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 ......................................................