some level of support does not
83 Dinstein, above n 8, 241. Also see The I.G. Farben Trial: Trial of Carl Krauch and Twenty-Two Others (United States Military Commission, Nuremberg, 1948) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 46. While it was decided before the conclusion of GCIV and the explicit prohibition of the transfer of population, this case provides support for this conclusion. The US Military Commission held that consensual, private transfers of land were not prohibited by the Hague Regulations, saying: “We look in vain for any provision in the Hague Regulations which would justify the broad assertion that private citizens of the nation of the military occupant may not enter into agreements respecting property in occupied territories when consent of the owner is, in fact, freely given.” 84 Cottier and Baumgartner, above n 11, 410-1. Also see Dinstein, above n 8, 240. 85 Cf. Cottier and Baumgartner, above n 11, 411 where it is described as an “open question”. 86 William Schabas argues that the provision does apply to cases where “the occupying power does not actually organize the transfer of population, but does not take effective measures to
125 unduly limit the scope of the crime. This assertion is particularly true if ‘support’ is not construed too narrowly. However, it should also be remembered that the other, non- criminal obligations of occupation law will remain in place to constrain the actions of the Occupying Power in managing the interactions between its citizenry and the occupied population. Two examples will suffice. Article 43 of the 1907 Hague Regulations provides that the Occupying Power has to ensure “as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”87 Article 46 provides that “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected” and that “Private property cannot be confiscated.”88 These articles impose on the Occupying Power obligations to use its power over the territory to ensure, as far as possible, public order and safety and to respect people’s lives, family and property. It should be remembered that not all breaches of the underlying law of occupation will give rise to criminal liability.
This means that a failure of the Occupying Power to prevent settlements, without any positive support or encouragement, will not breach article 8(2)(b)(viii). The provisions make it clear that the transfer must be somehow supported by the Occupying Power, which requires more than passive inaction.89 Connecting this to individual criminal responsibility, the individual perpetrator must be in some way responsible for the support provided by the State. This is discussed further in Chapter Four.
2. Does the Occupying Power have to ‘intend’ to alter the demographics of the territory?
Another difficult question is what level of support is required to breach the prohibition. The provisions do not offer any guidance as to how to resolve this question. There is no express threshold requirement. There are no cases that have analysed the crime in any detail. Therefore, the interpretative analysis is somewhat speculative.
prevent this”: The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2nd ed, 2016) 275. 87 Hague Regulations art 43. 88 Ibid art 46. 89 Cf. Schabas, above n 86, 275. As noted elsewhere in the thesis, while a failure to take effective measures might be in breach of other state obligations under occupation law, this does not mean that a breach of these obligations is also criminalised.
126
There are two approaches to this question that could be taken. The test could focus on the objective results of a policy and consider whether the policies put in place by the Occupying Power in fact promoted and encouraged the movement of nationals into the occupying territory. This view is consistent with the text of the provision, which does not say that the Occupying Power must carry out the transfer in order to effect demographic change in the Occupied Territory. Cottier and Baumgartner argue that as long as the conduct is attributable to the Occupying Power, it has the potential to give rise to criminal responsibility.90 This view is shared by Awn Shawhat Al-Khasawneh, who explained that “the scope of the prohibition is wide enough and is without regard to the motive for which such transfer, evacuation or deportation takes place.”91
It could be argued that a requirement for intention would help distinguish the criminal transfer from the movement of people for other lawful reasons, facilitating a distinction between ‘settlements’ that facilitate the administration of the territory (which would not be permanent as they would be abandoned at the cessation of the occupation) and ‘settlements’ that are aimed at changing the demographics of the territory. A requirement for such an intention is incorporated into some military manuals.92 For example, the manuals of New Zealand, Australia and Canada explicitly refer to a requirement for the Occupying Power to intend to change the nature of the population, annex or colonise the territory.93 The ICJ in the Wall Advisory Opinion could be read to have taken this approach, as the Opinion suggests that the measures must be taken in order to cause a transfer. The Court explained that “any measures taken by an Occupying Power in order to organize or encourage transfers of parts of its own population into the Occupied Territory” would violate the prohibition.94 The Court did
90 Cottier and Baumgartner, above n 11, 411. 91 Awn Shawhat Al-Khasawneh, Special Rapporteur, The Human Rights Dimensions of Population Transfers, Including the Implantation of Settlers, E/CN, 46th sess, Agenda Item 8, UN Doc E/CN.4/Sub.2/1994/18 (30 June 1994), [73]. 92 See ICRC, ‘Practice Relating to Rule 130. Transfer of Own Civilian Population into Occupied Territory’ in Customary International Humanitarian Law (2015)
127 not go on to fully explain the legal basis for this position, and it is not entirely clear whether they intended to impose a subjective element.
Nevertheless, this view that an intention to alter the demographics in the Occupied Territory is a requirement of the offence should be resisted. It is unnecessary to impose an additional requirement to also show that the Occupying Power had the subjective intention to put in place a policy leading to the permanent transfer of nationals into the Occupied Territory. If a subjective test was adopted, it would make it easy for those responsible for the policies of the Occupying Power to avoid prosecution by establishing a façade of lawfulness, either saying nothing about the underlying reasons behind a policy, or claiming they were for purposes other than demographic change. While it may be possible to infer intention if the policies have led to an actual increase of transferees in the Occupied Territory, and have remained in place, it would still substantially reduce the effectiveness of the prohibition. It would mean the Prosecution would needto prove both the intention of the individual perpetrator as per article 30 of the Rome Statute95 (discussed in more detail in Chapter Four), as well as the intention of the underlying State policy.
The intention element was an issue of some controversy when the Elements of Crimes were being drafted. There was a discussion about how best to ‘translate’ the Occupying Power’s obligation to a particular individual.96 The United States proposed that, among other things, special intent was necessary for a crime to occur, but this position was rejected by the majority of delegates.97 After negotiations between the Arab states, Israel and the US, the “carefully balanced” compromise position was to replicate the wording of the provision and replace ‘by the Occupying Power’ with ‘by the perpetrator’ in the Elements, even though it led to the grammatically illogical reference to the perpetrator having his or her “own population.”98 All in all, this history does not assist in resolving the question of whether the measure has to be put in place for the purpose of causing a transfer.
95 Cottier and Baumgartner, above n 17 argue at 411 that all that would be necessary would be to show “the intent of transferring parts of the population of the Occupying Power into the Occupied Territory”; not any additional motive or special intent on the part of the individual. 96 Cottier and Baumgartner, above n 11, 408. 97 Ibid 408-9. 98 Ibid 409
128
Interpreting the crime as only having an objective element is consistent with the object and purpose of the prohibition, as well as the human rights of the civilian population in Occupied Territory. As an objective element is supported by the text of the crime, it respects the principle of legality. Therefore, the best view is that, to breach article 8(2)(b)(viii) it is only necessary for the policies of the Occupying Power to have led to the transfer of the nationals of the Occupying Power into the Occupied Territory, regardless of any intent. If this threshold requirement is met, no further restriction should be imposed. In such circumstances, the extent of the movement would not matter: regardless of how small or insignificant, it would be an act that had the consequences of changing the demographics of the Occupied Territory. It is also for this reason that it should be unnecessary to prove, as some have suggested,99 that the transfer caused some additional adverse consequences to the occupied population. It is the change in demographics that is the harm the provision seeks to criminalise.
This does not mean that the level of support provided by the Occupying Power, or the impact that support has, is irrelevant. The level of support may well change the seriousness of the breach of the prohibition, and therefore impact on the decision of whether the gravity threshold for the ICC to take on a case has been met. It would not, however, change the unlawfulness of the policy. For example, consider a policy that gives the nationals of the Occupying Power living in Occupied Territory free access to public transport to encourage people to move, and this policy only results in ten people transferring. Such a policy would be unlikely to cross the gravity threshold, but would still be unlawful and would still give rise to criminal responsibility; it would just not be subject to prosecution at the ICC. On the other end of the scale, if the transferees are offered free education, health insurance, houses, along with a complete income tax concession, and this results in tens of thousands of people transferring into the Occupied Territory, there would be criminal responsibility and, in addition, the gravity threshold would be much more likely to be passed.
The range of policies that could be in breach of the prohibition is potentially very broad. In their commentary on this provision in the Rome Statute, Cottier and Baumgartner set out some examples of conduct of an Occupying Power that might breach the prohibition:
99 Pnina Sharvit Baruch, ‘Understanding the Settlements Debate’ (2017) 111 AJIL Unbound 36.
129
Direct transfer would for instance include the provision of government settlement plans for its own civilian population in occupied territory and the construction of the housing of the state. Indirect involvement of the Occupying Power would include policies and measures to induce and facilitate migration into occupied territory, such as economic and financial incentives, subsidies and tax exonerations.100
The scope of the potential policies makes a simple test of looking to the actual consequences of the policy, rather than any additional requirement to show some sort of purpose or intention to the policy, the preferred approach.
C. How many people need to be transferred? The question of how many people need to be transferred for a breach of the prohibition to occur is difficult to ascertain. The scant guidance provided by article 8(2)(b)(viii) means that we must again rely on deduction to reach a satisfactory answer. Both article 8(2)(b)(viii) and its predecessor provision, article 49(6) of GCIV, require the Occupying Power to transfer “parts of its own civilian population”. In this context, ‘part’ means “[p]artial; that is (something) in part but not in full”;101 so, it does not have to be the entire civilian population that moves into the Occupied Territory, but rather a segment of it. The word ‘part’ does not, however, set a threshold of just how large a segment it would have to be for the prohibition to be breached. Perhaps this provides an answer: other provisions of the Rome Statute have words indicating a severity threshold that must be crossed before an act becomes unlawful. Article 8(2)(a)(iii) requires wilfully causing “great” suffering; article 8(2)(a)(iv) requires “extensive” destruction and appropriation of property.102 Article 8(2)(b)(iv) requires damage to the environment to be “widespread, long-term and severe” and “clearly excessive” in relation to any military advantage.103 Crimes against humanity require an act to be part of a “widespread or systematic attack” before they are unlawful. There is no similar restriction on the operation of article 8(2)(b)(viii).
There are some indications that the crime requires something more than the transfer of a single person. Unlike the elements of the crime of transfer of population into Occupied Territory, the Elements of Crimes provides that the crime of unlawful
100 Ibid. 101 “part, adj.2 and adv.” OED Online (Oxford University Press, 2017). 102 Rome Statute art 8(2)(a)(iii) and (iv).. 103 Ibid art 8(2)(b)(iv).
130 deportation or transfer under article 8(2)(a)(vii) applies to “one or more persons.”104 The failure to include a similar phrase in the elements of article 8(2)(b)(viii) could be seen as a deliberate decision to require more than one person. The word ‘part’ is also used in other parts of the Rome Statute to refer to more than a single individual, and, in the context of the crime of genocide, the requirement to destroy a group “in whole or in part” is generally understood as indicating that “the offender need not intend to destroy the entire group, but only a substantial portion of it.”105
Given this, it should be accepted that, if the Occupying Power transferred any part of its civilian population, even if it is only a single person, it is unlawful. However, this would be taken into account when considering the seriousness of the crime: even though it would still be contrary to the prohibition, it is very hard to see how the transfer of a single person would meet the gravity threshold for prosecution at the ICC.
D. When does the transfer occur? A particularly significant question in this factual context is the moment in time at which the crime occurs. Article 11(1) of the Rome Statute provides that the court only has jurisdiction over crimes committed after the entry into force of the Statute, and if a state joins after the Statute comes into force, article 11(2) provides that the Court will only have jurisdiction from the point in time at which the Statute comes into force in that state (unless the state makes an article 12(3) declaration which may provide jurisdiction ex post facto – but not to acts occurring prior to the entry into force of the Rome Statute on 1 July 2002). While the question of when ICC jurisdiction commenced in Palestine is contested and beyond the scope of this thesis,106 there is no question that some of the Israeli nationals living in the West Bank moved there prior to jurisdiction
104 Elements of Crimes, art 8(2)(a)(vii). 105 William Schabas, ‘Article 6: Genocide’ in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court: A Commentary (C.H.Beck, Hart and Nomos, 3rd ed, 2016), 134. 106 There are many articles that address this question, including the following: Andreas Zimmermann, ‘Palestine and the International Criminal Court Quo Vadis?: Reach and Limits of Declarations under Article 12(3)’ (2013) 11(2) Journal of International Criminal Justice 303; Alain Pellett, ‘The Palestinian Declaration and the Jurisdiction of the International Criminal Court’ (2010) 10(4) Journal of International Criminal Justice 981; Yaël Ronen, ‘ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-state Entities’ (2010) 8(1) Journal of International Criminal Justice 3; Eugene Kontorovich, ‘Israel/Palestine – The ICC’s Uncharted Territory’ (2013) 11(5) Journal of International Criminal Justice 979; Alexander Wills, ‘Old Crimes, New States and the Temporal Jurisdiction of the International Criminal Court’ (2014) 12(3) Journal of International Criminal Justice 407.
131 commencing. Thus, determining when in time the crime is committed will determine what conduct is amenable to the jurisdiction of the ICC.107
It appears that the resolution to this problem is relatively straightforward. Article 8(2)(b)(viii) is directed towards the ‘transfer’ of population. As discussed above, the ;transfer’ is the actual movement of people. It means “[t]o convey or take from one place, person, etc. to another; to transmit, transport; to give or hand over from one to another.”108 The subject of the prohibition is on the transmission of people, and thus it is the movement that is criminalised, not the maintenance of any population in the Occupied Territory.
However, does this mean that supporting a stable and settled population in Occupied Territory after the transfer has occurred could not give rise to criminal liability? If such an interpretation is accepted, any settlements where the population was ‘transferred’ prior to the jurisdiction of the Court would not be amenable to the Court’s jurisdiction. This view rests upon categorising the crime of transfer of population as one that is not of a continuing character, but rather occurs instantaneously at the moment when the people move into the Occupied Territory. It is not clear whether such a categorisation is appropriate, or whether it is better seen as a ‘continuing’ crime.
The concept of a continuing crime is not novel to the prohibition of transfer of population. Alan Nissel draws a helpful distinction between completed crimes and continuing crimes.109 A completed crime is one that “does not continue in time” and “only takes an instant to commit.”110 An obvious example of a completed crime is murder, which “only prohibits perpetrators from murdering so long as the victim is alive; the instant the victim dies, the perpetrator has committed – and is no longer committing – the crime.”111
107 Zimmermann, ibid, 321. 108 “transfer, v.” OED Online (Oxford University Press, 2017). 109 Alan Nissel, ‘Continuing Crimes in the Rome Statute’ (2004) 26 Michigan Journal of International Law 653, 661. The third category identified by Nissel at 662 is ‘composite’ crimes. These are crimes where there is “a violation of a single, primary obligation that occurs a number of times; it requires a plurality of acts and/or omissions to have been committed, which, taken as a whole, constitute a separate, composite crime.” Crimes against humanity fall into this category: the underlying breaches must be “widespread and systematic” before the acts collectively become a crime against humanity. 110 Ibid 661. 111 Ibid.
132
In contrast, a continuing crime is a “violation of a primary obligation targeting a potentially ongoing situation that has been committed and then maintained.”112 It is a breach of a prohibition that takes place over a period of time. The distinction between continuing and instantaneous is not always clear. Nissel argues that the distinction “depend[s] upon identifying the relevant primary norm in question.”113 A continuing crime will be one where the prohibition protects a primary norm, and the breach is committed and then maintained. It appears that another critical consideration for distinguishing between the two is whether the crime can be undone through some further action. For example, Nissel identifies enforced disappearance as a continuing crime as it “takes time to commit.”114 A disappearance is not just that the person has gone missing or has been killed, but beyond this, part of the core of the criminal conduct is that the perpetrator does not reveal the victim’s location for a period of time.
The distinction between instantaneous crimes and continuing crimes is underdeveloped in international criminal law. Neither the Rome Statute nor the Elements of Crimes offer any explicit guidance as to whether and, if so, how a distinction between the different types of crime should be made.115 The drafters decided to leave the matter for the Court to resolve.116
One place to look for guidance on how to conceptualise continuing crimes is the Draft Articles on State Responsibility. These Articles, prepared by the International Law Commission (‘ILC’),117 directly address the question of continuing breaches of international law and are thus worth considering.118 Article 14 identifies the time at
112 Ibid. 113 Ibid 662. 114 Ibid. 115 The Elements of the Crime does provide some guidance for the crime of disappearance of persons in article 7(1)(i). A footnote clarifies that the ‘attack’ in elements 7 and 8 has to occur after the entry into force of the Statute. This does not shed any light on other crimes. Zimmerman (above n 106, 322) argues this might suggest that other crimes are continuing, but this is an insufficient reason for resolving the crime of transfer of population is continuing. 116 Carsten Stahn, Mohamed El Zeidy and Héctor Olásolo, ‘The International Criminal Court’s Ad Hoc Jurisdiction Revisited’ (2005) 99 American Journal of International Law 421, 429. 117 Nissel, above n 109, 664. 118 Zimmerman above n 106, 322 takes this approach. It must be remembered that applying the law of state responsibility to individual criminal responsibility is problematic in some instances, particularly as state responsibility does not require the same level of respect for the principle of legality. Also see Nissel, above n 109, 664.
133 which the breach of an international obligation is deemed to occur. The provision relevantly provides:
1. The breach of an international obligation by an act of State not having a continuing character occurs at the moment when the act is performed, even if the effects continue. 2. The breach of an international obligation by an act of State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation. 3. […]119
This article is not particularly helpful in differentiating a breach with a continuing character from one without a continuing character. It does make the point that a non- continuing breach can have effects that continue after the time of the breach and that it is not enough to show that the breach of an obligation has consequences that continue through time. Aside from this, article 14 does little more than make it clear there is a distinction between those breaches that do extend in time, and those that do not.
The Commentary to the Draft Articles discusses how to determine whether a breach of an obligation is continuing. It explains that the words “at the moment” in the first paragraph of the article:
… are intended to provide a more precise description of the time frame when a completed wrongful act is performed without requiring that the act necessarily be completed in a single instant.120
In contrast, a continuing wrongful act “occupies the entire period during which the act continues and remains not in conformity with the international obligation”.121 The Commentary explains:
Examples of continuing wrongful acts include the maintenance in effect of legislative provisions incompatible with treaty obligations of the enacting State, unlawful detention of a foreign official or unlawful occupation of embassy premises, maintenance by force of colonial domination, unlawful occupation of part of the
119 International Law Commission, Draft Articles on Responsbility for Internationally Wrongful Acts, UN GAOR, 56th sess, Supp No 10, UN Doc A/56/10 (3 August 2001) 138. 120 Ibid 139. 121 Ibid.
134
territory of another state or stationing armed forces in another State without its consent.122
The Commentary says that distinguishing between a continuing breach and a non- continuing breach “will depend on both the primary obligation and the circumstances of the given case.”123 It is not clear how the ‘primary obligation’ should be identified. The difficulty this causes is evident from the confusing explanation of the differing approaches taken to the expropriation of land:
The question whether a wrongful taking of property is a completed or continuing act likewise depends to some extent on the content of the primary rule said to have been violated. Where an expropriation is carried out by legal process, with the consequences that title to the property concerned is transferred, the expropriation itself will then be a completed act. The position with a de facto, “creeping” or disguised occupation, however, may well be different. Exceptionally, a tribunal may be justified in refusing to recognise a law or decree at all, with the consequence that the resulting denial of status, ownership or possession may give rise to a continuing wrongful act.124
The distinction between these two fact examples does not refer to the primary obligation, but only to the circumstances of the expropriation. This makes it very difficult to tell how the question regarding the taking of land ‘depends’ on the content of the primary rule.
The same can be said of the other examples offered by the Commentary. They do not provide any guidance on how the primary obligation is to be identified. The Commentary refers to the decisions of a number of international tribunals that considered whether the breach in question was continuing or not. For example, the Inter-American Court of Human Rights found that forced or involuntary disappearance is a continuing wrongful act that continues until the person is accounted for.125 In the Rainbow Warrior Arbitration,126 concerning an agreement between New Zealand and France to detain two agents on the French Pacific Island of Hao for three years, the arbitral tribunal found that failing to return the agents to Hao after they had
122 Ibid. 123 Ibid. 124 Ibid 139-140. 125 Blake v Guatemala [1998] Inter-Am Court HR 36, [67]. 126 New Zealand v France (1990) 20 RIAA 217 (‘Rainbow Warrior Arbitration’).
135 been allowed to leave and travel back to France was a continuing breach of France’s obligations.127 In these decisions, there was not a close consideration by the decision- makers of the process of identifying the primary obligation at stake.
The Commentary also refers to the jurisprudence of the European Court of Human Rights (ECtHR), which has had to grapple with whether breaches of human rights obligations are continuing on a number of occasions.128 The decisions of the Court do not provide a clear test of when a situation or violation of human rights law is ‘continuing’, nor how to identify the primary obligation being protected.129 The ECtHR instead focuses on the nature of the situation or violation, rather than determining the scope of the primary obligation. The ECtHR explained in the case of Ananyev and Ors v Russia that “the concept of a ‘continuing situation’ refers to a state of affairs in which there are continuous activities by or on the part of the State which render the applicant a victim.”130
While the ECtHR does not set it out explicitly, it seems the distinction is made on the basis of how straightforward it would be to reverse or end the breach of human rights. This is best understood with examples. In De Becker v Belgium, the ECtHR decided that criminal legislation that prevented the complainant from working as a journalist was a continuing violation of his human rights.131 In the case of X v Belgium, the complainant was affected by the same provision of the legislation, but based his complaint on a conviction of a court rather than the legislation itself. The ECtHR held this was an
127 Ibid 264 (‘Rainbow Warrior Arbitration’). 128 See Joost Pauwelyn, ‘The Concept of a ‘Continuing Violation’ of an International Obligation: Selected Problems’ (Pt 1) (1996) 66 British Yearbook of International Law 415 and Godefridus J. H. Hoof Pieter van Dijk, Theory and Practice of the European Convention on Human Rights (Martinus Nijhoff Publishers, 1998) for further detail on the jurisprudence of the ECtHR with respect to continuing situations. 129 A Van Pachtenbeke and Y Haeck, ‘From De Becker to Varnava: the State of Continuing Situations in the Strasbourg Case Law’ (2010)(1) European Human Rights Law Review 47, 48. The case of McDaid and Ors v United Kingdom [1996] EComHR App No. 25681/94 (9 April 1996) defined a continuing situation as a “state of affairs which operates by continuous activities by or on the part of the State to render the applicants’ victims.” Van Pachtenbeke and Haeck point out that this definition is inaccurate: a single act can be continuing, and requiring the acts to be ‘by or on the part of the State’ “raises questions of accountability that are unrelated to the continuing nature of the situation” and goes to the merit of the case. 130 Ananyev and Ors v Russia (European Court of Human Rights, Application Nos. 42525/07 and 60800/08, 10 April 2012) [75]. 131 De Becker v Belgium (European Court of Human Rights, Application No. 214/56, 27 March 1962).
136 instantaneous breach of his rights, and therefore outside the temporal jurisdiction of the Court.132 However, the distinction drawn between legislative acts and judicial decisions or executive decisions is difficult to understand, as both take effect at a clearly defined moment.133 This is probably why this approach has not been followed in every instance: in Xheraj v Albania, the Court held that the decision of the Albanian Supreme Court gave rise to a continuing situation as the applicant “continue[d] to be subject to the consequences of the … decision.”134 In Kefalas and Ors v Greece, the Court held that legislation preventing the judicial review of an act of the executive was not a continuing breach despite having “continuing effects.”135
Similar difficulties arise from the distinction the ECtHR has drawn between de facto expropriation of land and a formal expropriation of land. In the case of Papamichalopoulos v Greece, the Court found that the seizure of property not involving formal expropriation was a continuing breach,136 and indicated that, if the seizure of property was completed by a formal expropriation, it would not be continuing.137 The reason for this distinction appears to be that when land is expropriated only on a de facto basis, the complainant’s right to the land remains “practical and effective.”138 Given the lack of detailed analysis of when a breach is continuing, and the difficulty in reconciling some of the decisions, it is not immediately obvious how these decisions assist with determining whether the crime of transfer of population is continuing.
Joost Pauwelyn proposes some additional tools that can be used to identify what breaches of international obligations are ‘continuing’. First, he says that the analysis should focus on:
… the definition of the international obligation itself, rather than on the act breaching it and its effects. Indeed, one should examine whether the obligation in question is
132 X v Belgium (European Commission of Human Rights, Application No 1038/61, 18 December 1961). 133 Hoof and van Dijk, above n 128, 161. 134 Xheraj v Albania (European Court of Human Rights, Application No. 37959/02, 29 July 2008) [82]. 135 Kefalas and Ors v Greece (European Court of Human Rights, Application No. 14726/89, 8 June 1995) [45]. 136 Papamichalopoulos and Ors v Greece (European Court of Human Rights, Application No. 14556/89 24 June 1993) [40]. 137 Ibid. 138 Ibid [41].
137
targeting a (possible continuing) situation or, on the contrary, a given and instantaneous fact.139
Focussing on the identification of the primary obligation, Pauwelyn proposes that we should next consider:
… the problem of reparation and, especially, whether after the act first occurred the remedy of cessation is still of any use or the only possible reparation, or whether restitution in kind or compensation suffices to provide reparation both for the past and the future. Only in the former case should a continuing violation be established.140
Pauwelyn explains how this analysis would be applied by comparing legislation that implements an unlawful monopoly to a law that permits the unlawful appropriation of land. A state maintaining a legislated monopoly contrary to international law would be a continuing act, as the repeal of the legislation would end the monopoly. In contrast, the repeal of an unlawful expropriation law would not necessarily return the property to the owner. It would not, in all circumstances, amount to a cessation of the violation and is therefore not clearly a continuing breach.141
Finally, Pauwelyn proposes that we should:
… assess, whether as a legal fiction the act complained of can be said to be repeated, in its entirety, each day since it has been passed (and therefore is a continuing act), or whether only the effects or consequences of the act, which as such has only been passed once (and thus is an instantaneous act), remaining intact. In other words, if the act affects the legal status of a person during a certain period in time, it should be regarded as a continuing act.142
So how do we resolve this question in the context of the Rome Statute? The crime of transfer of population in article 8(2)(b)(viii) of the Rome Statute is difficult to categorise. The primary obligation the prohibition seeks to protect does seem reasonably clear: article 8(2)(b)(viii) is aimed at criminalising conduct that results in the Occupying Power changing the demographic composition of the Occupied Territory through population transfer into the territory.
139 Pauwelyn, above n 128, 420. 140 Ibid. 141 Ibid 421. 142 Ibid.
138
Zimmermann argues that article 8(2)(b)(viii) is not a continuing crime. While he acknowledges that a transfer might have long term effects, he says this is not enough to make it a continuous crime.143 This is for two reasons. First, the text of the provision suggests it is an instantaneous crime. He defines ‘transfer’ as being limited to the physical movement of people into the territory as the critical moment, meaning any supporting actions by the Occupying Power will only form part of the crime if those actions lead to the movement of people.144 If those actions happen to support those already settled in the occupied territory, “their transfer has been completed even if they then continue to be induced to stay in such territory” by incentives.145 Zimmermann substantiates his position by reference to the drafting history of the crime. He notes that one rejected version of the crime prohibited the “establishment of settlers in occupied territory,” saying that the use of the word ‘establishment’ hinted at an ongoing and continuous character of action.146 He says the failure of the drafters to take up this approach suggests they made a deliberate decision to avoid making the crime continuous.147
While Zimmermann’s argument is persuasive, it has some weaknesses. Instead of focussing on the word ‘transfer’ in isolation, a broader approach could recognise that the primary obligation the crime addresses in not the movement of people, but the movement resulting in a change of demographics. After all, the crime is not just concerned with the nationals of the Occupying Power moving into the Occupied Territory, but also with them staying there. The demographics of the territory will be altered for the duration that the transferees are in the territory; therefore, a finding that the crime is instantaneous and temporally limited to when the movement of people into the territory occurs will only capture a small part of the problematic conduct. Such an interpretation would lead to the conclusion that article 8(2)(b)(viii) does not prohibit any support provided to the transferees after they have arrived in the Occupied Territory, as the crime will have been fully committed, notwithstanding that continuing support might be essential to maintain the demographic change in the
143 Zimmerman above n 106, 324. 144 Ibid. 145 Ibid. 146 Ibid. 147 Ibid.
139 territory. In addition, there may be some forms of ‘transfer’ that are captured by this definition – such as visiting as a tourist – which will not be unlawful.
Applying Pauwelyn’s additional criteria, it does not seem that reparation or compensation would be sufficient to address the breach. The damage continues while the population remains in the territory. Instead, a cessation of the breach is necessary. It is only the departure of the transferees from the Occupied Territory that will ‘restore’ the demographic composition of the Territory. Israel forcibly evacuated settlers from both the Sinai Peninsula when it returned control of the Peninsula to Egypt, and from Gaza when it withdrew its armed forces from Gaza. In both cases, it was only on evacuation that the pre-settlement demographics of both territories was restored. This shows that the transfer of population into Occupied Territory has, at least in its initial stages, a degree of reversibility that is a critical feature of continuing crimes. Pauwelyn’s final consideration asks whether the act complained of can be seen to be repeated each day since it has passed, or if it is just the effects or consequences of the act that remain. If it is accepted that the prohibition is directed against not just the initial transfer of the population, but also the maintenance of that population in the territory, it is apparent that any continuing support of that population is “repeated each day.” As long as the Occupying Power’s support of the transferees in the Occupied Territory continues, the prohibition continues to be breached.
Nevertheless, the identified problems with the narrower approach are not enough to fatally undermine it. The non-continuing view remains more convincing than the alternative. First, as Zimmermann points out, a broader view that the crime continues pushes the plain meaning of the word ‘transfer’, in circumstances where the drafters considered and rejected an alternative approach which may have been more easily read to be a continuing crime. Second, the principle of legality supports interpreting criminal provisions narrowly, particularly where other interpretive factors fail to support a clear conclusion. Here, interpreting a ‘transfer’ to also encompass support after the movement has occurred, radically expands the range of the crime. An additional reason to support a narrower interpretation of the temporal scope of the crime is specific to the context of this situation, but is an issue that goes to a fundamental feature of the Rome Statute system: the temporal limit to the jurisdiction of the ICC. While it might be easier to accept a description of the crime ‘continuing’ for a population that has been recently transferred, stretching jurisdiction over a
140 population transfer that has been in place for decades is troubling. There may be a point where a population has been in place for a sufficiently lengthy period of time such that the demographic change has, in some way, been completed. Perhaps this would be the point when the Occupying Power no longer had to provide any support to the transferees for them to remain in the territory. Nevertheless, this potential for the crime to apply to conduct that occurred up to 50 years ago undermines the conception of the jurisdiction of the Court as being temporally limited.
Ultimately, the difficultly in drawing a clear conclusion suggests that, in this instance, the principle of legality should operate as the tie-breaker in favour of a narrower interpretation of the crime. The better view then appears to be that the crime of ‘transfer of population’ is not a continuing crime and occurs at the moment that the transferees enter the Occupied Territory. The support that the Occupying Power grants prior to and after the move into Occupied Territory will be relevant if it can be shown to encourage the movement of nationals that occurs within the temporal jurisdiction of the Court. This would render any practice of providing security or living amenities to transferees, or extending tax breaks and other subsidies in a way that encourages the transferees to move into the Occupied Territory, contrary to article 8(2)(b)(viii). However, where the transferees moved into the Occupied Territory and commenced living there prior to the jurisdiction of the Court, the crime will not cover any ongoing support the Occupying Power provides to help those transferees who remain in the territory.
IV. CONCLUDING REMARKS
This chapter has articulated a persuasive interpretation of article 8(2)(b)(viii), addressing the critical interpretive questions. The best view is that the crime applies to the voluntary transfer of population, and does not require the Prosecution to show any coercion on behalf of the Occupying Power. This is consistent with the underlying prohibition from IHL and, given the text of article 8(2)(b)(viii), this position is unassailable. The movement of people, however, must be attributable in some way to the Occupying Power. It must also be shown that the policies that were adopted by the Occupying Power had the actual effect of encouraging the movement of people into the Occupied Territory. The crime does not set a requirement for a certain minimum number of people to be transferred, but the jurisdiction of the Court will be limited by
141 the gravity threshold in the Rome Statute. Finally, the crime is not continuing, and occurs when the movement of the nationals of the Occupying Power into Occupied Territory actually happens. This means that support for settlers who had already moved into the Occupied Territory prior to the jurisdiction of the ICC will not be covered by the crime. Instead, the provision is breached if the Occupying Power supports, through policies such as tax concessions, favourable rules of property acquisition or other inducements, a transfer that occurs within the temporal jurisdiction of the Court.
The elements of the crime of transfer of population (leaving to one side, for the moment, questions of individual criminal responsibility) can be summarised into a short list. The following must be satisfied for a successful conviction:
1. There must be the voluntary or coerced movement of part of the civilian population of the Occupying Power into the Occupied Territory on an indefinite basis; 2. The transfer can be attributed, directly or indirectly, to the Occupying Power; and 3. The crime occurs at the moment when the people move into the Occupied Territory to stay on an indefinite basis.
While the interpretation of the crime is not without controversy, and reasonable minds may disagree about some elements, it is apparent that the fundamental content of the crime is reasonably ascertainable. This is because the crime is relatively self-contained within the Rome Statute, and is drafted in a way that respects the principle of legality. As will be seen in the following chapter, this is in sharp contrast to the crime of appropriation of property which relies completely on a body of law separate to the Rome Statute to provide the content of the criminal prohibition. It is to this crime that we now turn.
142
CHAPTER THREE: CRIME OF APPROPRIATION OF PROPERTY
I. INTRODUCTION
One of the most profound changes since the beginning of the occupation of the Palestinian Territories is the shift in control over the land. Israeli nationals now directly control a substantial portion of the land in the West Bank, with much of it used for residential settlements. Other uses include military training grounds, permanent military bases, or other types of security installations and settler-exclusive roads linking settlements and major population centres within Israel proper.1 The Israeli control of land has meant that the Palestinian population is no longer able to access and use it. One of the crimes that addresses the taking of land is article 8(2)(a)(iv) of the Rome Statute which prohibits the unlawful appropriation of property in the context of an international armed conflict:
Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.2
The primary purpose of this chapter is to analyse the elements this crime. Each will be considered separately, starting with the elements of article 8(2)(a)(iv) before addressing how article 8(2)(b)(xiii) differs. Similar to the approach in the previous chapter, the Elements of Crimes are used to structure the analysis.
Part II considers what amounts to an ‘appropriation’, and what is covered by ‘property’. The words have been used in similar contexts in the law of occupation and in IHL more generally, but in different ways. The Court would have to determine what forms of property the provision encompasses, and whether it covers all property interests in land during an occupation. It would have to resolve whether a de facto
1 See, for example, Eyal Hareuveni, By Hook and By Crook: Israeli Settlement Policy in the West Bank (Zvi Schulman trans, B’Tselem, 2010). These are not the only offences relating to property that might be criminalised by the Rome Statute. There have been issues with the distribution and use of water, the exploitation of quarries, and the confiscation of personal property. 2 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’) art 8(2)(a)(iv). The crime in article 8(2)(b)(xiii) of seizure of property is very similar, but beyond the scope of this thesis to consider in detail.
143 appropriation (one without any formal change in legal title) would be enough to amount to a crime.
Part III addresses the operation of the military necessity exception. Military necessity is a very familiar notion in IHL, but its application in the context of an occupation is not often considered. There are several factors that have a significant impact. The passage of time of a military occupation has the potential to change the military necessity calculus. So does the wider context of the security situation during an occupation, as there are likely to be peaceful and less peaceful times, either of which might result in different conclusions regarding whether a particular measure in respect of property was necessary. The analysis will also differ if the Court is only permitted to look at the specifics of the particular appropriation, or whether instead it is necessary to look to the overall context of the occupation. It is unclear whether some uses of land during an occupation – like building a civilian settlement for example – are even capable of characterisation as ‘militarily necessary’ in any circumstances. There will be other situations where there may be a security need, but a range of options in how to meet that need. Should the decision-makers of the Occupying Power have something akin to a “margin of appreciation”3 in their approach to decisions regarding property? Is it necessary to choose the least injurious measure available to achieve the valid military aim? The answers to these questions set the parameters of what use of land will escape criminal sanction.
Part IV considers the effect of the inclusion of ‘extensively’ and ‘wantonly’ in the text of article 8(2)(a)(iv). The requirement that the appropriation be extensive suggests that a single appropriation may not amount to a crime, and that the provision could require something more wide-scale. The inclusion of ‘wantonly’ potentially changes the subjective element of the crime from the standard set by article 30 of the Rome Statute. It appears to allow for a lower standard of knowledge, allowing a degree of subjective recklessness.
The most difficult legal question is addressed in Part V. The crime requires the appropriation of property to be ‘unlawful’. This is a clear reference to occupation law.
3 This is a concept used in the jurisprudence of the European Court of Human Rights. See Jean- Pierre Cot, ‘Margin of Appreciation’ in Max Planck Encyclopedia of Public International Law (Oxford University Press, at June 2007).
144
As such, it is necessary to set out in detail how occupation law regulates the Occupying Power’s use of land in the Occupied Territory, establishing the outline of what is lawful and unlawful. The object and purpose of the law of occupation was discussed in Chapter One. It seeks to balance the need to allow the Occupying Power to lawfully manage the territory for the duration of the occupation with the need to protect the people living in the Occupied Territory, and the legitimate government of that Territory. In particular, the law of occupation protects against the Occupying Power altering the demographics, governmental arrangements and property ownership in the Occupied Territory in fundamental ways. The rationale for this protection is that an occupation is a temporary situation. As gaining title to territory by conquest is contrary to international law, the assumption is that the Occupying Power will withdraw from the Occupied Territory at some point. Central to this assumption is the ‘conservationist principle’, found in article 43 of the Hague Regulations,4 “which limits the occupier’s legislative authority, [and] demarcates a critical boundary between occupation and annexation.”5
The law of occupation accepts that the property of the Occupied Power, and of the population living under occupation, will inevitably be at risk of destruction or appropriation by the Occupying Power. Therefore, the legal regime defines the circumstances in which the destruction or taking of property will be lawful. The law only protects against the unlawful taking of property during an occupation. These provisions, of which article 8(2)(a)(iv) is the latest iteration, do not establish a blanket prohibition. The law accepts that some forms of destruction and/or taking of property is lawful, but sets limits on the scope of that lawfulness. There are some circumstances where the exercise of control over real property will be permitted, or even required, by the law. This is a key difference from the absolute ban on the transfer of the Occupier’s population into the Occupied Territory. The qualification allowing some lawful exercise of control over occupied property would make the crime a much more difficult one to prosecute compared, for example, to the transfer of population into the Occupied Territory.
4 Regulations concerning the Laws and Customs of War on Land (‘Hague Regulations’), annexed to the Convention (IV) concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 ConTS 277 (entered into force 26 January 1910). 5 Gregory H. Fox, ‘Transformative Occupation and the Unilateralist Impulse’ (2012) 94 International Review of the Red Cross 237, 238.
145
Part VI briefly addresses the subjective requirements of the crime, explaining how the inclusion of ‘wantonly’ deviates from the standard mental element of crimes in the Statute. Part VII considers the question of when in time the crime of appropriation occurs, and whether it is an instantaneous or continuous crime. This analysis will determine whether the offences continue as long as the land is unlawfully in the control of the Occupying Power, or whether the crimes are completed once an unlawful appropriation has occurred.
The complexity of this chapter reflects the legal difficulties posed by this crime. The analysis suggests that the way occupation law (and IHL more generally) has been incorporated into this crime in the Rome Statute significantly reduces the possibility for legal clarity in how this crime should be applied. This is particularly the case in regard to the requirement that appropriation of property be ‘unlawful’. The general obligations of the Occupying Power, found in the Hague Regulations, are a poor fit for the precision required for a criminal trial. Moreover, the ambiguity inherent in the law raises serious questions about the capacity to apply these crimes to apply justly and according to the principle of legality.6 Nevertheless, absent reform of the provisions, the Court will be stuck with the Statute as it currently stands. As such, the analysis attempts to reach sensible legal conclusions where possible, and point out where considerable difficulties remain.
The Elements of Crimes7 stipulate that the elements of article 8(2)(a)(iv) are that:
1. The perpetrator destroyed or appropriated certain property. 2. The destruction or appropriation was not justified by military necessity. 3. The destruction or appropriation was extensive and carried out wantonly. 4. Such property was protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict.
6 It also raises the question of whether there are other crimes that are similarly problematic. This question is beyond the scope of the thesis but is something deserving of further research. 7 International Criminal Court, Elements of Crimes, Doc No ICC-ASP/1/3 (part II-B) (adopted 9 September 2002) (‘Elements of Crimes’).
146
7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.8
While the Elements of Crimes usefully divide up the different aspects of the crime, they do not assist in resolving the most difficult interpretive questions.9 This is not surprising: the failure of the Elements to give better guidance was deliberate, and the drafters chose to adopt a generic approach instead of explicitly setting out the specific standards that would apply to different classes of property.10 The Elements provide a framework for analysing the constituent elements of the crime, but they do not explain what might amount to an appropriation, when military necessity could apply, or how property is protected under the Geneva Conventions. It is to these questions that we now turn.
II. ‘THE PERPETRATOR … APPROPRIATED CERTAIN PROPERTY’
Text, object and purpose Two words are critical to determining the scope of the first element: ‘property’ and ‘appropriation’. The words of article 8(2)(a)(iv) were lifted verbatim from an article common to all four Geneva Conventions, suggesting they may carry a technical legal meaning that has been imported into the Rome Statute. This section will address the text, object and purpose of the two words, and then turn to the drafting history and other sources.
1. ‘Property’
‘Property’ in this context could have a couple of meanings. It could be just anything that is capable of being owned in some way. The Oxford English Dictionary (‘OED’) defines this sense of the word as “[a] (usually material) thing belonging to a person, group of persons etc; a possession; (as a mass noun) that which one owns; possessions
8 Elements of the Crime, art 8(2)(a)(iv). 9 See Introduction to this thesis for more detail. 10 Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (Cambridge University Press, 2003), 81.
147 collectively; a person’s goods, wealth, etc.”11 It can also mean just real property (i.e. land). The OED defines this sense as:
Originally: a piece of land under one ownership; a landed estate. Now also: any residential or other building (with or without associated land) or separately owned part of such a building (as an apartment, etc.). Also as a mass noun: such lands or buildings collectively.12
The appropriate meaning of the word in this provision can be gathered from the broader context in which the term appears. There are some clues in the text: the provision prohibits the ‘destruction’ of property; and while buildings can be destroyed, the same cannot easily be said of a piece of land. Even if it is seriously damaged, the land will remain. Perhaps one exception to this would be if the land suffered some kind of chemical or nuclear attack that rendered it so contaminated as to be entirely unusable, but it is unlikely that the provision would only protect property from such extreme destruction. Restricting the relevant ‘property’ in the provision to land is inappropriately narrow. In addition, the provision does not expressly limit the property covered to a particular class, such as ‘public’ or ‘private’, ‘immovable’ or ‘movable’. Given this, it is more likely that the broader meaning of property is the more appropriate and the term appears to cover anything that is capable of being owned. Nevertheless, as this chapter is addressing crimes relating to land, it is not necessary to consider the question further.
2. ‘Appropriation’
Appropriation is defined by the OED as “the making of a thing private property, whether another’s or (as now commonly) one’s own; taking as one’s own or to one’s own use.”13 An essential feature of an appropriation is a change in ownership; the act of making the property belong to another person. While the use of the word ‘private’ in this definition might suggest that the property must to be taken by a private person to be ‘appropriated’, in the context of a conflict between States, it should be uncontroversial to conclude that an ‘appropriation’ could also encompass changing ownership from one State to another, or from private ownership to State ownership, or
11 “property, n.” OED Online (Oxford University Press, 2017). 12 Ibid. 13 “appropriation, n.”OED Online (Oxford University Press, 2017).
148 vice-versa. The fundamental concept the word captures is the change in ownership of the property.
The critical question is whether some technical legal change, like a change to the registration on title, must occur for an appropriation to take place. Accepting that such a technical legal change is necessary would significantly narrow the scope of the provision. A broader reading would accept that a de facto appropriation is sufficient, and accept that the Court should look to the practical effects of the way the Occupying Power is managing land in determining whether it has been taken from its owner. If a de facto appropriation is sufficient, it will occur in situations where there is no change in the legal ownership of the property, but the actual ownership of the property alters. This would be manifest in the identity of those actually controlling, managing and otherwise using the land.
The words of the provision do not suggest that a narrow reading is appropriate. There is nothing inherent in the word ‘appropriation’ that requires a legal change in property ownership to occur. The object and purpose of the law of occupation is both protective and permissive. The provision only prohibits unlawful appropriation of property not justified by military necessity, not all appropriations of property. It leaves the Occupying Power with leeway to manage property in Occupied Territory in accordance with military requirements and the law of occupation (which is discussed in considerable detail below). A broad interpretation accepting that a de facto taking of land could still amount to an appropriation would not undermine the object and purpose of the Rome Statute or the underlying law of occupation by unduly burdening the capacity of the Occupier to manage the Occupied Territory. If the de facto appropriation was militarily necessary, or otherwise permitted by the law of occupation, it would not amount to a crime. In contrast, a narrow reading would limit the protection of the occupied population offered by the provision. It would allow Occupying Powers to escape criminal accountability through refusing to carry out the technical legal steps for the transfer of property. Given this, the object and purpose of the Rome Statute and military occupation law point towards a reading that includes de facto appropriation.
Given the words are not particularly ambiguous, it would probably be acceptable to form a conclusion on the basis of the words of the provision alone. However, given this
149 provision was adopted verbatim from the Geneva Conventions, it is important to consider whether the words had a specific legal meaning in the underlying treaty texts that has been incorporated into the Rome Statute.
Drafting history
1. Property
Returning to the meaning of the word ‘property’, the drafting history of the Rome Statute reveals little about its meaning in this provision. Article 8(2)(a)(iv) was adopted verbatim from the grave breaches provision common to all four Geneva Conventions.14 The drafting history of the Elements is revealing and supports the conclusion that it should apply to both private and public property. The drafters appeared to have presumed that protection would apply to both public and private property. Some of the delegations sought to add ‘public or private’ before the reference to property “to emphasise that both types of property are protected against seizure by the relevant rules.”15 The clarification was inserted, before later being deleted as “it was agreed that the term ‘property’ would cover both public and private property.”16
Looking further back, it could be that the property subject to the provision is property belonging to ‘protected’ persons or institutions. Article 4 of GCIV defines protected persons as “those, who at a given moment and in any manner whatsoever” find themselves “in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”17 Therefore, if the predecessor of article 8(2)(a)(iv), article 147 of GCIV, was limited to the property of protected persons, it would only protect private property, and would not apply to public property. This limitation could have been imported into the Rome Statute.
The more persuasive view is that article 147 of GCIV applies to all property, not just the property of ‘protected persons’. The first part of article 147 states that the provision
14 Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 973 (entered into force 21 October 1950) (‘GCIV’), art 147. 15 Dörmann, above n 10, 251. 16 Ibid. Also see Zimmermann, Andreas and Robin Geiß, ‘(xiii) Prohibited destruction’ in Otto Triffterer and Kai Ambos (eds), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016) 441-2. 17 GCIV, art 4.
150 applies to a number of acts “if committed against persons or property protected by the present Convention.”18 A number of provisions make it clear that ‘property’ in this context is not just public or private property, but all property in Occupied Territory. Article 53 prohibits “any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the state, or to social or co-operative organisations” except “where such destruction is rendered absolutely necessary by military operations.”19 Article 154 provides that GCIV is “supplementary” to the provisions of the Hague Regulations, which (as will be seen) explicitly protect and limit the use of all property in Occupied Territory.20 Moreover, the provisions of GCIV that apply only to protected property state so explicitly. Article 33, for example, prohibits pillage as well as reprisals against “protected persons and their property”.21 Article 46 explicitly provides that “restrictive measures” affecting the property of protected persons “shall be cancelled … as soon as possible after the close of hostilities.”22 Article 147 does not have a similar restriction. Given all these factors, it should be accepted that article 147 of GCIV protects all property in Occupied Territory against unlawful appropriation or destruction. Therefore, reading such a restriction into the Rome Statute would be inappropriate.
2. Appropriation
It does not appear there is anything in the history of the negotiations for the Rome Statute that further illuminates the ordinary meaning of ‘appropriation’ beyond` the context in which it appears. Similarly, the drafting history of the Geneva Conventions also offers little assistance. There was no recorded discussion about what an ‘appropriation’ would entail. The most interesting insight is that the word ‘appropriation’ was thought by the UK and Australian delegations to be a better interpretation of the French word ‘saisie’ than seizure, a proposal that was accepted by the Conference.23 In the end, the word appropriation was used in the French language version of the Convention as well.24 The drafting history does not record any reasons
18 GCIV, art 147. 19 GCIV, art 53. 20 GCIV, art 154. 21 GCIV, art 33 (emphasis added). 22 GCIV, art 46. 23 ICRC, Final Record of the Diplomatic Conference of Geneva of 1949 (1949) vol II-B, 88. 24 Ibid.
151 why the delegates considered ‘appropriation’ a better word. While this might indicate that ‘seizure’ and ‘appropriation’ should be treated as encapsulating the same concept, there is nothing other than the fact the word was changed to support drawing this conclusion. The fact it changed must have been for some reason, but identifying that reason on the available information is impossible.
There are no other terms in the Geneva Conventions that define an appropriation of property. This is despite there being some provisions dealing with specific kinds of appropriation, although that word is not used. For example, article 34 of GCI sets out the rules on the requisition of real and personal property of aid societies, providing that “the right of requisition … shall not be exercised except in cases of urgent necessity, and only after the welfare of the wounded and the sick has been ensured.”25 Article 57 of GCIV similarly provides that the Occupying Power may requisition civilian hospitals only when certain conditions are met.26 Neither of these provisions give any insight into when land will be considered to have been ‘appropriated.’
Jurisprudence of international tribunals While there is no clearly agreed definition of either word in international law, international tribunals have been consistent in not adopting a restrictive interpretation of ‘property’ or a technical definition of what would amount to an appropriation. They have instead looked to the practical effects of the conduct of the accused, and whether it resulted in the owner being deprived of their property. The Special Court for Sierra Leone (‘SCSL’) Trial Chamber explicitly discussed the definition of appropriation in relation to pillage in the Fofana judgment, finding that:
According to the definition of pillage as stated above, an essential element of pillage is the unlawful appropriation of property. Black’s Law Dictionary defines appropriation as ‘the exercise of control over property; a taking or possession’. In the act of looting, the perpetrator unlawfully appropriates the property. Destruction of property by burning, however, does not, by itself, necessarily involve any unlawful appropriation. Thus, while both looting and burning deprives the owner of their property, the two
25 Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field of 12 August, 1949, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘GCI’) art 34. 26 GCIV art 57.
152
actions are distinct in that the latter crime may be committed without appropriation per se.27
The Tribunal found that the essential element of an appropriation was the exercise of control over property, which would appear as a taking of possession. This decision was upheld by the Appeal Chamber of the SCSL.28
Some decisions of the United States Military Tribunal in Nuremberg also suggest that a broad view of what amounts to an ‘appropriation’ should be accepted. The Tribunal treated plunder, spoliation and exploitation of property as all being various forms of the unlawful acquisition or dispossession of property.29 The Tribunal consistently focused on the actual status of the property rather than its legal status, explaining that this approach reflected the purpose of the law. It prevented the Occupying Power from illegally taking the property from the Occupied Territory, whether to strengthen their own war effort, or just to inflict loss and damage.30 The outcome of the I.G. Farben Case shows that the Tribunal decided that hiding a transaction behind a legal façade would not afford a defence.31
In Krupp the Tribunal held that is was not necessary for a definite transfer of title to occur for there to be a breach of the prohibition in the Hague Regulations of the confiscation of private property.32 The Tribunal concluded instead that a de facto
27 Fofana (Judgment) (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-14-T, 2 August 2007) [166]. 28 Fofana (Judgment) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-04-14-A, 28 May 2008) [409]. 29 The US Military Tribunal in The I.G. Farben Trial: Trial of Carl Krauch and Twenty-Two Others (United States Military Tribunal, Nuremberg, 1948) (‘I.G. Farben’) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 44 held that even though the Hague Regulations did not use the term “spoliation” this was not “of legal significance”, and was interchangeable with “the words ‘plunder’ and ‘exploitation’”. 30 United States v Krupp von Bohlen und Halbach (United States Military Tribunal, Nuremberg, 1948) (‘Krupp’) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 138. 31 I.G. Farben (United States Military Tribunal, Nuremberg, 1948) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 50; also see ‘Notes on the Case’, United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 165-6 32 Hague Regulations art 46.
153 appropriation was enough.33 The case concerned a series of transactions that “were varied and intricate, and were reflected in corporate agreements well calculated to create the illusion of legality.”34 The Commission said “it is essential to point out that acts forbidden by the laws and customs of warfare cannot become permissible through the use of complicated legal constructions.”35 It explained:
The defendants are charged with plunder on a large scale. Many of the acts of plunder were committed in a most manifest and direct way, namely, through physical removal of machines and materials. Other acts were committed through changes of corporate property, contractual transfer of property rights, and the like. It is the results that count, and though the results in the latter case were achieved through ‘contracts’ imposed upon others, the illegal results, namely, the deprivation of property, was achieved just as though materials had been physically removed and shipped to Germany.36
It was the fact that the actions led to the improper and illegal deprivation that was decisive. While the grave breaches of the Geneva Conventions had not been agreed upon when the Tribunal was sitting, its reasoning is equally applicable to the grave breaches common to the Geneva Conventions, and thus to article 8(2)(a)(iv) of the Rome Statute.
The International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) also treated spoliation, pillage, plunder, seizure and appropriation as aspects of the same basic offence. In Čelebići the Trial Chamber referred to appropriation explicitly, holding that:
… the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property
33 Krupp (United States Military Tribunal, Nuremberg, 1948) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 137. 34 ‘Krupp Notes on the Case’, United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 165-6. 35 Krupp (United States Military Tribunal, Nuremberg, 1948) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 138. 36 Ibid.
154
undertaken within the framework of a systematic economic exploitation of occupied territory.37
The Trial Chamber went on to observe that “the offence of the unlawful appropriation of public and private property in armed conflict has been varyingly termed ‘pillage’, ‘plunder’ and ‘spoliation.”38 The acceptance that ‘appropriation’ covers a broad range of conduct shows that the Court accepted its general, ordinary meaning rather than one based on legal technicalities.
IHL is not the only source of international rules relating to the taking of land. Human rights jurisprudence has dealt with situations where property has been improperly taken, and has also looked to the actual control of the property rather than to the legal situation. This is the approach of the European Court of Human Rights (‘ECtHR’) in relation to the expropriation of land.39 The ECtHR has described its approach as looking to the “realities of the situation,”40 or focussed on whether there has been “the loss of all ability to dispose of the land”41 or a deprivation of “the right to sell the property.”42
Academic commentary The updated 2016 ICRC Commentary on GCI43 takes a broad view of the meaning of appropriation. It explains that appropriation of property “can take various forms, such as the taking, obtaining or withholding of property, theft, requisition, plunder,
37 Delalić (Judgment) (ICTY, Trial Chamber, Case No IT-96-21-T, 16 November 1998) (‘Čelebići) [590]. 38 Čelebići (ICTY, Trial Chamber, Case No IT-96-21-T, 16 November 1998) [591]. The decision was affirmed in Blaškić (Judgment) (ICTY, Trial Chamber, Case No IT-95-14-T, 3 March 2000) [184]. 39 Expropriation is the taking of private property by a public agency for public benefit. 40 Sporrong and Lonnroth v Sweden (European Court of Human Rights, Application No. 7175/75 A52, 23 September 1982) [63]. 41 Papamichalopoulos and Ors v Greece (European Court of Human Rights, Application No. 14556/89, 24 June 1993) [42]. 42 Brumãrescu v Romania (European Court of Human Rights, Application No. 28342/95, 28 October 1999) [76]; Depalle v France (European Court of Human Rights, Application No. 34044/02, 29 March 2010) [78]. 43 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘GCI’).
155 spoliation and pillage.”44 Similarly, in his commentary on the Elements of Crimes, Dörmann follows the decisions from Nuremberg and the ICTY that “the terms ‘plunder’, ‘spoliation’ and ‘exploitation’ may be used interchangeably with the term ‘appropriation.’”45 He says that “to take, obtain, or withhold property, theft, requisition, plunder, spoliation” would all amount to an appropriation under the Rome Statute.46 Werle and Jeßberger argue that “there is no substantive difference between appropriation and seizure” as both require “something from the possession of an entitled person, for a not insignificant period of time, and against that person’s will or without his or her agreement.”47
One significant advantage of the broad interpretation is that it allows for more flexibility on the part of the judges asked to consider specific conduct involving the control of the property. Dörmann reports that an attempt to define ‘appropriation’ when the Elements of Crimes were drafted was ultimately abandoned as the delegations thought “the term was loaded with different connotations in different legal systems, and that it would be preferable to rely on the judges.”48 This makes sense: a definition of appropriation that was too restrictive might fail to capture how the ‘ownership’ of property might change hands in territories with non-Western legal systems. The appreciation and understanding in Western legal systems of other ways of owning and managing land have changed profoundly since the first attempts at regulating the conduct of Occupying Powers in the nineteenth century, and it may continue to change into the future. The law should be interpreted in a way that allows for this change.
Conclusion The above analysis suggests that it is safe to conclude that ‘appropriation’ and ‘property’ should both be defined broadly. ‘Property’ encompasses anything capable of being owned. When assessing whether an ‘appropriation’ has occurred, the Court
44 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (Cambridge University Press, 2nd ed, 2016), [106]. 45 Dörmann, above n 10, 92. 46 Ibid 83. 47 Gerhard Werle and Florian Jeßberger, Principles of International Criminal Law (Oxford University Press, 3rd ed, 2014), [1258].. 48 Dörmann, above n 10, 82.
156 should look to the actual control of the property, rather than just to the formal legal status. The meaning of the words, as well as the object and purpose of the Rome Statute and occupation law, is all consistent with such an approach. International courts and tribunals have decided that narrow definitions are inappropriate as they allow for perpetrators to escape liability on the basis of technicalities. Finally, a broader interpretation allows for the provision to better adapt to the many different situations in which it might apply. The ownership and management of property is not consistent across the world, and a specific definition could result in a failure to adequately protect important property interests.
III. ‘THE … APPROPRIATION WAS NOT JUSTIFIED BY MILITARY
NECESSITY’
The prohibition against the appropriation of property in the Rome Statute is not absolute. Article 8(2)(a)(iv) provides that an appropriation will only be criminal when not justified by ‘military necessity.’ It therefore exempts militarily necessary appropriations from the usual requirements of occupation law. In such cases, it will not be necessary to go on to consider whether a particular seizure or appropriation complied with the law of occupation.49
Military necessity is a foundational concept of IHL that has a technical legal meaning and so this term cannot be understood without reference to this body of law. Military necessity refers to the freedom that belligerents have during warfare to pursue valid military goals and, in doing so, cause harm or damage that would be unlawful outside of conflict. Much has been written on the role and history of military necessity in IHL.50 This part of the chapter focuses specifically on how military necessity operates
49 Nobuo Hayashi defines exceptional military necessity in the following way: “[A]s an exception, military necessity exempts a measure from certain specific rules of international humanitarian law prescribing contrary action to the extent that the measure is required for the attainment of a military purpose otherwise in conformity with the law”: Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’ (2010) 28 Boston University International Law Journal 39, 57. 50 See for example Nobuo Hayashi, ‘Contextualising Military Necessity’ (2013) 27 Emory International Law Review 189; H. McCoubrey, ‘The Nature of the Modern Doctrine of Military Necessity’ (1991) 30 Military Law and Law of War Review 215, 217; Michael N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50(4) Virginia Journal of International Law 795; Burrus M. Carnahan, ‘Lincoln, Lieber and
157 in the case of an appropriation or seizure of land during an occupation, and how this might apply in the criminal context. As a starting point, this part of the chapter uses the framework for understanding military necessity developed in the scholarship of Nobuo Hayashi, as he appears to be the only writer to delve into the concept of military necessity in the detail that is required for analysing its operation in the criminal context, and to critique the various ways in which it is applied.51
Applying military necessity in an occupation In the case of article 8(2)(a)(iv), the principal rule prohibits the seizure or appropriation of property except in defined circumstances. The military necessity exemption permits deviation from this rule “to the extent that the conduct is required for the attainment of a lawful military goal.”52 In his comprehensive overview of the requirements of military necessity in the juridical context, Hayashi identifies four cumulative requirements for a measure to be exempt from the standard rules due to military necessity:
1) That the measure was taken primarily for some specific military purpose; 2) That the measure was required for the attainment of the military purpose; 3) That the military purpose for which that measure was taken was in conformity with international humanitarian law; 4) That the measure itself was otherwise in conformity with international humanitarian law. 53
The military necessity of a measure must be assessed in light of its specific context, and take account of whether the appropriation or seizure takes place during armed conflict or, at the other end of the scale, a peaceful occupation.54
the Laws of War: The Origins and Limits of the Principle of Military Necessity’ (1998) 92(2) American Journal of International Law 213. 51 52 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 62. Hayashi observes that the lack of military necessity does not by itself render the conduct unlawful, it just renders the exceptional clause inoperative. It is the principal content of the prohibition on the seizure or appropriation of property outside of defined circumstances that makes the taking of property unlawful. 53 Ibid. 54 Ibid 63.
158
1. The appropriation must be for a military purpose
The first requirement Hayashi identifies is that the measure must have been taken primarily for some specific military purpose. Recognising a measure as being for a ‘military’ purpose is not always straightforward, particularly during occupations. Hayashi says that a ‘military’ purpose connotes a “quality characterising sound strategic, operational or tactical thinking in the planning, preparation and execution of belligerent activities.”55 The legitimate belligerent activities during an occupation will depend on the phase of the occupation. Measures might have legitimate military purposes at the beginning of an occupation, but later change classification due to the different context of an established occupation regime. It is clear, however, that ‘military’ measures are not limited to actions aiming to secure the submission of the enemy. This standard is too high for occupations where the ‘enemy’ has already submitted. For example, maintaining the security of the territory would be a legitimate military aim.56 Lesser purposes may also still meet the threshold, including measures that are purely defensive, such as the appropriation of land and other facilities required for the sanitation of an occupying force.57
The Supreme Court of Israel has considered whether a particular appropriation has occurred for military purposes on a number of occasions. For example, in the Elon Moreh decision, the Court declared null and void an order to appropriate private property to build a civilian settlement in the West Bank, as the settlement was established for political, rather than military, reasons.58 The Court reached this decision because the sequence of events showed that, at the outset, there was no military necessity to take the private land to establish a civilian settlement.59
55 Ibid 64. 56 Hayashi (ibid) notes there is a risk during an occupation “the occupier might present its geopolitical, demographic, ideological and/or economic ambitions as legitimate military concerns”. The Court should be careful to ensure that these ambitions are recognised for what they are. 57 Ibid 60. In William Hardman (Great Britain) v United States (Decision) (1913) 6 RIAA 25 the British-United States Arbitral Tribunal decided that the destruction of property by an occupying power to prevent the spread of yellow fever among its forces was militarily necessary. 58 ‘Israel: Supreme Court Judgment With Regard to the Elon Moreh Settlement in the Occupied West Bank’ (1980) 19(1) International Legal Materials 148. 59 Ibid 173-6.
159
2. The appropriation must have been required to achieve the military purpose
The second requirement for military necessity identified by Hayashi is that the measure must have been required to achieve the military purpose. This entails assessing the relationship between the appropriation and the military aim of the Occupier.60 It must be remembered that the fact the decision has been made for some security need does not mean that it is falls within the exception. Zimmermann explains:
Accordingly, the pure fact that the acts under consideration do serve security needs or contribute to the security of the area at large is not, in itself, sufficient to justify any of the otherwise prohibited acts, unless it can be proven that there is indeed an imperative need to do so, i.e. that there are no other means to secure military safety. In particular, national-security needs in a broad sense may not justify takings of private property.61
Hayashi divides this requirement into a number of criteria that must be met in order for a measure to be ‘required’ for a specific military purpose:
1) That measure was materially relevant to the attainment of the military purpose; 2) That, of those materially relevant measures that were reasonably available, the one taken was the least injurious; and 3) That the injury that the measure would cause was not disproportionate to the gain that it would achieve.62
The assessment of these criteria against the conduct at issue requires assessing the views of military decision makers. This raises a difficult question: how much deference should any Court give to the evidence of the military commander about their assessment of whether the measure was, in fact, materially relevant to the attainment of the military purposes? The Supreme Court of Israel has been reluctant to go against the judgment of military commanders.63 The ICC would not necessarily show the same
60 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 69. Hayashi (at 61) also argued that it does not require that the decision maker minimise the resources expended by the measure, even the lives of the soldiers. 61 Zimmermann, above n 16, 400. 62 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 69. 63 See for example Beit Sourik Village Council v The Government of Israel (2004) HCJ 2056/04 (‘Beit Sourik’) translated in (2005) 38 Israel Law Review 83 and ‘Israel: Supreme Court Judgment with Regard to the Elon Moreh Settlement in the Occupied West Bank’ (1980) 19(1) International Legal Materials 148, 156.
160 deference, and should be more willing to accept the opinion of independent military experts.
Hayashi argues that belligerents must select the “least injurious” reasonably available measure in order to properly reflect military necessity’s role as an exception to the rules of IHL.64 He suggests that if the measure is the least injurious out of those reasonable available, but it is anticipated that it will cause disproportionate injury to protected persons, the belligerent is required to either “modify the military purpose or abandon its pursuit altogether.”65 This proportionality test “weighs the injury that the measure would cause to protected persons, objects and interests vis-à-vis the value of the military purpose that the measure would achieve.”66
The ICTY Gotovina case provides an example of the difficulty of applying this component of the test in the criminal context.67 In a decision that was later overturned by the ICTY Appeals Chamber,68 the ICTY Trial Chamber convicted Gotovina for a range of offences related to targeting a civilian population after he used an artillery bombardment to attack lawful military targets in the town of Knin.69 One of the issues the ICTY had to consider in Gotovina was the appropriate legal standard for the use of artillery against urban areas, and the degree of precision that is required before an attack is unlawful and attracts criminal liability. The accuracy of artillery is affected by a range of factors, including the distance from the target, the weather, and whether there are forward observers to report back to the artillery units to allow for adjustment of the targeting.70 After considering these matters, the Trial Chamber controversially
64 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 73. 65 Ibid 69. 66 Ibid 76. This form of the proportionality test in exceptional military necessity operates differently than that applied generally in armed conflict. The proportionality test that applies in armed conflict compares “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof,” to the “concrete and direct military advantage anticipated.”: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 17512 (entered into force 23 January 1979) (‘API’) art 51(a)(b) and 57(2)(b). 67 Gotovina (Judgment) (ICTY, Trial Chamber, Case No IT-06-90-T, 15 April 2011); Gotovina (Appeals Judgment) (ICTY, Appeals Chamber, Case No IT-06-90-A, 16 November 2012). Delalić (Judgment) (ICTY, Trial Chamber, Case No IT-96-21-T, 16 November 1998). 68 Gotovina (Appeals Judgment) (ICTY, Appeals Chamber, Case No IT-06-90-A, 16 November 2012). 69 Gotovina (Judgment) (ICTY, Trial Chamber, Case No IT-06-90-T, 15 April 2011) [2619]. 70 Darren Vallentgoed, ‘The Last Round? A Post-Gotovina Reassessment of the Legality of Using Artillery Against Built-up Areas’ (2013) 18 Journal of Conflict and Security Law 25, 36-8.
161 decided that, where the predicted margin of probable error exceeds 200 metres, the commander can be held to have the specific intent to target a civilian population.71
The precise identification of an acceptable predicted margin of probable error has been criticised by military and legal experts,72 and was ultimately overturned by the ICTY Appeals Chamber.73 The Appeals Chamber held that the 200 meter standard was “not linked to any evidence [the Trial Chamber] received,”74 but then did not go on to articulate what the acceptable margin of error might be. The Appeals Chamber thus held that the Prosecution had not proven that the accused had deliberately targeted a civilian population.75
However, if further precision is impractical, it may be that any use of artillery against an urban area is unlawful and that its use should be limited to area targets in field engagements.76 While it was not a factor in this case, it could be unlawful to select unguided artillery over other, more precise (and expensive) military options available to the combatant, such as laser guided weapons.77 The extent to which a court should take account of the possibility that no artillery bombardment could be lawful or that an entirely different weapon should have been used against the targets when assessing the least injurious measure that would not cause disproportionate harm, is unclear. It shows how the points of comparison selected by the court will determine the outcome of this component of the test.
The jurisprudence of the Supreme Court of Israel also gives some sense of how this test might operate in practice. In Beit Sourik the Court assessed whether the chosen route of the ‘separation barrier’ in the Occupied Territory was the “least injurious” one that was
71 Gotovina (Judgment) (ICTY, Trial Chamber, Case No IT-06-90-T, 15 April 2011) [1898]. This decision has been subject to academic scrutiny and debate e.g. Vallentgoed, ibid; Roee Ariav, ‘Hardly the Tadić of Targeting: Missed Opportunities in the ICTY’s Gotovina Judgments’ (2015) 48(3) Israel Law Review 329; Walter Huffman, ‘Margin of Error: Potential Pitfalls of the Ruling in the Prosecutor v Ante Gotovina’ (2012) 211 Military Law Review 1. 72 Artillery experts testified that the bombardment of Knin was well within the accuracy expected by the US and Russian military and that further precision was militarily impractical: See Vallentgoed, above n 70, 28. 73 74 Gotovina (Appeals Judgment) (ICTY, Appeals Chamber, Case No IT-06-90-A, 16 November 2012) [61]. 75 Ibid [63-5]. 76 Vallentgoed, above n 70, 39. 77 Ibid 40.
162 reasonably available to attain the military purpose.78 However, the analysis accepted the view of the military commander and failed to consider whether building a separation barrier itself was necessary, starting from the assumption that it would be built.79 Nevertheless, the Court found one segment of the barrier unlawful because the harm it would cause was disproportionate.80 It applied a narrow test of proportionality (taken partly from Israeli administrative law)81 that had two components.82 First, the ‘absolute value’ of the measure chosen was assessed by comparing the military advantage with the resultant damage.83 Second, the ‘relative’ value of the measure was assessed by comparing the chosen measure with an alternative act “whose benefit will be somewhat smaller than that of the former one.”84 The measure would be disproportionate if the less-beneficial alternative would result in a substantial reduction in the injury caused by the measure.85 Analysing the path of the barrier in different segments, the Court decided that one particular segment would cause disproportionate injury compared to the gain in security that could be expected.86
The application of the relative proportionality test had several consequences. Hayashi observes that it made it easier to compare the security gained to the harm caused as, instead of comparing just the injury caused to the expected military benefit, the Court “had two sets of comparison, each containing two variables to be weighed on the same measurement.”87 The Court was comparing the degree of injury caused by the route proposed by the military and injury caused by the alternative route, and the security of one route over the security created by the other route.88 The Supreme Court explained:
Indeed, the real question in the ‘relative’ examination of the third proportionality subtest is not the choice between constructing a separation fence which brings security
78 Beit Sourik (2004) HCJ 2056/04 [41]. 79 Ibid [28-9]. 80 Ibid [61]. 81 Ibid [24]. 82 Ibid [41]. 83 Ibid. 84 Ibid. 85 Ibid. 86 Ibid [61]. 87 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 78. 88 Ibid.
163
but injures the local inhabitants, or not constructing a separation fence, and not injuring the local inhabitants. The real question is whether the security benefit reaped by the acceptance of the military commander’s position (that the separation fence should surround Jebel Muktam) is proportionate to the additional injury resulting from his position (with the fence separating local inhabitants from their lands).89
This approach is problematic. The Court’s approach does not seem to allow for the possibility that the correct application of the test would yield a result that the commander would be required not to build the barrier at all.90 The Court avoided this conclusion by not questioning the commander’s authority to build the barrier in the territory.91 It failed to consider the possibility that even the least injurious measure might still cause disproportional injury.92 Kretzmer reports that this is the standard approach of the Court, observing that “[e]ven if settlers are living in settlements whose construction involved a violation of the international law, in considering less invasive ways of protecting their security no consideration is given to requiring them to leave the area.”93
In comparison, the International Court of Justice (‘ICJ’) in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (‘Wall Advisory Opinion’)94 was much less deferential to the Israeli military in their assessment of the separation barrier. It did not adopt the segment-by-segment approach taken by the Supreme Court, but rather treated the entire wall as one object when assessing proportionality.95 However, even if the ICJ had adopted the relative proportionality test, it appears that it would have found that the injury caused to the local inhabitants was so profound that there would be no proportional route for the wall within
89 Beit Sourik (2004) HCJ 2056/04 [61]. 90 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 79. Hayashi also notes it leaves open the possibility of endless proportionality tests. It did not assess the distinct proportionality of each of the secondary routes, which would then require a further proportionality assessment of the alternative routes to the secondary routes. 91 Beit Sourik (2004) HCJ 2056/04 [26-32]. 92 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 80. 93 David Kretzmer, ‘The law of belligerent occupation in the Supreme Court of Israel’ (2012) 94(885) International Review of the Red Cross 207, 230. 94 [2004] ICJ Rep 136. 95 Ibid [137]. Also see Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 81.
164
Occupied Territory.96 Similarly, in a statement about the legality of the wall, the ICRC considered it as a single object in assessing proportionality, and indicated that the impact was so substantial that there was no proportionate path for the barrier in Occupied Territory.97
There are three main differences between the ICJ and ICRC approach and that of the Israeli Supreme Court, and they help draw out some of the most difficult aspects of the proportionality test in the context of military necessity. First, the variables chosen are different: the Supreme Court examined the proportionality of the measure relative to alternative measures; whereas the ICJ and ICRC preferred an absolute assessment of the security benefits and injuries to the occupied population.98 Second, the scale of the comparison was very different. The Supreme Court examined proportionality ‘microscopically’, looking at the constituent parts of the proposed measure and assessing the particular ratio of benefit to injury; whereas the ICJ and ICRC appeared to prefer the macroscopic approach and assessed the measure in its totality.99 Finally, the Supreme Court required a much higher quality and quantity of data to decide contrary to the military commander. The ICJ and ICRC were willing to reach an adverse conclusion with much less detailed information.100
These issues are pertinent in the context of the appropriation of property. A test of relative proportionality, focussed on one appropriation in isolation, could allow an appropriation to more readily pass the test of military necessity. In contrast, an assessment of the appropriation that took a wider view, looking at the absolute proportionality of the measure in its wider context, could offer more protection to the occupied population. This is particularly so if the appropriation being considered takes place in a broader context of widespread appropriation of land, or after a decades-long occupation. The narrow proportionality test has the potential to prevent a complete assessment of the measure by curtailing the scope of the inquiry. The separation barrier
96 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 83. 97 ICRC, ‘Israel/Occupied and Autonomous Palestinian Territories: West Bank Barrier causes serious humanitarian and legal problems’ (News Release, 04/12, 18 February 2002). 98 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 86. 99 Ibid. 100 Ibid 87.
165 in the West Bank is a good example of this. Why should the assessment of the wall be segmented when it essentially operates as one military object? It would be like assessing the proportionality of a bombardment by looking only at each particular projectile fired and ignoring the broader context of the bombardment.
3. The military purpose, and the appropriation itself, must conform with IHL
The third and fourth requirement identified by Hayashi both relate to the conformity of the purpose of the measure, and the measure itself, with IHL (in this context occupation law).101 This might seem an obvious point, but it means that appropriations carried out to give effect to an unlawful purpose – such as the transfer of population prohibited by article 49(6) of GCIV – cannot be militarily necessary. Dörmann explains:
It is important to indicate that military necessity covers only measures that are lawful in accordance with the laws and customs of war. Consequently, a rule of the law of armed conflict cannot be derogated from by invoking military necessity unless this possibility is explicitly provided for by the rule in question and to the extent it is provided for.102
As such, an appropriation of land that was purely for the purpose of establishing a civilian settlement to encourage the population of the Occupying Power to move into the Occupied Territory could not be militarily necessary, and could be prosecuted as both the crime of the transfer of population into Occupied Territory as well as the crime of an unlawful appropriation of property.
The requirement that the measure conform with IHL raises some particularly complex issues with the taking of land in the West Bank. In the case of Beit Sourik, the Israeli commander claimed that the route of the wall was partly chosen to protect the settlements in the West Bank.103 If these settlements are in breach of article 49(6) of GCIV, does this mean that the parts of the wall built to protect those settlements are necessarily contrary to IHL?104 Similarly, would land taken permanently or used temporarily for the purpose of protecting the civilian settlements also be contrary to IHL?
101 Ibid. 102 Dörmann, above n 10, 81. 103 Beit Sourik (2004) HCJ 2056/04. 104 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 89.
166
One view is that protecting such settlements is contrary to the law of occupation. In his dissenting opinion in the Advisory Opinion on the Legal Consequences of the Construction of the Wall, Judge Buergenthal said that, given the settlements breach article 49(6), “it follows that the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law.”105 Ardi Imseis makes a broader argument, positing that “military necessity can operate only to protect the security interests of the occupying power’s military forces,” and that therefore an “attempt to extend the concept of military necessity to protect the interests of Israeli colonies and their civilian inhabitants would offend this general principle.”106
This is a controversial position. Kretzmer argues:
[A] theory that posits that the fact that civilians are living in an illegal settlement should prevent a party to the conflict from taking any measures to protect them would seem to contradict fundamental notions of international humanitarian law. After all, the measures may be needed to protect civilians (rather than the settlements in which they live) against serious violations of [international humanitarian law.]107
Hayashi proposes that this difficulty can be resolved by being more precise about what measures are eligible pursuant to the military necessity exception. He draws a distinction between whether the military necessity exception is available, and whether there is a general right to carry out the military measure.108 If it is accepted that article 49(6) renders the settlements illegal, it follows that the parts of the wall which provide permanent and ongoing security to those settlements are precluded from exceptional military necessity.109 This does not mean that all measures that aim to protect civilian settlers are unlawful:
105 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, [9] (Judge Buergenthal). 106 Ardi Imseis, ‘Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’ (2005) 99(1) American Journal of International Law 102, 112. 107 David Kretzmer, ‘The Advisory Opinion: The Light Treatment of International Humanitarian Law’ (2005) 99(1) American Journal of International Law 88, 93. 108 Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, above n 49, 90. To put it in his words: “(i) the availability or otherwise of an exceptional relief from a contrary obligation on one hand, and (ii) the exercise or absence of a general right, on the other.” 109 Ibid.
167
What does not necessarily follow is the suggestion that the settlements’ unlawfulness exposes their civilian residents to the kind of attacks and harm against which civilians are ordinarily protected. It is entirely possible that the residents of an unlawful settlement have the right to defend themselves in the event of an attack on them, and/or that Israel has the right to send IDF troops with a view to protecting their immediate safety.110
Hayashi’s argument is that we should look closely at the particular measure to see how it related to the immediate safety of the illegal settlers (who as they are civilians the Occupying Power has a right and a duty to defend) as well as how it supports the ongoing existence of those illegal settlements (which is unlawful). In the context of the appropriation of land, it would mean that the principal rules governing the taking of property in occupied territory would continue to apply. An illegal purpose would only prevent the measure being exempt from the normal rules by virtue of military necessity. It would not mean that the Occupying Power could not defend civilians from attacks in Occupied Territory under a general right to protect civilians; it just would be prevented from taking land to protect the settlements in a manner that encouraged further transfer of population.
Conclusion The inclusion of the military necessity exception to the provision makes this crime difficult to apply during an occupation. Given the precise focus required by criminal trials, it would require the Prosecution to prove that the instance of the appropriation of property was not militarily necessary. The above analysis, which has relied primarily on the comprehensive scholarship of Hayashi, shows how the exception should be applied. The Court would have to determine whether there was any military justification, in the context of an occupation, for the appropriation of property. This might be because the property itself was a military objective, such as a piece of land critical for the defence of an area. If the property was not itself a military objective, the Court would have to look more broadly and consider whether the appropriation was actually required to achieve a military purpose, and whether it was proportionate to the aim sought. Finally, the Court would have to decide whether a specific measure and the objective behind it were consistent with IHL.
110 Ibid.
168
The Israeli jurisprudence shows that evidence about when a decision was made, and who made the decision, can be critical for determining whether it was made for primarily military purposes. The jurisprudence also underscores that a major challenge will be finding the appropriate balance between focussing on the specific appropriation of land and taking into account its broader context. This is particularly apparent given the difference between the ICJ and ICRC approach and that of the Israeli Supreme Court. The failure of the latter to properly address the effect of building the wall in light of the whole occupation resulted in a finding that the barrier was, indeed, militarily necessary. This is not to say that a finding of military necessity should be the conclusion in every case of appropriation of land in the West Bank, but rather to illustrate how a narrow focus on a single appropriation can lead to problematic conclusions about the proportionality and the necessity of the measure.
IV. ‘THE … APPROPRIATION WAS EXTENSIVE AND CARRIED OUT
WANTONLY’
There are two words in the provision that describe something of the nature of a criminal appropriation: it has to be ‘extensive’ and carried out ‘wantonly’. The word ‘extensive’ suggests something about the nature of one of the objective elements of the crime, namely how significant the appropriation has to be in order to attract criminal liability. In contrast, ‘wantonly’ appears to apply to the subjective element of the crime, suggesting something about the mind of the perpetrator. Each will be dealt with separately.
‘Extensive’ appropriation Extensive is an adjective defined with respect to material things as “extending over or occupying a large surface or space; having a wide extent, widely extended” and of immaterial things as “far-reaching, large in comprehension or scope; wide in application or operation; comprehensive; also lengthy, full of detail.”111 The use of extensive seems to set a threshold of how far-reaching or large in scope the appropriation of property must be before it becomes criminal. The provision does not offer any further guidelines as to what would amount to an extensive appropriation of property, but it indicates that not every unlawful appropriation would be criminal.
111 Oxford English Dictionary, “extensive, adj.” (Oxford University Press).
169
Does this mean the Prosecution would have to prove that there was widespread or expansive appropriation? In addition, for the victim, or the town or village they live in, any appropriation may have a profound effect on their lives. Does the scale of the conflict or occupation, or the effect of the appropriation on the victim have an impact on whether it is ‘extensive’? Would a smaller conflict mean that there would be a lower threshold for the criteria to be met?
1. Drafting history
As will be recalled, article 8(2)(a)(iv) was incorporated wholesale from the grave breaches provision common to all four Geneva Conventions. There is nothing in the drafting history that provides insight into the purpose of the inclusion of the word ‘extensive’ in this context.
2. Jurisprudence of international tribunals
The impact of the word ‘extensive’ in relation to the extent of destruction of property has been addressed in a small number of international criminal law cases. In the Katanga Confirmation of Charges decision, for example, the ICC Pre-Trial Chamber I (‘PTC I’) considered the meaning of ‘extensive’, explaining that:
The notion of “extensive” is evaluated according to the facts of the case; however, even a single act, such as the destruction of a hospital, may suffice to characterise an offence under this count.112
PTC I adopted the decision of the ICTY in Blaškić, which used the hospital example to show how a single act could constitute an extensive destruction.113 While neither PTC I nor the ICTY elaborated on this point, it is worthwhile being more explicit about why the destruction of a single hospital could be extensive. A hospital is more than just a building, and it serves a wider community by providing medical assistance. This means that its destruction could have a profound effect on a large number of people, particularly if the hospital is located in a country or region with poor access to alternative medical facilities. The ‘network’ of effects of the destruction could be seen as extensive. This example suggests that the impact of the appropriation on the
112 Katanga et al (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/07-717, 30 September 2008) [314]. 113 Blaškić (Judgment) (ICTY, Trial Chamber, Case No IT-95-14-T, 3 March 2000) [157].
170 community may well be relevant to whether an appropriation is extensive; and that if the impact has serious enough consequences on a wide range of people, a single appropriation will be enough. Nevertheless, as Mettraux observes, it is difficult to “imagine many situations where an isolated act could in principle satisfy that requirement.”114
Other ICTY cases also provide a sense of what might amount to an ‘extensive’ appropriation.115 For instance, a pattern of appropriations over a geographical area could be sufficient. In the Kunarac, Kovač and Vuković Decision on Motion for Acquittal, the Trial Chamber said that the ordinary meaning of the word ‘plunder’ “suggests that more than the theft from one person or even from a few persons in the one building” is required. As the word was synonymous with ‘pillage’ it was clear “there must be theft involving a more extensive group of persons or a pattern of thefts over some identifiable area.”116
Perhaps another place we could look to identify the hallmarks of an extensive appropriation is the ICTY jurisprudence about what amounts to a “serious violation of international law,”117 a threshold requirement for the exercise of ICTY jurisdiction.118 The ICTY considers the consequences for the victim(s) when judging the seriousness of the crime.119 In Natetilić and Martinović, the Trial Chamber held that plunder could amount to a serious violation “not only when one victim suffers severe economic consequences because of the appropriation, but also, for example, when property is appropriated from a large number of people.”120 In that case, it was the pattern of the plunder over the Muslim parts of the town, rather than any single act of plunder, that
114 Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press, 2005), 78. 115 These cases are identified in the ICC Means of Proof Digest, a joint project of the International Criminal Court Officer of the Prosecutor and the Case Matrix Network at the Centre for International Law Research and Policy: Cast Matrix Network, Article 8(2)(a)(iv), Case Matrix Network Means of Proof Digest
171 pushed the crimes over the threshold.121 Other examples of serious violations have included large scale pillage such as “taking away everything they could at the time” from a village.122 These give some indication of how the ICC might interpret the requirement of extensiveness.
3. Academic commentary
Zimmermann concludes that an ‘extensive’ appropriation can occur even if there is only a single incident of property being taken. He relies on the Elements of Crimes, reading the reference in the first element to “certain property” as “implying that even single incidents of destruction or seizure might already constitute a crime under this provision.123 However, Dörmann reached the opposite conclusion, arguing that ‘extensive’ “excludes, for example, an isolated incident of pillage from this crime.”124
4. Conclusion
A persuasive argument could be made that the approach taken by the ICC PTC I and the ICTY in Blaškić is inconsistent with the ordinary meaning of the word ‘extensive’. Interpreting the provision to say a single act can be extensive may go too far outside a plain reading of the provision. Extensive is more than just how serious the impact will be; it suggests that it is more than one appropriation. In addition, the use of the phrase ‘certain property’ in the Elements of Crimes does not necessarily mean that a single property is covered and it could also mean that the property has to be identified by the Prosecution. Such property would still be ‘certain’.
Perhaps the better approach is to recognise that this element means that the impact of the appropriations must extend either to a number of people, across a number of places, or have an otherwise substantial effect. This would be broadly consistent with the ordinary meaning of the word. It would, of course, be necessary to look at each appropriation and consider whether it was extensive “as a matter of fact and
121 Ibid [615]-[617]. 122 Kordić and Čerkez (Judgment) (ICTY, Appeals Chamber, Case No. IT-95-14/2-A, 17 December 2014) [559]. 123 Zimmermann, above n 16, 399. 124 Dörmann, above n 10, 82.
172 degree.”125 It should still be possible for a single appropriation to be extensive. One example makes the case for why this should be accepted: imagine that an Occupying Power appropriated a vast tract of publicly held land in one action. Such an appropriation would have an extensive effect in that a significant number of people would be impacted by the decision. Similarly, if the Occupying Power took control of a large industrial complex that was privately owned by one company, but which employed thousands of people who were then sacked, it seems likely the appropriation would have an extensive effect.
When is an appropriation carried out ‘wantonly’? Wantonly describes doing something “without regard for right or consequences; in a way that betrays delight in wrongdoing or mischief; recklessly; gratuitously.”126 There are two aspects to the meaning of this word that are potentially relevant. First, the meaning suggests the accused has not turned their mind to, or does not care about, the consequences of their conduct and are thus acting recklessly. The second aspect of the meaning is the sense of the person delighting in the wrongdoing; that they know their conduct is wrong and take some pleasure in continuing the conduct. Relying on the first aspect of the meaning of the word would appear to lower the required mental element from the standard of article 30 of the Rome Statute to recklessness, rather than knowledge; the second aspect of the meaning of the word suggests that the perpetrator must be shown to “take delight” in the conduct. This interpretation could mean that if the perpetrator was ‘trying’ to do the right thing and carefully thought through the consequences, they may have done enough to escape criminal liability.
The more likely conclusion is that the inclusion of the word ‘wantonly’ means that recklessness by the perpetrator would fulfil the knowledge requirement of the crime. The crime is intended to protect property from being destroyed or appropriated, and it would be strange to render a prosecution dependent on proving that the accused person ‘took delight’ in their conduct. The adjustment to the knowledge requirement makes more sense in the context of an unlawful destruction of property, as it is easy to understand how a perpetrator might recklessly destroy property. This means the
125 Christine Byron, War crimes and crimes agaisnt humanity in the Rome Statute of the International Criminal Court (Manchester University Press, 2009), 45. 126 “wantonly, adv.”OED Online (Oxford University Press, 2017).
173
Prosecution would not have to show that the perpetrator intended for the destruction to occur, significantly increasing the protective aspects of the crime, as well as being consistent with a belligerent’s obligations under IHL. It is more difficult to envisage a scenario where land could be recklessly appropriated, but it may well be possible.
1. Drafting history
There does not appear to be anything in the drafting history of the Rome Statute or the drafting history of the predecessor provisions of the Geneva Conventions that sheds light on how ‘wantonly’ came to be included in article 8(2)(a)(iv).
2. Jurisprudence of international criminal tribunals
The ‘wantonly’ aspect of the crime, or any analogous provision, does not appear to have been considered in detail by international criminal tribunals.127 The approach taken by the ICTY to defining the mental element of the underlying grave breach is that the accused must have acted with either intent or reckless disregard to the likelihood of destruction or appropriation.128
3. Academic commentary
There is no consistent position amongst scholars considering the effect of this word on the provision. It has been argued by some that it has no real effect. Clark suggests that the word is “redundant” and incorporated because there was “something of a disconnect between the drafting of the general part of the Rome Statute and its special part.”129 Referring to the use of “wanton” in a different provision of the ICTY Statute, Mettraux claimed it meant the destruction must be “deliberate and without any justification (‘sans motif’ in the French text),”130 but in the ICC context this would not add anything to the normal requirements for criminal responsibility under article 30 of the Rome Statute. Others point to a connection between ‘wantonness’ and a lack of
127 See ICRC, Commentary on the First Geneva Convention, above n 44, [3016]. 128 See Brđanin (Judgment) (ICTY, Trial Chamber, Case No IT 99-36-T, 1 September 2004) [589]; Naletilić and Martinović (Judgment) (ICTY, Trial Chamber, Case No IT-98-34-T, 31 March 2003) [577]; Kordić and Čerkez (Judgment) (ICTY, Trial Chamber, Case No IT-95-14/2-T, 26 February 2001) [341]. 129 Roger Clark, ‘The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences’ (2001) 12(3) Criminal Law Forum 291, 315. The reference to the ‘special part’ refers to the section providing for the mental element. 130 Mettraux, above n 114, 92.
174 military necessity. For example, the Means of Proof Digest in the ICC Case Matrix, produced by the Office of the Prosecutor at the ICC in collaboration with a number of universities, comments in relation to the destruction of property:
The “wantonness” of the property destruction is a mental element which refers not only to the intensity or magnitude of destruction but also particularly reckless or negligent manner in which it is carried out. For this reason, the lack of military necessity for a particular destruction may also be an evidence of wantonness. Destruction would usually be without known military goal and therefore not justified by military necessity.131
The Digest appears to treat the requirement as it relates to ‘appropriation’ in an identical manner.132 The problem with this interpretation is it essentially strips ‘wantonly’ of any specific meaning in the provision. A lack of military necessity is already an element of the offence, meaning an appropriation that was militarily necessary would fall under the exception and therefore not be within the remit of the crime.
Others ascribe some specific meaning to the term.133 Byron notes that the fact the word is repeated (but not defined) in the Elements suggests that it carries some meaning, but she does not draw any firm conclusions about the way in which it might change the mental element.134 She does observe that the ordinary meaning of the word “suggests that specific motives are not an element of this offence” but notes that this does not resolve the question of whether reckless appropriation, rather than intentional appropriation, suffices.135 Holding that ‘recklessness’ suffices for criminal responsibility protects against property being destroyed (or taken) through the carelessness of the perpetrator. In interpreting the underlying provision from the Geneva Conventions, the 2016 ICRC Commentary defined a wanton act as when “the perpetrator acted ‘unreasonably or maliciously risking harm while being utterly indifferent to the consequences’.”136
131 ICC Case Metrix Network, above n 115. 132 Ibid. 133 Werle and Jeßberger, above n 47, [1266]. 134 Byron, above n 125, 48. 135 Byron, above n 125, 46. 136 ICRC, Commentary on the First Geneva Convention, above n 44, (footnote omitted).
175
4. Conclusion
The most persuasive interpretation is that ‘wantonly’ lowers the required mental element to recklessness, instead of full intent and knowledge as per article 30 of the Rome Statute. It should not be necessary to show the perpetrator intended the appropriation to occur, but only that they were reckless about it. This interpretation should be preferred because it makes the most sense in light of the words of the provision, as well as the object and purpose of the Rome Statute and occupation law. It is more convincing than either denying the word has any effect on the provision, or that it just reiterates what is required by article 30. It does not offend the principle of legality as it is an interpretation clearly open on the text and it does not unduly widen the scope of possible offenders.
This might have an impact if the Court is considering a de facto appropriation where the control of the property has not been formalised, and where the perpetrator has not actually intended an appropriation to occur, but has been reckless about how they are affecting the owner’s (or in the case of communally held land, the group’s) capacity to use the property. As noted above, it is much easier to conceptualise how it would apply in the case of destruction of property. It ensures that the destruction of property that occurs without any military necessity, and unlawfully, but where the perpetrator did not actually intend for the destruction to occur but was reckless about it is still criminalised.
V. ‘SUCH PROPERTY WAS PROTECTED UNDER ONE OR MORE OF THE
GENEVA CONVENTIONS OF 1949.’
Article 8(2)(a)(iv) provides that the appropriation must be ‘unlawful’ for it to amount to a crime. This requirement of ‘unlawfulness’ requires reference to the rules and regulations of IHL and, more specifically, occupation law, as this is the body of law that establishes how property may be lawfully used during occupation. Referring to occupation law is consistent with the provision’s identity as a war crime. The provision sits in article 8(a) of the Rome Statute, which contains the war crimes of international armed conflict subject to the jurisdiction of the Court. The preamble to article 8(a) explicitly provides that it is a list of the Grave Breaches of the Geneva Conventions,
176 and the crimes must occur “against persons or property protected under the provisions of the relevant Geneva Convention.”137 Thus, it is this body of law (and not other sources of law, such as internationally recognised human rights) that must be analysed to understand what kinds of appropriations are ‘unlawful’ and therefore criminal.
Earlier chapters have explained how the Hague Regulations and GCIV operate together to comprehensively regulate the conduct of the Occupying Power during an occupation. These regulations explain the circumstances in which the Occupying Power can use property in the Occupied Territory. There are different rules depending on whether the property is movable or immovable, as well as whether it is publicly or privately owned. This section will begin with an overview of the provisions of both instruments that are relevant to the taking of land in Occupied Territory, and then examine some of the critical legal issues they raise. There are the definitional questions of how to distinguish between immovable and movable property, and between public and private property. Once the property has been categorised, it is then necessary to determine whether its use is consistent with occupation law.
The analysis reveals that this body of law could pose a significant challenge to the ICC. Occupation law regulating the use of property is complex and uncertain. This study makes it evident that, to the extent that article 8(2)(a)(iv) criminalises breaches of occupation law, it fails to provide sufficient legal certainty. This is mainly due to the vague rules for categorisation of property and the use of that property. These rules are ill-suited to deal with contemporary occupations.138 They require a distinction to be made between private and public property in order to determine what protection applies. This is in itself unsurprising: at the time the rules were being formed in the late nineteenth century, private property was seen as the most important kind of property interest.139 The importance placed on the sanctity of private property is reflected in the
137 Rome Statute art 8(2)(a). 138 See Antonio Cassese, ‘Powers and Duties of an Occupant in Relation to Land and Natural Resources’ in Emma Playfair (ed), International Law and the Administration of Occupied Territories (Clarendon Press, 1992), 422. 139 The first attempts to regulate war occurred during the Enlightenment, when scholars such as Emmerich de Vattel, Jean-Jacques Rousseau, and Georg F. von Martens argued for some legal regulation of war, such as distinguishing between combatants and non-combatants, and sparing non-combatants and their property from harm during war. By the beginning of the nineteenth century that the concept of immunity of private property was widely accepted enough to be reflected in the practice of the armies of occupying powers. See Yutaka Arai-Takahashi, ‘Preoccupied with Occupation: Critical Examinations of the Historical Development of the Law
177 law that was developed, and the protection of private property was (and remains) much more expansive than the protection of public property.140 The result is that an antiquated understanding of property has been embedded in occupation law, and is now also found in the Rome Statute.
In addition, the protection of public property is unfit to serve the ‘modern’ object and purpose of occupation law. The law extends to the Occupier the responsibility of a ‘usufructuary’, a loose concept that gives considerable leeway for how the Occupier may act. This is not in itself necessarily a bad thing for a state obligation, but makes the transformation from occupation law to the criminal law in the Rome Statute more difficult.
The Hague Regulations and GCIV The Hague Regulations provide the framework for how an Occupying Power is to administer property in the Occupied Territory during an occupation. Section III of the Regulations (articles 42 to 56) set the framework for the “military authority over the territory of the hostile state.”141 The Regulations establish the foundational principle of Occupation Law: that the Occupant should, as far as possible, leave the territory as it found it. This is known as the ‘conservation principle’, and is sourced primarily in article 43 of the Hague Regulations:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.142
A number of the articles relate to the treatment of real property by an Occupying Power. Article 46 provides:
of Occupation’ (2012) 94(885) International Review of the Red Cross 51, 55; Eyal Benvenisti, The international law of occupation (Oxford University Press, 2012), 22-5; Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (University of Minnesota Press, 1957), 185; Rotem Giladi, ‘A Different Sense of Humanity: Occupation in Francis Lieber’s Code’ (2012) 94(885) International Review of the Red Cross 81, 85. 140 Yutaka Arai, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Martinus Nijhoff Publishers, 2009), 195. 141 Hague Regulations, section III. 142 Ibid, art 43.
178
Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.
Private property cannot be confiscated.143
Article 47 prohibits pillage.144
This is not to say that the Regulations only restrict the conduct of the Occupying Power. Other provisions are more permissive, allowing for property to be taken and used in certain conditions. Article 52 (which may apply to land) provides:
Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.145
The provision limits how much can be taken through requisitions, linking it to the needs of the occupying army, as well as the resources of the Occupied Territory.
The distinction between public and private property is critical to the regulatory framework. The Occupier’s power over public property is much more substantial. Article 53, which only applies to movable property, and so does not include land, provides:
An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.146
Article 55 of the Hague Regulations defines the relationship between the Occupying Power and the public immovable property in the Occupied Territory. It provides that:
The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and
143 Ibid, art 46. 144 Ibid, art 47. 145 Ibid, art 52. 146 Ibid, art 53.
179
situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.147
The provision means, if land is publicly held, the Occupier has the obligations of a ‘usufructuary’, and must only use the property according to the rules of usufruct and in a way that does not diminish the capital value of the property. This can be contrasted with article 46, prohibiting the confiscation of private property.
Finally, article 56 provides that the property of municipalities as well as “that of institutions dedicated to religion, charity and education, the arts and sciences” shall be treated as private property, even when it is in fact state property.148 It adds that “all seizure, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.”149
GCIV is supplementary to the Hague Regulations,150 and it establishes some further protections to property in Occupied Territory. As has been noted above, article 147 of GCIV (the text of which is common to all four Geneva Conventions)151 was the source of the text for article 8(2)(a)(iv) of the Rome Statute. The Convention does not just establish prohibitions, but it also provides the Occupying Power with some power to manage the Occupied Territory. For example, article 64 of GCIV grants an Occupying Power the right to enact penal legislation “to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration.”152
Distinguishing between movable and immovable property There are different rules that apply to movable and immovable property. This is a categorisation that comes from Roman Law, and generally speaking ‘immovable’
147 Ibid, art 55. 148 Ibid. 149 Ibid. 150 GCIV, art 153. 151 While there are minor variations, the grave breach provisions in all four Geneva Conventions include the prohibition on extensive destruction and appropriation of property. 152 GCIV, art 64.
180 property is land, and ‘movable’ is all other forms of tangible property. It is therefore similar to the common law distinction between real and personal property.
The distinction is critical for determining what happens to the natural resources of the territory. If resources like oil or water are determined to be public movable property, the legal restrictions on the exploitation of the resource by the occupying power are much more limited. If it is public immovable property, then the occupying power will be bound by usufructuary obligations.153 However, the situation with regard to land is absolutely clear. Land is immovable property. As such, for the purposes of this thesis, we do not need to consider the distinction between movable and immovable property any further.
Distinguishing between public property and private property The appropriate test to distinguish between public and private property is contested. This is a profoundly important question, as the use an Occupying Power can make of public land is not nearly as restrictive as the use it can make of private land. In some cases, it will be relatively easy to determine who owns the land, such as where a territory has an up-to-date and reliable land registration system that can be checked. In other situations, the law specifically provides for a presumption of private ownership: article 56(1) of the Hague Regulations, for example, provides that the property of municipalities, as well the property of religious, educational, charitable and scientific institutions is all treated as private property even if it belongs to the State.154 This presumption suggests that the category of public property is restrictive, perhaps showing a tendency to protect property which has public and private characteristics as private property.155 In other cases, it will be much more difficult to determine the proper legal characteristic of property. How do we resolve uncertainty about who owns the property?
153 See Eyal Benvenisti, ‘Water Conflicts During the Occupation of Iraq’ (2003) 97 American Journal of International Law 860, 869; Glahn, above n 139, 181-3; Arai, above n 140, 199-200. 154 Hague Regulations art 56(1). Georg Schwarzenberger explains that this restrictive view of public property reflected the view that war was fought between states, not private individuals: International Law as Applied by International Courts and Tribunals (Stevens & Sons Ltd, 1968) vol 2, 245. 155 Schwarzenberger, ibid 308.
181
There is no definition in the Hague Regulations or GCIV of public or private property, nor is any test provided for determining whether property is owned by the State.156 Ultimately it is a question of fact, but there are some different possible approaches that are worth articulating.
1. The functional test
It appears that the accepted test for distinguishing between public and private property looks to the actual function of the property, and how it is being used, to determine its status.157 This was the approach taken in a number of cases in the early twentieth century. In Cession of Vessels and Tugs for Navigation on the Danube,158 the arbitrator treated captured river vessels, which were owned by private companies and leased to the Austro-Hungarian war ministry, as public property. Putting the formal ownership to one side, the Arbitrator held that the vessels were functionally indistinguishable from state property,159 as the State bore the financial risk of any damage to the vessels.160
Most scholars seem to accept that a form of the functional test should be applied. Focussing on the problem of semi-state property, Glahn proposed that a functional test should apply where the state has a substantial interest in the property and has assumed the economic risk, or the property is subject to a “very considerable measure” of government control. Even if the State is in fact the true and absolute owner, the property should be treated as public property.161 This is consistent with the test preferred for determining whether an appropriation has occurred, recognising it is important to look behind any legal façade and investigate who actually controls the land. This approach is more sensible than relying only on documentary evidence of ownership, or purely on how the property is being used. The Court should consider the whole legal matrix of the property including how it is being used at the moment of
156 Ibid 260. 157 Ibid 308. 158 Cession of Vessels and Tugs for Navigation on the Danube (1921) 1 RIAA 97. 159 Ibid 108. 160 Cession of Vessels and Tugs for Navigation on the Danube (1921) 1 RIAA 97, 107-8. 161 Referring to the Allied Occupation of Sicily during WII, Glahn criticised the approach that treated all semi-state property as if it were only public property: above n 139, 179.
182 appropriation or seizure, how it was used in the past, and how the land was treated by the applicable domestic legal regime.
The test does have some limitations. Schwarzenberger observed that there is “an element of unreality and formalism in this type of argument,” particularly when it is known that the “home state of the individuals concerned is a defeated and inflation- ridden country.”162 He said the test is not easy to apply and allows “for a high degree of subjective evaluation.”163 Nevertheless, he argued that the increasing complexity of modern national economies, and in particular the more significant role of the State, “intensifies the need for the application of functional tests” to categorise the land as public or private.164
2. Presumption that land is publicly held
Applying a functional test is possible if there is some evidence about the ownership of the property. However, in some cases such evidence will not be available. This scenario raises the question of whether property should be assumed to be public or private. The general approach appears to have been that, if there is doubt about the ownership of property, it is taken to be publicly owned.165 This approach is reflected in some military manuals, including the US Field Manual on The Law of Land Warfare.166 The presumption is considered necessary because, if land was presumed to be privately held, the government of the territory on the verge of being occupied would have an incentive to either transfer the property to private owners, or destroy all records of who owned what land. Without the presumption that the land is public, the lack of documentary evidence regarding who owned property would result in the property having the highest level of protection under the law.
162 Schwarzenberger, above n 154, 262. 163 Ibid 308. 164 Ibid 265. 165 Glahn, above n 139, 179-80; Arai, above n 140, 196; Michael J. Kelly, ‘Iraq and the Law of Occupation: New Tests for an Old Law’ (2003) 6 Yearbook of International Humanitarian Law 127, 155. Schwarzenberger (above n 154, 308) observed that the difficulty of applying any test, and particular one based on functionalist criteria, meant there is “an understandable temptation […] exists to cut the Gordian know and, if errors must be made, to do so in favour of the Occupying Power”. 166 United States Department of the Army, The Law of Land Warfare (Department of the Army, July 1956), 149.
183
There is some limited state practice supporting the presumption. In Iraq, after the 2003 US-led invasion, the Coalition Provisional Authority (‘CPA’) sought to establish safe areas in cities to accommodate diplomats and administrators. The land chosen for these safe areas was often abandoned property, and determining whether the land was public or private land was legally challenging.167 In some situations, property that was prima facie privately held was treated as public: CPA Order 4 provided that property owned by “high level” members of the ousted regime should be treated as an “asset of the state” where “those individuals could not establish they were bona fide purchasers for value.”168 The order stated that this land should “be confiscated and managed on behalf of the Iraqi people to be turned over to the sovereign at the end of occupation.”169 It is also the approach taken by Israel in the Occupied Palestinian Territories where, from the late 1970s, the Military Authorities have treated all uncultivated rural land as public land, with the onus on individuals to prove their rights in the land.170 This approach has been upheld by the Supreme Court of Israel.171
It is unclear whether there is really enough evidence to justify the application of a presumption in favour of land as public where any doubt exists.172 The application of this presumption would, after all, considerably increase the power of the Occupying Power in the Occupied Territory, and disadvantage the residents of the territory. There are some other notable critiques of the presumption. Cassese said finding a presumption that was so clearly in the interests of the Occupying Power on such limited evidence was unpersuasive. He said the presumption would only be justified where there was evidence that, just prior to occupation, the government transferred public property into private hands to shelter it from the Occupant.173 However, if there
167 Kelly, above n 165, 154. 168 Ibid. 169 Ibid. 170 David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (State University of New York Press, 2002), 90. 171 Ibid 91. 172 Schwarzenberger, above n 154, 309-10. He finds support for this position in Collac v Yugoslavia (1929) 23 AJIL 851, a case from the Hungaro-Yugoslav Mixed Arbitral Tribunal where the Tribunal did not accept a presumption in favour of public ownership. 173 Cassese, above n 138, 429.
184 was no evidence of such a transfer of property, it was inappropriate to “broaden the powers of the occupant” through the application of the presumption.174
Despite these critiques, in the context of international criminal law, the case for the presumption is harder to resist. First, it has been the generally accepted position for many years. For the reasons discussed in the introduction to this thesis, if there is a substantial doubt regarding the appropriate interpretation, it should be resolved in favour of the accused. The Prosecution bears the burden of proof to prove the case, which would extend to proving that property fell into a particular category. In this case, it would mean holding that the presumption applied. Moreover, there is no evidence in the drafting of the Rome Statute nor the Elements of Crimes that the drafters of the State Parties thought this presumption should change. However, the strength of Cassese’s argument should be acknowledged: it would be more sensible if some proof that ownership had been transferred to private hands to protect public property, or that records had been destroyed, was required before the presumption was applied. It is just that in the absence of anything other than Cassese’s article supporting this claim, it would be inappropriate for the Court to go against the more widely held position that is supported by some state practice. Besides, the presumption could still be displaced through the admission of convincing evidence to the contrary.
The line between public and private property is at times blurred. For example, a territory might have common lands that are not privately owned, or owned by the state or communities, and land belonging to public bodies that are quasi- governmental.175 Some occupied territories might not have a clear distinction between land that is privately owned and publicly owned, such as if land is held communally, or is not considered ‘owned’ at all. The law would struggle to deal with this kind of situation. Perhaps the best view is that public land is property actually owned by the State; all other land, whether communally held or otherwise, is akin to private property and should be protected in the same way.
174 Ibid. 175 Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009), 211.
185
When can the Occupying Power use private immovable property? Once the precondition of determining the status of the property has been met, it is then possible to figure out what rules apply, and decide whether the use of that property has been unlawful. However, this is not straightforward. The extent of the right of the Occupier to use immovable private property is opaque. This section will first set out the relevant parts of the Hague Regulations and will demonstrate the uncertainty inherent in how the provisions interact. It will be shown that the best view is that private property can only be taken during an occupation if it is necessary for the public order and safety of the Occupied Territory.
1. Relevant provisions
The most important provision in the Hague Regulations protecting private immovable property is article 46, which prohibits the confiscation of private property by the Occupying Power. It appears to be widely accepted that ‘confiscation’ in this context refers to the permanent taking of land without compensation.176 This leaves open the possibility of the Occupier using land temporarily, raising the further questions of how to identify the point at which a temporary use of land is deemed to become permanent, and what are the circumstances in which land can be lawfully taken with compensation?
A number of other provisions of the Hague Regulations permit the temporary use of private property in certain circumstances.177 Article 43 of the Hague Regulations appears to be the source of the most sweeping power to use private immovable property. It requires and empowers the Occupying Power to “take all measures” to ensure public order and safety, suggesting that land can be taken by the Occupier according to the law in the Occupied Territory, for the benefit of the local population.178
176 See Kretzmer, ‘The Advisory Opinion: The Light Treatment of International Humanitarian Law’, above n 107, 97. Lassa Oppenheim puts the restriction in absolute terms, saying immovable enemy property “may under no circumstances or conditions be appropriated by an invading belligerent”: Lassa Oppenheim, International Law - A Treatise (Longman, 7th ed, 1952) vol 2, 403. 177 Dinstein argues that it is “undeniable” that the Occupying Power is entitled to take possession of private immovable property for military use, but does not identify the specific source in the Hague Regulations: Dinstein, above n 175, 226. 178 Kretzmer, ‘The law of belligerent occupation in the Supreme Court of Israel’ above n 93, 97; Schwarzenberger, above n 154, 266; Beit Sourik Village Council v The Government of Israel [2004] HCJ 2056/04 (‘Beit Sourik’), [27].
186
It is unclear, however, how far this right extends. After all, it does not operate in isolation, and must be interpreted in a way that gives effect to the other articles of the Hague Regulations and GCIV. In addition, article 52 of the Hague Regulations permits the requisitioning of some private property when needed by the army of occupation. This concept of property being ‘needed’ by the army of occupation might be the same as military necessity, or it may impose a stricter test for the circumstances in which requisitioning of property may be permitted.
2. ‘Maintaining public order and safety’: Article 43 of the Hague Regulations
Article 43 of the Hague Regulations provides that the Occupying Power should “take all measures” to ensure public order and safety in Occupied Territory.179 This provision has the potential to allow the Occupying Power considerable power to take private immovable property if it is necessary to ensure public order and safety. However, it appears that this right is limited by the requirement that any property taken under this provision should only be for the benefit of the occupied population.
This was the approach taken by the US Military Tribunal in Nuremberg. In Krupp,180 the Tribunal held that article 43 empowers the Occupying Power to “expropriate either public or private property to preserve and maintain public order and safety.”181 The Tribunal was careful to point out that the exemption must not be discriminatory, and any transaction based on discrimination affecting property rights will be in violation of article 46.182 It further explained:
[Article 43] permits the occupying power to expropriate either public or private property in order to preserve and maintain public order and safety. However, the Article places limitations upon the activities of the occupant. This restriction is found in the clause which requires the occupant to respect, unless absolutely prevented, the laws in force in the occupied country. This provision reflects one of the basic standards of the Hague Regulations, that the personal and private rights of persons in the occupied territory shall not be interfered with except as justified by emergency conditions. The
179 Kretzmer, ‘The Law of Belligerent Occupation in the Supreme Court of Israel’ above n 93, 97; Schwarzenberger, above n 154, 266; Beit Sourik [2004] HCJ 2056/04, [27]. 180 Krupp (United States Military Tribunal, Nuremberg, 1948) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10. 181 Ibid 135. 182 Ibid.
187
occupying power is forbidden from imposing any new concept of law upon the occupied territory unless such provision is justified by the requirements of public order and safety.183
This section of the judgment treats article 43 as only justifying the taking of property when “justified by the requirements of public order and safety,”184 emphasising that the provision seeks to protect “the personal and private rights of persons in the occupied territory.”185
Even though the limitation imposed by the Tribunal on the operation of article 43 is persuasive, this and other decisions of the Tribunal should be treated with some caution. The Tribunal tended to take a very broad-brush approach to the law of occupation, and it failed to comprehensively engage with the actual provisions of the Hague Regulations and their relationship with each other. For example, in Krupp, the accused was charged with participation “in the plunder of public and private property, exploitation, spoliation, devastation, and other offences against property and civilian economies of countries and territories under belligerent occupation.”186 While it is possible to identify some provisions of the Hague Regulations that cover this unlawful behaviour, the ways those provisions interact was not addressed. There was not a careful analysis of whether the protective or permissive features of the Regulations should take precedence, or of the different layers of protection in different circumstances. The Tribunal instead focussed on what the protection of property in the Regulations sought to achieve in defining the crime:
[S]poliation of private property, then, is forbidden under two aspects; firstly, the individual private owner must not be deprived of it; secondly, the economic substance of the belligerent occupied territory must not be taken over by the occupant or put to the service of his war effort – always with the proviso that there are exemptions from this rule which is strictly limited to the needs of the army of occupation insofar as such needs do not exceed the economic strength of the occupied territory.187
183 Ibid. 184 Ibid. 185 Ibid. 186 Ibid 620. 187 Ibid 135.
188
In addition, the statement of the Tribunal that “[b]eyond the strictly circumscribed exceptions, the invader must not utilise the economy of the invaded territory for his own needs within the territory occupied” is important to consider.188 It is hard to square this statement with the principle of usufruct, discussed below, which appears to explicitly permit the Occupying Power to use the ‘fruits’ of the public property of the Occupied Territory for its own purposes.
Despite these problems with the lack of nuance in the jurisprudence from Nuremberg, its general approach in relation to the operation of article 43 is persuasive. As article 43 only permits the taking of private land in limited circumstances, it does not substantially undermine the protection expressed in such clear terms in article 46. This interpretation is consistent with the way in which article 43 operates in the broader context of changes to the laws in force in the Occupied Territory.
The taking of land under article 43 is not only permitted for security needs. It has been accepted that article 43 allows for the changing of laws in the Occupied Territory on the ground of humanitarianism, such as reforming criminal law to protect against incest.189 This freedom to amend local laws is restricted, and it does not permit importing an entirely new legal system into Occupied Territory, an action that would amount to de facto annexation.190 Article 64(2) of GCIV also grants a broad power to the Occupying Power to make laws that are essential for fulfilling its obligations under the Convention, and maintaining order and security in the Occupied Territory.191 This “more elastic” grant of legislative power “gives primacy to the necessity of securing the rights and wellbeing of the occupied population,” as seen from the many positive duties imposed on Occupiers by GCIV and the rest of occupation law.192 There is, however, some dispute about the expansiveness of the grant of power in article 64(2).193
188 Ibid. 189 Susan Power, ‘The 2003-2004 Occupation of Iraq: Between Social Transformation and Transformative Belligerent Occupation’ (2014) 19(2) Journal of Conflict and Security Law 341, 351. This occurred in X (Incest Case) (Holland, District Court, Almelo) (1951) Annual Digest Public International Law 366. 190 Power, above n 189, 352. 191 GCIV. 192 Arai-Takahashi, above n 139, 68. 193 Benvenisti, above n 139, 103; Power, above n 189, 361.
189
It is all very well to determine that article 43 of the Hague Regulations and article 64(2) of the GCIV permit changing the laws in the Occupied Territory for the benefit of the Occupied Population. This leads to another, more challenging question: when does a proposed change in the law satisfy this criterion? In particular, does it permit (or even oblige) wide-scale social engineering, or long-term projects in response to public needs? These kinds of changes, sometimes described as a “transformative occupation”, are contentious.194 For example, this was a source of some controversy during the occupation of Iraq after the US-led invasion in 2003, where the US and its allies sought to reform Iraq from a centrally managed economy to one that operated on the principles of market freedom and private property.195 In long occupations these concerns will be even more significant.
Three cases emerging from the Israeli occupation of Palestine present a clear example of this difficulty. First, in the late 1970s Israel sought to impose an equalising tax on goods sold in the Occupied Palestinian Territories, in part to ensure that the price of goods was the same in Israel and Palestine.196 The Supreme Court of Israel dismissed a challenge to the tax on the basis that it was actually for the benefit of the occupied population as it prevented economic stagnation by promoting trade between the two territories.197 In the later Jerusalem District Electricity Co Ltd v Minister of Defence the Court found that article 43 permitted changing private concession rights to supply electricity to allow an Israeli electricity company to make long-term infrastructure investment to provide power to people living in Occupied Territory, including Israeli settlers.198 Taking account of the benefits accruing to illegal settlers in the determination of whether a measure is for the benefit of the population in the occupied population is problematic.199 Finally, in Jerusalem Electricity Co v Minister for Energy200 the Court ruled that the Israeli Government could not purchase a Palestinian electricity company that provided power to parts of the Occupied Territory. Justice Kahan held that the Occupying Power should not introduce modifications that “would have a far
194 See Adam Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ 100 American Journal of International Law 580. 195 Power, ibid. 196 Ibid 374. 197 Abu Aita et al v Commander of Judea and Samaria et al (1983) 13 IYHR 348. 198 Jerusalem District Electricity Co Ltd v Minister of Defence et al (1975) 5 IYHR 381. 199 See Power, above n 189, 375. 200 Jerusalem Electricity Co v Minister for Energy (1981) 11 IYHR 354.
190 reaching and prolonging impact […] far beyond the period when the military administration will be terminated” on the Occupied Territory, “save for actions undertaken for the benefit of the inhabitants of the area.”201 In this case, the importance of the supply of electricity in maintaining the normal life of the public meant that control over its supply should remain in the area.202
The decision in the Jerusalem Electricity Co case in isolation gives a misleading view of the approach generally taken by the Israeli Supreme Court. Kretzmer described the case as a “voice in the wilderness”, pointing out that generally the Court only considers the “narrow economic and material welfare” of the Palestinians in Occupied Territory, ignoring issues “connected with their political interests in avoiding major changes that further the integration of the West Bank with Israel.”203 The analysis is also complicated by the long-term nature of the occupation of the West Bank, and the presence of Israeli settlers in the Territory.204 In later cases, the Court has repeatedly found that ensuring the security of the settlers was a valid exercise of the Occupier’s power and duty.205 In deciding that the welfare of the local population did not have to be the dominant aim of any decision, the Court held that article 43 obliged the military commander to protect the lives of all persons in the territory, regardless of whether they were there illegally.206 Kretzmer argues that this general approach has weakened the protection available to the local Palestinian population under the law of occupation.207 In addition, he found that the “dominant trend” in the decisions of the court has been to rely on the “benevolence” of the military authorities to protect the Occupied Population.208 This reliance has resulted in the Court uncritically adopting the authorities’ argument that they were acting for the benefit of the Occupied Population, even in the face of persuasive evidence to the contrary.209 Notwithstanding
201 Ibid 357. 202 Ibid. 203 Kretzmer, ‘The Law of Belligerent Occupation in the Supreme Court of Israel’ above n 93, 219. 204 Ibid. 205 Ibid 219. 206 Ibid 220. 207 Ibid. 208 Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, above n 170, 71. 209 Ibid 72.
191 this persuasive critique, the Israeli jurisprudence shows that the balancing process is fraught with difficulty, and that “even measures driven by the need for social transformation must be balanced by the competing post-occupation considerations.”210
It does appear that article 43 permits the Occupying Power a broad scope for possible action. This is particularly true during prolonged occupations, where the passage of time will require a wider range of policies to be implemented to ensure that the Occupied Territory does not regress.211 While this poses a challenge to the conservationist principle that is at the core of the law of occupation,212 it does not mean that the Occupying Power is unrestrained in its decision-making. The participants at the ICRC Expert Meeting on Occupation and other forms of administration of foreign territory had differences of opinions about the impact of a prolonged occupation, but they “almost without exception agreed that there was no indication that IHL allowed a general disregard for occupation law merely because the occupying power had embarked upon a long-term occupation.”213 They were also:
[…] unanimously of the view that the welfare of the local population played a key role and should – along with the preservation of the occupying power’s security interest – be established as the main principle guiding the measures and policies undertaken by the occupying power in the administration of the occupied territory.214
The view of the experts directly challenges the Supreme Court of Israel’s approach of weighing the interests of the Israeli settlers equally to the Palestinian residents of the Occupied Territories when deciding what measures are appropriate. The experts agreed that “it was vital that the measures undertaken by the occupying power be aimed mainly to the benefit of the local population”, while also taking into account the security concerns of the Occupying Power.215 Regardless of whether it is concluded that the security of illegal settlers may be taken into account at all, it seems uncontroversial to assert that if there is a conflict between the interests of illegal settlers and those of an occupied population, the latter’s interests should prevail. Even with
210 Power, above n 189, 377. 211 Tristan Ferraro, Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory (ICRC, 2012), 72. 212 Ibid 72-4. Also see Fox, above n 5. 213 Ferraro, ibid, 74. 214 Ibid 72. 215 Ibid 73.
192 this conclusion, the Court would face the unenviable task of determining whether particular appropriations of property were, in fact, for the benefit of the occupied population. This will not be easy in all cases.
3. Requisitions during an occupation
The other provision of the Hague Regulations that may permit the use of private property is article 52. It provides that no requisitions “in kind and services shall not be demanded from municipalities or inhabitants except for the need of the army of occupation” and that they “shall be in proportion to the resources of the country”.216 It adds that “[c]ontributions in kind shall as far is possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible.”217 It is unclear whether this applies to immovable private property or not.218
There are two possible reasons for the application of article 52: first, that the provision is sufficiently broad to include private immovable property; and second, if article 52 is limited to movable property, article 46 justifies the seizure of private immovable property, which should then occur according to the rules of article 52.219 This issue was considered by the International Court of Justice in the Wall Advisory Opinion. In finding that Israel breached articles 46 and 52 of the Hague Regulations, the Court treated article 46 as an absolute prohibition that did not allow for any derogation.220 The Court did not discuss how the provision interacted with article 52, and did not explain the conditions for the latter provision’s application.221
This aspect of the Court’s opinion has been criticised. Kretzmer observed that the Court did not satisfactorily examine the distinction between prohibited confiscation and the temporary requisition of land and buildings as needed for the occupation under article 52.222 In addition, in finding that Israel had violated article 53 of GCIV (which prohibits the destruction of private property unless required by military
216 Hague Regulations, art 52. 217 Hague Regulations, art 52. 218 Arai (above n 140, 218) observes that “prima facie, the use of immovable property is not regulated under the provision”. 219 Ibid 219. 220 Wall Advisory Opinion[2004] ICJ Reports 136, 58. 221 Ibid; also see Arai, above n 140, 221. 222 Kretzmer, ‘The Law of Belligerent Occupation in the Supreme Court of Israel’ above n 93, 98.
193 necessity), the Court did not conduct an examination into the actual cases of destruction and instead made a blanket ruling based on “the material before it.”223
Most of the academic sources do not precisely identify the source of the power to requisition private property on a temporary basis. Schwarzenberger argues that the temporary use of land is permitted,224 but that “any unauthorised interference” would still be unlawful as a confiscation contrary to article 46.225 He claimed that certain conditions would have to be met for any requisition to be lawful.226 The measure must be in proportion to the resources of the occupied country, and can be demanded only on the authority of the local commander. He argued that ownership passes to the Occupying Power at the completion of the requisition.227
Others argue that while article 52 is limited to requisitions of movable property, article 46 permits the seizure of property which should then meet the requirements of article 52. Oppenheim said that article 46(2) does not apply to “the temporary use of private land and buildings for all kinds of purposes demanded by the necessities of war”,228 but argued (by analogy) that the temporary use of immovable private property is governed by rules applying to requisitions under article 52, and thus requires the payment of cash or a receipt.229 In contrast, Glahn argued the Occupant may use “without payment or compensation, private dwellings for offices, storehouses, barracks, and so forth, if no other accommodations of similar character lacking private ownership are available to him.”230 However, he said this right does not extend to selling the immovable property, “even if the proceeds of a sale are to be handed over to the owners at the conclusion of the war.”231 Determining the boundary between the temporary and lawful requisition of private property and an illegal confiscation is difficult: as Arai notes, “the temporary requisition of private land or buildings, which
223 Ibid. 224 Schwarzenberger, above n 154, 274-5. 225 Arai, above n 140, 218. 226 Schwarzenberger, above n 154, 246. 227 Ibid 246. 228 Oppenheim, above n 176, 403. 229 Ibid 410. 230 Glahn, above n 139, 186. 231 Ibid.
194 serves as a pretext for semi-permanent dispossession of the property and de facto transfer of title to the occupant, is tantamount to confiscation.”232
Identifying the source of the power to temporarily requisition private property would be a moot point if the ultimate test applied was the same. It is not clear, however, whether the military necessity exception is the same as “the needs of the army of occupation” as found in article 52. This uncertainty was not addressed by the ICJ in the Wall Advisory Opinion. There does seem to be some need to show that the use, requisition or other taking of the land is in some degree needed for military purposes. The question is whether it is the ‘normal’ degree of necessity, or some other test.
The Supreme Court of Israel has considered the operation of article 52 in a number of cases, taking a broad view of the powers of the Occupant. The general approach of the Court is to define the needs of the army of occupation in article 52 by reference to the duties of the Occupying Power under article 43 of the Hague Regulations.233 The test adopted by the Court allows the Occupying Power a great deal of discretion in requisitioning property on the basis of the “needs of the army of occupation”, consistently holding that this right extends to the requisitioning of land. In the Rafiah Approach Case, for example, the Court upheld an order to close land to create a military buffer, and also to establish two civilian settlements to establish a ‘Jewish presence’ as a valid security measure.234 In Ayub v Minister of Defence the Court held that civilian settlements in a strategic position could justify the taking of public land.235 Furthermore, the Court accepted the Government claim that the settlements were temporary as the formal ownership of the property had not been altered.236 Kretzmer is critical of the approach the Court in this case arguing that the decision confuses the lawful aim of defending the Occupying Power’s country, with all possible actions taken to increase the security of the Occupying Power. He explains:
232 Arai, above n 140, 219. 233 Kretzmer, ‘The Law of Belligerent Occupation in the Supreme Court of Israel’ above n 93, 218. 234 Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, above n 170, 80. 235 Ayub v Minister of Defence (1979) 9 IYHR 337. 236 Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, above n 170, 83.
195
As the Court’s view on the security function of civilian settlements revealed, adopting the broader view paves the way for actions that are incompatible with the occupying power’s fundamental duty not to use the occupation as a means of acquiring territory by use of force.237
The Supreme Court in Dweikat v Government of Israel abandoned this highly formalistic approach to determining whether the taking of land was lawful. When faced with evidence from the settlers themselves that they intended the settlement to be permanent, the Court ruled such a permanent settlement was inconsistent with article 52 of the Hague Regulations.238 The Court held that the “military needs” of the Occupying Power were limited to security interests based on a rational analysis of the dangers faced by the state rather than on ideological or political goals.239 Similarly, Justice Barak stated in Jami’at Ascan:
Both considerations [of the military commander] are directed towards the [occupied] area itself. The commander is not allowed to consider the national, economic or social implications of his own state, to the extent that they do not have implications for his security interests in the area or the interests of the local population. Even military needs are his military needs in the area, and not the national security interests in the wide sense. An area subject to belligerent occupation is not a field open to economic or other exploitation.240
Justice Barak’s narrow approach is more persuasive, and consistent with the views taken by scholars. Kretzmer says that the needs of the army of occupation concept “seems” narrower than the military necessity test,241 and Schwarzenberger states the phrase was intentionally chosen because it was narrower, but does not explain the basis for this conclusion.242 Arai says that the phrase “clearly […] constitutes a ground narrower” than that for imperative military necessity.243 He does not go on to elaborate
237 Ibid. 238 Dweikat v Government of Israel translated in ‘Appendix A: Selected Judgments of the Supreme Court of Israel’ in Meir Shamgar (ed), Military Government in the Territories Administered by Israel 1967 - 1980: The Legal Aspects (Hebrew University, 1982) vol I, 371-97. 239 Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, above n 170, 87. 240 Jami’at Ascan et al. v IDF Commander in Judea and Samaria et al. (1983) HCJ 393/82, [13] quoted in Kretzmer, ‘The law of belligerent occupation in the Supreme Court of Israel’ above n 93, 97. 241 Kretzmer, ibid. 242 Schwarzenberger, above n 154, 270-1. 243 Arai, above n 140, 223.
196 on how the test applied would actually differ from military necessity. Ultimately, it is not necessary to determine which test to apply in the context of this crime. This is because if the “needs of the occupying army” held the Occupying Power to a higher standard than military necessity whenever the taking of private land was involved, the failure of the measure to fall under military necessity exception would mean it could not meet the more stringent test.
Arai addresses the issue from another angle, identifying a third possible source for the power to requisition private property during an Occupation. He observes that it could be argued that the prohibition on “confiscation” in article 46(2) implies that “requisitions” are permitted.244 A requisition can be distinguished from a confiscation on a number of grounds. A requisition is temporary; it allows the occupant only to obtain possession; and the title remains in the hands of the original owner.245 It would mean the text of article 52 would not apply.246 According to Arai, such a requisition would still have to be justified on the grounds of military necessity.247 This approach is persuasive, but appears to lack other scholarly or judicial support. However, it is a moot point in the context of the Rome Statute: as it leads to the application of the military necessity test, an appropriation or seizure justified on this ground would already be captured by the military necessity exception and could not amount to a criminal act.
4. Conclusion
The situations where the Occupying Power can lawfully take private property appear to be limited to situations of military necessity, or where taking the property is needed to maintain the public order and safety of the Territory and is for the benefit of the occupied population. This is a substantial limitation on the capacity of the Occupying Power to take and use privately held land during an occupation. Nevertheless, it will sometimes be difficult to determine whether a particular instance of taking land is lawful, and the jurisprudence from the Israeli Supreme Court shows how the presence
244 Ibid. 245 Ibid. 246 Ibid 222. 247 Ibid 223.
197 of settlers in Occupied Territory can distort what measures are required to protect the occupied population.
It is important to point out that the fact that private property changes hands does not necessarily mean the Occupying Power is acting unlawfully. It is possible for the Occupying Power to manage transactions of private property248 and, in a sustained occupation, this will become increasingly necessary. The economy of the Occupied Territory cannot remain frozen. This was recognised by the US Military Tribunal in I.G. Farben, where the Tribunal held that the mere fact of the occupation is not enough to render any transaction unlawful.249 Instead, the Tribunal found it was necessary to show the transaction was tainted by “threats, intimidations, pressure, or by exploiting the position or power of the military occupant” to prove that the owner parted with his or her property involuntarily.250
The decision of the US Military Tribunal in Trial of Freidrich Flick and Five Others251 indicates that the critical element in figuring out whether a transfer of land is lawful is the lack of consent of the true owner of the private property. In Flick, the accused, who was convicted, had been operating a factory in occupied France without the consent of the owner. This was held to be contrary to the Hague Regulations, despite the fact the original seizure may not have been unlawful, Flick had nothing to do with the expulsion of the true owner, the property had been left in a better condition, and there was no exploitation for Nazi purposes in particular.252 The Tribunal did note that the economic value of the factory’s output was repatriated out of occupied France to
248 Glahn (above n 139, 186) notes that if the Occupying Power does permit the transfer of private immovable property, it is important it does so with extreme care. He recommended that the Occupying Power prohibit all transfers of immovable property, particularly in the early stages of the occupation to prevent “hardships through forced sales to speculators or even to the occupant’s own forces”. He recommends such a measure because it “subjects one of the worst consequences of past occupations to an initial prohibition and facilitates the working out of subsequent reasonable and fair controls of the occupying state.” 249 I.G. Farben (United States Military Tribunal, Nuremberg, 1948) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 50; also see ‘Notes on the Case’, United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 46-7. 250 Ibid 47. 251 Trial of Freidrich Flick and Five Others (United States Military Tribunal, Nuremberg, 1947) (‘Flick’) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 9, 1. 252 Ibid 39.
198
Germany, but also emphasised that the crucial, determining element for the unlawfulness of the appropriation was the lack of the consent of the owner.253 A lack of consent by the true owner could be proven by the particular facts of a transaction as well as a consideration of the wider context of land transfers in the Occupied Territory.
It can be confidently stated that, absent military necessity, the right to use private property during an occupation does not extend to the taking of immovable private property permanently. The most permissive interpretation of occupation law would be that the Occupying Power can temporarily use private real property when required for the ‘needs of the army of occupation,’ or if required for the public order and safety of the occupied population, and for their benefit. However, given military necessity is already an exception to the crimes in the Rome Statute, reaching a final determination on this point is unnecessary: proof of military necessity would mean that the taking of the property was not criminal. If it failed to pass exceptional military necessity, then it would be unlawful because it could not pass the (possibly) more stringent test for the “needs of the occupying army.”
When can the Occupying Power use public immovable property? The use to which the Occupying Power can lawfully put public property is much more expansive. Article 55 of the Hague Regulations permits the Occupying Power to use the public immovable property in the Occupied Territory according to the principles of ‘usufruct’. The provision states:
The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.254
The principle of usufruct essentially requires the ‘usufructuary’ (the Occupying Power) to maintain the substance of the property and permits them to use the ‘fruit’ of that property. The term was first used in the Brussels Declaration in 1874 but was never fully defined. The history of the provision helps to show the relationship between its permissive nature and the duties it imposes.
253 Ibid 41. 254 Hague Regulations, art 55.
199
1. Usufructuary rights and obligations
Usufruct is a concept that originates in Roman law.255 It can be described as “the right of using and taking the fruits of something belonging to another,”256 or the “right to use and enjoy the things of another, their substance remaining unimpaired.”257 In Roman times, it could exist over a wide range of property, including land, houses, slaves, animals; “in short everything except what is consumed by use.”258 A usufructuary of land had a number of rights: he “became owner of the crops as soon as they were gathered”, and could open new mines and quarries259, although this appears to have been due to a misconception about the nature of mineral resources.260 The ‘fruits’ of the property depended on the character of that property. For example, cutting timber would not be part of the usufruct of a farm, but could be the natural produce of a timber plantation.261 The usufructuary of land was not permitted to alter the character of buildings on that land.262 The usufructuary had to use the property with “the care of a bonus paterfamilias – the highest diligence known to the law.”263
The substance of the object of the usufruct had to be “unimpaired”, or maintained. There are three important implications of this requirement:
First, the usufructuary’s rights to make alterations in the object of the usufruct were restricted. … Secondly, there could be no usufruct in respect of things which are
255 Brice Clagett and O. Thomas Johnson Jr, ‘May Israel as a Belligerent Occupant Lawfully Exploit Previously Unexploited Oil Resources of the Gulf of Suez?’ (1978) 72 American Journal of International Law 558, 567. It is unclear what the origins of the concept are within this body of law, although it seems to have already been in existence by the beginning of the second century BCE: Alan Watson, The Law of Property in the Later Roman Republic (Oxford University Press, 1968), 203; J.A.C. Thomas, Textbook of Roman Law (North-Holland, 1976), 202-3. 256 William Hunter, Introduction to Roman Law (Sweet & Maxwell, 9th ed, 1934), 69. 257 Thomas, above n 255, 203. 258 Hunter, above n 256, 69. 259 Ibid 69-70. 260 Clagett and Thomas Johnson (above n 255, 568) note that while it is difficult to understand how an unlimited right to use mineral resources can be reconciled with the principle of usufruct, it can be explained by the Roman belief that mineral deposits were self-renewing or inexhaustible. 261 Thomas, above n 255, 203. 262 Hunter, above n 256, 70. 263 Ibid.
200
consumed by use. Thirdly, if the object of the usufruct perished, or if its character altered radically, no matter how this occurred, the usufruct would end.264
The usufructuary was required to return the substance of the property to the owner at the end of the usufruct.265 As such, the usufruct was “inalienable by the beneficiary: he could sell or let out the actual exercise of that to which he was entitled but not the right itself.”266
The principle of usufruct is (like occupation law more generally) both protective and permissive. It permits the usufructuary to use the property in certain ways, but sets a limit to the extent of this use. As Clagett and Thomas Johnson Jr point out, by selecting the word ‘usufruct’, the drafters of the predecessors to the Hague Regulations were:
… choosing a well-defined legal term of art that included within its meaning (1) general principles that had remained essentially unchanged for thousands of years … and (2) a widely shared practice of applying those principles …267
The principle was first referred to and codified in European legislation in the French Civil Code of 1804.268 The Code defined usufruct in article 578 as “the right to enjoy the things of which another has ownership like the owner himself, but with the responsibility of conserving the substance of it.”269 Other European jurisdictions adopted comprehensive civil codes soon after, and the provisions relating to usufruct were very similar to the French Code.270
The reasons why this concept was attractive to the drafters of the predecessor of the Hague Regulations are obvious. There are clear benefits in using the principle of ‘usufruct’ to regulate the occupier’s use of public land instead of a more comprehensive account of the occupier’s rights and obligations. The drafting history shows that the drafters decided against including some more specific clauses.271 It is a
264 Watson, above n 255, 207. 265 Thomas, above n 255, 204. 266 Ibid 205. 267 Clagett and Thomas Johnson, above n 255, 573. 268 Ibid 569. 269 French Civil Code quoted in ibid 570. 270 Ibid. These jurisdictions included the Belgium, the Netherlands, Italy and Portugal. 271 See Doris Graber, The Development of the Law of Belligerent Occupation, 1863-1914, a Historical Survey (Columbia University Press, 1949) 170-2.
201 limited legal right that permits the occupier to actively manage the land and take some resources from it, but this right is not absolute. It also has a built-in temporal limit: a usufruct does not last forever. It fits with the idea of an occupation being temporary. This is consistent with the overarching aim of the law of occupation to permit the lawful management of Occupied Territory as well as protecting the occupied population.
There is broad agreement about what is required from an Occupying Power as usufructuary. While it can use the ‘fruits’ of the immovable public property, it must safeguard its capital. It does not mean that the Occupant obtains title and ownership of the immovable public property; rather, it only acquires possession. The Occupier retains some flexibility in how it complies with this obligation. Lewis explains that the occupant can make use of the resources of the territory for the purposes of the occupation, but not for unconditional self-enrichment.272 The fruits of the land would include crops produced on public land.273 It also appears to allow for the lease of public buildings and other real estate, as long as any such use does not lead to the disposal of the property.274
The limitation imposed by the principle of usufruct is significant. The US Military Tribunal in Flick held that the Occupying Power must not “reduce” or “waste” the land and must ensure the substance of the land is not destroyed or injured.275 The Tribunal added that the Occupier must not hold itself out as the owner of the land.276 Julius Stone explained that the extent of this right to use the fruits of the land is “measured not by [the Occupier’s] needs but by the duty to maintain the integrity of the corpus.”277 He added that the principle “forbids wasteful to negligent destruction of the capital value, whether by excessive cutting or mining or other abusive exploitation, contrary
272 Angeline Lewis, Judicial Reconstruction and the Rule of Law: Reassessing Military Intervention in Iraq and Beyond (Martinus Nijhoff Publishers, 2012) 67. 273 Arai, above n 140, 198. 274 Ibid 197-8; Kelly, above n 165, 158. 275 Flick (United States Military Tribunal, Nuremberg, 1947) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 9, 42. 276 Ibid. 277 Julius Stone, Legal Controls of International Conflict – A Treatise on the Dynamics of Disputes and War Law (Rinehart, 1954) 714.
202 to the rules of good husbandry.”278 Arai says it “prohibits any measure to decrease [the] value [of the property].”279 Selling the underlying property is forbidden.280
Applying the principle to a particular situation requires an analysis of the nature of the relevant property and the way that property is being used to determine whether the use is depleting or substantially altering the nature of the property. If it is depleting the substance of the property, or substantially altering its nature, it is contrary to usufruct. The operation of the principle is best understood through examples. The Franco- Chilean Arbitration Tribunal in the Guano case (a dispute between Chile and Peru over guano deposits on territory that Chile had occupied) held that, if guano was treated as immovable state property, then Chile was entitled as usufruct of the property to extract the guano as it was the ‘fruit’ of the property.281 The arbitrators made it clear that, until Chile actually extracted and appropriated the guano, it remained the property of Peru.282 In the context of the occupation of Iraq, Benvenisti argued that protecting the capital of the water resources (which he considered public immovable property) meant “tending to various water projects, such as dams and canals, and limiting water use to the yearly flow of the rivers without creating long term damage to reservoirs, canals, rivers and their ecosystems.”283 It was necessary for the occupiers to “protect these resources against overuse and diminution of the resources’ quality and quantity” and to “allocate these resources equitably among the users, including its own army of occupation and the local population,” taking care to provide sufficient food and water.284 Arai notes that determining the appropriate rate for the extraction of oil is challenging. Many view the extraction of oil at a higher rate than before the occupation as unlawful and a violation of the basic objectives of the usufructuary rule.285 This is not universal: it could also be argued that “such accelerated extraction can enhance the
278 Ibid. 279 Arai, above n 140, 197-8. 280 Ibid 198; Kelly, above n 165, 158. 281 Affaire du Guano (Chile, France) (1901) 15 RIAA 77, 367 cited in Arai, above n 140, 197-8. 282 Ibid. 283 Benvenisti, above n 153, 869. 284 Ibid 870. 285 Arai, above n 140, 214.
203 value of the occupied territory” and that it would therefore be lawful.286 The conclusion will turn on the facts of the situation.
A feature of the underlying principle of usufruct that is not so clearly expressed by international legal scholars is the prohibition on the usufructuary altering the character of the property. This seems to have been not just a prohibition on altering the land in ways that would diminish its value, but also making changes to the ‘substance’ of the land. The only ‘fruits’ that could be extracted by the usufruct were those that complied with the character of the land: so, timber could not be taken from a wheat farm. Applied to a contemporary occupation, this could mean that turning farmland into a factory or a residential neighbourhood could be a breach of the usufructuary obligations. Along these lines, El-Hindi argues that, when using public immovable property, the Occupying Power must conform to normal use patterns and cannot force changes to ‘normal use’ upon an occupied population.287 However, if the occupied population changes the way they use property on their own volition, “they will obviously change the standard for normal use.”288 He argues that, “to hold that an occupying power can unilaterally redefine normal use patterns, would negate any meaning that the doctrine would have regarding proper limits to an Occupying Power’s actions.”289 The implications for the settlements in the West Bank, if the usufructuary principle was held to extend this far, are quite clear.
This does not mean that usufruct imposes an obligation on the usufructuary to manage the immovable public property in the best interests of the occupied population. On the contrary, it appears the principle explicitly permits the “taking of the fruit” for the profit of the occupier (although it should be remembered that this right does not extend beyond immovable public property)290. There are different views about whether the Occupying Power is permitted to use the ‘fruits’ of public immovable property for any purpose whatsoever. Glahn, Gerson, and Dinstein, consistent with Israeli jurisprudence, argue that the Occupier may sell the ‘fruits’ for the benefit of the home
286 Ibid. 287 Jamal El-Hindi, ‘Note, The West Bank Aquifer and Conventions Regarding Laws of Belligerent Occupation’ (1990) 11 Michigan Journal of International Law 1400, 1414. 288 Ibid 1415. 289 Ibid. 290 See Lewis, above n 272, 67.
204 economy or send them back to the home territory.291 Arai says the use of the fruits of the property is only limited insofar as to prohibit the “wanton dissipation of natural resources.”292 Similarly, Oppenheim argues that the occupant is free to determine how to use the ‘fruit’ as long as it does not do so “in a wasteful or negligent way so as to decrease the value of the stock and plant.”293 The consensus of these scholars is that, when we are assessing whether the use of public immovable property is lawful, we must assess not whether the use of the property was in the best interests of the occupied population but, instead, whether the substance of the property has been altered or depleted.
Cassese rejects this view. He says the “textual or literal interpretation of Article 55” preferred by these scholars is illogical, as it means greater limitations are imposed on the use of public movable property taken by the Occupant than are imposed on the use of the ‘fruits’ of the immovable public property. He asks:
Why demand that a certain use be made of assets of which the occupant can take possession, while leaving that occupant free to do whatever he pleases with respect to property over which he holds only limited rights?294
It appears he is referring to the fact that the use of public movable property is limited to use for ‘war purposes’ (although this may still permit the appropriation of a very wide range of property). He explains:
In my view it follows from the provisions of the Hague Regulations referred to above that the occupant can interfere in the economic activity of the territory under its control (by requisitioning private property, seizing public movables, or using state-owned immovables) only for the following purposes: (a) to meet is own military or security needs (i.e. the exigencies posed by the conduct of its military operations in the occupied territory); (b) to defray the expenses involved in the belligerent occupation; (c) to protect the interests and the well-being of the inhabitants.295
291 Glahn, above n 139, 177; Alan Gerson, ‘Off-Shore Oil Exploration by a Belligerent Occupant - the Gulf of the Suez Dispute’ 71 American Journal of International Law 725, 730-1; Dinstein, above n 175, 215. 292 Arai, above n 140, 210. 293 Oppenheim, above n 176, 398. 294 Cassese, above n 138, 428-9. 295 Ibid 422.
205
There are two things that are unsatisfactory about Cassese’s argument in the context of the Rome Statute. First, a proper usufruct will leave the substance of the immovable property unchanged, so there is a significant limitation on how the property may be used. Second, there is some logic in having more substantial restrictions on the use of movable property (which cannot necessarily be ‘regrown’ or ‘remanufactured’) than the Occupier’s use of the ‘fruit’ of public immovable property. The property that is properly classified as ‘fruit’ will, by its very nature, be replenished over the course of time. It might not be a distinction we would draw today, but it is possible to see why it made sense at the time the Hague Regulations were drafted.
Cassese goes on to argue that the changes in the relationship between the State and property that have occurred since the Hague Regulations support his argument. He points out that, at the time the provisions were drafted, “immovable property owned by states was of limited relevance compared to state-owned movables; in particular, state-owned factories were almost non-existent.”296 At the time, the taking of movables was “far more important than the exercise of rights over state-owned immovables.”297 He uses the comparison of how oil above ground (which he classifies as public movable property) would be treated differently to oil beneath the ground (which he classifies as public immovable property) to illustrate the inconsistency that this can cause.298
Instead of this approach, he proposes that a ‘systemic interpretation’ leads to the “consequent extension to immovable property of the same restrictions required for state-owned movables,” and that this “renders the whole legal regulation” coherent.299 He explains:
The occupant cannot appropriate movables belonging to the enemy state, for to do so would run counter to the provisional nature of belligerent occupation. It can, however, enjoy their fruits to the extent that this is made permissible by other provisions concerning the exploitation of enemy natural resources by the occupant.300
296 Ibid 428-9. 297 Ibid. 298 Ibid. 299 Ibid. 300 Ibid.
206
He essentially extends the limitation on the use of public movable property to public immovable property. This appears to have been the approach taken in the Goering et al case where the International Military Tribunal (‘IMT’) held that “under the rules of war, the economy of an occupied country can only be required to bear the expenses of the occupation, and these should not be greater than the economy of the country can reasonably be expected to bear.”301 The use of public immovable property in Occupied Territory can “only serve the military needs of the occupying army, or the needs of the population.”302
This raises an interesting problem for international criminal law. Cassese is right to point out that the distinction between the regulation of public immovable property and public movable property is somewhat problematic. But adopting it would challenge some of the fundamental principles of international criminal law. As discussed in the introduction, a teleological interpretation of the content of the articles of the Rome Statute without substantial supporting evidence would be a serious breach of fundamental principles of criminal law. A single decision of the IMT is not enough to justify expanding the protection of public immovable property in such a significant way. This is particularly the case as the Tribunal did not define the war crimes regarding misuse of property by specific reference to usufruct or to article 55 of the Hague Regulations, but instead referred to “the outside limits of permissible economic exploitation” of occupied territories by belligerent occupants when determining the scope of the crimes.303 It directly cuts against the explicit meaning of article 55 and the long-standing understanding of the principle of usufruct. Cassese’s approach would be, in effect, placing new restrictions on the use of immovable property in Occupied Territory not found in the Rome Statute, the text of the Conventions or customary international law.
2. Other lawful uses of public property
As with private property, there are other provisions of the Hague Regulations and occupation law more broadly that may provide other justifications for the Occupying
301 United States et al v Goering et al (International Military Tribunal, Nuremberg, 1947) in International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal (International Military Tribunal, 1947-9) vol 1, 238-9. 302 Ibid 239. 303 Arai, above n 140, 210.
207
Power to use or manage land in Occupied Territory. The key example is article 43 of the Hague Regulations, providing that the Occupier is obliged to take measures necessary to secure the public order and security of the Occupied Territory. The potential for this obligation to provide a justification for the use of property has been discussed above. However, the use of public property for public order and security purposes raises the further question of the difference a protracted occupation makes to the implementation of this obligation.
These obligations were considered by Justice Barak of the Supreme Court of Israel in A Teachers’ Housing Cooperative Society v The Military Commander of the Judea and Samaria Region et al.304 Justice Barak found that under article 43 the Occupying Power has the power to make investments that bring about permanent change if required for the benefit of the local population. He added the investments would only be necessary if they were necessary for the “public life and order” of the territory, which would be judged not by nineteenth century standards, but rather “that of a modern and civilised state at the end of the twentieth century.”305 Justice Barak did recognise a limit, holding that investments that made an essential modification to the basic institutions of the territory would be impermissible.306
This approach to article 43, described by Cassese as an “evolutive” approach,307 recognises that the Occupying Power must change how they manage the land depending on the nature of the occupation. It acknowledges that, as a military occupation continues, it is “increasingly necessary to take into consideration the social and economic needs of the local population.”308 This is particularly the case in a drawn- out occupation where the military authorities become less provisional, turning into a “fully-fledged administrative entity, without there being any of the safeguards of ordinary government” such as political representation.309 Cassese argues that:
304 A Teachers’ Housing Cooperative Society v The Military Commander of the Judea and Samaria Region et al (1984) 14 IYHR 301 cited in Cassese, above n 138, 424. 305 Ibid. 306 Ibid. 307 Cassese, above n 138, 424. This approach is somewhat akin to the idea of a transformative occupation, but with more deference to the exisiting laws in the territory. 308 Ibid 426-7. 309 Ibid.
208
… to avoid frustrating the purpose and spirit of the Hague Regulations, one should give pride of place to those limitations upon the powers of the occupant that are explicitly or implicitly set out in the Hague Regulations. The strengthening of these limitations is the only safeguard against the turning of the occupant (a transitory military administration) into a political and administrative government in disguise.310
Kelly makes a similar point in the context of the occupation of Iraq. Using very similar language to article 43, he argues that the Occupying Power has “wide scope for action” to manage the land for “the welfare of the people, the security of the Occupying Power and enabling the normal functioning of daily life.”311 Kelly says that, where the state has “completely disintegrated or become substantially dysfunctional,” the Occupying Power may have a “much wider scope for extensive modifications to the institutions and economic framework,” as long as this is necessary “to make administration of the territory viable, or if this reform is designed principally for the benefit of the population.”312
Linked to this idea is Arai’s proposal that the principle of economic self-determination has “special relevance” to the question of what use of property in Occupied Territory is permitted.313 He points to a number of UN General Assembly resolutions that depart from rules derived from occupation, particularly in the Charter of Economic Rights and Duties of States, which provides that it is the “duty of all States” to eliminate “occupation and domination” and that:
States which practice such coercive policies are economically responsible to the countries, territories and peoples affected for the restitution and full compensation for the exploitation and depletion of, and damages to, the natural and all other resources of those countries, territories and peoples. It is the duties of all states to extend assistance to them.314
Arai argues this should not be interpreted as overhauling the Hague Regulation rules on occupation, but that any investments in the Occupied Territory that exploit natural
310 Ibid. 311 Kelly, above n 165, 158. 312 Ibid. 313 Arai, above n 140, 215. 314 Charter of Economic Rights and Duties of States, GA Res 3281 (XXIX), UN GAOR, 29th sess, 2315th plen mtg, Agenda Item 48, Supp No 31, UN Doc A/RES/3281(XXIX) (12 December 1974) annex.
209 resources “must be carried out in a manner that does not divest the people of that territory of the effective exercise of their rights to development and self-determination in economic matters.”315
The ‘evolutive’ approach has a number of features to recommend it. First, it does not directly contradict the principles of usufruct. Justice Barack said that the Occupier could not introduce “essential modification[s] in the basic institutions” of the area. This is consistent with the usufructuary obligation to protect the substance (and nature) of the relevant property. Second, due to limits imposed in article 43, any long-term investments that alter the Occupied Territory can only be made for the benefit of the local population. Justice Barack, Cassese and Dinstein seem to treat article 43 as an exception to some of the requirements of article 55, rather than a direct modification of the principle of usufruct. Their reasoning suggests a usufructuary can justify a more significant alteration of the property if it is done for the benefit of the Occupied Population. This is an appropriate way of finding a balance between the two provisions. The experience in the West Bank illustrates that the two obligations will invariably be in conflict in some occupations.
Even if this is accepted as the test that should be applied, the usufructuary principle must be applied in a way that confronts the reality of the situation in the Occupied Territory. The Israeli case of Ayreib v Appeals Committee316 offers an example of how the principle can be used to justify problematic uses of land. In this case, the petitioner was seeking title in a plot of land on the basis of possession. The Custodian of Enemy Property, part of the Military Authority, had certified the land as public land. The Supreme Court denied the claimant’s application on the basis that Turkish Land Law (which still applies in the Occupied Palestinian Territory as a legacy of the Ottoman Empire) does not recognise title from the possession of land without there also being cultivation of that land. As such, the Court held that the plot was public land. In the alternative, the petitioners argued that use of ‘public’ land for the building of a new Jewish settlement in Occupied Territory was incompatible with the usufructuary obligations.317 The Supreme Court held that the petitioner did not have standing to
315 Arai, above n 140, 215-6. 316 Ayreib v. Appeals Committee et al (1986) HCJ 277/84 cited in Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, above n 170, 92. 317 Ibid.
210 challenge the use of the land, and further commented that the Military Authority was actually protecting the plot of land from trespassers:
There is no place for complaining that the custodian [of government property] exercised his authority for an improper purpose. The conclusion that is reached from all the data before us is exactly the opposite. It was within the powers and duties of the custodian to put his hands on property in which the petitioner tried to unlawfully gain possession. As became apparent, the petitioner wished to extend his control of tens of dunams of land, which he never bought or cultivated; and as this was land which was owned by others and which should have been protected originally by the Jordanian Custodian of Enemy Property, the custodian was entitled to exercise his authority, in order that the property be brought under the control and supervision of the person responsible.318
The Court characterised the purpose of the Military Authority taking control of the land as to protect it from unlawful trespassers. However, in the context of the Occupied Palestinian Territory, Kretzmer observes that it “requires a fair degree of naiveté to believe … that the sole, or even dominant purpose of the authorities … was to protect public land for the benefit of the local public.”319 Rather, in this case, it was quite clear that taking control of the plot of land was part of a systematic attempt to “find land that could be used for settlements and other projects that served Israeli political interests. This was the improper purpose to which the petitioner pointed.”320 Kretzmer criticises the judgments on the use of public land as being totally detached from the context of the Government’s land use policy in the Occupied Palestinian Territories. He explained:
The Court presents the system of certifying state land as a form of benign action by military authorities eager to fulfil their obligations under international law. In reality, however, the picture is entirely different. Public lands are not regarded as land reserves that are first and foremost available for use of the local population; they are regarded as land reserves that serve Israeli interests (as perceived by those in power). Land reserves in Occupied Territories are in effect administered by officials of the Israel Land Administration set up under Israeli law to administer “government land” in Israel itself. These reserves are used for civilian settlements that are anathema to the local
318 Ibid. 319 Ibid 93. 320 Ibid.
211
population and, to the extent that the government establishes them in order to encourage Israelis to settle there, are widely regarded as a violation of international law… Establishment of a permanent Israeli settlement would appear to be inconsistent with the rules of usufruct.321
The ICC would have to look behind the claims of the Occupying Power. It must do more than just accept the claim that the land is being used for the benefit of the Occupied Territory.
What use of property is permitted (and is therefore lawful)? The protection of immovable private property against appropriation of land is close to absolute. Article 46 of the Hague Regulations is key, stating that private property “cannot be confiscated.” The provision must be read alongside article 43 of the Hague Regulations, which appears to permit the taking of private property when necessary for public order and safety. So, what are some examples of legitimate appropriations of private immovable property? Kelly argues that the use of land during the post-2003 occupation of Iraq for the safe areas for administrators and diplomats is an example of this kind of legitimate appropriation. He explained that “in the security environment that adhered in Iraq, there was a clear nexus between providing for the security of public officials … and the overall obligation to maintain public order.”322
Private land can also be taken when justified by military necessity, an exception built into criminal provisions of the Rome Statute and discussed earlier in this chapter. It is less clear whether this extends to seizing land under article 52 for the “needs of the occupation.” However, as this appears to apply either the same test as military necessity, or a stricter test, it will not be an issue in a criminal proceeding on the basis of article 8(2)(a)(iv) or article 8(2)(b)(xiii).
The features of an appropriation by the Occupying Power of private immovable property will be lawful if it is (1) temporary; and (2) necessary to maintain public order and safety in Occupied Territory or (3) is necessary for legitimate military aims. It will be unlawful if it fails to fulfil these criteria. In addition, if the Occupying Power permits and enables land transactions where the owner of the land parts with their property
321 Ibid 94. 322 Kelly, above n 165, 156.
212 involuntarily, it will act unlawfully. The determination of whether the appropriation of property was lawful given one of these conditions being met should be determined by the Court on the basis of the information that the decision maker had at the time the property was taken. If the conditions are not met, the appropriation of the private immovable property has the potential to attract criminal sanction.
The Occupying Power has much greater scope to use public immovable property in Occupied Territory. This means that the determination whether property is public or private will have a profound impact on the power the Occupying Power is permitted to exercise over that property. Once the property is identified as public, the Occupying Power has the responsibility to manage it according to the principles of usufruct. It can use the ‘fruits’ of the property as long as it does not affect the ‘substance’. The property must be used in a way that is consistent with its use prior to the occupation: changing the use of agricultural land to non-agricultural use also changes the substance of the land. This right only exists for the duration of the occupation, which is presumed to be for a limited duration. The Occupying Power also has the power (and responsibility) to manage the public land for the benefit of the occupied population. This may also permit some modifications to the land.
However, it remains difficult to figure out with precision what use of property during an occupation would amount to crime. This part of the chapter has demonstrated that interaction between the different provisions of the Hague Regulations is obscure. Two aspects of the element of ‘unlawfulness’ pose a particular challenge. First, it is not possible to determine with an adequate degree of certainty how the obligation in article 43 of the Hague Regulations to take all measures necessary to secure public order and security relates to the various prohibitions and controls on the use of land. Second, the scope the principle of usufruct gives the Occupying Power to use the ‘fruits’ of public land for its own benefit is uncertain. These uncertainties raise the question of whether these obligations have been properly translated into crimes, and whether it is possible to apply them in a way that respects the principle of legality.
VI. WHEN DOES THE CRIME OCCUR?
As was discussed in Chapter Two, figuring out when in time the crime is deemed to occur is important to determining what conduct falls within the temporal jurisdiction
213 of the ICC. It will be recalled that there is a distinction between instantaneous crimes that are treated as occurring in a moment and continuing crimes that are committed and then maintained. Like the crime of transfer of property, the crime of the appropriation of property has some potential to be considered a continuing crime. The consequence of this might be that unlawful appropriations of property that occurred prior to the jurisdiction of the Court, but continue into the time when the Court has jurisdiction, might amount to a crime amenable to prosecution.
The application of some of criteria considered in Chapter Two suggests that the crime might be continuing. An appropriation could be undone by returning the property to its rightful owner; and it could be said that in the context of an occupation, it is only the return of the property that would be adequate reparation for the breach of the law. The act of appropriation clearly has consequences that extend through time. In addition, there are some decisions of the European Court of Human Rights (‘ECtHR’) that held that the taking of land can be a continuing breach of human rights, suggesting that the same might also be true of the crime.323
Despite these factors, the better view is that the crime of appropriation of property is an instantaneous crime.324 The crime should be seen to occur at the moment that the ownership of the land changes hands on a permanent basis, whether that change is effected by a formal legal process or a de facto appropriation. The moment when this occurred would be a matter of fact to be determined by the Court. This interpretation is suggested by the text of the crime. Similar to the crime of transfer of population, while the ‘appropriation’ of land has continuing effects, it focusses attention on the moment of transfer of ownership and control. While it might be challenging in some circumstances, it is possible, on a factual basis, to locate a moment in time when the ownership and control of the property changed hands. In addition, article 8(2)(a)(iv) not only includes the unlawful appropriation of property, but also the unlawful destruction of property. It is clear that the destruction of property would occur in a moment and be an instantaneous crime; and it would be strange for the same crime to
323 E.g. Papamichalopoulos and Ors v Greece (European Court of Human Rights, Application No. 14556/89 24 June 1993). 324 There is no indication from the jurisprudence or scholarship that considers the operation of this crime and its underlying obligation that it is considered ‘continuing.’
214 have two different temporal classifications depending on whether land is destroyed or taken.
In addition, land is something that is often bought and sold, suggesting that financial compensation is something that would be sufficient to address the breach, particularly as it relates to private property (although this proposition becomes more difficult to sustain when applying to large tracts of public land). Finally, the principle of legality suggests that criminal provisions should be interpreted narrowly in cases of ambiguity and, as with the crime of transfer of population, a finding that the crime was continuing could undermine the limited temporal jurisdiction of the Court. For these reasons, the crime of appropriation of property should be understood to occur in the moment that the ownership or control of the property changes on a permanent basis.
VII. CONCLUDING REMARKS
The analysis of article 8(2)(a)(iv) has shown that the crime of the unlawful appropriation of property has a series of complex legal elements. While the challenge posed by some elements are not unusual – determining the meaning of words like ‘appropriation’, ‘wantonly’ and ‘extensive’ is something criminal courts often have to do – others are quite different. While the military necessity exception is a well- understood feature of IHL that applies to the conduct of hostilities, figuring out how it could apply during an occupation is uncertain. The exception requires a significant degree of subjective judgment about whether a particular measure was, in fact, necessary. The Israeli occupation of Palestine is replete with examples of Israeli appropriations of property for military installations, quasi-military settlements, or fully civilian settlements where a claim is made that it is necessary for security. It could be very challenging for the ICC to decide whether a measure fell within the exception, and reasonable minds can disagree about these kinds of highly subjective value judgments.
However, most significantly, interpreting the loose obligations of occupation law in a way that is sufficiently exact for the criminal context is very difficult. By incorporating the whole of occupation law into the element that the appropriation of property be ‘unlawful’, the drafters of the Rome Statute created a provision of uncertain operation. This is because the obligations of occupation law that apply are very broad, and do not
215 impose precise requirements for the Occupying Power. Two parts of the underlying occupation law are particularly deficient: the requirement that the Occupier can take measures “for the public order and safety,” and the role of the Occupier as a ‘usufructuary’. The elusiveness of the boundaries of these obligations and rules make the provision difficult to square with the principle of legality, one of the fundamental requirements of the crimes of the ICC.
Successfully prosecuting an individual for unlawfully taking land under this provision in the specific context of Israel’s occupation of the West Bank would be very challenging. There would be the same kind of evidentiary issues that often arise in international criminal trials. The Court would need evidence that the property was, in fact, ‘appropriated’ or ‘seized’, requiring documents showing who owned the land, or information about the use of the land over a period of time. The accused would then have to be connected with the decision to take the property, requiring a chain of evidence that linked the events on the ground to the specific individual accused of the crime. The Court would have to carry out the difficult task of determining if taking land was ‘militarily necessary’, necessitating information about the security threats in the specific context of the occupation at the specific time the land was taken. This would be complex, but these evidentiary issues are not outside the range of other complex cases before international tribunals.
The preceding two chapters have only considered the objective Elements of Crimes without addressing in detail what an individual would have to know in order to be found guilty. This is only half the picture: the framework of individual criminal responsibility established by the Rome Statute contains detailed provisions on the different kinds of contributions a person can make to the perpetration of the crime, as well as the required mental element. The following chapter addresses some of the challenges this situation poses to this framework. Specifically, the chapter looks at how common purpose liability could apply to an Israeli charged with one of these crimes, and also whether the defence of mistake of law would be available in this context.
216
217
CHAPTER FOUR: INDIVIDUAL CRIMINAL RESPONSIBILITY
I. INTRODUCTION
The feature that sets apart international criminal trials from other international legal proceedings is that they require a determination of whether an individual is guilty beyond reasonable doubt. A trial is ultimately about what the Prosecution can prove one person did. However, international crimes often occur through state or state-like organisations, and are committed in the context of a system, where the government orders, encourages or tolerates the commission of crimes.1 Collective commission requires us to confront the challenge of separating the responsibility of the individual from that of the group.2 It is possible for both an individual and the state to be responsible for the same wrong,3 and for the actions of an agent of the state to trigger both individual criminal and collective state responsibility.4 Drawing a distinction between the two forms of responsibility is particularly important in the context of the settlements in the West Bank. While much has been written about Israel’s responsibility as a state for the settlements,5 determining whether an individual might be held criminally liable confronts us with different questions about attribution, responsibility and the operation of the modes of liability in the Rome Statute.
The challenge posed by crimes committed by individuals acting within complex systems has led to one of the central innovations of international criminal law: the
1 Elies van Sliedregt, Individual Criminal Responsibility in International Law (Oxford University Press, 2012) 20-1. 2 This is recognised by article 25(4) of the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’) which provides a finding of state responsibility does not necessarily mean that individuals are also responsible, and vice versa: Andre Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility in International Law’ (2003) 52(3) International & Comparative Law Quarterly 615, 616. 3 Sliedregt, above n 1, 5-6. 4 Ibid 6. The ICJ observed in Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Bosnian and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, [173] that “duality of responsibility continues to be a constant feature of international law.” 5 While it addressed the construction of the wall in Occupied Palestinian Territory, the Advisory Opinion of the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 (‘Wall Advisory Opinion’), [120] clearly demonstrates the responsibility of Israel for the settlements. Also see ICRC, ICRC Annual Report 2013 (2014).
218 extension or development of modes of liability to cope with the complex structure of state and state-like organisations.6 The development of these new modes took place over decades, from the Charter of the Nuremberg Tribunals, through the Genocide Convention, the Geneva Conventions, the Torture Convention, the Statutes of the ICTY, ICTR and hybrid tribunals, and most recently in article 25(3)7 of the Rome Statute.8 Starting with the building blocks of direct physical perpetration and participation through conspiracy and complicity,9 they now include common purpose liability, inchoate modes of liability, as well as forms of liability that impute responsibility, such as indirect co-perpetration and Joint Criminal Enterprise (JCE).10 The range of choice available makes selecting the most appropriate mode of liability for those charged with international crimes very difficult.11 Each mode of liability identified in article 25(3) of the Rome Statute is conceivably relevant to the settlement project in the West Bank, and could be applicable in relation to either crime. Given this, the approach of this chapter will be broader than the previous two chapters:12 as common purpose liability is the form of liability that is most appropriate for the factual context, the chapter considers its general operation in relation to both crimes.
Common purpose liability provides for responsibility where an individual is held responsible for their contributions to a group that carries out criminal acts. This can be as a co-perpetrator, or as someone who contributes to the common purpose in some other way. The International Criminal Court (‘ICC’) has considered this common purpose liability a number of times, identifying the required objective and subjective
6 See William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2nd ed, 2016), 566-7; Sliedregt, above n 1, 21. This problem not unique to international criminal law, but also arises at domestic level in relation to organised crime or terrorism where a person can provide non-tangible support to the commission of the crime. The ICTY relied on these domestic innovations when devising some of these modes of liability. See Sliedregt, above n 1, 18-22. 7 This provision does not address liability on the basis of command responsibility, which is instead found in article 28 of the Rome Statute. 8 Sliedregt, above n 1, 61-4. 9 Ibid 61. 10 Ibid 22. 11 Héctor Olásolo, The Criminal Responsibility of Senior Political and Miltiary Leaders as Principals to International Crimes (Hart Publishing, 2009) 1-2. 12 A detailed analysis of the interaction between the mental elements of the two crimes and each of the modes of liability is beyond the scope of this thesis.
219 elements.13 Most importantly, the ICC has split common purpose liability into two forms that require different levels of contribution and knowledge depending on whether the accused is a principal perpetrator or an accessory. Co-perpetration as a principal perpetrator under article 25(3)(a) has been held to require an “essential” contribution,14 where as contributing as an accessory under article 25(3)(d) only requires a “significant” contribution to the group crime.15
There are three factors that make the settlements in the West Bank a revealing case study for the application of common purpose liability. First, the diffusion of responsibility that occurs in a democratically elected government that is drawn from and answerable to a parliament is quite different to the authoritarian systems that have been the modern focus of international criminal trials. Democratic cabinet decision- making makes it more difficult to assess the degree of contribution that any individual makes to the common plan (in this case the settlement project in the West Bank), challenging the joint control theory of co-perpetration that has been adopted by the ICC. The application of this test to this specific factual context shows that requiring proof that individuals acting as part of a group make an “essential” contribution runs the risk of preventing any individual being held criminally liable as a principal perpetrator. The analysis suggests that the alternative approach adopted by Judge Fulford in the Lubanga Judgment,16 allowing for a more fluid interpretation of article 25(3), or some other approach, should be preferred.
Second, the comparison between the two crimes considered in this thesis offer an interesting contrast. The locus of the crime of transfer of population, in contrast to the crime of appropriation of property, is not the physically violent actions of low-level perpetrators,17 but rather a connected series of governmental acts that, taken together,
13 It was first considered in Lubanga (Confirmation of Charges) (International Criminal Court, Pre- Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007). 14 Ibid [346-8]. 15 Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [283]. 16 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) (per Judge Fulford). 17 When most international crimes are committed, the military or political leaders of these organisations and groups are rarely at the location of the crime, and usually have no direct contact with the physical perpetrators, who are often low-level members of their organisations: Olásolo, above n 11, 2-3.
220 may result in a crime being committed. Relevant governmental acts could include the adoption of a policy that encourages the movement of people into Occupied Territory. The adoption of any such policy is inherent to the crime, as article 8(2)(b)(viii) requires the transfer to be carried out “by the Occupying Power,” and therefore the perpetrator to operate through a state. As a consequence of this element, article 8(2)(b)(viii) stands in contrast to most of the other crimes in the Statute, including the war crime of appropriation of property, that address various forms of direct and physical violence instead of capturing institutional or structural forms of violence.18
Third, the settlements have been being built over many decades, all with the oversight of the Israeli legal system and according to a coherent and consistently applied perspective of international law. An assessment of the responsibility of a state does not require a determination about whether that state actually ‘knew’ the law. However, an individual is possibly in a different position, particularly if they have relied on the legal view widely accepted within their community that turns out to be incorrect. As such, assessing the normative responsibility of the potential accused requires a consideration of whether their belief in the lawfulness of their conduct could afford them any defence. The situation in the Occupied Palestinian Territories presents an opportunity to test the consequences of this kind of situation. It is widely known that Israel and its leaders have held for decades that their policies supporting the movement of people into the West Bank are lawful.19 The use of the land by the Israeli authorities has been subject to the review of the Israeli Supreme Court, which has set boundaries for the ‘lawful’ use of land under international law during an occupation. If the ICC reached a different conclusion and found the taking of land was unlawful, would an accused be able to claim a defence?
The final part of the chapter addresses whether a ‘mistake’ of this kind could give rise to a defence of mistake of law under article 32(2) of the Rome Statute. While no case has considered the operation of the defence in the Rome Statute in any detail, some scholars argue that the terms of article 32(2) are wide enough to allow for such a mistake to void the mental element, and thus criminal responsibility. If the defence extended this far it would pose a severe challenge to the Court as it would suggest that
18 See Sinja Graf, ‘To Regain Some Kind of Human Equality: Theorizing the Political Productivity of “Crimes Against Humanity”’ (2015) Law, Culture and the Humanities 18. 19 This was discussed at length in Chapters One and Two.
221 many potential perpetrators may be normatively responsible but still escape accountability. Even the more limited approach that appears to have been preferred by the Pre-Trial Chamber I (‘PTC I’) in the Lubanga Confirmation of Charges,20 allowing for a specific kind of mistake of law recognised by German legal doctrine, could allow a defence for the kinds of ‘mistakes’ that may have been made in the Israeli context.
This chapter, like the rest of the thesis, is focussed on the legal challenges presented by Israeli settlements in the West Bank.21 The use of this case study allows for a deeper understanding of how the provisions work in practice, showing how the Rome Statute might operate, as well as the ways in which it could struggle to adequately account for the factual situation. As such, the enquiry in this chapter refers to the factual background only insofar as it allows for aspects of the Rome Statute system to be tested against the broad outline of this case.
II. SELECTING THE MODE OF LIABILITY
Common purpose liability is an obvious candidate for both crimes in this factual context.22 Common purpose liability describes the liability a perpetrator has when they contribute to a group which, acting together, carries out criminal acts. It was known at the ad hoc Tribunals as ‘Joint Criminal Enterprise’ (‘JCE’),23 and while the Chambers of
20 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [316]. 21 It will not set out the evidence necessary to address and identify the liability of specific individuals in the Israeli government, military or civil society. Such an enquiry is better left to others who have the resources necessary to carry out such an investigation, and it would be inappropriate to suggest a person should be held criminally responsible without the evidence necessary to prove the case beyond reasonable doubt. 22 In this sense, the situation in Palestine is not unusual. Reliance on common purpose liability has been one of the distinctive features of international criminal trials, particularly at the ICTY and the ICTR. This doctrine offers a solution for complicated causation problems by bundling all the participants into a common criminal purpose: see Sliedregt, above n 1, 131. 23 See Kai Ambos, ‘Individual Criminal Responsibility’, Max Planck Encyclopedia of Public International Law (Oxford University Press, at 2013) and Antonio Cassese et al, International Criminal Law (Oxford University Press, 3rd ed, 2013) 163-175. The ad hoc Tribunals’ approach to JCE has been criticised on several grounds. Some argue that it has no basis in customary international law, and that (particularly in the extended form) it violates the culpability principle (see Sliedregt, above n 1, 141). Danner and Martinez comment it could result in guilt by association because liability attaches to the low-level offenders for all the crimes of the enterprise if they are ‘foreseeable’, and has the potential to impose legal liability where there is not sufficient moral culpability: Alison Danner and Jenny Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’ (2005) 93 California Law Review 75, 146. Sliedregt (above n 1, 142) further observed that the “elaborate findings in law” were disconnected from the application to the facts, with
222 the ICC have rejected the direct applicability of the JCE jurisprudence,24 the doctrine remains influential.25 It is also applied in various forms in domestic jurisdictions.26
The case for this mode is clearest for the crime of transfer of population. For the purposes of this chapter, it is assumed that the transfer is enabled and supported by the political leaders and that it involves policies across a range of government departments encouraging the movement of people. The transfer requires the support and assistance of parts of the military, as well as from non-government organisations that provide funding and other resources, as well as the settlers themselves. It is by its very nature a crime that is carried out by a collective acting in concert, and this should be reflected in the mode of liability chosen. It requires acting through the Occupying Power in a political system that requires the cooperation of many people, meaning that selecting a mode of liability that suggested there was a single principal perpetrator would be inappropriate.
Common purpose liability is also apposite for the war crime of appropriation of property. This crime differs from the transfer of population in that it does not have the same separation between the on-the-ground perpetrators and the more distant military and political leaders. It is the ordinary soldiers who carry out the appropriation by building fences, or putting in place other measures of enclosure that prevent others from using the land and alter the control of the property. However, unlike other situations of violence against persons or property during armed conflict, for the
insufficient attention paid to how much the accused actually knew about the actions of the group and how the participants were connected to the specific crimes. These critiques of JCE should be borne in mind when we are thinking about how common purpose liability should be applied at the ICC as they alert us to the possible dangers of certain approaches. 24 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [338]. 25 The jurisprudence is regularly referred to in the decisions of the ICC. See for example: Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [329]; Katanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/07-717, 30 September 2008) [506]; Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06- 2842, 14 March 2012) [2740] (per Judges Benito and Blattmann); Katanga (Judgment) (International Criminal Court, Trial Chamber II, Case No ICC-01/04-01/07, 7 March 2014) [1619]; Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [273]. 26 See Kai Hamdorf, ‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’ 5(1) Journal of International Criminal Justice 208.
223 purposes of this chapter it is assumed that the appropriation of property only occurs with the permission and support of the military and political leadership. Thus, it still involves the combined efforts of many people. The land must be identified as being capable of being taken under the Israeli view of the law of occupation. The taking must then be approved by the responsible military officer. It can further be assumed that a decision to take and use land for military (or other) purposes would be made according to guidelines and policies established by military and political leaders, and would require their explicit approval. This decision to take land is then reviewable by the Israeli Supreme Court.
The provisions allowing for common purpose liability are found in article 25(3) of the Rome Statute. Article 25 provides for the general rules of criminal liability of individuals,27 but has been criticised as being confusing and incoherent,28 and for failing to have proper regard to the “basic theoretical (dogmatic) categories” of criminal law.29 Sadat and Jolly describe the provision as a ‘Rorschach blot’, that takes on a different meaning depending on who is interpreting it, and their legal training.30 The ambiguous text of the provision causes significant uncertainty about how the different modes of liability work together, and the desire to distinguish between the different parts of article 25(3)(a)-(d) has animated much of the scholarship on these provisions.31 As such, it is necessary to set out subparagraph 3(a)-(d) in full:
In accordance with this Statute, a person shall be criminally responsible and liable for punishment within the jurisdiction of the Court if that person:
27 Rome Statute art 25(1) provides that the Court “shall have jurisdiction over natural persons pursuant to this Statute” and (2) provides that a person “who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with the Statute.” 28 Jens Ohlin, ‘Joint Criminal Confusion’ (2009) 12(3) New Criminal Law Review 406, 407. Also see Jens Ohlin, ‘Co-Perpetration: German Dogmatik or German Invasion?’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (Oxford University Press, 2015) 517, 517. 29 Kai Ambos, ‘Article 25: Individual Criminal Responsibility’ in in Otto Triffterer and Kai Ambos (eds), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016) 1015. 30 Leila Nadya Sadat and Jarrod M. Jolly, ‘Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25’s Rorschach Blot’ (2014) 27 Leiden Journal of International Law 755, 756. 31 See Marina Aksenova, ‘The Modes of Liability at the ICC: The Labels that Don’t Always Stick’ (2015) 15 International Criminal Law Review 629, 631.
224
a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that person is criminally responsible;
b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime
Article 25(3)(a) recognises direct physical perpetration, joint perpetration, as well as indirect perpetration, even if the person through whom the crime is committed is also culpable.32 The jurisprudence of the ICC suggests that for these forms of liability the focus is not on the subjective state of mind of the offender, but rather the actual level of control the accused has over the commission of the offence.33 As such, this subparagraph has been interpreted to cover three kinds of perpetration: where the offender physically commits the crime; where the offender controls the offence by making an essential contribution; and finally, where the offender controls the will of the physical perpetrators.34
32 The broad scope of the provision makes it unique in international criminal law: Sliedregt, above n 1, 74. Also see Schabas, above n 6, 568-9 and Aksenova (ibid 633) for useful overviews. 33 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [329-35] and Katanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/07-717, 1 October 2008) [506-8]. Also see Schabas, above n 6, 569-70. 34 See Schabas, ibid, 568-9.
225
Article 25(3)(b)-(d) address certain kinds of contributions to crimes, and have been treated as being reserved for forms of secondary or accessorial participation.35 They have not been considered appropriate for those who do not actually physically commit the crime but are nevertheless primarily responsible in a normative sense, as it is thought that treating such people as accessories would not capture the significance of their role.36 It is important to note that these provisions appear to require that the underlying offence be either committed or attempted.37
III. APPLYING COMMON PURPOSE LIABILITY UNDER THE ROME STATUTE
While it is clear that common purpose liability can be found in subparagraph 3, its precise source is contested. It seems to be covered by both the inclusion of “co- perpetration” in article 25(3)(a) and the criminalisation of a contribution of a “group of persons acting with a common purpose” in article 25(3)(d). The decision about what these two provisions cover and how they are related has an impact on the application of liability, and particularly the contribution required by the perpetrator to any alleged common plan.
Article 25(3)(a) does not provide much guidance as to how it should operate in relation to common purpose liability. It provides for criminal responsibility if the person commits a crime “jointly with another person,” a phrase that has been read to cover co- perpetration.38 The only firm conclusion that we can make on the basis of the words is that the words require two or more people to act together to commit a crime. This does not give us much to work with.
Article 25(3)(d) provides for criminal responsibility when a person contributes to a crime committed “by a group of persons acting with a common purpose.”39 It states a person shall be criminally responsible if that person “in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting
35 Sliedregt, above n 1, 74; Schabas, ibid 561. 36 Schabas, ibid 567. 37 Ibid 574, 576. 38 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [340]. 39 Rome Statute art 25(3)(d).
226 with a common purpose.”40 It is interesting that article 25(3)(d) explicitly requires the accused individual’s contribution to be towards the perpetration of the crime, but it does not similarly require the common purpose to be criminal.41 Article 25(3)(d)(i) and (ii) provide for two possibilities for satisfying the mental element: the contribution must be made with either the aim of furthering the crime or with the knowledge that the group intends to commit the crime.42 The first alternative appears to require proof that the person specifically intended to further the general criminal purpose, and the second alternative requires proof the accused knew of the crime the group was going to commit.43 The second alternative seems to apply a lower mental threshold, covering situations where the accused was not involved in all aspects of the common design, but was aware of the intentions of the other perpetrators.44
The ICC has considered the operation of the common purpose liability and its relation to these two parts of article 25(3)(d) on a few occasions, and most comprehensively in the Lubanga decisions,45 and by PTC I in the Mbarushimana Confirmation of Charges decision.46 PTC I in both cases, and the majority of Trial Chamber I (‘TC I’) and the Appeals Chamber in the Lubanga Judgments, treated article 25(3) subparagraph (a) as covering the forms of principal liability, and subparagraphs (b) to (d) covering the forms of accessorial liability.47 This approach treats co-perpetration in (a) as covering the situation when two or more perpetrators each contribute to the commission of the crime in a way that makes their contributions mutually attributable, making each co-
40 Ibid. 41 Sliedregt, above n 1, 145; Schabas, above n 6, 580-1. Also see Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [344-5]. 42 Sliedregt, above n 1, 145. 43 Ibid; Ambos, above n 29, 486. 44 Sliedregt, above n 1, 146. 45 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007); Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-2842, 14 March 2012) (per Judges Benito and Blattmann); Lubanga (Judgment on Appeal) (International Criminal Court, Appeals Chamber, Case No ICC- 01/04-01/06 A 5, 1 December 2014) [467-73]. 46 Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [268-289]. 47 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [321]; Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-2842, 14 March 2012) [995-8] (per Judges Benito and Blattmann); Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011).
227 perpetrator responsible for the whole crime.48 The acts of co-perpetration must be done according to a common plan,49 but the plan does not have to be explicit and can be inferred from the concerted actions of the co-perpetrators.50 This leaves subparagraph (d) to cover the situation where the accused has contributed to a group crime but does not meet the threshold for principal liability.
The majority of TC I in Lubanga explained that it is necessary to make the distinction between principal and accessory liability to ensure principal liability has the “capacity to express the blameworthiness of those persons who are the most responsible for the most serious crimes.”51 While categorisation as either principal or accessory does not have any mandatory impact on the sentence a convicted offender will receive, it is thought its expressive force has practical value as it clearly identifies who is normatively responsible as the ‘real’ culprit, even if they are remote from the geographical location of the crime.52 Nevertheless, the division between principal and accessorial liability has guided the Court’s decisions on what level of contribution to the common purpose is required, as well as on the identification of the appropriate subjective elements.
In order to test the capacity of the Court’s approach to common purpose liability to cope with the crimes at issue in this thesis, the situation will be assessed against each subjective and objective element identified by the Court. As both versions of ‘common purpose liability’ in (a) and (d) have very similar elements, they will be assessed at the same time. The comparison helps to better analyse the approach that has prevailed at the ICC, and shows that the requirement for a principal perpetrator to make an “essential” contribution is problematic in the context of this factual situation. This part of the chapter concludes by suggesting that an alternative approach should be preferred.
48 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [326]. See Sliedregt, above n 1, 99. 49 Ibid [343-5]. See Sliedregt, above n 1, 99-100. 50 Ibid [344-5]. See Sliedregt, above n 1, 100. 51 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [999] (per Judges Benito and Blattmann). 52 Sliedregt, above n 1, 80.
228
Dominant approach to common purpose liability The Lubanga decisions53 and the Mbarushimana Confirmation of Charges54 decision identified the objective and subjective requirements of co-perpetration in article 25(3)(a) and contributing to a group with a common purpose in article 25(3)(d). The requirements for each provision differ only in the level of knowledge required and the necessary degree of contribution. Each element will be addressed in turn, and applied to this factual situation.
1. Objective element: a crime was attempted or committed
(a) Overview of law The first objective requirement is that a crime within the jurisdiction of the Court must be attempted or committed.55
(b) Application There is no real doubt that a transfer of population into Occupied Territory has occurred in the West Bank. The sheer number of settlers living there is testament to this. The challenge for the Prosecution would be showing that the transfer of population was occurring within the temporal and geographical jurisdiction of the Court, and linking it to the criminal responsibility of a specific individual. Meeting these challenges will depend on several things: when Palestine became a State, when it acceded to the Rome Statute, and what point in time the crime is deemed to occur. These are complex legal issues that are beyond the scope of this chapter, and as such, for the purposes of exploring the consequences of common purpose liability, it will be assumed that this element can be fulfilled.
The crime of appropriation of property presents a more difficult challenge. The complexity and uncertainty of the regulation of the use of property, particularly public property, in Occupied Territory would require the legality of each ‘taking’ of land to be
53 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007); Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-2842, 14 March 2012); Lubanga (Judgment on Appeal) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06 A 5, 1 December 2014) . 54 Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011). 55 Ibid [270].
229 assessed in the context in which it occurred. There will no doubt be some instances of appropriation of property that will not constitute crimes; and others that probably will. The difficulty of applying the legal tests necessary to determine whether this crime has been committed was extensively canvassed in Chapter Three and so, for the purposes of this Chapter, it will be assumed that it is possible to show that a crime has been committed.
2. Objective element: there was a group of perpetrators, acting with a common plan or purpose
(a) Overview of law The second objective requirement is that two or more persons acting with a common purpose must carry out the commission or attempted commission of the crime.56 It requires “the existence of an agreement or common plan between the co- perpetrators.”57 The majority of TC I in the Lubanga Judgment held that while the plan did not have to be “specifically directed at committing the crime in question,” it must as a minimum embody a “sufficient risk that, if events follow their ordinary course, a crime will be committed.”58 The Trial Chamber explained that, while the plan does have to involve an element of criminality, the crime in question “does not have to be the overarching goal of the perpetrators”.59 This approach means that even if the overall aim of the plan is, for instance, a legitimate military objective, if the accused is aware that carrying out the plan means that crimes will be committed, or are at risk of being committed, he or she will be criminally responsible. Also, while direct evidence of a plan could help in proving the plan exists, the existence of a plan “can be inferred from circumstantial evidence” such as the subsequent concerted conduct of the group
56 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [346-8]; Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [271-5]. 57 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [981] (per Judges Benito and Blattmann). Also see Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC- 01/04-01/06-803, 29 January 2007) [343-5] 58 Ibid [984]. Also see Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [344]. 59 Ibid [985].
230 of persons.60 PTC I in the Mbarushimana Confirmation of Charges said this definition equally applied to a “group of persons acting with a common purpose” under article 25(3)(d).61
(b) Application The existence of a common plan would be relatively easy to fulfil for the transfer of population into the Occupied Territories. There is evidence allowing the inference of the existence of a common plan to increase the number of Israeli civilians living in the West Bank, with reports as recently as July 2016 of new settlement activity in East Jerusalem,62 and new settlement approvals in the West Bank in March 2017.63 It would be unnecessary to provide evidence that explicitly showed this was the aim of the group, but it could be inferred from the decisions made and the fact the outcome of the policies is known.64 It is enough that the movement of settlers and consequent permanent demographic change is a foreseeable consequence of the plan. An argument that the transfer was not foreseeable in the circumstances, particularly given the history and consequences of the decades long occupation, would be very hard to sustain.
Again, the crime of appropriation of property would be more difficult to prosecute. Decisions about the use of land in the West Bank are reviewable by the Israeli Courts, and care is taken to ensure any such decisions comply with the Israeli understanding of international law. It could be that this means that an accused who held a position of authority in the upper echelons of government would be not be aware of the real risk
60 Ibid [988]; Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [348]; Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [273]. 61 Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [273]. 62 Diaa Hadid, ‘U.S. Rebukes Israel Over New Settlement Activity in East Jerusalem’, International New York Times (online) 28 July 2016
231 that such an appropriation or seizure was unlawful. However, it should be remembered that this is not a new Occupation, and the long history of taking land to build settlements would make such an argument difficult to accept. The plausibility of any such argument diminishes with the passage of time, the growth of the settlements and the incessant multilateral condemnation of the settlements as in violation of international law. Ultimately, the fact that the taking of land is facilitating the transfer of population would make it easier for the Prosecution to prove that the taking of land was unlawful.
3. Objective element: for liability as a co-perpetrator under subparagraph (a), the perpetrator made an ‘essential’ contribution; for liability under subparagraph (d), the perpetrator made a ‘significant’ contribution
(a) Overview of law The third and final objective requirement for common purpose liability is that the perpetrator contribute to the common purpose of the group. It is this requirement that poses the most significant challenge to a prosecution in the context of the situation in the Occupied Palestinian Territories.
The level of required contribution is the main factor that distinguishes article 25(3)(a) from (d). The majority of TC I in the Lubanga Judgment held that co-perpetration under (a) requires the perpetrator to make an ‘essential’ contribution to the common plan.65 The Trial Chamber arrived at this decision by contrasting liability under (a), which requires the accused to “commit” the crime, with liability under (d), which requires that the individual “contributes in any other way to the commission” of a crime by a group.66 The judges of the Trial Chamber said that this distinction “leads to the conclusion that the contribution of the co-perpetrator who ‘commits’ a crime is necessarily of greater significance than that of an individual who ‘contributes in any other way to the commission’ of a crime.”67
The Lubanga Trial Chamber read article 25(3)(a) as establishing the forms of principal liability, and articles 25(3)(b)-(d) as establishing the forms of accessorial liability. The
65 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [999] (per Judges Benito and Blattmann). 66 Ibid [996]. 67 Ibid.
232 majority in the Lubanga decision used a normative model to make this distinction,68 finding that defendants should be charged as principal perpetrators under article 25(3)(a) if they played a central role and were more blameworthy.69 The Trial Chamber concluded that, as principal liability requires a greater contribution than accessorial liability, the co-perpetrators must have had something more than the ‘substantial’ effect required for accessorial liability by the ad hoc Tribunals.70 The judges decided that this ‘something more’ was an essential contribution, showing the perpetrator had ‘control’ over the crime.71 This test was taken from German legal doctrine,72 where the accused makes such a contribution if they had “along with others, control over the offence by reason of the essential tasks assigned to them.”73 In the earlier Lubanga Confirmation of Charges, PTC I held that a person will be a co-perpetrator if he or she could “frustrate the commission of the crime by not carrying out his or her essential task.”74 This concept applies to a perpetrator who cannot be replaced if the group is to carry out the crime, meaning they have domination over the crime.75 In contrast, if the
68 There is some debate about the appropriate way to make the distinction between these forms of liability. There a number of options, including assessing their contribution to the crime based on what they aspects of the crime they actually physically carried out, or by making a normative assessment of which persons are the most responsible for the crime. See Sliedregt, above n 1. 69 Ibid 79. 70 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [997] (per Judges Benito and Blattmann). 71 Ibid [999]. 72 It was taken specifically the work of Claus Roxin. See Sliedregt, above n 1, 81-2; Aksenova, above n 31, 630. PTC I concluded that his work was widely representative of domestic criminal law, a view Ohlin criticised as being a “vast exaggeration” of the general acceptance of the theory, and evidence of a problematic approach to treaty interpretation: Ohlin, ‘Co- Perpetration: German Dogmatik or German Invasion?’, above n 28, 517. 73 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007), [332]. See Lachezar Yanev and Tijs Kooijmans, ‘Divided Minds in the Lubanga Trial Judgment: A Case against the Joint Control Theory’ (2013) 13 International Criminal Law Review 789, 797 for a comprehensive analysis of the role of ‘control of the crime’ in the decision. 74 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007), [342]. This appears to have been endorsed in Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06- 2842, 14 March 2012) (per Judges Benito and Blattmann) [989-1006] and Lubanga (Judgment on Appeal) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06 A 5, 1 December 2014) [466-70]. 75 Sliedregt (above n 1, 83) explains the elements of replaceability of members and the illegality of the purpose of the group ensure that “those in the organisation had no incentive but to abide by norms/orders set by the perpetrator at the highest echelon of the organisation.” (citations omitted). It has also been described as being fulfilled by a power structure characterised by “automatic compliance”: Aksenova, above n 31, 644.
233 defendant was not responsible for any essential tasks, charging under article 25(3)(b)- (d) was more appropriate.76 Thus, responsibility as an accessory was defined negatively as those who did not have control over the crime.77
TC I held that an essential contribution does not require an individual to be physically present at the crime scene, and can be made at a removed physical location.78 The making of an essential contribution can include those who “assist in formulating the relevant strategy or plan,” those who direct or control the other participants, or “determine the roles of those involved in the offence.”79 The essential contribution does not have to be carried out at the ‘execution stage’ of the crime; the important factor is whether the contribution was essential, regardless of when in time it was exercised.80 An accused will be a co-perpetrator as long as they “exercised, jointly with others, control over the crime.”81 The Appeals Chamber in Lubanga took a slightly different view of the test, making the link between the contribution and the crime more explicit82 by focussing on a normative assessment of the person’s role in the crime through the application of the control of the crime test.83
If it is accepted that the structure of article 25(3) reveals a hierarchy among the modes of liability, article 25(3)(d) must be satisfied by a lower level of contribution.84 The words of subparagraph (d) are unhelpful, suggesting that action that “in any way”
76 Sliedregt, above n 1, 79. 77 Aksenova, above n 31, 634. 78 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [1003-4] (per Judges Benito and Blattmann). 79 Ibid [1004] 80 Sliedregt, above n 1, 99; Lubanga (Confirmation of Charges) (International Criminal Court, Pre- Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [348] and Katanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC- 01/04-01/07-717, 1 October 2008) [526]. 81 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [1005] (per Judges Benito and Blattmann). 82 See Aksenova, above n 31, 637. 83 Lubanga (Judgment on Appeal) (International Criminal Court, Appeals Chamber, Case No ICC- 01/04-01/06 A 5, 1 December 2014) [473]; see Aksenova, above n 31, 638. 84 It should be noted that in the Katanga judgment TC II unanimously rejected interpreting Article 25(3) on the basis of a hierarchy, finding there was no reason each mode should be treated differently or that it should effect sentencing: Katanga (Judgment) (International Criminal Court, Trial Chamber II, Case No ICC-01/04-01/07, 7 March 2014) [1386-7] (per Judges Diarra and Cotte) and [279] (per Judge Van den Wyngaert). They nevertheless upheld the application of the control of the crime theory for distinguishing between the provisions.
234 contributes to the group gives rise to liability. The Pre-Trial Chamber in Mbarushimana analysed this issue, saying it would be inappropriate for liability to be incurred through any contribution at all, and that something more substantial would be required.85 The Chamber explained:
Indeed, such a threshold is necessary to exclude contributions which, because of their level or nature, were clearly not intended by the drafters of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contributions to a criminal organisation in the knowledge of that group’s criminality, especially where such criminality is public knowledge. Without some threshold level of assistance, every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for their infinitesimal contribution to the crimes committed. For these reasons, the Chamber considers that 25(3)(d) liability would be overextended if any contribution were sufficient.86
PTC I ultimately decided that a ‘significant’ contribution was required for liability under (d).87 The Pre-Trial Chamber treated article 25(3) as being arranged in a hierarchy of seriousness “where control of the crime decreases as one moves down the sub-paragraphs,” leading the judges to conclude that the residual article 25(3)(d) would require a lesser contribution than modes of liability in (a)-(c).88 As such, the nature of the accused’s contribution had to be less than an ‘essential’ contribution as required by (a), as well as less than a ‘substantial’ contribution, which jurisprudence from the ad hoc Tribunals suggested would be required for (b) and (c).89 The Chamber noted that a lower threshold was appropriate as group criminality “usually involves the commission of comparably more serious crimes.”90
85 PTC I said this was due to the gravity threshold in Article 17(1)(d) of the Statute, requiring both crimes and contributions “to reach a certain threshold of significance in order to be within the Court’s ambit.”: Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre- Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [276]. 86 Ibid [277]. 87 Ibid [283]. 88 Ibid [279]. 89 Ibid. 90 Ibid [278].
235
Determining what contributions are significant “requires a case-by-case analysis,” examining a person’s conduct in the context to see whether “a given contribution has a larger or smaller effect on the crimes committed.”91 PTC I identified several non- exhaustive but useful factors that help carry out the assessment:
… (i) the sustained nature of the participation after acquiring knowledge of the criminality of the group’s common purpose, (ii) any efforts made to prevent criminal activity or to impede the efficient functioning of the group’s crimes, (iii) whether the person creates or merely executes the criminal plan, (iv) the position of the suspect in the group or relative to the group and (v) perhaps most importantly, the role the suspect played vis-à-vis the seriousness and scope of the crimes committed.92
TC II in the Katanga Judgment further explained that a significant contribution was one that, in some way, affected the occurrence of a crime or the way it was committed.93
PTC I in the Mbarushimana Confirmation of Charges decisions held that under (d) a contribution does not have to be made prior to the crime being committed, but can be after the fact as long as “this contribution had been agreed upon by the relevant group acting with a common purpose, and the suspect prior to the perpetration of the crime.”94 PTC I noted that the same conclusion might not be reached for the other paragraphs of article 25(3), as there are indications to the contrary in the drafting history for article 25(3)(c) for example.95
It was unclear whether a perpetrator can only be liable if they contribute as an internal member of the group, or if liability can still ensue for an external contribution. The Defence in Mbarushimana had sought to distinguish article 25(3)(d) from the other parts of article 25(3) by arguing that co-perpetration in (a) is for internal participators in the criminal plan, whereas contributing to a group with a common purpose is for external
91 Ibid [283]. 92 Ibid [284]. 93 Katanga (Judgment) (International Criminal Court, Trial Chamber II, Case No ICC-01/04- 01/07, 7 March 2014) [1633] (per Judges Diarra and Cotte). Also see Aksenova, above n 31, 647. 94 Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [286]. 95 Ibid [286].
236 contributors.96 The Defence cited Cassese,97 who argued that, based on the overall structure of article 25 and a similar category from Italian law, (d) addressed outside contributions to a common criminal plan,98 permitting JCE to read into the Statute in the reference in article 25(3)(a) to an individual committing a crime “jointly with another.”99
PTC I rejected the Defence argument for three reasons. First, there is no reference in subparagraph (d) specifying the contribution to the common plan must be made by a member of the group or a person from outside the group.100 Second, if it is accepted that only “essential” contributions fall under subparagraph (a), then an interpretation that restricted (d) to non-group members would unduly limit the criminal responsibility of group members who made non-essential contributions.101 Finally, PTC I found that the Defence argument would lead to the result that the liability of those “who lack the intent to commit any crimes themselves but contribute to group crimes with knowledge of the group’s intention to commit those crimes” would depend on whether they were inside or outside the group.102 Those who contribute to group crimes with knowledge of the group’s intention to commit the crimes would not be responsible as aiders and/or abetters under subparagraph (c), for example, because that provision requires an accused to act with the purpose of facilitating the crime, a stricter subjective element than knowledge of the criminal plan.103 PTC I explained:
Therefore, if command responsibility does not apply and 25(3)(d) liability were limited only to persons outside the group, all such persons who knowingly make non-essential
96 Jens Ohlin, ‘Joint Criminal Confusion’, above n 28, 410. 97 Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [273]. 98 Antonio Cassese, International Criminal Law (Oxford University Press, 2nd ed, 2008) 213. There is no reference to this argument in the subsequent edition of this book: Cassese et al, above n 23, 198-9. 99 Ibid 212. Ohlin suggests that scholars who prefer this approach have the “very particular motivation” of wanting to be able to import the JCE jurisprudence from the ICTY through Article 25(3)(a). If this approach is rejected and Article 25(3)(d) held to codify common purpose liability, this case law will be much less relevant: Ohlin, ‘Joint Criminal Confusion’, above n 28, 412. 100 Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [272]. 101 Ibid [273]. 102 Ibid [274]. 103 Ibid.
237
contributions to crimes could be convicted if they are outside the group, but could not be convicted when making identical contributions from inside the group. Such an outcome would create results which run contrary to any literal, systematic or teleological interpretation of the principles established by the Statute for individual criminal responsibility.104
PTC I was satisfied that subparagraph (d) “must apply irrespective of whether the person is or is not a member of the group acting with a common purpose.”105
(b) Application The requirement for the contribution of an accused to be essential poses a significant hurdle for finding someone liable as a principal perpetrator in this context. It suggests that the alternative approach that does not require an essential contribution for liability as a principal perpetrator, addressed below in Part II(B) of this Chapter, should be preferred. This result is clearly seen when we consider three classes of individuals who are involved in the construction and maintenance of the settlements in the West Bank, which includes the taking of land to allow for the expansion of existing settlements, or founding new settlements. For the sake of argument, we can assume the political leaders are responsible for formulating and approving the policies, such as tax concessions, that provide the support to the transfer of population. We can also assume those same leaders develop and implement the policies that guide the taking of land in Occupied Territory, and it is assumed that they have oversight of decisions about the particular use of specific parcels of land.
However, if these politicians serve in a parliamentary system where they form government only with support of the members of parliament, can we be sure that their contribution is essential? If the settlement policies have the support of the majority of parliament, then it may be that an attempt to change the settlement policy would result in a particular leader being removed from government. This is particularly so if the policies are not being newly implemented, but rather are a continuation of older policies that have been put in place by legislation. In such circumstances, and if irreplaceability is the hallmark of an ‘essential’ contribution, an argument could be made that the contribution of some (if not all) of the political leadership is not essential.
104 Ibid. PTC I referred to Ohlin, who also rejected the “outside contributor” interpretation of Article 25(3)(d) on the same grounds: Ohlin, ‘Joint Criminal Confusion’, above n 28, 415. 105 Ibid [275].
238
The argument could be taken further: if the population of a democratic country elects politicians who promise to continue the settlement policy, rejecting those who would do otherwise, perhaps all those elected are in some way replaceable? Do they really make an essential contribution if, in the event they refuse to continue the policy, they lose their seat in Parliament? This is not to say that some collective responsibility should instead be preferred, but rather that the high objective threshold for the degree of contribution could be problematic in these sorts of circumstances.
The military personnel in charge of the Occupied Territory are even less likely to be able to be held liable as principal perpetrators. It can be presumed that they act on the instructions of their civilian leaders, and a refusal to follow those instructions would lead to the dismissal and the appointment of a new commander. Similarly, it is difficult to see how leaders of NGOs that provide financial and other support to settlers, as well as advocate for the growth of settlements to continue, could be making an essential contribution. As the crime requires the perpetrator to act through the Occupying Power, these organisations only support the government policies and neither create them nor maintain their ongoing currency.
It is obvious, however, that showing that the political, military and NGO leaders made something less than an ‘essential’ contribution that is nonetheless criminal would not be so stringent. It would depend on the evidence that could be gathered, but it seems highly likely that these leaders would all meet the ‘significant’ contribution test applied by PTC I in Mbarushimana for liability under subparagraph (d).
There is thus a possibility that no person could meet the test for principal liability under subparagraph (a). This raises the spectre of no-one being responsible as a principal perpetrator, a real problem if accessorial liability under the Rome Statute is derivative of the conduct of the principal perpetrator.106 This is important in a situation where the principal perpetrator is not or cannot be found guilty; derivative liability means that the liability is “borrowed” from the principal perpetrator.107 While there is some ambiguity, Finnin argues that, under the Rome Statute, liability requires some form of derivative liability meaning that the crime must be committed or there be some
106 Sarah Finnin, Elements of Accessorial Modes of Liability (Martinus Nijhoff, 2012), 94. 107 Ibid.
239 kind of attempt to commit the crime by a principal.108 At the very least this reality poses a conceptual problem: can we really accept an interpretation of the law that possibly leads to the conclusion that all the perpetrators are accessories? The potential difficulty of showing that anyone who takes part in the transfer of population into Occupied Territory makes an “essential” contribution to the group suggests the test should be reconsidered. This issue is addressed in more detail below.
The problem identified in the preceding paragraphs would probably be easier to avoid in relation to the crime of appropriation of land. While there are rules that guide the selection and use of land, each ‘appropriation’ could be connected to a specific decision-maker. Therefore, if the Prosecution could identify a parcel of land that had been taken, and could also identify the most senior person in the military or political hierarchy that approved the taking of the land, it would be relatively straightforward to show that person’s contribution was essential. It is interesting to consider what sort of contribution would be identified by the judges of a Court who upheld the decision and permitted the transfer to occur. If the legal system has the power to prevent the taking of land, and if they are ‘irreplaceable’ given their position in the constitutional hierarchy, perhaps they would also make an essential contribution? This challenges the dominant approach to common purpose liability from the other direction, as the focus on the objectively determined contribution could lead us to conclude that a group who are not as normatively responsible as the political leaders are nevertheless liable as co- perpetrators.
4. Subjective element: what did the perpetrator have to intend and know?
(a) Overview of law The subjective element for common purpose liability differs depending on whether article 25(3)(a) or (d) is being applied. On the basis of a combined reading of article 25(3)(a) and article 30, the majority of the Lubanga Trial Chamber held that the subjective element required is that the co-perpetrators “knew that, in the ordinary course of events, implementing the plan will lead to the [criminal] result.”109 This means that “participants anticipate, based on their knowledge of how events ordinarily
108 Ibid 100. 109 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [985-6] (per Judges Benito and Blattmann).
240 develop, that the consequence will occur in the future.”110 The Appeals Chamber in Lubanga raised the threshold for the subjective element, holding that a mere risk that a crime could be committed was not enough, and that instead the likely occurrence of the crime had to be a “virtual certainty”. Despite this proviso, the Appeals Chamber appears to accept a lower knowledge requirement than provided by article 30(2)(b) of the Statute by imposing liability for knowledge that there is a risk, albeit a virtual certainty, a crime could be committed.111 Furthermore, the accused must be aware that he or she provides “an essential contribution to the implementation of the common plan.”112
It has been concluded that the subjective requirements of article 25(3)(d) are different to those for other modes of liability. Following the majority of TC I in Lubanga reading a hierarchy into article 25(3) would suggest that (d) only applies if the threshold for aiding and abetting in (c) has not been met or, alternatively, that they cover different forms of liability.113 There is some indication in the text that the latter is the case, as (d) requires both the objective element of a group crime and the subjective element of a ‘common purpose.’114 Ambos argues the difference in the required mental element makes the distinction clear: whereas aiding and abetting under (c) only requires knowledge that the assistance contributes to the main crime, (d) requires the participant to ‘intentionally’ contribute to the purpose of the group.115 To put it another way, (c) covers the situation where a person incidentally helps while realising the action helping contributes to the main crime, and (d) arises where a person intends their action to contribute to the common purpose.
Article 25(3)(d) is ambiguous about whether it requires the perpetrator to have specific or general intent in contributing to the common plan as it provides that the
110 Ibid [1012] (per Judges Benito and Blattmann). 111 Sliedregt, above n 1, 101. 112 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [1013] (per Judges Benito and Blattmann). 113 Ambos, above n 29, 484. 114 Ibid. In Furundžija the ICTY held that these provisions of the Rome Statute show that aiding and abetting and participating in a common criminal plan are “two separate categories of liability for criminal participation […] co-perpetrators who participate in a joint criminal enterprise, on one hand, and aiders and abetters, on the other.” Furundžija (Trial Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-95- 17/1-T, 10 December 1998) [216] 115 Ibid.
241
“contribution shall be intentional.”116 Intentionality here could refer to general intention including knowledge as it is used in the “same general sense” as in article 30 of the Statute, and that subparagraphs (i) and (ii) have additional specific subjective requirements which “put the general notion of ‘intentional’ in more concrete terms.”117 While this might be a pragmatic approach, it does strip the word “intentionally” in subparagraph (d) of any real effect.118
PTC I in the Mbarushimana Confirmation of Charges decision appeared to treat the reference to ‘intention’ in subparagraph (d) as being used in the same general sense as article 30 of the Statute.119 PTC I held that, in addition to the article 30(2)(a) requirement that the person means to engage in the conduct, the perpetrator must have a degree of intention that links the contribution with the crimes alleged.120 Being careful to ensure this ‘intention’ did not overlap with the two prongs set out in article 25(3)(d)(i) and (ii), PTC I found that the perpetrator must both “mean to engage in the relevant conduct that allegedly contributes to the crime”121 and “be at least aware that his or her conduct contributes to the activities of the group”.122 Finally, as per (d)(i) and (ii), PTC I held that the accused’s contribution has to be made either with the aim of furthering the criminal activity or criminal purpose of the group, or be made in the knowledge of the intention of the group to commit the crime.123 In contrast to co- perpetration under article 25(3)(a), it is not necessary for the contributor to share the intent to commit any specific crime, or to satisfy the mental element of the crime charged.124
116 Ibid 485. 117 Ibid. 118 The other flaw that Ohlin identifies in Article 25(3)(d) is while it explicitly sets out the standards of knowledge or purpose required for group complicity, Article 25(3)(c) provides no standards the knowledge or purpose required aiding and abetting. If we were to apply general principles of statutory interpretation, we would conclude that this must mean there is some difference in the mental element required, but whether that difference should be wider or narrower is opaque: Ohlin, ‘Joint Criminal Confusion’, above n 28, 416. 119 Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [288]. See Ambos, above n 29, 485. 120 Ibid. 121 Ibid. 122 Ibid. 123 Ibid [289]. 124 Ibid.
242
(b) Application It is not possible to assess the likelihood of the subjective element of the crime being fulfilled without focussing on a specific individual and their state of mind. However, it is unlikely that this would prove a challenge in the context of the transfer of population in the Occupied Palestinian Territories. This is primarily because the decades-long history of the settlements means that it is inconceivable that the political, military and NGO leaders would not know that their individual contributions would assist the transfer of population into Occupied Territory. The connection between the policies of the Government, the military and NGOs and the transfer of people is clear. As such, if the contribution threshold was passed, it is difficult to see how this subjective element would pose a real challenge to the Prosecution.
Similarly, outside any mistake of law (addressed in the final section of this chapter), it is hard to imagine a perpetrator in this context failing to appreciate that the policies and rules set up regulating the use of property in the Occupied Palestinian Territories result in the substantial risk that property would be taken unlawfully, amounting to commission of the crimes of appropriation and seizure of property. Central to this conclusion is the long duration of the occupation, and the fact that the land taken has increasingly been used for the expansion of existing, and the establishment of new, settlements that are unlawful under international law.
Alternative approach to common purpose liability The above analysis indicates that the requirement for an “essential” contribution for principal liability under subparagraph (a) is problematic in this context. The approach of the Chambers in the Lubanga and Mbarushimana decisions, along with some of the scholarship, is premised on the notion that it is necessary to read article 25(3) in a way that draws a sharp distinction between the subparagraphs to divide them between principal and accessory liability. However, it is not entirely clear that such an approach is either necessary or desirable.125 Perhaps the dissenting approach of Judge Fulford in the Lubanga Judgment should be used as a starting point for a more convincing interpretation of article 25(3)(a)-(d). While he agreed the findings of PTC I which “established … the principles of law on which the trial has been prosecuted and
125 Aksenova, above n 31, 650.
243 defended” should be applied to the final decision “as a matter of fairness,”126 he said the findings were “unsupported by the text of the Statute and it imposes an unnecessary and unfair burden on the prosecution.”127 He considered it unnecessary to find a way to distinguish between the different subparagraphs of article 25(3), saying they overlapped in order to cover all eventualities.128 He added there was no need to read a hierarchy into the provisions for two main reasons. First, the plain text of the statute did not demand it: there is no reason why ‘ordering’ in article 25(3)(b) should be different to committing a crime ‘through another person’ in article 25(3)(a); nor why an accessory in (c) should be seen as more serious than contributing to a group committing a crime.129 Second, he pointed to the fact there is no mandatory consequence on sentencing for selecting one mode of liability over another.130 The minority opinion of Judge Van den Wyngaert in the Katanga Judgment took a similar approach, pointing out that liability under subparagraph (a), unlike subparagraph (d), does not require the contribution to be made to a specific crime, meaning (d) should not be treated as a ‘lesser’ form of liability.131
As Judge Fulford did not consider it necessary to distinguish liability in (a) from the other subparagraphs of article 25(3), he did not read in a higher threshold of the kind of contribution that was necessary for liability under the provision. He concluded that a “plain text reading” of article 25(3)(a) did not require the contribution to the crime be ‘essential’. It was enough if it was a direct or indirect contribution with a “causal link”
126 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [2] (per Judge Fulford). He explained this was because “No substantive warning has been given to the parties that the Chamber may apply a different test, and as a matter of fairness it would be wrong at this late stage to modify the legal framework of the case. In short, it would be unjust to the present accused to apply a different, and arguably lesser, test.” 127 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [2-3] (per Judge Fulford). 128 Ibid [7] (per Judge Fulford). 129 Ibid [8] (per Judge Fulford). 130 Ibid [9] (per Judge Fulford). This was the basis that he criticised the majority’s reliance on German criminal legal theory about modes of liability. In Germany the sentencing range is determined by the mode of liability, requiring finer distinctions to be drawn. This is unnecessary for sentencing under the Rome Statute: [10-11]. 131 Katanga (Judgment) (International Criminal Court, Trial Chamber II, Case No ICC-01/04- 01/07, 7 March 2014) [38]-[39] (per Judge Van den Wyngaert).
244 to the crime.132 This would cover a wider range of potential perpetrators than the approach taken by the majority in the Lubanga Judgment.
There are some shortcomings with his interpretation of article 25(3)(a)-(d). Ohlin, Sliedregt and Weigend point out that proving a “causal link” would still require something akin of the requirement for an ‘essential’ contribution.133 This is because requiring a ‘causal link’ seems to demand a contribution that caused the crime, and therefore without which, the consequence would not have occurred.134 As such, Ohlin, Sliedregt and Weigend argue that his test for perpetratorship “remains vague and leaves the judges very much to their own intuition rather than providing them with standards by which to make the difficult distinction between perpetration and mere accessorial liability.”135
Judge Van den Wyngaert also rejected the control of the crime theory in separate judgments in the Ngudjolo acquittal and the Katanga Judgment.136 Like Judge Fulford, she said the control approach was unsupported by both the text of the provision and by the travaux préparatoires.137 She added it was not consistent with the requirement of article 22(2) that the Rome Statute be strictly construed,138 and that it was inappropriate to use the idea of “fair labelling” to justify reading in a hierarchy of criminal responsibility into article 25(3).139 She said the dominant approach problematically focuses on the objective link between the accused and the common plan, rather than the accused’s link to the actual crime.140 Criticising the ‘essential contribution’ test as compelling the judges to “engage in artificial, speculative exercises about whether a
132 Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04- 01/06-2842, 14 March 2012) [16] (per Judge Fulford). 133 Jens David Ohlin, Elies Van Sliedregt and Thomas Weigend, ‘Assessing the Control Theory’ (2013) 26 Leiden Journal of International Law 725, 728. 134 Ibid. 135 Ibid 729. 136 Katanga (Judgment) (International Criminal Court, Trial Chamber II, Case No ICC-01/04- 01/07, 7 March 2014); Ngudjolo (Judgment) (International Criminal Court, Trial Chamber II, Case No ICC-01/04-02/12, 18 December 2012). 137 Ngudjolo (Judgment) (International Criminal Court, Trial Chamber II, Case No ICC-01/04- 02/12, 18 December 2012) [6], [13] (per Van den Wyngaert). 138 Ibid [18] (per Van den Wyngaert). She explained that this was a of “paramount” importance when interpreting articles dealing with the criminal responsibility of individuals. 139 Ibid [29] (per Van den Wyngaert). She notes that “very often the acts and conduct of the political and military leaders will simply not fit the mould of the principal liability.” 140 Ibid [34-5] (per Van den Wyngaert).
245 crime would still have been committed if one of the accused had not made exactly the same contribution,”141 she instead said that a direct contribution is required for co- perpetration.142 She said a direct contribution was one that had an “immediate impact on the way the material elements of the crime are realised,” and that determining whether a contribution qualified as direct or indirect “is not something that can be defined in the abstract.”143 Ohlin, Sliedregt and Weigend argue that while this might bring “welcome flexibility,” her willingness to expand the definition of a direct contribution to include the planning phase, and reliance on it being evident according to the facts of each case, suggests that the criterion is not sufficiently distinctive.144
A number of other scholars have also contested the application of the ‘control of the crime’ theory to article 25(3).145 They share the view that it is not supported by the plain text and context of the provision.146 Sadat and Jolly apply their interpretive methodology to suggest that the dominant view is flawed as it is not consistent either with the text or the object and purpose of article 25(3), it risks offending the principle of legality, it is unsupported by the drafting history, and it unnecessarily increases the complexity of applying the modes of liability in the statute.147 Yanev and Koojimans argue that the inclusion of “ordering” in subparagraph (b) is inconsistent with the control of the crime theory it as it is difficult to understand how it could differ from indirect participation in (a) where the perpetrator ‘controls’ another person to act in a criminal way.148 Further, the drafting history of subparagraph (a) shows that, while there was an attempt to distinguish between principals and accessories, it was not proposed this should occur on the basis of joint control; rather, the drafters appear to have focussed on shared intent.149 It is not supported by international case law, where it has been consistently found that people acting together can all be held equally
141 Ibid [42] (per Van den Wyngaert). 142 Ibid [46] (per Van den Wyngaert). 143 Ibid. 144 Ohlin, Sliedregt and Weigend, above n 133, 730. 145 Sadat and Jolly, above n 30, 755; Ohlin, ‘Co-Perpetration: German Dogmatik or German Invasion?’, above n 28, 523-3; Aksenova, above n 31, 650. 146 Yanev and Kooijmans, above n 73, 798. Also see Aksenova, above n 31, 653; Sadat and Jolly, above n 30, 755. 147 Sadat and Jolly, above n 30, 781. 148 Yanev and Kooijmans, above n 73, 800. 149 Ibid 803.
246 responsibility even if their contributions are disproportionate, as long as the accused’s perpetration has a ‘real bearing’ on the crime.150 These cases have treated the accused’s state of mind as critical: he or she must have intended to jointly commit the specific crime with others to be criminally responsible.151 Finally, there is no one theory of joint perpetration from domestic legal systems that has been consistently applied across jurisdictions and so can be thought of as a general principle.152 Similarly, Sliedregt rejects the argument that article 25(3)(a) ‘codified’ the control of the crime theory as it is unsupported by the Statute or the drafting history, and too reliant on a German law concept to the exclusion of other approaches.153 Others have critiqued the control of the crime theory as being too vague154 or not suitable to the African context.155 Sadat and Jolly point out that the “stunningly complex” interpretation incorporating the theory challenges the assumption that a hierarchy between principal and accessory liability ‘better expresses’ the normative responsibility of the accused, and instead suggests that these things are better expressed in sentencing and the comments of the judges.156
Aside from their critique of the interpretation of article 25(3), Yanev and Koojimans point to the problem with the way the control of the crime theory has been applied by the ICC and identified above. It makes it very difficult for the Prosecution as they have to show beyond reasonable doubt that the accused made an “essential” contribution.157 This is particularly challenging given the complex organisations that carry out group crimes. It might be very hard to prove that the accused had the material power to frustrate the implementation of the common plan, as this would require showing they had a degree of autonomy, and that by refusing to cooperate they could prevent the crime from occurring.158 If an actor can be replaced and the crime continue, then that
150 Ibid 807. 151 Ibid 812. 152 Ibid; Ohlin, ‘Co-Perpetration: German Dogmatik or German Invasion?’ above n 28, 523. 153 Sliedregt, above n 1, 86-7. 154 Thomas Weigend, ‘Perpetration through an Organisation: the Unexpected Career of a German Legal Concept’ (2011) 9(1) Journal of International Criminal Justice 91, 100-1; Jens Ohlin, ‘Joint Intentions to Commit International Crimes (2011), 11 Chicago Journal of International Law 693. Cf. Neha Jain ‘The Control Theory of Perpetration of International Criminal Law’ (2011) 12 Chicago Journal of International Law 158, 194. 155 See Mark Osiel, Making Sense of Mass Atrocity (Cambridge University Press, 2009) 100. 156 Sadat and Jolly, above n 30, 783. 157 Yanev and Kooijmans, above n 73, 822. 158 Ibid 824.
247 person will not make an “essential” contribution.159 In addition, the ‘essential’ contribution threshold requires counterfactual reasoning, requiring the Court to draw conclusions about events that never happened.160 The theory also struggles to deal with a situation where the Court concludes a crime would have still happened without the contribution, but in a different way: would such a contribution be essential?161
Aksenova argues that the level of contribution is not the appropriate criterion for differentiating between modes of responsibility as it “is impossible to measure the precise degree to which the accused contributed to the crime in abstract terms.”162 This is particularly acute when we consider what would amount to an ‘essential’ contribution. It is inconsistent to treat individuals as having free will while at the same time adopting a theory which suggests that one person ‘causes’ the actions of another person.163 This is not to say that an assessment of the contribution is impossible, and Aksenova instead says it should look to the nature of the assistance, the relevance to the crime, and the knowledge of the contributor.164
Askenova’s recommendation is similar to the suggestion made by Ohlin, Sliedregt and Weigend. Arguing that the ‘control of the crime’ theory may lack sufficient sophistication and define perpetratorship too broadly,165 they propose instead a more nuanced approach that takes account of a range of factors, including a normative component:
We might have to give up the (attractive) idea of basing the distinction on a single factor and look instead for a cluster of factors what will have to be taken into consideration. In doing so, we should be aware that the line between (joint) perpetrators and accessories cannot be drawn on empirical grounds, but requires a normative (value) judgment – a judgment that in the last resort is based on a notion of fair attribution and is therefore soft at the edges.166
159 Ibid 825. 160 Ohlin, ‘Co-Perpetration: German Dogmatik or German Invasion?’ above n 28, 529. 161 Ibid. 162 Aksenova, above n 31, 660. 163 Ibid. 164 Ibid 662. 165 Ohlin, Sliedregt and Weigend, above n 133, 731-2. 166 Ibid 732.
248
They instead propose analysing criminal responsibility using a “cluster” of different considerations:
Typical factors are a person’s involvement in the planning of a joint enterprise, his mens rea, and possibly his personal interest in the success of the enterprise; furthermore, the importance of his contribution to the actual commission of the offence.167
Using a cluster of factors to analyse the criminal responsibility of an individual and determining whether they are a principal perpetrator of a crime has real merit. It has the capacity to be rigorous and predictable, while also having enough flexibility to deal with the range of situations where international criminal law could apply.
We considered above how the ‘control of the crime’ theory requiring an essential contribution might apply to a group of political leaders carrying out a common crime. Each could be replaced by the other member of the group, and even the leader serves only with the approval of the members of that group, resulting in none of the political leaders being held accountable. This is clearly an absurd situation given their normative responsibility. This is why Yanev and Kooijmans insist that searching for common intent is a better way of finding criminal responsibility, and it allows for the accountability of all those who contributed knowingly to the commission of a group crime.168 Ohlin, Sliedregt and Weigend warn against being too reliant on only subjective factors (like a shared intent), and encourage continuing to look for both subjective and objective factors.169 This more nuanced understanding of how to identify the principal perpetrators allows the analysis to be more responsive to different factual situations. Adopting it could mean that the Court could avoid the situation, at risk in the case of the settlements in the West Bank, where none of the participants in the common criminal plan could be held liable as a principal perpetrator due to the ‘essential contribution’ test.
IV. DEFENCE OF MISTAKE OF LAW
The final part of this chapter considers whether the defence of mistake of law can apply to potential perpetrators responsible for the crimes discussed in this thesis.
167 Ibid. 168 Yanev and Kooijmans, above n 73, 826. 169 Ohlin, Sleidregt and Weigend, above n 133, 733-4.
249
While it is rarely accepted as a defence in international criminal trials,170 the complex regulation of conduct during armed conflict and occupation creates the potential for honest mistakes to be made about the lawfulness of conduct. For many war crimes, the dividing line between lawfulness and unlawfulness may be contested, with reasonable views on both sides.171 There are some acts which amount to war crimes that may not be obviously criminal.172 We saw this most clearly in the chapter on the crime of appropriation of property.
It can be assumed that most, if not all, of these participants adhere to a view of international humanitarian law and the law of occupation that holds that their conduct is not prohibited. This is for a range of reasons, all of which have been canvassed in detail in earlier chapters. It is argued by the State of Israel, for example, that GCIV, the source of the prohibition on the transfer of population, does not apply to the Palestinian Territories because they are not “occupied”. Alternatively, it is argued that, if such a transfer is prohibited, it only applies to the forcible transfer, not the voluntary movement of people. In relation to the crime of appropriation of property, the participants argue that either the use of the land is militarily necessary, or otherwise lawful under the requirements of the Hague Regulations. If these arguments are not accepted, could a perpetrator avoid criminal liability by arguing they were mistaken about the law?
Article 32 of the Rome Statute provides for the defence of mistake of fact or mistake of law. It states that:
1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by each crime.
2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if
170 Annemieke van Verseveld, Mistake of Law: Excusing Perpetrators of International Crimes (T.M.C. Asser Press, 2012), 139. 171 Schabas, above n 6, 659. 172 Kai Ambos, Der Allgemeine Teil des Völkerstrafrechts: Ansätze einer Dogmatisierung (Duncker & Humblot, 2nd edn, 2004) 818–19 cited in Schabas, above n 6, 660; Sliedregt, above n 1, 286.
250
it negates the mental element required by such a crime, or as provided for in Article 33.173
The operation of this “enigmatic” provision is hard to discern.174 This is partly due to the different legal traditions that influenced the development of the Statute and their differing approaches to the role of intention in criminal culpability.175 It is clear, however, that in most domestic jurisdictions the defence of mistake of law is very limited or entirely excluded.176 After all, claims of ignorance of law are difficult to accept when it involves serious crimes against the person, and so the defence usually only arises with respect to highly technical regulatory offences.177
The starting point is a consideration of the text of the provision. The first paragraph appears superfluous, essentially restating the default rule on the mental elements in article 30 that require all elements of the crime to be committed with intent and knowledge.178 The second paragraph draws a distinction between mistakes as to jurisdiction and the law of the Statute from other legal mistakes that negate the mental element.
It is thus clear that the Statute distinguishes between mistakes of law and mistakes of fact. But, it is often difficult to separate one kind of mistake from the other, as the way a mistake is made alters its identity even if it leads to an identical result: if it is a failure to recognise a particular rule, it is a mistake of law; if it is an erroneous evaluation, it is a mistake of fact.179 The example commonly given to illustrate this point is a combatant who attacks a doctor displaying the Red Cross emblem.180 If this is because the emblem is not visible by the combatant, it is a mistake of fact.181 If the combatant sees the Red
173 Rome Statute art 32. 174 Schabas, above n 6, 658. Also see Otto Triffterer and Jens David Ohlin, ‘Article 32: Mistake of fact or mistake of law’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016), 1166. 175 Schabas, above n 6, 658-9. 176 Ibid. Schabas gives the examples of the ‘layman’s parallel evaluation test’ from German criminal law, and the related common law defence of ‘mistake of legal element.’ 177 Ibid 659. 178 Triffterer and Ohlin, above n 174, 1174. 179 Sliedregt, above n 1, 271. 180 Ibid. 181 Ibid.
251
Cross but does not understand the legal status of those of wearing the emblem, it is a mistake of law.182 Sliedregt describes the distinction as “fluid”, observing that:
Rather than grouping them into two distinct categories, they can be marked along a graduated scale with mistake of fact at one end and mistake of law at the other. The longer it takes (in time) to interpret the material elements of a crime, the more normative the element and the more likely that the mistake will be termed a mistake of law.183
The position of the boundary between mistakes of fact and mistakes of law will partly determine the scope of the defence established by article 32. If a very broad interpretation of mistake of law is adopted, it could make it too easy to escape conviction. Too narrow, and it has the potential to cause a real injustice by convicting someone who is not morally culpable.
The critical question is whether the definitional elements of the crime require knowledge that the act was contrary to the law, thereby making a mistake of law negate the mental element.184 Many crimes have elements that involve legal connotations and value judgments, such as whether an attack is proportionate or militarily necessary, or whether an individual is a protected person, or if property falls into a certain legal category.185 The crime of transfer of population is no exception: the crime can only be committed during an ‘occupation’, which is a legal category and whether ‘transfer’ includes the voluntary movement of people is disputed. Similarly, the crimes of appropriation and seizure of property are dependent on the property being taken ‘unlawfully’, a conclusion requiring reference to the 1907 Hague Regulations as well as to GCIV of 1949.
In the Lubanga Confirmation of Charges hearing, the Defence argued that the accused was not aware of the existence of the crime of enlisting and conscription of children and therefore could not foresee that his conduct was criminal.186 This argument was
182 Ibid. 183 Ibid. 184 See Kevin Jon Heller, ‘Mistake of Legal Element, the Common Law and Article 32 of the Rome Statute’ (2008) 6 Journal of International Criminal Justice 419, 424.. 185 Verseveld, above n 170, 141; Heller, ibid, 430. 186 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [294].
252 primarily based on the principle of legality and the non-retrospectivity of crimes, but it also raised the question of mistake of law.187 PTC I observed that the scope of mistake of law is “relatively limited”188 as it is only a ground for excluding criminal responsibility if it “negates the mental element” or falls within the scope of ‘superior orders’ or ‘prescription of law’ defence under article 33 of the Statute.189 As a result of this, the defence of mistake can only succeed if the accused was “unaware of a normative objective element of the crime as a result of not realising its social significance (its everyday meaning).”190
It is necessary to explain this concept in a little more detail. This is a clear reference to a type of mistake of law recognised in German criminal law doctrine191 concerning the “interpretation of a normative element of a crime definition.”192 According to this doctrine, known as the layman’s parallel evaluation theory, the required intent for a normative element is not legal knowledge or knowledge of wrongdoing, but rather “knowledge of the social significance of the act.”193 The doctrine provides that a perpetrator will be criminally liable if the perpetrator has awareness of the fundamental factual circumstances and understands the significance of the criminal conduct, regardless of whether their assessment is correct.194 Verseveld explains:
In exceptional cases the social significance of an element cannot be understood without legal knowledge; a mistake in this respect will negate the required intent. Roxin gives the following example of such an exceptional case: if someone is mistaken about the element ‘belonging to another’, namely he believes the property to be his, he does not have the intent required by the offences of theft or destruction of property. However, if the legal or normative element is equal to or constitutes the wrongfulness of the conduct, a mistake will not negate the required intent.195
187 Schabas, above n 6, 659-60. 188 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [305-6] 189 Ibid [315]. 190 Ibid [316]. 191 It is known as ‘Subsumtionsirrtum’ in German. 192 Verseveld, above n 170, 37. 193 Ibid. 194 See Heller, above n 184, 436. 195 Verseveld, above n 170, 37, 74.
253
It is notable that the example used relates to the status of property, as this is one kind of mistake that could be being made in the context of the West Bank. Briefly, if the perpetrator did not understand the territory to be Occupied, or that the land was being ‘appropriated’ or ‘seized’, it could mean that their mistake negated the mental element. Applying this test, PTC I in Lubanga decided that there was nothing in the evidence that suggested that the accused might have made such a mistake.196
There are some indications that the narrow view of what amounts to a ‘mistake of law’ should be preferred. The Elements of Crimes sought to limit the scope of article 32(2) by specifically providing for “awareness of factual circumstances” elements, rather than defining them as legal elements.197 Thus, the Elements provide that, as long as the perpetrator knew of the factual circumstances that made an act criminal, they will be liable even if they did not know the act’s criminal status. The crime of transfer of population is no exception: the Elements provide that the accused does not have to know that an “international armed conflict” (in the form of an occupation) exists, only that he or she “was aware of the factual circumstances” establishing that status.198
The narrow view of the operation of the defence is supported by a number of scholars. Some support it based on the difficulty caused by a broader interpretation combined with the “factual awareness elements” provided for in the Elements of Crimes.199 For example, Clark approves of the interpretation of the Statute from the Elements, arguing “article 32(2) has been neatly finessed by defining the mental element so as to avoid any reference to legal characterisation.”200 Sliedregt argues the “exclusionary wording” of article 32(2) and its reference to a ‘crime’ suggest that a broad interpretation that included the negative mental element is inappropriate.201 Others refer to what they consider to be general principles of law.202 For example, Triffterer and Ohlin say an accused can only rely on the defence if they were not aware of the existence of a
196 Lubanga (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803, 29 January 2007) [316]. 197 See Heller, above n 184, 426. 198 Elements of the Crime. 199 Sliedregt, above n 1, 283. 200 Roger Clark, ‘The Mental Element in International Criminal Law’ (2001) 12 Criminal Law Forum 291, 330-1 201 Sliedregt, above n 1, 283. 202 See Verseveld, above n 170, 151.
254 particular legal element and the mistake was unavoidable but that the defence is unavailable if the accused was aware of the legal regulation but misapplied the test.203 They explain that the “precise apprehension of a legal definition” is not the role of the perpetrator but rather the person who has to apply the law.204 If the perpetrator does not know about a particular prohibition and the “factual basis for this legal element”, he or she cannot be influenced in deciding between right and wrong.205 Thus “if he is mistaken in making this value judgment, his responsibility depends on whether he could have avoided the wrong decision or not.”206
Heller is critical of these narrow interpretations of the mistake of law defence, arguing instead that the defence has the potential to apply to many of the crimes in the Rome Statute. He focuses specifically on what he calls ‘mistake of a legal element’, which is when the perpetrator is mistaken about the legal definition of an element to a crime.207 It is not a mistake about the Rome Statute, but rather one about a source from outside the Statute.208 A mistake of this kind means that the element is not fulfilled by the perpetrator “with intent and knowledge”, possibly negating the mental element and precluding criminal responsibility.209 An example would be a mistake about whether the taking of land was ‘unlawful’, as this depends on an interpretation of the Hague Regulations and of GCIV.
Heller claims there are a number of indications that the defence of mistake of law under article 32(2) is available for this kind of mistake. First, the text of the provision distinguishes between mistakes as to the governing law (the Rome Statute), where the defence is unavailable, and other legal mistakes, where it is.210 Second, the effort the Preparatory Committee took when drafting the Elements of Crimes to avoid defining specific elements as being ‘legal’, instead providing for elements that require ‘awareness as to the factual circumstances’ suggests that the Preparatory Commission
203 Triffterer and Ohlin, above n 174, 1168, 1172-3. 204 Ibid 1168. 205 Ibid. 206 Ibid. Also see Verseveld, above n 170, 151-176; Sliedregt, above n 1, 284. 207 See Heller, above n 184, 423. 208 Ibid 424. 209 Ibid 426. 210 Ibid.
255 agreed the defence in article 32(2) could be read broadly.211 Third, the drafting history showed that the common law approach to mistake of law was fundamental to the development of the provision, leading the drafters to have a provision focussed on how a mistake could result in negating the mental element of a crime, not on culpability as per the civil law tradition.212
Heller rejects all the ways that PTC I in Lubanga and scholars have sought to narrow the scope of article 32(2). He argues that the use of factual awareness elements to avoid defining an element as ‘legal’ in the Elements of Crimes is inconsistent with the second sentence of article 32(2), essentially rendering it a nullity.213 He rejects the use of the ‘layman’s parallel evaluation theory’, noting it has no support in the drafting history, it is inconsistent with the common law understanding of knowledge, and it is foreign to most civilian criminal law systems.214 Finally, he rejects the adoption of the reasonableness test as it is inconsistent with the common law approach to mistake of law, inconsistent with the Rome Statute, and irreconcilable with the drafting history.215
Heller’s view of the mistake of law provision is compelling. He and others have proposed changes to the provision. 216 The dissatisfaction is that the requirement that the mistake ‘negates the mental element’ is too rigid and fails to address situations where the perpetrator lacks normative culpability due to a misapprehension about the law. As Heller writes, it “does not exonerate a person who could not have reasonably been expected to know that his conduct was unlawful and who acted without culpability.”217
Mistake of law is a defence that could be raised by Israeli defendants charged with the two crimes addressed by this thesis. Any such defendants might be able to prove they genuinely believed that the policies were not illegal either because they thought the territory was not deemed ‘occupied’ under international humanitarian law, or that the
211 Ibid 426. 212 Ibid 427. 213 Ibid 433. 214 Ibid 437. 215 Ibid 440. An earlier proposal that had included a reasonableness test had been rejected. 216 E.g. Hans-Heinrich Jescheck, ‘The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute’ (2004) 2 Journal of International Criminal Justice 38, 47. 217 Sliedregt, above n 1, 285.
256 movement of people did not amount to a ‘transfer’ as it was voluntary, or that the use of the land was lawful. If such arguments were accepted, under Heller’s interpretation of article 32(2) these accused would be able to rely on the defence of mistake of law. This is because both these legal determinations require reference to a body of law from outside the Statute, and therefore that the accused’s misapprehension about the law would negate the requisite mental element.
If we assume, given the comments of PTC I in the Lubanga case, that the Court will interpret the provision narrowly but find it still allows for a mistake of a normative element to support a defence if the accused did not understand the social significance of their action, an Israeli defendant might still be able to claim a defence. Proving the subjective mental state of ‘understanding the social significance’ of an international crime will be elusive, and could still exclude liability for a range of offenders.218 If the purpose of the crime of transfer of population is to prevent demographic change in Occupied Territory during an occupation, and the perpetrator does not understand the Territory to be occupied, perhaps they could argue that they did not understand the “social significance” of the transfer. There is no prohibition for encouraging demographic change through the voluntary movement of people outside of the context of an occupation.
The claim of mistake of law would be even more credible in relation to the crime of appropriation of property under article 8(2)(a)(iv) of the Rome Statute. Israel has a sophisticated system for determining whether land has been properly appropriated or seized according to the Israeli view of international law. The decision to take certain land is reviewable by the highest Israeli Court, and so it is fair to assume that a potential accused would consider themselves to be acting according to law. Moreover, the chapter addressing these crimes showed that the international law regulating property in Occupied Territory is complicated and opaque, and for a number of the critical legal controversies there is no widely accepted view of the law. For these reasons, it could be open to alleged offenders to claim they did not understand the social significance of taking the property in the West Bank. However, such a claim would be more persuasive if the Occupation had not persisted for decades, and if the
218 See Heller, above n 184, 439.
257 role that the taken property played in the building of settlements and transfer of population was not so evident.
V. CONCLUDING REMARKS
The potential prosecution of the crimes of transfer of population from Israel into the settlements in the West Bank, as well as the appropriation and seizure of property, raises a number of important legal issues relating to the operation of individual liability under the Rome Statute. Attempting to elucidate how the Statute might apply to the conduct helps test aspects of the legal regime, and in particular it shows how effectively common purpose liability and the defence of mistake of law might function with this kind of factual scenario.
My analysis suggests that the reliance of the Court on the principal/accessory distinction in its interpretation of article 25(3) has led to problematic results. Through a close scrutiny of how common purpose liability might apply to the present factual situation, the chapter has shown the requirement that the co-perpetrator of a group crime make an ‘essential contribution’ runs the risk of preventing any individual being held criminally liable as a principal perpetrator. This is particularly the case if the individual in question is part of a political system where responsibility is distributed, with no single person holding enough authority to make a contribution that would qualify as ‘essential’. Each person could claim they were replaceable and avoid liability as a principal. This raises further difficulties if accessorial liability is treated as derivative. The chapter suggests that the ‘essential contribution’ test should be reconsidered along the lines of the dissenting opinion of Judge Fulford in the Lubanga Trial Judgment.
Finally, the potential for the defence of mistake of law to be raised in this case shows that it could apply to a situation where the perpetrator genuinely believes that they are acting consistently with law. The unfortunately opaque wording of article 32(2) makes it very difficult to establish a convincing and coherent explanation of how the defence of mistake of law should apply under the Statute. While it is unlikely that the Court would take the expansive view preferred by Heller, discerning just how the defence can be limited in a way that is consistent with the words of the Statute will prove very
258 challenging. The potential for the application of mistake of law in the Israeli context reveals it to be an important rather than merely hypothetical question.
259
CONCLUSION
The question of whether to prosecute an individual on the basis of the settlements in the West Bank will have to be addressed by the Prosecutor of the ICC in the near future. Just after the fiftieth anniversary of the beginning of the Israeli occupation of the West Bank, Israel commenced work on the new settlement of Amichai in the West Bank.1 It is the first settlement to have been approved by a cabinet vote in over 20 years.2 Prime Minister Netanyahu wrote on Twitter that it was the fulfilment of a promise, and that it was a “privilege” to be responsible for it.3 These remarks on Twitter were accompanied by photographs of construction vehicles commencing work, and were described in the Israeli press as signalling a “new attitude” of being pro- settlement by his Government.4 Prime Minister Netanyahu told members of his political party, Likud, that “there was not and will not be a better government for settlement than our government.”5 Earlier in 2017, the Knesset passed a highly contentious law to retroactively legalise settlements on private Palestinian land.6 Even though at the time of writing it appears likely the Supreme Court of Israel will nullify the legislation with the Israeli Attorney-General saying he will not defend it in Court,7 it is another indication that the Israeli policies supporting the settlement are unlikely to be abandoned anytime soon.
These decisions are particularly vivid examples of Israeli support of the settlements, and are consistent with longstanding Government policy. The growth of settlers in the West Bank has been encouraged by tax breaks, educational support, subsidised housing, among other things. The settlements have a profound impact on the day to
1 Tovah Lazaroff, ‘Netanyahu says Israel starts construction on new West Bank settlement’ The Jerusalem Post (online) (Jerusalem) 20 June 2017
260 day life of the people living in the West Bank, as well as on the political future of the territory.
There is little doubt that Israel is in breach of fundamental international legal obligations by continuing its program of settlement in the West Bank.8 Because of the dire impact that a program of transfer of population and the unlawful appropriation of property has on civilian populations in Occupied Territory, both practices have been prohibited by international humanitarian law. Dire consequence for civilian populations in Occupied Territory is also the reason why both practices are classed as war crimes punishable by the ICC; making apparent their classification as some of the “most serious crimes of concern to the international community.”9 But would these crimes actually apply in the situation of Israeli settlements in the West Bank?
This thesis has shown that these obligations are not so easily applied in the criminal context. Crimes have different requirements to other kinds of legal rules and obligations. The application of criminal law to an individual means that we need to take more seriously the need for legal clarity in how the crime operates. In particular, the principle of legality requires a higher degree of certainty to ensure that the operation of the crimes is knowable, predictable and able to be applied. This is the necessary standard for a coherent and legally effective international criminal justice system. The thesis provides one example of a Rome Statute offence - the crime of unlawful appropriation of property (article 8(2)(a)(iv)) – that may not meet this standard.
In addition, it carried out a close analysis of the other crime most relevant to the settlements, the crime of transfer of population (article 8(2)(b)(viii)). It also examined how the principles of individual criminal responsibility established by the Rome Statute could be tested by this factual situation. The approach adopted here to analysing the Rome Statute is a novel, but useful, way of better understanding the operation of the Statute.
8 SC Res 2334, UN SCOR, 7853rd mtg, UN Doc S/RES/2334 (23 December 2016). 9 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’), preamble.
261
I. STATUS OF TERRITORY
The thesis began by assessing the legal status of the West Bank, showing that the best view is that it is occupied territory and so an ‘international armed conflict’, and that due to this categorisation, Israel is bound by both the requirements of the 1907 Hague Regulations10 and GCIV of 1949.11 The West Bank was occupied during an international armed conflict between Israel and its neighbours in 1967, and the occupation has continued uninterrupted since then. This legal characterisation is critical because the articles of the Rome Statute establishing the relevant war crimes only apply to situations of international armed conflict. According to the Elements of Crimes, the threshold circumstance element common to both crimes analysed by this thesis, a situation of ‘international armed conflict’, would be satisfied in this context.
It is very difficult to imagine the Chambers of the ICC reaching a different conclusion on this point. The arguments raised by the Israeli Ministry of Foreign Affairs against the applicability of GCIV have been rejected by a clear majority of the international community. The Israeli arguments, based on a highly formalistic interpretation of common article 2 of the Geneva Conventions and a very conservative view of the purpose of occupation law and GCIV, are not persuasive. Instead of it being a requirement that another ‘High Contracting Party’ to the Geneva Conventions be sovereign over the Occupied Territory, all that is required for GCIV to apply is that the occupation occurred during an armed conflict between two High Contracting Parties. This requirement is clearly met in the case of the West Bank.
This chapter also addressed some of the other arguments raised against the application of GCIV, including ‘defensive conquest’ and a ‘sui generis’ occupation. These should be rejected as they are inconsistent with the terms of GCIV, and inconsistent with the object and purpose of occupation law as well as with some of the foundational assumption of international law in relation to the impermissibility of sovereignty through conquest.
10 Regulations concerning the Laws and Customs of War on Land (‘Hague Regulations’), annexed to the Convention (IV) concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 ConTS 277 (entered into force 26 January 1910). 11 Geneva Convention relative to the Protection of Civilian Persons in Time of War (‘GCIV’), opened for signature 12 August 1949, 75 UNTS 973 (entered into force 21 October 1950).
262
While this analysis is not specific to international criminal law, it does show some of the complex legal arguments the organs of the ICC might face in any case concerning the West Bank. The approach taken by the Prosecutor and the Chambers of the ICC will give an indication of their approach to interpreting international law, and the extent to which they determine legal questions in line with the majority of the international community. Given the overwhelming support for the view that the West Bank is subject to GCIV, it would be very surprising if the Prosecutor or Chambers of the ICC reached a different conclusion.
II. TRANSFER OF POPULATION
The crime of transfer of population is the most obvious candidate for prosecution at the ICC on the basis of the settlements. The second chapter identified some of the key interpretive challenges, and offered some suggestions for how they should be resolved. The analysis showed that, while some aspects of the crime cause some difficulty, overall it is possible to have a reasonable degree of legal certainty about what conduct is covered by the crime.
Through the application of the methodology identified in the introduction, this chapter demonstrated that the best view is that the crime does require the transferees to be coerced, and therefore applies to the voluntary transfer of nationals of the Occupying Power. This conclusion is apparent from the clear words of the Statute, and is further supported by the underlying prohibition from IHL. However, it is not enough for the nationals of the Occupying Power to move into Occupied Territory; the movement must be attributable in some way to the Occupying Power. This makes the crime somewhat unusual, requiring a connection between the conduct of individuals and the conduct of a State. It must also be shown that the measure and policies adopted by the Occupying Power had the effect of encouraging the movement of people into the territory.
Perhaps the most difficult issue to resolve is the question of whether the crime of transfer of population is a continuing crime, or whether it is better thought of as one that is committed instantaneously. The situation in the West Bank shows why this could be a critical issue: if the crime continued through time, the ICC could potentially have jurisdiction over all the conduct leading to the Israeli settlements in the West
263
Bank, even if they were founded prior to the temporal commencement of ICC jurisdiction in the West Bank. The thesis argued for a more conservative approach, finding that ‘transfer of population’ is not a continuing crime, and that it occurs when the movement of people into the Occupied Territory actually happens. While there is a reasonable argument to the contrary, ultimately the principle of legality and the temporal limits of ICC jurisdiction support the narrower conclusion. The provision is breached if the Occupying Power supports, through policies such as tax concessions, favourable rules of property acquisition or other inducements, a transfer that occurs within the temporal jurisdiction of the Court.
Chapter Two showed that the fundamental content of the crime is reasonably ascertainable. This is because the crime is relatively self-contained within the Rome Statute, and is drafted in a way that respects the principle of legality. It does not require reference to an external body of law for its core legal content. Aside from the need to show a link between the accused and the Occupying Power to prove that the transfer was being carried out, in some way, by the State, it would be no more difficult to apply than other crimes. It is an example of a broadly successful criminalisation of a grave breach of IHL.
Finally, while this thesis has not attempted to provide a comprehensive overview of the potential evidence, the new settlement of Amichai from June 2017 seems to fall within the elements of the crime. Furthermore, the news reports show that certain individuals are claiming credit for the settlement being built. It would be unsurprising if, in the event that the Prosecutor undertakes a formal criminal investigation and subsequently seeks to charge individuals on the basis of the settlements in the West Bank, this is the crime that is chosen.
III. APPROPRIATION OF PROPERTY
The crime of appropriation of property would present a more complex challenge to the Prosecution and Chambers of the ICC. Defining the scope of some of the legal elements of the crime is within the normal bounds of complexity confronted in international trials. It seems relatively straightforward to settle on a persuasive definition of ‘appropriation’. Similarly, while determining whether a specific taking of property is militarily necessary would be difficult, the type of value judgment the judges would
264 have to make is a reasonably known quantity, and similar to value judgments which regularly have to be made in international trials. The qualifiers ‘wantonly’ and ‘extensively’ will have an impact on the range of appropriations the crime could cover, but again this is a standard question of legal interpretation and it will be relatively straightforward to reach a persuasive conclusion. With these elements, we know what questions the Court would have to ask.
It is quite a different situation for the requirement that the taking of property be ‘unlawful’. This element of the offences relies on the law of military occupation for its content. As explained above, the parts of occupation law regulating property are remnants of an essentially nineteenth century body of law that fails to set clear tests for how property, and in particularly public property, can legitimately be used during an occupation. There are a number of points at which the law is inadequate for the criminal context. The relationship between the different obligations in the Hague Regulations is unresolved. The principle of ‘usufruct’ is vague and ill-suited to long term occupations. Overall, the abstruse nature of the regulation of state behaviour makes it all the more difficult to apply it to an individual for the purposes of criminal responsibility. More than this, the crime raises the question about whether the obligations of occupation law have been incorporated into the criminal law of the Rome Statute in a way that respects the principle of legality. If one of the essential requirements of the criminal law is ensuring a degree of certainty about what is a crime, and what is not, this element is deeply problematic.
The ambiguity in the drafting of the 1907 Hague Regulations suggests that they were ill-suited for criminalisation. There is always the possibility that the Court could take the pragmatic approach of the Nuremberg Tribunal and skate past the difficult legal questions about the management of property during an occupation, relying on a “you know it when you see it” approach, but this would fail to respect the principle of legality and undermine the claim that the Court is acting justly. The blanket incorporation of obligations from occupation law (and IHL more generally) in this crime has reduced the possibility for legal clarity. Any attempt to predict the approach the Court will take to the legal questions, let alone to the factual questions, is very difficult. However, unless there is reform of these provisions – which seems highly unlikely – they will remain part of international criminal law. The analysis in this thesis
265 has attempted to set out some sensible legal conclusions, but there is no doubt that difficulty remains.
Any criminal trial will, of course, turn on the evidence that the Prosecution manages to adduce in Court. The appropriation of land would present real challenges to the prosecution as the evidence about why a particular piece of land was taken could be difficult to assemble. Moreover, there would be a need to show the appropriation in the broader context of the land use policy adopted by the Occupying Power. Without considering the occupation more generally, there would be a risk that a specific appropriation might look like it was for the benefit of the local population, when in reality it was part of a pattern of taking land that had substantially harmed their interests. It is clear from the analysis that the crime of transfer of population would be a much better vehicle for prosecution of the settlements.
IV. INDIVIDUAL CRIMINAL RESPONSIBILITY
The prosecution of an individual in this context would pose several challenges to the system of criminal liability established by the Rome Statute. The thesis focussed on two: the operation of the theory of common purpose liability adopted by the Chambers of the ICC, and the defence of mistake of law. The situation in the West Bank has some features which would test these legal principles and could call into question how effectively they operate.
It was suggested that the reliance of the Chambers on a sharp distinction between principals and accessories in interpreting article 25(3) is problematic. The requirement for a principal perpetrator to make an ‘essential contribution’ creates a risk of no individual being held criminally liable in this context as a principal perpetrator. This is a particular risk in a situation where the offenders are part of a political system where responsibility is distributed, with no one single person holding enough authority to make an ‘essential’ contribution. For example, if there is a clear parliamentary majority supporting a crime, and each member of cabinet can be replaced, each offender would be ‘replaceable’ and therefore, under the control for the crime theory adopted by the ICC, avoid liability as a principal. The possibility of this outcome suggests that the ‘essential contribution’ test should be reconsidered, and that maybe a more flexible approach should be adopted.
266
The final issue addressed by the thesis was the possibility for the defence of mistake of law being available to an Israeli defendant who genuinely believed they were acting consistently with the law. The difficulty in reaching a firm conclusion about the availability of the defence is due to the opaque wording of article 32(2), which seems to allow for the possibility of the defence applying to a wide range of mistaken beliefs. While it is unlikely that the Court would interpret the defence expansively, a narrower approach seems inconsistent with the explicit words of the Statute. The analysis reveals just how difficult it could be to interpret some parts of the Rome Statute in a way that respects the principle of legality but is also able to respond to wrongdoing. The potential application in the Israeli context reveals that the operation of this defence is an important, not just hypothetical, question.
V. BROADER IMPLICATIONS
Aside from the legal analysis that will assist those planning to prosecute or defend an individual charged with one of the crimes addressed in this thesis, there are also some broader implications of this study. First, it shows that parts of Rome Statute may not comply with the principle of legality due to the incorporation of some obligations owed by states into crimes for which only individuals can be charged, particularly those obligations that were drafted many years ago in a different historical context. This calls into question the operation of other crimes in the Rome Statute, and whether the Statute incorporates a set of workable international crimes each capable of being prosecuted. While the narrow focus of this thesis means that other crimes were not considered, it is something that would be worth exploring in further research that adopted a similar approach.
Second, the study also shows that the principles of individual criminal responsibility might be tested by a situation where the accused is a member of a democratically elected parliamentary government where responsibility is shared among senior leaders. The potential for no person to be held liable as a principal perpetrator is problematic, and it is another example of how the complexity of international crimes continues to test how we understand individual criminal liability. The study supports the claim made by some that international criminal law needs to proactively create new forms of criminal liability that can cope with the factual situations where international crimes are committed. This thesis has argued that at the least, the more flexible
267 approach preferred by some of the Judges of the ICC should be preferred. However, more work needs to be done to formulate a theory of criminal liability that allows for individuals to be held accountable for what they actually did.
Finally, the study offers an example of how longstanding disputes about the content and application of international law could impact on an international criminal trial. These disputes are often based on political arguments, such as quarrels about control of land and access to resources, but also sometimes reflect serious ambiguity in what the legal obligations at issue actually require. The consistent approach of Israel in relation to settlements in the West Bank is a glaring example of precisely this situation, but there are plenty of others. If the ICC is to hear the most serious cases of concern to the international community, Israeli settlement policy is unlikely to be the only legal controversy the Court confronts. This specific case study is the also the sort of situation that may allow for the application of the defence of mistake, a more compelling prospect in situations where the law is uncertain.
The thesis is testament to the value of a close analysis of how the crimes and modes of liability in the Rome Statute deal with situations that are yet to come before the Court. Given the small number of cases that end up before international criminal tribunals, some problems that could be addressed with careful analysis can be avoided, or identified as requiring reform. This thesis also suggests that the theory and practice of interpreting the Rome Statute will benefit from further development through scholarship and practice. In particular, the link between IHL and international criminal law, and how to properly make sense of how state obligations should apply to individuals deserves further examination.
The quarrel over the settlements in the West Bank is one aspect of one of the most fraught disputes in international relations. The specific quarrel places the institution of the ICC in an invidious political position. Any decision the Prosecutor and Chambers of the ICC make will be very controversial, and will be closely analysed by both supporters and critics of the Court. Consequently, it is imperative that the institutions of the Court act consistently with the Statute and the principles that led to its creation. They should interpret the Statute rigorously, in accordance with the principle of legality, and with dedication to the idea of international justice. This thesis has shown how the inherent uncertainty in at least some of the provisions of the Rome Statute
268 might make it impossible to apply them to an individual in a way that respects the principle of legality and meets the standards of liberal criminal justice.
269
BIBLIOGRAPHY
A. Books Akande, Dapo, ‘Sources of International Criminal Law’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press, 2009) 41.
Ambos Kai, ‘Article 25: Individual Criminal Responsibility’ in in Otto Triffterer and Kai Ambos (eds), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016) 979.
Ambos, Kai, Treatise on International Criminal Law Volume II: The Crimes and Sentencing (Oxford University Press, 2014).
Arai, Yutaka, The Law of Occupation : Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Martinus Nijhoff Publishers, 2009).
Bellal, Annyssa, The War Report: Armed Conflicts in 2016 (Geneva Academy, 2017).
Benvenisti, Eyal, The International Law of Occupation (Oxford University Press, 2nd ed, 2012).
Bickerton, Ian J., and Carla L. Klausner, A Concise History of the Arab-Israeli Conflict (Prentice Hall, 4th ed, 2002).
Borgen, Christopher J., ‘Treaty Conflicts and Normative Fragmentation’ in Duncan Hollis (ed), The Oxford Guide to Treaties (Oxford University Press, 2012).
Bregman, Ahron, Cursed Victory: A History of Israel and the Occupied Territories (Allen Lane, 2014).
Byron, Christine, War Crimes and Crimes Agaisnt Humanity in the Rome Statute of the International Criminal Court (Manchester University Press, 2009)
Caplan, Neil, The Israel-Palestine Conflict: Contested Histories (Wiley-Blackwell, 2009).
Cassese, Antonio et al, International Criminal Law (Oxford University Press, 3rd ed, 2013).
270
Cassese, Antonio, et al, International Criminal Law: Cases and Commentary (Oxford University Press, 2011).
Cassese, Antonio, International Criminal Law (Oxford University Press, 2nd ed, 2008).
Cassese, Antonio, ‘Nullum Crimen Sine Lege’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press, 2009) 438.
Cassese, Antonio, ‘Powers and Duties of an Occupant in Relation to Land and Natural Resources’ in Emma Playfair (ed), International Law and the Administration of Occupied Territories (Clarendon Press, 1992) 419.
Cleveland, William L., A History of the Modern Middle East (Westview Press, 3rd ed, 2004).
Cottier, Michael and Elisabeth Baumgartner, ‘Prohibited deportations and transfers in occupied territories’ in Otto Triffterer and Kai Ambos (eds), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016). deGuzman, Margaret M., ‘Article 21: Applicable Law’, in Otto Triffterer and Kai Ambos (eds), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016) 932
Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge University Press, 2009).
Dörmann, Knut, ‘B. Article 8 para. 2: Meaning of ‘war crimes’’ in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court: A Commentary (C.H.Beck, Hart and Nomos, 3rd ed, 2016) 322.
Dörmann, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court (Cambridge University Press, 2003).
Dörr, Oliver, and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties: a commentary (Springer, 2012).
Finnin, Sarah, Elements of Accessorial Modes of Liability (Martinus Nijhoff, 2012).
271
Fletcher, George, ‘No Jurisdictional Basis for an Investigation Pursuant to the Palestinian Declaration’ in Richard H. Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill Nijhoff, 2016).
Gallant, Kenneth S., The Principle of Legality in International and Comparative Criminal Law (Cambridge University Press, 2009).
Gardiner, Richard K., Treaty interpretation (Oxford University Press, 2010).
Glahn, Gerhard von, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (University of Minnesota Press, 1957).
Gorenberg, Gershom, The Accidental Empire: Israel and the Birth of the Settlements, 1967- 1977 (Macmillan, 2006).
Graber, Doris, The Development of the Law of Belligerent Occupation, 1863-1914: A Historical Survey (Columbia University Press, 1949).
Greenspan, Morris, The Modern Law of Land Warfare (University of California Press, Berkeley and Los Angeles, 1959).
Heller, Kevin Jon, ‘The Rome Statute of the International Criminal Court’ in Kevin Jon Heller and Markus Dubber (eds), The Handbook of Comparative Criminal Law (Stanford University Press, 2010).
Henckaerts, Jean-Marie and Louise Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge University Press, 2005).
Henckaerts, Jean-Marie, Mass Expulsion in Modern International Law and Practice (Martinus Nijhoff Publishers, 1995).
Hollis, Duncan B., The Oxford Guide to Treaties (Oxford University Press, 2012).
Hoof, Godefridus J. H., Pieter van Dijk, Theory and Practice of the European Convention on Human Rights (Martinus Nijhoff Publishers, 1998).
Hunter, William, Introduction to Roman Law (Sweet & Maxwell, 9th ed, 1934).
ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (Cambridge University Press, 2nd ed, 2016).
272
Jacobs, Dov, ‘International Criminal Law’ in Jörg Kammerhofer and Jean D’Aspremont (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press, 2014).
Jacques, Melanie, The Protection of Refugees and Displaced Persons under International Humanitarian Law (Cambridge University Press, 2012).
Kearney, Michael, ‘Palestine and the International Criminal Court: Asking the Right Question’ in Richard H. Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill Nijhoff, 2016), 25.
Kretzmer, David, The Occupation of Justice: the Supreme Court of Israel and the Occupied Territories (State University of New York Press, 2002).
Lamb, Susan, ‘Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law’ in Antonio Cassese, Paeola Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) 733.
Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (Cambridge University Press, 2014).
Lemkin, Raphael, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Carnegie Endowment for International Peace, Division of International Law, 1944).
Lewis, Angeline, Judicial Reconstruction and the Rule of Law: Reassessing Military Intervention in Iraq and Beyond (Martinus Nijhoff Publishers, 2012).
Linderfalk, Ulf, On the Interpretation of Treaties: the Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Springer, 2007).
Mallison, W. Thomas, and Sally V. Mallison, The Palestine Problem in International Law and World Order (Longman, 1986), 255.
Meloni, Chantal, Command Responsibility in International Criminal Law (T.M.C. Asser, 2010).
Moore, John Norton, The Arab-Israeli Conflict (Princeton University Press, 1975).
273
Ohlin, Jens, ‘Co-Perpetration: German Dogmatik or German Invasion?’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (Oxford University Press, 2015) 517.
Olásolo, Héctor, The Criminal Responsibility of Senior Political and Miltiary Leaders as Principals to International Crimes (Hart Publishing, 2009).
Oppenheim, Lassa, International Law - A Treatise (Longman, 7th ed, 1952).
Oren, Michael, Six Days of War (RosettaBooks, 2010).
Osiel, Mark, Making Sense of Mass Atrocity (Cambridge University Press, 2009).
Ovendale, Richie, The Origins of the Arab-Israeli Wars (Pearson Education LTD, 4th ed, 2004).
Pictet, Jean (ed), Commentary to IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC, 1958).
Pictet, Jean (ed),Commentary to I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (ICRC, 1952).
Quigley, John, ‘Palestine is a State so the Consent Declaration is a Valid Basis for Investigation by the ICC’ in Richard H. Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill Nijhoff, 2016) 39.
Ronen, Yaël, ‘The ICC Should Not Accept the Palestinian Declaration as that of a State’ in Richard H. Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill Nijhoff, 2016).
Rose, Norman, A Senseless, Squalid War: Voices from Palestine, 1945-1948 (Bodley Head, 2009).
Saul, Ben, ‘Julius Stone and the Question of Palestine in International Law’ in Helen Irving, Jacqueline Mowbray and Kevin Walton (ed), Julius Stone: A Study in Influence (The Federation Press, 2010).
Schabas, William, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010).
274
Schabas, William, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2nd ed, 2016).
Schabas, William, ‘Article 6: Genocide’ in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court: A Commentary (C.H.Beck, Hart and Nomos, 3rd ed, 2016).
Schneer, Jonathan, The Balfour Declaration: the Origins of the Arab-Israeli Conflict (Random House, 1st ed, 2010).
Schwarzenberger, Georg, International Law as Applied by International Courts and Tribunals (Stevens & Sons Ltd, 1968).
Shamgar, Meir, ‘Legal Concepts and Problems of the Israeli Military Government - The Initial Stage’ in Meir Shagmar (ed), Military Government in the Territories Administered by Israel, 1967-1980 : the Legal Aspects (Hebrew University Jerusalem, Faculty of Law, Harry Sacher Institute for Legislature Research and Comparative Law, 1982) 13.
Shamgar, Meir, ‘The observance of international law in the administered territories’ in Yoram Dinstein and Fania Domb (eds), The Progression of International Law: Four Decades of the Israel Yearbook on Human Rights - An Anniversary Volume (University of Israel, 2011) 429.
Sliedregt, Elies van, Individual Criminal Responsibility in International Law (Oxford University Press, 2012)
Smith, Charles D., Palestine and the Arab-Israeli Conflict (Bedford/St Martin’s, 7th ed, 2010).
Stone, Julius, Israel and Palestine: Assault on the Law of Nations (John Hopkins University Press, 1981)
Stone, Julius, Legal Controls of International Conflict – A Treatise on the Dynamics of Disputes and War Law (Rinehart, 1954).
Tessler, Mark A., A History of the Israeli-Palestinian Conflict (Indiana University Press, 2nd ed, 2009).
Thomas, J.A.C., Textbook of Roman Law (North-Holland, 1976).
275
Triffterer, Otto and Jens David Ohlin, ‘Article 32: Mistake of fact or mistake of law’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016).
Triffterer, Otto and Kai Ambos (eds), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016)
Verseveld, Annemieke van, Mistake of Law: Excusing Perpetrators of International Crimes (T.M.C. Asser Press, 2012).
Watson, Alan, The Law of Property in the Later Roman Republic (Oxford University Press, 1968).
Werle, Gerhard, and Florian Jeßberger, Principles of International Criminal Law (Oxford University Press, 3rd ed, 2014).
Zertal, Idith, and Akiva Eldar, Lords of the Land: The War Over Israel’s Settlements in the Occupied Territories (trans. Vivian Eden, Nation Books, 2007).
Zimmermann, Andreas and Robin Geiß, ‘(xiii) Prohibited destruction’ in Otto Triffterer and Kai Ambos (eds), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, Hart and Nomos, 3rd ed, 2016).
B. Articles Aksenova, Marina, ‘The Modes of Liability at the ICC: The Labels that Don’t Always Stick’ (2015) 15 International Criminal Law Review 629.
Arai-Takahashi, Yutaka, ‘Preoccupied with occupation: critical examinations of the historical development of the law of occupation’ (2012) 94(885) International Review of the Red Cross 51.
Ariav, Roee, ‘Hardly the Tadić of Targeting: Missed Opportunities in the ICTY’s Gotovina Judgments’ (2015) 48(3) Israel Law Review 329.
Arsanjani, Mahnough, ‘The Rome Statute of the International Criminal Court’, (1999) 91(3) American Journal of International Law 22.
Baker, Alan, ‘International humanitarian law, ICRC and Israel’s status in the Territories’ (2012) 94 International Review of the Red Cross 1511.
276
Baker, Alan, ‘The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords’ (2011) 23 Jewish Political Studies Review 32.
Ball, David, ‘Toss the Travaux? Application of the Fourth Geneva Convention to the Middle East Conflict - A Modern (Re)Assessment’ (2004) 79 New York University Law Review 990.
Baruch, Pnina Sharvit, ‘Understanding the Settlements Debate’ (2017) 111 AJIL Unbound 36.
Bar-Yaacov, Nissim, ‘The Applicability of the Laws of War to Judea and Samaria (The West Bank) and to the Gaza Strip’ (1990) 24 Israel Law Review 485.
Ben-Naftali, Orna, Aeyal M. Gross and Keren Michaeli, ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ (2005) 23 Berkeley Journal of International Law 551.
Benvenisti, Eyal, ‘The Missing Argument: The Article that Changed the Court of History?’ (2017) 111 AJIL Unbound 31.
Blum, Yehuda, ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’ (1968) 4 Israel Law Review 279.
Bosco, David, ‘Palestine in the Hague: Justice, Geopolitics and the International Criminal Court’ (2016) 22 Global Governance 155
Bufalini, Alessandro, ‘The Principle of Legality and the Role of Customary International Law in the Interpretation of the ICC Statute’ (2015)(14) The Law and Practice of International Courts and Tribunals 233
Cassese, Antonio ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2.
Carnahan, Burrus M., ‘Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity’ (1998) 92(2) American Journal of International Law 213
Clagett, Brice, and O. Thomas Johnson Jr, ‘May Israel as a Belligerent Occupant Lawfully Exploit Previously Unexploited Oil Resources of the Gulf of Suez?’ (1978) 72 American Journal of International Law 558.
277
Clark, Roger, ‘The Mental Element in International Criminal Law’ (2001) 12 Criminal Law Forum 291.
Clark, Roger, ‘The mental element in international criminal law: The Rome Statute of the International Criminal Court and the Elements of Offences’ (2001) 12(3) Criminal Law Forum 291
Danner, Alison and Jenny Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’ (2005) 93 California Law Review 75
Darcy, Shane and John Reynolds, ‘An enduring occupation: the status of the Gaza strip from the perspective of international humanitarian law’ (2010) 15(2) Journal of Conflict and Security Law 211.
D’Aspremont, Jean, ‘The International Legal Scholar in Palestine: Hurling Stones Under the Guide of Legal Forms?’ (2013) 14 Melbourne Journal of International Law 1.
Donnelly, Jack, ‘Human Rights at the United Nations 1955-85: The Question of Bias’ (1988) 32(3) International Studies Quarterly 275.
El-Hindi, Jamal, ‘Note, The West Bank Aquifer and Conventions Regarding Laws of Belligerent Occupation’ (1990) 11 Michigan Journal of International Law 1400.
Falk, Richard and Burns H. Weston, ‘The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada’ (1991) 32 Harvard International Law Journal 129.
Fox, Gregory H., ‘Transformative Occupation and the Unilateralist Impulse’ (2012) 94 International Review of the Red Cross 237
Galchinsky, Michael, ‘The Jewish settlements in the West Bank: International law and Israeli jurisprudence’ (2004) 9(3) Israel studies 115;
Gerson, Alan, ‘Off-Shore Oil Exploration by a Belligerent Occupant - the Gulf of the Suez Dispute’ 71 American Journal of International Law 725.
Gerson, Allan, ‘Trustee-Occupant: The Legal Status of Israel’s Presence in the West Bank’ (1973) 14 Harvard International Law Journal 1.
278
Giladi, Rotem, ‘A Different Sense of Humanity: Occupation in Francis Lieber’s Code’ (2012) 94(885) International Review of the Red Cross 81.
Graf, Sinja, ‘To Regain Some Kind of Human Equality: Theorizing the Political Productivity of “Crimes Against Humanity”’ (2015) Law, Culture and the Humanities, 18.
Grey, Rosemary, ‘Interpreting International Crimes from a ‘Female Perspective’: Opportunities and Challenges for the International Criminal Court’ 17(2) International Criminal Law Review 325
Grover, Leena, ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court’ (2010) 21(3) The European Journal of International Law 543
Hamdorf, Kai, ‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’ 5(1) Journal of International Criminal Justice 208.
Hayashi, Nobuo, ‘Contextualising Military Necessity’ (2013) 27 Emory International Law Review 189.
Hayashi, Nobuo, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’ (2010) 28 Boston University International Law Journal 39.
Heller, Kevin Jon, ‘Mistake of Legal Element, the Common Law and Article 32 of the Rome Statute’ (2008) 6 Journal of International Criminal Justice 419
Henckaerts, Jean-Marie ‘Deportation and Transfer of Civilians in Time of War’ (1993) 26 Vanderbilt Journal of Transnational Law 469.
Howlett, Stacy, ‘Palestinian Private Property Rights in Israel and the Occupied Territories’ (2001) 34 Vanderbilt Journal of Transnational Law 117.
Huffman, Walter, ‘Margin of Error: Potential Pitfalls of the Ruling in the Prosecutor v Ante Gotovina’ (2012) 211 Military Law Review 1.
Imseis, Ardi, ‘Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’ (2005) 99(1) American Journal of International Law 102.
279
Imseis, Ardi, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ (2003) 44 Harvard International Law Journal 65.
Jain, Neha ‘The Control Theory of Perpetration of International Criminal Law’ (2011) 12 Chicago Journal of International Law 158, 194.
Jain, Neha, ‘Judicial Lawmaking and General Principles of Law in International Criminal Law’ (2016) 57(1) Harvard International Law Journal 111.
Jescheck, Hans-Heinrich, ‘The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute’ (2004) 2 Journal of International Criminal Justice 38
Kearney, Michael, ‘Lawfare, Legitimacy and Resistance: The Weak and the Law’ (2011) 16 The Palestine Journal of International Law 79.
Kelly, Michael J., ‘Iraq and the Law of Occupation: New Tests for an Old Law’ (2003) 6 Yearbook of International Humanitarian Law 127
Kontorovich, Eugene, ‘Israel/Palestine – The ICC’s Uncharted Territory’ (2013) 11(5) Journal of International Criminal Justice 979
Kretzmer, David ‘The law of belligerent occupation in the Supreme Court of Israel’ (2012) 94(885) International Review of the Red Cross 207.
Kretzmer, David, ‘The Advisory Opinion: The Light Treatment of International Humanitarian Law’ (2005) 99(1) American Journal of International Law 88.
Lapidoth, Ruth, ‘International law within the Israel legal system’ (1990) 24 Israel Law Review 451.
Lenk, Arthur, ‘Political Misuses of International Law: The Development of the Crime of Population Transfer in International Criminal Law’ (2004) 1(1) Eyes on the ICC 71, 83
Maurer, Peter ‘Challenges to International Humanitarian Law: Israel’s Occupation Policy’ (2012) 94 (888) International Review of the Red Cross 1503.
McCoubrey, H., ‘The Nature of the Modern Doctrine of Military Necessity’ (1991) 30 Military Law and Law of War Review 215.
280
Meron, Theodor, ‘West Bank and Gaza: Human Rights and Humanitarian Law in the Period of Transition’ (1979) 9 Israel Yearbook on Human Rights 106.
Meron, Theodor, ‘The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six Day War’ (2017) American Journal of International Law 1.
Momtaz, Djamchid, ‘Israel and the Fourth Geneva Convention: On the ICJ Opinion Concerning the Separation Barrier’ (2005) 8 Yearbook of International Humanitarian Law 344.
Nissel, Alan, ‘Continuing Crimes in the Rome Statute’ (2004) 26 Michigan Journal of International Law 653.
Nollkaemper, Andre, ‘Concurrence between Individual Responsibility and State Responsibility in International Law’ (2003) 52(3) International & Comparative Law Quarterly 615.
Ohlin, Jens, ‘Joint Intentions to Commit International Crimes’ (2011), 11 Chicago Journal of International Law 693.
Ohlin, Jens, ‘Joint Criminal Confusion’ (2009) 12(3) New Criminal Law Review 406.
Ohlin, Jens, Elies Van Sliedregt and Thomas Weigend, ‘Assessing the Control Theory’ (2013) 26 Leiden Journal of International Law 725.
Örberg, Marko ‘The Absorption of Grave Breaches into War Crimes Law’ (2009) 91 International Review of the Red Cross 163
Pauwelyn, Joost, ‘The Concept of a ‘Continuing Violation’ of an International Obligation: Selected Problems’ (1996) 66 British Yearbook of International Law 415.
Pellett, Alain, ‘The Palestinian Declaration and the Jurisdiction of the International Criminal Court’ (2010) 10(4) Journal of International Criminal Justice 981.
Phillips, David M., ‘The Illegal-Settlements Myth’ (2009) 128(5) Commentary 32.
Power, Susan, ‘The 2003-2004 Occupation of Iraq: Between Social Transformation and Transformative Belligerent Occupation’ (2014) 19(2) Journal of Conflict and Security Law 341.
281
Quigley, John, ‘Living in Legal Limbo: Israel’s Settlers in Occupied Palestinian Territory’ (1998) 10 Pace International Law Review 1.
Roberts, Adam, ‘Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967’ (1990) 84(1) American Journal of International Law 44.
Roberts, Adam, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ 100 American Journal of International Law 580.
Roberts, Adam, ‘What is a Military Occupation?’ (1984) 55(1) British Yearbook of International Law 241.
Robinson, Darryl, ‘A Cosmopolitan Liberal Account of International Criminal Law’ (2013) 26(1) Leiden Journal of International Law 127.
Ronen, Yaël, ‘ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities’ (2010) 8(1) Journal of International Criminal Justice 3.
Ronen, Yaël, ‘Taking the Settlements to the ICC? Substantive Issues’ (2017) 111 AJIL Unbound 57.
Rostow, Eugene V., ‘Correspondence’ (1990) 84 American Journal of International Law 717.
Rubinstein, Amnon, ‘The Changing Status of the Territories (West Bank and Gaza): From Escrow to Legal Mongrel’ (1988) 8 Tel Aviv U.Stud.L. 59, 66.
Sadat, Leila Nadya and Jarrod M. Jolly, ‘Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25’s Rorschach Blot’ (2014) 27 Leiden Journal of International Law 755
Schmitt, Michael N., ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50(4) Virginia Journal of International Law 795.
Schwebel, Stephen M., ‘What Weight to Conquest?’ (1970) 64(2) American Journal of International Law 344.
282
Shahabuddeen, Mohamed, ‘Does the Principles of Legality Stand in the Way of a Progressive Development of Law?’ (2004) 2(4) Journal of International Criminal Justice 1007
Stahn, Carsten, Mohamed El Zeidy and Héctor Olásolo, ‘The International Criminal Court’s Ad Hoc Jurisdiction Revisited’ (2005) 99 American Journal of International Law 421
Vallentgoed, Darren, ‘The Last Round? A Post-Gotovina Reassessment of the Legality of Using Artillery Against Built-up Areas’ (2013) 18 Journal of Conflict and Security Law 25.
Van Pachtenbeke, A., and Y Haeck, ‘From De Becker to Varnava: the State of Continuing Situations in the Strasbourg Case Law’ (2010)(1) European Human Rights Law Review 47.
Weingend, Thomas, ‘Perpetration through an Organisation: the Unexpected Career of a German Legal Concept’ (2011) 9(1) Journal of International Criminal Justice 91.
Wills, Alexander, ‘Old Crimes, New States and the Temporal Jurisdiction of the International Criminal Court’ (2014) 12(3) Journal of International Criminal Justice 407.
Woolsey, L.H., ‘Forced Transfer of Property in Enemy Occupied Territories’, (1943) 37 American Journal of International Law 285.
Yanev, Lachezar and Tijs Kooijmans, ‘Divided Minds in the Lubanga Trial Judgment: A Case against the Joint Control Theory’ (2013) 13 International Criminal Law Review 789.
Zimmermann, Andreas, ‘Palestine and the International Criminal Court Quo Vadis?: Reach and Limits of Declarations under Article 12(3)’ (2013) 11(2) Journal of International Criminal Justice 303.
C. Treaties Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950).
283
Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field of 12 August, 1949, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950).
Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 973 (entered into force 21 October 1950).
Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 12 August 1959, 75 UNTS 135 (entered into force 21 October 1950).
International Criminal Court, Elements of Crimes, Doc No ICC-ASP/1/3 (part II-B) (adopted 9 September 2002).
Israel-Jordan, ‘Treaty of Peace’ (1994) 34 International Legal Materials 43.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 17512 (entered into force 23 January 1979)
Regulations concerning the Laws and Customs of War on Land (‘Hague Regulations’), annexed to the Convention (IV) concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 ConTS 277 (entered into force 26 January 1910).
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
D. UN Documents Al-Khasawneh, Awn Shawhat, The Human Rights Dimensions of Population Transfers, Including the Implantation of Settlers, E/CN, 46th sess, Agenda Item 8, UN Doc E/CN.4/Sub.2/1994/18 (30 June 1994).
Charter of Economic Rights and Duties of States, GA Res 3281 (XXIX), UN GAOR, 29th sess, 2315th plen mtg, Agenda Item 48, Supp No 31, UN Doc A/RES/3281(XXIX) (12 December 1974) annex.
Dugard, John, Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967, 60th sess, UN Doc E/CN.4/2004/6/Add.1 (27 February 2004).
284
GA Res 181(II), UN GAOR, UN Doc A/RES/181(II) (29 November 1948).
GA Res 32/91, UN GAOR, 32nd sess, 101st plen mtg, UN Doc A/RES/32/91 (13 December 1977).
GA Res 33/113, UN GAOR, 33rd sess, 87th plen mtg, Agenda Item 55, UN Doc A/RES/33/113 (18 December 1978).
GA Res 44/48, UN GAOR, 44th Sess sess, 78th plen mtg, Agenda Item 77, UN Doc A/RES/44/48 (8 December 1989).
GA Res 59/124, UN GAOR, 59th sess, 71st plen mtg, Agenda Item 76, UN Doc A/RES/59/124 (25 January 2005).
GA Res 60/105, UN GAOR, 60th sess, 62nd plen mtg, Agenda Item 31, UN Doc A/RES/60/105 (18 January 2006).
GA Res 62/109, UN GAOR, 62nd sess, 75th plen mtg, Agenda Item 33, UN Doc A/RES/62/109 (10 January 2008).
GA Res 63/97, UN GAOR, 63rd sess, 64th plen mtg, Agenda Item 30, UN Doc A/RES/63/97 (18 December 2008).
GA Res 64/92, UN GAOR, 64th sess, 62nd plen mtg, Agenda Item 32, UN Doc A/RES/64/92 (19 January 2010).
GA Res 65/104, UN GAOR, 65th sess, 62nd plen mtg, Agenda Item 52, UN Doc A/RES/65/104 (20 December 2011)
GA Res 66/78, UN GAOR, 66th sess, 81st plen mtg, Agenda Item 53, UN Doc A/RES/66/78 (12 January 2012)
GA Res 67/19, UN GAOR, 67th sess, 44th plen mtg, Agenda Item 37, UN Doc A/Res/67/19 (4 December 2014).
GA Res ES-10/6, UN GAOR, 10th emergency special session, 12th plen mtg, Agenda Item 5, UN Doc A/RES/ES-10/6 (24 February 1999).
Human Rights Committee, The Human Rights Situation in the Occupied Palestinian Territory, including East Jeruslaem, 12th special sess, UN Doc A/HRC/RES/S-12/1 (16 October 2009).
285
Human Rights Council, Report of the Independent International Fact-Finding Missing to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People Throughout the Occupied Palestinian Territory, Including East Jerusalem, GAOR, 22nd sess, Agenda Item 7, UN Doc A/HRC/22/63 (7 February 2013).
International Law Commission, Draft Articles on Responsbility for Internationally Wrongful Acts, UN GAOR, 56th sess, Supp No 10, UN Doc A/56/10 (3 August 2001),
International Law Commission, Report of the International Law Commission on the Work of its Forty-Eighth Session — 6 May – 26 July 1996, UN GAOR, 51st sess, Supp No 10, UN Doc A/51/10.
International Law Commission, Report of the International Law Commission on the Work of its Forty-Third Session, 29 April – 19 July 1991, UN GAOR, 46th sess, Supp No 10, UN Doc A/46/10, ch IV D.
Koskenniemi, Martii, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, International Law Commission, UN GAOR, UN Doc. A/CN.4/L.682 (13 April 2006) 181.
SC Res 1322, UN SCOR, 4205th mtg, UN Doc S/RES/1322 (7 October 2010).
SC Res 1435, UN SCOR, 4614th mtg, UN Doc S/RES/1435 (24 September 2002).
SC Res 1544, UN SCOR, 4972nd mtg, UN Doc S/RES/1544 (19 May 2004).
SC Res 2334, UN SCOR, 7853rd mtg, UN Doc S/RES/2334 (23 December 2016).
SC Res 237, UN SCOR, 1361st mtg, UN Doc S/RES/237 (14 June 1967);
SC Res 242, UN SCOR, 1382nd mtg, UN Doc S/RES/242 (22 November 1967).
SC Res 442, UN SCOR, 2134th mtg, UN Doc S/RES/442 (22 March 1979).
SC Res 465, UN SCOR, 2203rd mtg, UN Doc S/RES/465 (1 March 1980).
SC Res 476, UN SCOR, 2242nd mtg, UN Doc S/RES/476 (30 June 1980).
SC Res 605, UN SCOR, 2777th mtg, UN Doc S/RES/605 (22 December 1987).
286
SC Res 681, UN SCOR, 2970th mtg, UN Doc S/RES/681 (20 December 1990).
SC Res 799, UN SCOR, 3151st mtg, UN Doc S/RES/799 (18 December 1992).
SC Res 904, UN SCOR, 3351st mtg, UN Doc S/RES/904 (18 March 1994).
UN Commission on Human Rights, Question of the Violation of Human Rights in the Territories Occupied as a Result of Hostilities in the Middle East, 33rd sess, UN Doc E/CN.RES/1/(XXXIII) (15 February 1977).
UN Commission on Human Rights, Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine, 27 mtg, 48th sess, UN Doc EN/CN.4/RES/1992/2 (14 February 1992)
UN Commission on Human Rights, Resolution 2004/9: Israeli Settlements in the Occupied Arab Territories, Res 2004/9, 49th mtg, UN Doc E/CN.4/RES/2004/9 (16 April 2004)
United Nations Special Committee on Palestine, Report to the General Assembly, UN Doc A/364 (3 September 1947).
E. Reports B’Tselem, Encouragement of Migration to the Settlements (1 January 2014) B’Tselem
Ferraro, Tristan, Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory (ICRC, 2012).
Hareuveni, Eyal, By Hook and By Crook: Israeli Settlement Policy in the West Bank (Zvi Schulman trans, B’Tselem, 2010).
ICRC, Draft Revised or New Conventions for the Protection of War Victims (1948).
ICRC, Final Record of the Diplomatic Conference of Geneva of 1949 (1949).
ICRC, ICRC Annual Report 2013 (2014).
ICRC, Report on the work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14-26, 1947 (1947).
287
ICRC, Report on the Work of the Preliminary Conference of National Red Cross Societies for the Study of the Conventions of Various Problems Relative to the Red Cross, Geneva, July 26 - August 3, 1946 (1947).
ICRC, Seventeenth International Red Cross Conference: Report (1948).
Office of the Prosecutor, Report on Preliminary Examination Activities 2016 (14 November 2016) International Criminal Court
Shalev, Nir, The Ofra Settlement - An Unuthorized Outpost (Zvi Shulman trans, B’Tselem, 2008)
F. Cases ‘Israel: Supreme Court Judgment with Regard to the Elon Moreh Settlement in the Occupied West Bank’ (1980) 19(1) International Legal Materials 148.
Abu Aita et al v Commander of Judea and Samaria et al (1983) 13 IYHR 348.
Affaire du Guano (Chile, France) (1901) 15 RIAA 77.
Ananyev and Ors v Russia (European Court of Human Rights, Application Nos. 42525/07 and 60800/08, 10 April 2012).
Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Bosnian and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43.
Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway (Belgium/Netherlands) (2005) XXVII RIAA 35.
Ayreib v. Appeals Committee et al (1986) HCJ 277/84.
Beit Sourik Village Council v The Government of Israel (2004) HCJ 2056/04 translated in (2005) 38 Israel Law Review 83
Blake v Guatemala [1998] Inter-Am Court HR 36.
Brumãrescu v Romania (European Court of Human Rights, Application No. 28342/95, 28 October 1999).
288
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168.
Cession of Vessels and Tugs for Navigation on the Danube (1921) 1 RIAA 97.
Collac v Yugoslavia (1929) 23 AJIL 851.
De Becker v Belgium (European Court of Human Rights, Application No. 214/56, 27 March 1962).
Depalle v France (European Court of Human Rights, Application No. 34044/02, 29 March 2010).
Dweikat v Government of Israel translated in ‘Appendix A: Selected Judgments of the Supreme Court of Israel’ in Meir Shamgar (ed), Military Government in the Territories Administered by Israel 1967 - 1980: The Legal Aspects (Hebrew University, 1982) vol I, 371- 97.
Hilu et al. v Government of Israel et al (1973) 27(ii) P.D. 169, 181 quoted in Ruth Lapidoth, ‘International Law within the Israel Legal System’ (1990) 24 Israel Law Review 451.
In Re Hirota and Ors (1948) 15 ILR 356.
International Military Tribunal (Nuremberg) Judgment and Sentences, reproduced in ‘Judicial Decisions’ [1947] 41 American Journal of International Law 172.
International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946 (International Military Tribunal, Nuremberg, 1947).
Jami’at Ascan et al. v IDF Commander in Judea and Samaria et al. (1983) HCJ 393/82.
Jerusalem District Electricity Co Ltd v Minister of Defence et al (1975) 5 IYHR 381.
Jerusalem Electricity Co v Minister for Energy (1981) 11 IYHR 354.
Kefalas and Ors v Greece (European Court of Human Rights, Application No. 14726/89, 8 June 1995).
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.
289
McDaid and Ors v United Kingdom [1996] EComHR App No. 25681/94 (9 April 1996)
New Zealand v France (1990) 20 RIAA 217.
Papamichalopoulos and Ors v Greece (European Court of Human Rights, Application No. 14556/89, 24 June 1993).
Blaškić (Judgment) (ICTY, Trial Chamber, Case No IT-95-14-T, 3 March 2000).
Brđanin (Judgment) (ICTY, Trial Chamber, Case No IT 99-36-T, 1 September 2004).
Delalić (Judgment) (ICTY, Trial Chamber, Case No IT-96-21-T, 16 November 1998).
Fofana (Judgment) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-04- 14-A, 28 May 2008).
Fofana (Judgment) (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04- 14-T, 2 August 2007).
Furundžija (Trial Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-95-17/1-T, 10 December 1998).
Katanga et al (Decision on the Confirmation of Charges) (International Criminal Court, Pre- Trial Chamber I, Case No ICC-01/04-01/07-717, 30 September 2008).
Kordić and Čerkez (Judgment) (ICTY, Trial Chamber, Case No IT-95-14/2-T, 26 February 2001).
Kordić and Čerkez (Judgment) (ICTY, Appeals Chamber, Case No. IT-95-14/2-A, 17 December 2014).
Kunarac, Kovač and Vuković (Decision on Motion of Acquittal) (ICTY, Trial Chamber Case No IT-96-23-T and IT-96-23/1-T, 2 July 2000).
Lubanga (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06-803-tEN, 29 January 2007).
Lubanga (Judgment on Appeal) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06 A 5, 1 December 2014).
Lubanga (Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute)
290
(International Criminal Court, Appeals Chamber, Case No ICC-01/04/01/06-772, 14 December 2006).
Mbarushimana (Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011).
Natetilić and Martinović (Judgment) (ICTY, Trial Chamber, Case No. IT-98-34-T, 31 March 2003).
Ngudjolo (Judgment) (International Criminal Court, Trial Chamber II, Case No ICC- 01/04-02/12, 18 December 2012).
Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (ICTY, Appeals Chamber, IT-94-1, 2 October 1995)
X (Incest Case) (Holland, District Court, Almelo) (1951) Annual Digest Public International Law 366.
Katanga (Judgment Pursuant to Article 74 of the Statute) (International Criminal Court, Trial Chamber II, Case No ICC-01/04-01/07, 7 March 2014)
Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC- 01/04-01/06-2842, 14 March 2012)
Ntaganda (Judgment on the appeal of Mr Ntaganda against the ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-02/06 OA5, 15 June 2017).
Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) (International Criminal Court, Pre-Trial Chamber I, Case No. ICC-02/05-01/09).
Situation in Georgia (Decision on the Prosecutor’s Request for Authorization of an Investigation) Pre-Trial Chamber I, Case No ICC-01/15-12, 27 January 2016).
Situation in the Democratic Republic of Congo (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-168, 13 July 2006).
291
South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1962] ICJ Reports 319.
Sporrong and Lonnroth v Sweden (European Court of Human Rights, Application No. 7175/75 A52, 23 September 1982).
SW v UK (European Court of Human Rights, Application No. 20166/92, 22 November 1995).
Territorial Dispute (Libyan Arab Jamahiriya/Chad) (Merits) [1994] ICJ Rep 6
The I.G. Farben Trial: Trial of Carl Krauch and Twenty-Two Others (United States Military Tribunal, Nuremberg, 1948) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 1.
The Trial of Wilhem List and Others (United States Military Tribunal, Nuremberg, 1948) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 9.
Trial of Freidrich Flick and Five Others (United States Military Tribunal, Nuremberg, 1947) (‘Flick’) in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 9.
United States et al v Goering et al (International Military Tribunal, Nuremberg, 1947) in International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal (International Military Tribunal, 1947-9)
United States v Krupp von Bohlen und Halbach (United States Military Tribunal, Nuremberg, 1948) n United Nations War Crimes Commission, Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948) vol 10, 69.
X v Belgium (European Commission of Human Rights, Application No 1038/61, 18 December 1961).
Xheraj v Albania (European Court of Human Rights, Application No. 37959/02, 29 July 2008).
G. Dictionary Definitions “also, adv. and n.” OED Online (Oxford University Press, 2017).
292
“appropriation, n.”OED Online (Oxford University Press, 2017).
“by, prep. and adv.” OED Online (Oxford University Press, 2017).
“deport, v.1” OED Online (Oxford University Press, 2017).
“even, adv.” OED Online (Oxford University Press, 2017)
“imperative, adj.” OED Online (Oxford University Press, 2017).
“indirect, adj.” OED Online (Oxford University Press, 2017).
“part, adj.2 and adv.” OED Online (Oxford University Press, 2017).
“transfer, v.” OED Online (Oxford University Press, 2017).
“enemy, n.” OED Online (Oxford University Press, 2017).
“property, n.” OED Online (Oxford University Press, 2017).
“seizure, n.” OED Online (Oxford University Press, 2017).
“wantonly, adv.”OED Online (Oxford University Press, 2017).
H. Newspaper Articles Associated Press, ‘Israeli PM Says Work Begun on New West Bank Settlements’ International New York Times (online) 20 June 2017
Bronner, Ethan and Isabel Kershner, ‘In Israeli Vote, With Two Parties Nearly Tied, the Winner Is Gridlock’, New York Times (New York), 12 February 2009, 1.
Connolly, Kevin , ‘Israeli-Palestinian conflict: How ‘lawfare’ has become a weapon’, BBC News, 8 October 2014
Eldar, Akiva, ‘In West Bank Areas Under Israel’s Control, Illegal Homes are Usually Palestinian’, Haaretz (online) (Jerusalem), 27 May 2012
293
Erlanger, Steven, ‘Sharon in Coma; New Party Faces a Crucial Test’, New York Times (New York) 6 January 2006, 2.
Erlanger, Steven, ‘Abbas Declares War With Israel Effectively Over’, New York Times (New York), 14 February 2005, 2.
Erlanger, Steven, ‘Israel Completes Pullout Ahead of Schedule, Without Serious Violence’, New York Times (New York) 24 August 2005, 1.
Erlanger, Steven, ‘It’s the Middle East. Don’t Expect Much. Right?’, New York Times (New York), 13 February 2005, 1.
Fisher, Ian ‘Israel Passes Provocative Law to Retroactively Legalise Settlements’ New York Times (online) 6 February 2017
Greenberg, Joel, ‘Clearing Palestinian Protesters from West Bank Site, Netanyahu Pledges to Build Settlement’, The Washington Post (Washington DC), 13 January 2013.
Hadid, Diaa, ‘U.S. Rebukes Israel Over New Settlement Activity in East Jerusalem’, International New York Times (online) 28 July 2016
Hauser, Christine, ‘New U.N. Status for Palestinians Could Open Door for Claims of Israeli War Crimes’, New York Times (New York) 1 December 2012.
Kershner, Isabel, ‘Amid Euphoria Over U.N. Vote, Palestinians Still Face Familiar Challenges’, New York Times (New York) 3 December 2012.
Kershner, Isabel, ‘Israel Quietly Legalizes Pirate Outposts in the West Bank’, International New York Times (online) 20 August 2016.
Kershner, Isabel, ‘Israel’s Right, Cheering Donald Trump’s Win, Renews Calls to Abandon 2-State Solution’ International New York Times (online) 14 November 2016
294
Kershner, Isabel, ‘Israel Approves First New Settlement in Decades’, International New York Times (online) 30 March 2017,
Kershner, Isabel, ‘Forming Coalition, Netanyahu Agrees to Make Nationalist Leader Foreign Minister’, New York Times (New York), 17 March 2009.
Kershner, Isabel, ‘Olmert To Resign After Party Vote This September’, New York Times (New York) 31 July 2008.
Lazaroff, Tovah ‘2012 Settler Population Grew Almost Three Times as Fast as National Rate’, The Jerusalem Post (Jerusalem), 17 September 2013
Lazaroff, Tovah, ‘Bennet: Apply Israeli Sovereignty over Area C’, The Jerusalem Post (online) (Jerusalem), 17 June 2013
Lazaroff, Tovah, ‘Netanyahu says Israel Starts Construction on New West Bank Settlement’ The Jerusalem Post (online) (Jerusalem) 20 June 2017
Magid, Jacob, ‘Ground Broken for First New West Bank Settlement in 25 years’ Times of Israel (online) (Jerusalem) 20 June 2017
Medina, Jennifer and Tamar Lewin, ‘Campus Debates on Israel Drive a Wedge Between Jews and Minorities’, The New York Times (New York), 9 May 2015.
Mitnick, Joshua, ‘Israel Says it Will Allow More Settlements - Netanyahu’s Plan Gains Support Among his Conservative Backers, but Draws Rebukes from the U.S. and Others’, Wall Street Journal, Europe (Brussels), 7 September 2009, 10.
Myre, Greg, ‘Israel Lowers Its Flag in the Gaza Strip’, New York Times (New York),12 September 2005, 1.
295
‘Netanyahu Accused After Legalising Settlements’, The Independent (London), 25 April 2012, 36.
Rubin, Trudy, ‘Israel Gives U.S. a Thumb in the Eye; Netanyahu’s Decision to Build 1,800 New Homes on the West Bank is an Insult’, The Gazette (Montreal), 13 November 2010, B.7.
Rudoren, Jodi, ‘Israeli Decree on West Bank Settlements Will Harm Peace Talks, Palestinians Say’, New York Times (New York), 5 August 2013.
Sherwell, Philip, ‘Israeli PM denounces UN agency as ‘terrorist rights council’ for Gaza investigation’, The Telegraph (online) (London), 29 September 2014
‘The final fizzling of negotiations’, The Economist (Online) (London), 15 April 2014.
I. Other sources Akande, Dapo, ‘Treaty Interpretation, the VCLT and the ICC Statute: A Response to Kevin Jon Heller & Dov Jacobs’ on EJIL: Talk! (25 August 2013)
Ambos, Kai, ‘Individual Criminal Responsibility’, Max Planck Encyclopedia of Public International Law (Oxford University Press, at 2013).
Assembly of State Parties, ‘The State of Palestine Accedes to the Rome Statute’ (Press Release, ICC-ASP-20150107-PR1082, 7 January 2015).
Australian Defence Force, The Manual of the Law of Armed Conflict (Australian Defence Headquarters, 2006)
B’Tselem, Statistics on the Settlements and the Settlement Population (11 May 2017) B’Tselem
Bensouda, Fatou Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda: The Public Deserves to know the Truth about the ICC’s Jurisdiction over Palestine (2 September 2014) International Criminal Court
296
B’Tselem, Encouragement of Migration to the Settlements (1 January 2014) B’Tselem
B’Tselem, What is Area C? (18 May 2014) B’Tselem
Canada, The Law of Armed Conflict at the Operational and Tactical Levels (Office of the Judge Advocate General, 2001).
Cast Matrix Network, 7. The destruction or appropriation was extensive and carried out wantonly, Case Matrix Network Means of Proof Digest
Conference of High Contracting Parties to the Fourth Geneva Convention, ‘Declaration’ (Geneva, 5 December 2001) included in Pierre-Yves Fux and Mirko Zambelli, ‘Mise en oeuvre de la Quatrième Convention de Genève dans les territoires palestiniens occupés: historique d’un processus multilatéral (1997-2001)’ (2002) 847 International Review of the Red Cross 661, Annex 1, 683.
Cot, Jean-Pierre, ‘Margin of Appreciation’ in Max Planck Encyclopedia of Public International Law (Oxford University Press, at June 2007).
Harris, Marty ‘Australian Government use of the term ‘occupied’ when referring to the West Bank and East Jerusalem’ on FlagPost (6 August 2015)
Heller, Kevin Jon, ‘Syria, Chemical Weapons, and the Incoherence of the VCLT’ on Opinio Juris (23 August 2013)
ICRC, ‘Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory’ (Statement, 13 November 1997)
ICRC, ‘Israel/Occupied and Autonomous Palestinian Territories: West Bank Barrier causes serious humanitarian and legal problems’ (News Release, 04/12, 18 February 2002).
297
ICRC, Draft Revised or New Conventions for the Protection of War Victims (ICRC, 1948).
ICRC, ‘Practice Relating to Rule 130. Transfer of Own Civilian Population into Occupied Territory’ in ICRC, Customary International Humanitarian Law (2015)
International Criminal Court, Preliminary Examination: Palestine (13 May 2017) International Criminal Court
International Law Commission, ‘Draft Articles on the Law of Treaties with Commentaries’ in International Law Commission, Yearbook of the International Law Commission (1966) vol 2, 187.
Israel Ministry for Foreign Affairs, Israel’s Settlements - Their Conformity with International Law (1 December 1996) Israel Ministry for Foreign Affairs
Israel Ministry of Foreign Affairs, Israel, the Conflict and Peace: Answers to frequently asked questions, (30 December 2009) Israel Ministry of Foreign Affairs
Israel Ministry of Foreign Affairs, Israeli Settlements and International Law, Israel Ministry of Foreign Affairs (30 November 2015)
Jordan, ‘Statement Concerning Disengagement from the West Bank and Palestinian Self-Determination’ (1988) 27 International Legal Materials 1637.
New Zealand Defence Force, Interim Law of Armed Conflict Manual (New Zealand Defence Force, 1992).
Office of the Prosecutor, ‘The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine’ (Press Release, ICC-OTP-20150116-PR1083, 16 January 2016).
298
Palestinian National Authority Ministry of Justice, Declaration recognizing the Jurisdiction of the International Criminal Court (21 January 2009) available at < https://www.icc-cpi.int/NR/ rdonlyres/74EEE201-0FED-4481-95D4- C8071087102C/279777/20090122PalestinianDeclaration2.pdf>
Peace Now!, The Price of the Settlements or How Israel Favours Settlements and Settlers (2013) Peace Now!
Roberts, Adam ‘Occupation, Military, Termination of’, Max Planck Encyclopedia of Public International Law (Oxford University Press, at 2009).
The Gatekeepers (Directed by Dror Moreh, Dror Moreh Productions, Les Films du Poisson, Cinephil, 2012).
The Honorable Woman (Directed by Hugo Blick, BBC Worldwide, Drama Republic, Eight Rooks SundanceTV, 2014).
The Lemon Tree (Directed by Eran Riklis, Heimatfilm, MACT Productions, Eran Riklis Productions, Riva Filmproduktions, 2008).
United States Department of the Army, The Law of Land Warfare (Department of the Army, July 1956).
Waltz with Bashir (Directed by Ari Folman, Bridgit, Folman Film Gang, Les Films d’Ici, Razor Film Produktion, 2008).
299
Minerva Access is the Institutional Repository of The University of Melbourne
Author/s: McKenzie, Simon
Title: Israeli Settlements and the ICC: what does the application of the crimes of the Rome Statute to the continued existence and expansion of Israeli Settlements in the West Bank reveal about the operation of the Rome Statute?
Date: 2017
Persistent Link: http://hdl.handle.net/11343/197902
File Description: Complete thesis
Terms and Conditions: Terms and Conditions: Copyright in works deposited in Minerva Access is retained by the copyright owner. The work may not be altered without permission from the copyright owner. Readers may only download, print and save electronic copies of whole works for their own personal non-commercial use. Any use that exceeds these limits requires permission from the copyright owner. Attribution is essential when quoting or paraphrasing from these works.