Friday, June 09, 2006

Sometimes The Experts Are Just Way Off

Dr. Maya Steinitz, on the new blog International Law, Legal Theory and More, deals with the question of the International Criminal Court's relevance to the Israeli-Palestinian conflict. She argues that in some (remote) situations, she could envision the Court being relevant. On those points I don't disagree. It's interesting how she starts off her post.

Like the US, Israel has signed, but has not ratified, the Rome Treaty establishing the permanent International Criminal Court (ICC). The main reason is that, following the Geneva Conventions of 1945 the Rome Statue which governs the ICC criminalized the Jewish settlements in the Occupied Palestinian Territories.


Ok first of all the Geneva Conventions were promulgated in 1949, not 1945 (they were a response to Nazi barbarity in WWII, so it made sense that they were authored after the war). But that's a minor quibble.

She argues that the Rome Statute "follows" the criminalization of the settlements in the Geneva Convention. She's referring to Article 49(6) of the 4th Geneva Convention which states:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.


Israel has argued for decades that this clause does not prohibit voluntary settlement by individuals in the territory. And in fact the argument has some credence because the Rome Treaty contains a modified wording:

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; (Article 8(b)(vii))


Notice the difference. The addition of the term "indirectly" was purposely placed there by the Egyptians to cover the Israeli settlements, since Israel argues that it is not transferring its population directly, but at worst is indirectly motivating settlement by providing benefits. The added word negates Israel's argument.

Naturally I oppose the inclusion of the clause in the Statute because settlement, in its worst manifestation, is not comparable to the other crimes listed in the section. But people should not confuse the Geneva Convention, which sought to prohibit the Nazi transfers, with the Rome Statute, which is a political attack on Israel.

6 Comments:

Blogger Charlie Hall said...

The problem is that Israel has subsidized the settlements enormously. Successive Labor and Likud governments all supported settlements in at least some of the territory occupied in 1967 and made it an official part of national policy. The annexation of the Golan and East Jerusalem at least gives Israel a good leg to stand on by saying that they are now part of Israel, but it has never done that for any of the other territories. I'm pro-Israel, and I'm morally offended by the idea that Jews can't live in parts of Eretz Yisrael, but this is the one for which there really is no defense.

6/09/2006 10:10 AM  
Blogger Nephtuli said...

The problem is that Israel has subsidized the settlements enormously. Successive Labor and Likud governments all supported settlements in at least some of the territory occupied in 1967 and made it an official part of national policy.

The question then is whether subsidizing constitutes "transfer." The Egyptians made it clear in the Rome Statute that it does, but a plain reading of the Geneva Convention, coupled with the purpose of the clause, does not seem to point that way. If the Rome Statute merely contained Article 49(6) of the Convention, Israel might have ratified the Statute.

The annexation of the Golan and East Jerusalem at least gives Israel a good leg to stand on by saying that they are now part of Israel, but it has never done that for any of the other territories.

Actually annexing territories captured in way is a far bigger problem than settlement.

6/09/2006 11:46 AM  
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