2.1. Article 49(6) of the Fourth Geneva Convention and its Application to the West Bank

Article 49(6) of the Fourth Geneva Convention states: ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. This section has been widely accepted as part of customary international law.Footnote ⁵ It has been invoked in countless UN resolutions,Footnote ⁶ legal briefsFootnote ⁷ and in the advisory opinion of the International Court of Justice (ICJ) in 2004 in the Wall case.Footnote ⁸ In addition, the newly introduced Article 85(4)(a) of the 1977 Additional Protocol IFootnote ⁹ added violations of Article 49(6) to the ‘grave breaches’ regime of the Conventions because of the possible consequences such acts might entail ‘for the population of the territory concerned from a humanitarian point of view’.Footnote ¹⁰

2.2. The Scope and Purpose of Article 49(6)

Two core rationales can be identified in Article 49(6). Occupation by its very concept was always meant to be a temporary situation and introducing parts of the occupying power's own population might facilitate a potential process of illegal annexation.Footnote ¹¹ Another rationale is the protection of civilians living in occupied territory by prohibiting the occupying power from altering the fundamental demographic composition of that territory.Footnote ¹² Reference to this concept of forced demographic changes in connection with an Article 49(6) violation can be found in various UN Security Council Resolutions.Footnote ¹³ Until today, Israel holds on to the position that the sole intention of Article 49(6) is ‘to protect the local population from displacement, including endangering its separate existence as a race’.Footnote ¹⁴ This reading of the provision, however, has been rejected by the vast majority of scholars.Footnote ¹⁵ It is further clear from the context that the term ‘transfer’, in contrast to ‘deport’, lacks the compulsory element. Nationals of the occupying power may decide to settle in occupied territory on their own free will.Footnote ¹⁶ Nevertheless, governmental authorities can play an active role in organising and supporting such settler movements. This could be achieved, for example, by investment in infrastructure, tax exemptions or, as confirmed by the ICJ in the Wall advisory opinion, simply by encouraging people to settle in occupied land.Footnote ¹⁷ Private settlement without any support or inducement by the occupying power, and in accordance with local laws, does not amount to ‘transfer’ and falls outside the scope of Article 49(6).Footnote ¹⁸ Contrary to other norms of IHL, the provision thus binds only the occupying power and cannot be violated by non-state actors.Footnote ¹⁹ With regard to the Israeli government, however, such involvement in the settlement enterprise has always been present, either through formal approval in establishing settlements or by allocating resources for that purpose.Footnote ²⁰

It has been argued that the provision covers only civilian nationals of the occupying power and not those of any third state who could equally be used to bring about demographic changes.Footnote ²¹ The practical relevance of this potential restriction should not be understated as settlements in the West Bank are often advertised as future homes for Jewish people migrating to Israel.Footnote ²² However, it is arguable that this reading of Article 49(6) is too narrow in light of the object and purpose of the provision.Footnote ²³ It is suggested that the personal scope of the provision could be interpreted in terms of actual allegiance to the occupying power rather than formal nationality, similar to the approach taken by the International Criminal Tribunal for the former Yugoslavia (ICTY) in Tadić regarding the definition of protected persons.Footnote ²⁴

Finally, the provision does not cover the transfer of civil servants or officials in charge of military affairs or the administration of the territory.Footnote ²⁵ Theodor Meron even advised in his 1967 legal brief to the Israeli government that if the settlement construction were to go ahead, it should be carried out by military and not civilian entities.Footnote ²⁶ For this reason, early settlements in the West Bank and the Golan Heights were initially labelled ‘Nahal outposts’ by the Israeli government in order to cloak their civilian character, especially in light of the growing concern by the international community.Footnote ²⁷ Since it soon became evident that the settlements were in fact civilian in nature, the government tried to argue that they fulfilled a genuine military purpose and were therefore a military necessity.Footnote ²⁸ Although initially accepted by the Israeli High Court of Justice, the government has not relied on this argument since the late 1970s.Footnote ²⁹

3.1. Drafting History

The idea of criminalising the transfer of a population into occupied territory can be traced back to the Nuremberg Trials, where the International Military Tribunal found two of the accused guilty of attempting the ‘Germanization’ of certain territories.Footnote ³⁰ This war crime, as defined by the tribunal, included the forced deportation of inhabitants who were predominantly non-German and the introduction of German ‘colonists’.Footnote ³¹ When Article 49(6) of the Fourth Geneva Convention was drafted, reference was made to this practice.Footnote ³² In its 1991 Draft Code of Crimes against the Peace and Security of Mankind, the International Law Commission (ILC) listed the ‘establishment of settlers in an occupied territory and changes to the demographic composition of an occupied territory’ as an ‘exceptionally serious’ war crime.Footnote ³³ The commentary on the Draft Code added that such acts ‘could involve the disguised intent to annex the occupied territory’ and that ‘changes to the demographic composition of an occupied territory seemed to the Commission to be such a serious act that it could echo the seriousness of genocide’.Footnote ³⁴ Article 20(c)(1) of the 1996 Draft Code defined ‘the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies’ as a war crime when committed ‘wilfully in violation of international humanitarian law’.Footnote ³⁵ The general inclusion of such actions in the Rome Statute seemed not to be very controversial among state parties, except for the Israeli delegation, which expressed fierce opposition to the provision.Footnote ³⁶ The Preparatory Commission's negotiations over the exact wording, however, proved to be extremely difficult for the other states as well.Footnote ³⁷ The Arab states lobbied for a definition that would have expressly included the encouragement, facilitation and promotion of transfers, including the failure to prevent the population from organising such transfers themselves, whereas the majority of states preferred a wording based on Article 85(4)(a) of Additional Protocol I.Footnote ³⁸ Finally, agreement was reached and Article 8(2)(b)(viii) criminalised ‘the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies’.

3.2. The Scope of Article 8(2)(b)(viii)

The main difference from Article 49(6) of the Fourth Geneva Convention and Article 85(4)(a) of Additional Protocol I was the inclusion of the phrase ‘directly or indirectly’. This wording has been regarded by some as being merely declarative of the opinion that Article 85(4)(a) equally covers voluntary transfers, including through indirect measures.Footnote ³⁹ However, it is important to note that ‘direct transfer’ does not equal ‘forced transfer’. Direct transfers cover the construction of houses by the state or the provision of official settlement plans.Footnote ⁴⁰ Indirect transfers include the implementation of policy measures to induce and facilitate settlement in the occupied territory, for example, through subsidies and tax cuts.Footnote ⁴¹ In both instances and contrary to forced transfer, however, the settlers still migrate on their own free will.

Cottier and Baumgartner note that the phrase ‘parts of its own civilian population’ indicates that the commission of the offence has to involve the actual settlement of a certain number of individuals, even though a small number would suffice.Footnote ⁴² This interpretation is also supported by the commentary on the German International Crimes Code, which claims to maintain the exact same scope of the corresponding provision of the Rome Statute.Footnote ⁴³ Zimmermann argues, therefore, that indirect measures can be covered only by the scope of Article 8(2)(b)(viii) if they actually lead to a physical transfer, which he considers to be the core actus reus.Footnote ⁴⁴ It is suggested, however, that the provision should be interpreted more broadly. Government-sponsored population transfer will almost always occur in some form of organised policy, involving a combination of various direct and indirect acts. It is therefore submitted that as long as a minimum number of overall actual physical displacements have taken place, it is not necessary that every single relevant act of ‘transfer’ must lead to such displacement. The following three arguments support such an interpretation.

First, whereas it is indeed possible to link the actual presence of settlers to acts of direct transfer (for example, if the houses in which they live were planned and built by the government), it seems extremely difficult to prove a similar causal link between the physical displacement and a particular indirect measure such as the construction of roads or tax measures. Second, such a narrow interpretation would exclude acts that support already existing, illegal settlements that have been initially set up without governmental involvement. Many settlements start their existence as illegal outposts, often built on private Palestinian land but without authorisation or official support. It is not uncommon for the Israeli government to legalise these settlements retroactively under Israeli law at a later point or provide other forms of support.Footnote ⁴⁵ Since the physical displacement of these settlers took place before the occupying power became involved, the scope of Article 8(2)(b)(viii) would not cover the above-mentioned acts. Such a result seems highly unsatisfactory in light of the overall aim of Article 8(2)(b)(viii). The OTP reports on preliminary examination activities seem to support such an interpretation as they explicitly list among the alleged crimes ‘the regularisation of constructions built without the required authorisation’.Footnote ⁴⁶ One might argue that the prospect of having an illegal settlement legalised at a later point might itself constitute an incentive for future settlers, and thus an act of indirect transfer. However, it would again be difficult to establish the causal link with an actual physical transfer.

The third reason is the temporal element. Zimmerman argues that once settlers have already settled in an occupied territory, their transfer has been completed even if they then continue to be induced to stay in the respective territory.Footnote ⁴⁷ However, there is no provision that prohibits the entry of civilians into occupied territory (with or without governmental involvement), either in ICL or in IHL.Footnote ⁴⁸ According to the Elements of Crime, the term ‘transfer’ needs to be interpreted according to the relevant rules of IHL.Footnote ⁴⁹ Given the purpose of the provision, it therefore seems logical that the ‘transfer’ must be of a certain duration in order to qualify as an illegal population transfer (compared with a mere short-term entry of civilians).Footnote ⁵⁰ After all, it is the relocation of the centre of someone's private existence for an extended period of time that makes the difference between a settler and a spontaneous visitor.Footnote ⁵¹ As a result, it is submitted that Article 8(2)(b)(viii) equally covers acts with the aim of maintaining the presence of settlers, even if they do not lead to new physical relocations.

In conclusion, not every indirect measure must be regarded as leading to an act of physical transfer as such an approach would (i) make it impossible to establish the causal link between the indirect act and the physical transfer, (ii) exclude acts that support existing (illegal) settlement structures, and (iii) not distinguish between the legal short-term entry of civilians and illegal government-sponsored settlement. This interpretation would also be consistent with the object and purpose of the provision under Article 31(1) of the Vienna Convention on the Law of TreatiesFootnote ⁵² – namely, the prevention of unilateral changes to the demographic composition and the increasing potential of illegal annexation.

3.3. Individual Criminal Responsibility

As in Article 49(6), the wording of Article 8(2)(b)(viii) requires the involvement of the occupying power's authorities.Footnote ⁵³ The difficulty in transforming this IHL obligation of the occupying power into a criminal provision, and in particular the requirements for imposing criminal responsibility on the individual, was eminent during the drafting of the Elements of Crimes.Footnote ⁵⁴ Cottier and Baumgartner mention that private individuals settling in occupied territory without any incentive by the occupying power would not be covered.Footnote ⁵⁵ The commentary further notes that it is unclear whether other private actors, such as the director of a company moving the population to settle in occupied territory or a company constructing houses, would be criminally responsible.Footnote ⁵⁶ Since Article 8(2)(b)(viii) directly addresses the occupying power, such responsibility could arise only for aiding and abetting under Article 25(3)(c) of the Rome Statute.

In Richardson and Another v Director of Public Prosecutions the United Kingdom (UK) Supreme Court briefly considered whether private individuals could be responsible for aiding and abetting the transfer of Israeli civilians, in violation of the International Criminal Court Act 2001.Footnote ⁵⁷ The case concerned a company that manufactured cosmetics in a factory in the West Bank and employed Israeli citizens. While generally acknowledging that a private individual could aid and abet the crime of population transfer, the Court held that taking advantage of such transfer by employing settlers could not amount to aiding and abetting the Israeli government in the transfer of civilians.Footnote ⁵⁸ This seems reasonable in light of the fact that under the Rome Statute the contribution to an offence has to be ‘substantial’.Footnote ⁵⁹ This condition could certainly be met by organisations that promote settlement in the West Bank in a large-scale manner,Footnote ⁶⁰ such as the Jewish Agency. Drawing a clear line, however, is difficult. In the Israeli case, proving the involvement of senior government officials in the settlement enterprise is unproblematic and consequently no ‘building-upwards’ strategy is needed.Footnote ⁶¹ Targeting large-scale government-sponsored settlement plans therefore seems far more promising than going after private actors.

3.4. The Customary Status of Article 8(2)(b)(viii)

It is disputed whether the criminal prohibition in Article 8(2)(b)(viii) is customary. Apart from the convictions for ‘Germanization’, which were mentioned only in passing in Nuremberg, no individual has ever been convicted or even indicted for settlement-related crimes before an international or domestic court.Footnote ⁶² The idea of a customary crime of ‘colonialization’ was discussed briefly in a jurisdictional hearing before the ICTY, but was quickly dismissed by the prosecution.Footnote ⁶³ During the negotiations for the Rome Statute, however, most states agreed that the crime was part of customary law.Footnote ⁶⁴ Some scholars – notably Meron,Footnote ⁶⁵ CasseseFootnote ⁶⁶ and TomuschatFootnote ⁶⁷ – nevertheless concluded that the criminal prohibition was not customary at the time of the Rome Statute negotiations. Others have argued that while it might not have been customary at the time, it has since crystallised into custom.Footnote ⁶⁸ Ronen argues that although a considerable number of domestic jurisdictions and tribunals have incorporated Article 8(2)(b)(viii), the absence of convictions for the crime reflects a lack of necessary state practice.Footnote ⁶⁹ However, the enactment of domestic criminal legislation is itself already an expression of state practice.Footnote ⁷⁰ For example, no one would have ever reasonably doubted the customary nature of the crime of genocide during the 1990s simply because no conviction for genocide took place until 1998.Footnote ⁷¹ The view that Article 8(2)(b)(viii) has crystallised into custom following the adoption of the Rome Statute thus seems convincing in light of the enormous amount of opinio juris expressed during the Rome conference and the large number of domestic criminal codes that incorporated the provision shortly thereafter.Footnote ⁷²

However, even if one accepts the customary nature of Article 8(2)(b)(viii), it has been suggested that Israel would have a strong case to be considered as a persistent objector.Footnote ⁷³ Ronen supports that argument by claiming that Israel's opposition towards the inclusion of population transfer as a grave breach in Additional Protocol I and as a war crime in the Rome Statute was the main reason for not acceding to these two instruments.Footnote ⁷⁴ This might not be entirely correct. Draft Article 74, which added population transfer by the occupying power to the grave breaches regime of the Geneva Conventions (and later became Article 85 of Additional Protocol I) was adopted by consensus during the 1977 Diplomatic Conference.Footnote ⁷⁵ Israel's historic opposition towards Additional Protocol I was based rather on its application to wars of national liberation, prisoner-of-war status for guerrilla fighters and the ability of national liberation movements to join the Protocol.Footnote ⁷⁶ The reason for not opposing the inclusion of population transfer as a grave breach during the negotiations could be the fact that Israel always considered Article 49(6) of the Fourth Geneva Convention and Article 85(4)(a) of Additional Protocol I as applicable only to forced population transfer and not voluntary settlement movements.Footnote ⁷⁷ It could be argued therefore that Israel is a persistent objector regarding the progressive development of the substantive rule that goes beyond forced transfer.Footnote ⁷⁸

During the negotiations for the Rome Statute, Israel constantly opposed the inclusion of such a war crime and, in particular, the notion of ‘indirect transfer’.Footnote ⁷⁹ The Israeli representative noted that his country would have voted in favour of adopting the Statute had Article 8(2)(b)(viii) not been included.Footnote ⁸⁰ Israel nevertheless signed the Statute while issuing a declaration expressing its ‘deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states’.Footnote ⁸¹ The fact that the Statute was signed, although only in the spirit of compromise, could weaken the claim for persistent objector status. An objection to an emerging rule of customary law must not only be persistent but also consistent, meaning that it at no point explicitly contradicts its position of dissent.Footnote ⁸² Generally speaking, a treaty reservation can be viewed as constituting objection on the part of the state.Footnote ⁸³ However, it is doubtful whether Israel's statement referred to above qualifies as a reservation, especially since reservations are explicitly prohibited in Article 120 of the Statute. Nevertheless, the implication of Israel's omission to ratify the treaty needs also to be considered.

It has been argued that the failure to ratify a treaty that incorporates the rule in question should not qualify as explicit objection because a state's decision not to ratify could be based also on other grounds unrelated to such rule.Footnote ⁸⁴ This argument might apply to Israel's opposition to Additional Protocol I, discussed above, but in the case of the Rome Statute it was sufficiently clear that it was Article 8(2)(b)(viii) that was the main, yet not the only source of Israel's discomfort.Footnote ⁸⁵ While not sufficient on its own, Green acknowledges that failure to ratify a treaty could be considered to be a contributory instance of objection.Footnote ⁸⁶ If failure to ratify, which necessarily implies that the treaty in question has already been signed, can be such a contributory instance of objection, it is only logical that signing a treaty alone cannot be sufficient to preclude persistent objector status to one of the rules contained therein.

In conclusion, it is certainly arguable that Israel is a persistent objector to the war crime of population transfer, at least insofar as its customary definition includes non-forcible and indirect transfers. In any case, it remains to be seen whether the ICC would apply the persistent objector doctrine as such, since it has never been directly invoked in international criminal proceedings. However, the ICTY hinted in Furundžija that the peremptory character of the prohibition of torture would preclude any derogation through persistent objection.Footnote ⁸⁷ It is therefore not inconceivable that the Court would concede such status to Israel.

3.5. Why the Customary Law Status Matters

If the Court adopts the position that Article 8(2)(b)(viii) has not yet crystallised into custom or that Israel can be considered a persistent objector to the rule regarding its application to conduct on Israeli territory, the scope of the ICC's jurisdiction over settlement activities would be severely limited. Since the domestic criminal law of either Israel or Palestine has never contained a criminal provision against population transfer (Palestine, as will be explained in Section 4, is in fact barred from doing so), settlement activities on Palestinian territory would not have been a criminal offence until accession to the Rome Statute. As Ronen correctly points out, with the entry into force for Palestine, the Statute imposes substantial obligations, including that under Article 8(2)(b)(viii), directly on individuals through the territorial and personal jurisdiction of the state parties.Footnote ⁸⁸ This means in turn that the Court's ratione materiae jurisdiction over settlement activities is limited to conduct performed after 1 April 2015. If population transfer had crystallised into customary law before 2015, Palestine would be able to further extend the Court's jurisdiction to 1 July 2002, the date of the entry into force of the Rome Statue, by submitting another ad hoc declaration under Article 12(3). Article 22(1) of the Statute, which incorporates the nullum crimen sine lege principle, makes clear that unless the conduct in question, at the time it takes place, constitutes a crime within the jurisdiction of the Court, an individual cannot be criminally responsible. In the case of crimes allegedly committed by nationals of a non-state party the Court would need to consider whether the crime in question was customary at the relevant time.Footnote ⁸⁹ In conclusion, there are three possible scenarios:

1. (a) Article 8(2)(b)(viii) has become part of customary law at some point and has therefore been a crime under customary law in both Israel and Palestine;

2. (b) Article 8(2)(b)(viii) is not yet part of customary law and only became a crime on Palestinian territory with the entry into force of the Rome Statute for the State of Palestine; or

3. (c) Article 8(2)(b)(viii) has become a crime under customary law but Israel is a persistent objector, which means that it does not apply to conduct on Israeli territory.

These potential restrictions, including scenario (c), will be relevant for the discussion of the Court's territorial jurisdiction in Section 7, in particular with regard to conduct that takes place entirely in Israel.

4.1. The Interim Agreements and the Court's Jurisdiction over Israeli Nationals

Before turning to the discussion of the ICC's territorial and temporal jurisdiction over the settlement enterprise, it is important to analyse the Court's jurisdiction over conduct on Palestinian territory as such. The Rome Statute entered into force for the ‘State of Palestine’ on 1 April 2015.Footnote ⁹⁰ The question of whether Palestine has achieved statehood is still the subject of intense debates and to dwell on this subject would go far beyond the scope of this article. The OTP, however, has concluded that Palestine is to be considered a ‘state’ for the purpose of accession to the Rome Statute.Footnote ⁹¹ The following arguments are therefore based on the premise that there exists a State of Palestine for the purposes of the Statute and that this state became party to the Statute on 1 April 2015.

Although accepting the validity of the Article 12(3) declaration of January 2015, the OTP clarified in its first report on the preliminary investigations of the situation in Palestine that such conclusion is ‘without prejudice to any future determinations by the Office regarding the exercise of territorial or personal jurisdiction by the Court’.Footnote ⁹² Therefore, the first question that needs to be addressed is whether the Court has jurisdiction ratione personae over Israeli nationals, the alleged perpetrators of Article 8(2)(viii) of the Rome Statute. According to Article 12(2)(a) of the Statute, the Court may exercise its jurisdiction if the conduct in question occurred on the territory of a state party or if the person accused of the crime is a national of a state party. Since Israel is neither a party to the Statute nor has accepted the Court's jurisdiction on an ad hoc basis, only the first alternative is relevant for the case at hand. The Court may therefore exercise its jurisdiction over nationals of any state as long as the conduct in question occurred on the territory of a state party, in this case the State of Palestine. Some authors, however, have invoked the fact that the so-called Oslo Accords limit Palestine's jurisdiction, and that this limitation could subsequently also affect the jurisdiction of the ICC.Footnote ⁹³ In the 1995 Interim Agreement (Oslo II), and more specifically in its Legal Annex, the Palestine Liberation Organization (PLO) and Israel agreed that the criminal jurisdiction of the newly created Palestinian National Authority (PA) only covers offences committed by Palestinians and/or non-Israelis in the territory, whereas the term ‘territory’ excludes settlements and military locations.Footnote ⁹⁴ This established a twofold limitation of the PA's jurisdiction: ratione personae by excluding Israeli nationals and ratione loci by excluding settlements as territory.Footnote ⁹⁵ Palestinian courts are therefore legally incapable of prosecuting Israelis for settlement related crimes, or any other offence.

4.2. Existence versus Exercise of Jurisdiction

It has been suggested that the Accords do not limit Palestine's prescriptive jurisdiction but merely its jurisdiction to enforce.Footnote ⁹⁶ Generally speaking, ‘prescriptive jurisdiction’ refers to a state's authority under international law to apply its criminal law to given conduct.Footnote ⁹⁷ ‘Jurisdiction to enforce’, on the other hand, refers to a state's authority to actually enforce these laws through police and other executive or judicial action.Footnote ⁹⁸ The above argument, however, seems to be flawed since Article 17 of the 1995 Interim Agreement and Article 1(a) of its Legal Protocol specifically limit the jurisdiction of the elected ‘Council’. This means that Article 17 refers to the legislative body (which later became the Palestinian Legislative Council) as opposed to the ‘Executive Authority’ (the PA), or the ‘Palestinian Courts’ to which other articles refer. This would lead to the conclusion that the Oslo Accords, if applicable, indeed limit Palestine's prescriptive jurisdiction.

However, the relevant distinction that has to be made in that regard is not between enforcement jurisdiction and prescriptive jurisdiction, but between the existence and the exercise of such jurisdiction.Footnote ⁹⁹ A state's authority under international law to apply its criminal law and entertain proceedings with regard to conduct committed on its territory is plenary and remains so even if the state concerned enters into an international obligation not to exercise this jurisdiction with regard to certain nationals.Footnote ¹⁰⁰ This conclusion brings us back to the fundamental question of statehood. If the State of Palestine is a sovereign state, its jurisdictional competence is vested in that sovereignty and is no longer dependent on the Oslo Accords.Footnote ¹⁰¹ A state retains such prescriptive territorial jurisdiction even when under occupation.Footnote ¹⁰² The Oslo Accords cannot take away this inherent criminal jurisdiction but merely oblige the State of Palestine not to exercise it with regard to Israeli nationals or conduct in Area C. The PA, on the other hand, derives its limited jurisdiction from the Accords.Footnote ¹⁰³ Consequently, it would not have been able to transfer any competences beyond those granted by the Accords to the ICC.Footnote ¹⁰⁴ However, the state party to the Rome Statute is the ‘State of Palestine’ and not the PA.Footnote ¹⁰⁵ As a result, if one operates under the assumption that Palestine has achieved statehood – which the Court will have to do in order to justify Palestine's accession to the Rome Statute in the first place – the State of Palestine has validly transferred its jurisdiction, including that over Israeli nationals, to the ICC. However, the State of Palestine, or at least the PA, remains obliged by the Oslo Agreements not to prosecute Israeli citizens. Prosecution by the ICC can amount to prosecution by the state, via the medium of the Court.Footnote ¹⁰⁶ The prosecution of Israeli citizens by the ICC can therefore amount to a breach of the Oslo Accords, in particular Article I of the 1995 Legal Annex.Footnote ¹⁰⁷ This, however, does not bar the Court itself from entertaining such proceedings. In conclusion, the ICC has been validly granted jurisdiction over conduct occurring on Palestinian territory, including over Israeli citizens.

5.1. A State Without Borders?

Even though the Court can generally exercise its jurisdiction over Palestinian territory, it remains difficult to actually define that territory. Palestine does not possess any internationally recognised borders and the limits of its territory are disputed.Footnote ¹⁰⁸ When distinguishing between ‘Israeli territory’ and ‘Palestinian territory’ one usually refers to the 1949 demarcation line, commonly known as the Green Line, established through the armistice agreement between Israel and Jordan. The agreement, however, made clear that the Green Line does not constitute an international boundary and is ‘without prejudice to future territorial settlements’.Footnote ¹⁰⁹

After Jordan had renounced its claim to the West Bank in 1988, it concluded a peace treaty with Israel in 1994.Footnote ¹¹⁰ Annex I of this treaty establishes an ‘administrative boundary between Jordan and the territory which came under Israeli military government control in 1967’, while stipulating that this line should be ‘treated without prejudice to the status of the territory’.Footnote ¹¹¹ In the Oslo Accords both parties agreed that the subject of borders should be dealt with in final status negotiations.Footnote ¹¹² In its advisory opinion the ICJ specifically expressed the concern that ‘the route of the wall will prejudge the future frontier between Israel and Palestine’.Footnote ¹¹³ Although generally avoiding the issue of borders, this statement implies that the Court acted on the assumption that, for the time being, there exists no legally binding border between the two territories.

Even the 2012 General Assembly Resolution granting Palestine non-member observer state status only expresses the vision of a Palestinian state ‘living side by side in peace and security with Israel on the basis of the pre-1967 borders’, and calls for a settlement to resolve outstanding issues such as ‘Jerusalem, settlements, and borders’.Footnote ¹¹⁴ Again, such language may imply that the 1949 armistice line should be used as a starting point for border negotiations but indirectly acknowledges that there actually exists no internationally recognised border. Equally, the recent Security Council Resolution 2334 reiterates a ‘vision’ of two states with ‘recognized borders’ while underlining that the Council will not recognise unilateral changes to the 1967 ‘lines’.Footnote ¹¹⁵ Because of the absence of such recognised border it seems impossible to legally distinguish between Israeli and Palestinian territory.

5.2. Territorial Title and the Monetary Gold Principle

Some authors therefore claim that this situation would bar the ICC from exercising its jurisdiction because of the legal impossibility of determining whether the conduct in question actually occurred on the territory of a member state, namely the State of Palestine.Footnote ¹¹⁶ It might be argued that Areas A and B, the areas in which the PA exercises jurisdiction, are unquestionably Palestinian territory. Such an assumption, however, is of no use since almost all Israeli settlements are located in Area C and most of them in close proximity to the Green Line.Footnote ¹¹⁷ As a result, some have argued that if the Court were to actually decide on the borders of Palestine, it would be acting ultra vires.Footnote ¹¹⁸ These arguments rely mainly on the ICJ's Monetary Gold case, in which the Court held that it could not adjudicate on a case where it would be required, as a necessary prerequisite, to decide on the rights of a state that is not a party to the proceedings and has not given its consent.Footnote ¹¹⁹ Following this principle, the ICC would not be able to determine Palestinian borders without simultaneously determining those of the non-member state Israel. It is not entirely clear whether the principle applies in international criminal proceedings in the first place, although recent case law seems to generally support its application outside state-to-state proceedings.Footnote ¹²⁰

Applying the Monetary Gold principle to the undefined borders of Palestine should nevertheless be rejected for several reasons. First, it is perfectly possible to distinguish between territory and boundaries. The ICJ observed in that regard that ‘the appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights’.Footnote ¹²¹ Several international boundaries are disputed and most of them lie in regions most relevant to the Court's jurisdiction as they are affected by armed conflict. A factual determination of whether a settlement is located on Palestinian territory therefore does not necessarily amount to a normative decision on a border.Footnote ¹²² Second, the Monetary Gold principle has been interpreted very restrictively and has been applied only in cases where a legal interest of the third party forms the subject matter of the decision. Merely affecting the interest of a third party is not sufficient.Footnote ¹²³ The subject matter of a case before the ICC, however, would be the individual criminal responsibility of an Israeli official and not any kind of territorial title.Footnote ¹²⁴ In addition to the above one should bear in mind that Israel, despite existing political intentions to do so, has never made a formal legal claim to the West Bank. The only exception is East Jerusalem, which was effectively annexed in 1980 through the enactment of the Basic Law on Jerusalem.Footnote ¹²⁵ Even if the Monetary Gold principle were to apply, no Israeli legal interest would be affected in deciding on the question of whether a particular settlement lies on Palestinian territory, at least outside Jerusalem.

5.3. OTP Practice

With regard to the practice of the OTP, reference is sometimes made to the investigations regarding the Republic of Korea. In 2010 the OTP launched a preliminary investigation into the shelling of Yeonpyeong Island, a South Korean island located only a few kilometres south of the so-called ‘Northern Limit Line’ established through the 1953 armistice agreement between the North and the South. During the past two decades, North Korea (which is not a party to the ICC) has continuously challenged this line and each Korean state continues to formally claim sovereignty over the whole peninsula. In its 2011 report the OTP nevertheless acknowledged the 1953 armistice line and subsequent agreements as a ‘practical maritime demarcation’.Footnote ¹²⁶

More recently, Ukraine, which has not ratified the Rome Statute, submitted two Article 12(3) declarations accepting the Court's jurisdiction over crimes committed on Ukrainian territory in April 2014 and September 2015.Footnote ¹²⁷ The second declaration provides the Court with jurisdiction from 20 February 2015 onwards.Footnote ¹²⁸ The OTP has announced that it will engage in ‘thorough factual and legal analysis of alleged crimes committed across Ukraine, including in Crimea’.Footnote ¹²⁹ In March 2014, following a referendum declared invalid by the interim Ukrainian government, the Russian Federation annexed the peninsula. In order to exercise its jurisdiction over crimes committed in Crimea from 2014 onwards, the Court will necessarily have to establish whether Crimea (still) forms part of Ukrainian territory. In its 2016 report the OTP simply concluded that ‘the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation. A determination of whether or not the initial intervention, which led to the occupation, is considered lawful or not is not required’.Footnote ¹³⁰

These two examples show that the OTP has already been exposed to situations involving territorial disputes and does not seem to regard them as a substantial obstacle to the Court's jurisdiction. There is little reason why the OTP and the Court should not treat the Green Line as a ‘practical demarcation line’ and all territory beyond that line as Occupied Palestinian Territory. However, none of these situations have ever moved beyond the state of preliminary examination. Accordingly, there exists no actual case law on the matter. However, the examples mentioned demonstrate that the Palestinian situation is far from being unique in that regard.

6.1. The Relationship between State Responsibility and Individual Criminal Responsibility in Article 8(2)(b)(viii)

The Monetary Gold principle might nevertheless be of relevance with regard to the specific nature of Article 8(2)(b)(viii) of the Rome Statute. As already demonstrated in Section 3.3, the provision directly addresses the state, or the ‘occupying power’. In order to establish the criminal responsibility of an individual carrying out the settlement policy, the Court would have to determine that such state policy exists. It has therefore been argued that this involves making a decision on the unlawful conduct of the state itself.Footnote ¹³¹ In the case of a non-member state such as Israel, the Court would not be competent to make such a determination without the consent of the affected state, as doing so would affect the legal interests of Israel and could trigger the Monetary Gold principle.Footnote ¹³² The crime of population transfer would accordingly resemble the crime of aggression, which is usually perceived as the ‘only international crime that links individual criminal responsibility with state responsibility’.Footnote ¹³³

However, the comparison with the crime of aggression is not entirely correct. Whereas it is indeed accurate that in order to establish criminal liability under Article 8(2)(b)(viii) the Court has to attribute certain conduct to the state, such attribution is not necessarily accompanied by any further legal qualification. The crime of aggression under Article 8bis requires a finding that the state in question has committed a ‘manifest violation of the Charter of the United Nations’. The establishment of individual criminal responsibility under Article 8(2)(b)(viii), on the other hand, would require only the attribution of conductFootnote ¹³⁴ but not the accompanying conclusion that there was a breach of an international legal obligation binding on the state, which together constitutes an internationally wrongful act.Footnote ¹³⁵ A finding of state responsibility is thus not an indispensable element for individual responsibility.Footnote ¹³⁶ A conviction under Article 8(2)(b)(viii) might indeed imply that the state has violated the underlying provision of IHL, namely Article 49(6) of the Fourth Geneva Convention, but so does a finding on every other war crime when committed by a state official.Footnote ¹³⁷ Even if the official position of the accused might be central to the proceedings, a respective finding by the Court would not determine any issue of state responsibility and therefore could not trigger the Monetary Gold principle.Footnote ¹³⁸

6.2. The Non-Applicability of the Monetary Gold Principle in the Case of a Binding Decision by a Competent Authority

Alternatively, even if one accepts the proposition that a finding of state responsibility is required to establish individual criminal responsibility for population transfer under Article 8(2)(b)(viii), the Monetary Gold principle would not apply if such determination has already been made by a binding and authoritative decision of a competent body.Footnote ¹³⁹ In the case of the West Bank, such decision was arguably made by the UN Security Council in Resolution 465, in which the Council ‘determines’ that ‘Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War’.Footnote ¹⁴⁰ However, the resolution was passed in 1980 and one might ask whether such determination extends to post-2015 conduct covered by the ICC's ratione temporis jurisdiction. A strong argument in favour of such an extension would be the fact that Resolution 465 was reaffirmed in 2016.Footnote ¹⁴¹ In conclusion, the Monetary Gold principle cannot prevent the ICC from exercising its jurisdiction over Israeli nationals.

7.1. The Conduct in Question

The ICC's jurisdiction is dependent on a territorial link with Palestinian territory under Article 12(2)(a) of the Rome Statute. Such a link is easy to determine in relation to the construction of houses and settlement infrastructure in the West Bank, even if such acts were originally planned and authorised in Israel. It is well established in international criminal law that an offence as a whole may be considered to have been committed in the place where it was completed, under the doctrine of objective territoriality.Footnote ¹⁴²

This, however, requires at least one constituent element of the offence to take place within the territory of the member state.Footnote ¹⁴³ Acts of indirect transfer, such as subsidies or tax cuts, constitute administrative decisions often taken at ministerial level or legislation enacted by the Knesset. This means that the entire conduct takes place on Israeli territory while only the result (the settlers having relocated their centre of private existence) occurs on Palestinian territory. Article 12(2)(a) explicitly requires ‘the conduct’ to occur on state party territory and not ‘the crime’, thus excluding the consequence or result of that conduct.Footnote ¹⁴⁴ A literal reading of the provision would thus lead to a significant restriction of the ICC's territorial jurisdiction over cross-border crimes. The problem did not receive any attention during the drafting of the Statute but was discussed during the negotiations over the crime of aggression. Many delegations expressed the view that the reference to ‘conduct’ in Article 12(2)(a) also encompassed the consequences of that conduct.Footnote ¹⁴⁵ Ultimately, however, the issue was left to be determined by the Court.Footnote ¹⁴⁶ However, even if Article 12(2)(a) does encompass the consequences of conduct, it is not clear whether this would necessarily bring all acts of indirect transfer under the territorial jurisdiction of the Court. It was explained in Section 3 above that not every relevant act must actually lead to a physical transfer. If granting a tax cut or transferring a subsidy to an Israeli bank account leads to an already established settler remaining in occupied territory, for example, despite economic hardships, the consequences of that conduct would still occur in Israel while only the effects of that consequence would be felt on Palestinian territory.

7.2. The Effects Doctrine

It is therefore important to distinguish between the consequences of a crime and its effects. Effects are not elements of the description of the crime in question, in this case the social and economic hardships experienced by the Palestinian population.Footnote ¹⁴⁷ However, the idea that the effects of a crime are sufficient to establish jurisdiction had already been referred to in the Lotus case.Footnote ¹⁴⁸ Whether the ICC could rely on this so-called ‘effects doctrine’ depends on whether it is a valid legal basis of state criminal jurisdiction under contemporary international law and on the interpretation of Article 12(2)(a).Footnote ¹⁴⁹ The doctrine today is used mainly to apply domestic antitrust laws to extraterritorial conduct of non-nationals.Footnote ¹⁵⁰ Where the effects doctrine has been accepted, the minimum common denominator seems to be that the effects should be direct and substantial.Footnote ¹⁵¹ Vagias further suggests that the ICC might apply a ‘jurisdictional rule of reason’, incorporating relevant international law principles, such as non-intervention and abuse of rights.Footnote ¹⁵² In other words, the effects doctrine should be applied only if the overall circumstances of a case indicate a sufficient connection between the conduct in question and state party territory.Footnote ¹⁵³ The situation in Palestine would certainly satisfy these requirements as nobody can deny the substantial connection between the indirect acts and the settlements on Palestinian territory which they aim to support. Nevertheless, reading the effects doctrine into Article 12(2)(a) of the Rome Statute would be far more controversial than the mere inclusion of the consequences of a crime, and it will be ultimately up to the ICC to decide whether the Statute allows for such far-reaching interpretation.Footnote ¹⁵⁴

7.3. Objective Territoriality and Dual Criminality

Another problem in asserting jurisdiction based solely on either the consequences or the effects of conduct could arise if the entire conduct took place in a state that has not criminalised such conduct.Footnote ¹⁵⁵ Ambos and Gropp therefore argue that such jurisdiction could be exercised only if the requirement of double criminality is met, which means that the conduct must be criminal in both states.Footnote ¹⁵⁶ This is where Israel's potential persistent objector status finally becomes relevant. If the conduct in question occurs on Israeli territory while only the consequences or effects are being felt in Palestine, the Court could only exercise its jurisdiction based on objective territoriality or the effects doctrine if the conduct is criminal in both states, either through customary law or legislation. Unfortunately, this relatively rare problem has not received much scholarly attention, but an exercise of jurisdiction without the principle of double criminality might violate the principles of culpability, in particular foreseeability of the penalty.Footnote ¹⁵⁷ In conclusion, acts of indirect transfer are not likely to be covered by the Court's territorial jurisdiction if all the constituent elements take place on Israeli territory.

8.1. Population Transfer as a Continuous Crime

The ICC's ratione temporis jurisdiction over the settlement enterprise is generally limited to the entry into force of the Rome Statute for the State of Palestine, namely 1 April 2015.Footnote ¹⁵⁸ However, together with its instrument of accession, Palestine has also submitted an Article 12(3) declaration accepting the ICC's jurisdiction over alleged crimes committed ‘in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014’.Footnote ¹⁵⁹ Generally speaking, Palestine would be free to submit another Article 12(3) declaration in order to extend the Court's temporal jurisdiction to 1 July 2002, the date of entry into force of the Rome Statute.Footnote ¹⁶⁰ This would nevertheless exclude the ICC's jurisdiction over the vast majority of the Israeli settlement enterprise, which commenced in the late 1960s, shortly after the Six-Day War in 1967.Footnote ¹⁶¹ In order to broaden this narrow temporal scope, some scholars have argued that the crime of population transfer should be regarded as a so-called ‘continuous crime’, which might allow the Court take into account pre-2014 and even pre-2002 conduct.Footnote ¹⁶² A continuous crime is a criminal provision targeting an ongoing situation that has been committed and then maintained over time.Footnote ¹⁶³ It is thus a specific form of a continuous breach of an international legal obligation, as defined in Article 14(2) of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts.Footnote ¹⁶⁴ Although continuous crimes were discussed during the negotiations, the Rome Statute ultimately remained silent on the matter.Footnote ¹⁶⁵ The only exception is a footnote to the crime of enforced disappearance, which is generally perceived as a continuous crime, stating that the widespread or systematic attack necessary must occur after the entry into force of the Rome Statute.Footnote ¹⁶⁶ However, in Lubanga the ICC clearly recognised the concept of continuous crimes in the context of the conscription of child soldiers.Footnote ¹⁶⁷ The two questions that need to be addressed therefore are whether population transfer constitutes such a continuous crime and whether this would allow the court to exercise its jurisdiction over criminal conduct commencing before 1 July 2002.

With regard to the first question, scholarship seems to be equally divided on the question of whether population transfer constitutes a continuous crime.Footnote ¹⁶⁸ Zimmermann argues that the term ‘transfer’ describes a physical displacement, which is completed once a settler has migrated to occupied territory, irrespective of whether he or she remains there.Footnote ¹⁶⁹ Nevertheless, he also admits that acts of indirect transfer, such as subsidies and incentives, could possess a continuous nature, but subsequently rebuts that presumption by mentioning that even an indirect measure must lead to an actual transfer, namely a physical displacement.Footnote ¹⁷⁰ However, as explained in Section 3 above, this reading of the provision appears to be too narrow. It was further explained that Article 8(2)(b)(viii) equally covers acts which aim to maintain the presence of already established settlers. As a result, such acts might indeed qualify as ‘continuous’. In cases of direct transfer, such as the construction of housing units by the state, on the other hand, the crime is completed and not ongoing. Although the construction of these houses may have serious long-term consequences, such continuing effects do not automatically render the crime a continuous one.Footnote ¹⁷¹

However, even if acts of indirect transfer could qualify as continuous crimes, one must bear in mind that all the criminal elements need to be present during the period in which the criminal provision applied.Footnote ¹⁷² In other words, if the Court were to exercise its jurisdiction over continuous acts of indirect transfer on Palestinian territory that commenced prior to the entry into force of the Rome Statute (and provided they fall within the Court's territorial jurisdiction in the first place), it must establish that population transfer was criminal throughout the relevant period, either through treaty, custom or domestic legislation. As explained earlier, since Palestine has never criminalised population transfer in its domestic law, the Court would have to determine whether Article 8(2)(b)(viii) applied in the territory of Palestine based on its customary nature. This would be far more difficult for pre-2002 conduct when state practice and opinio juris were far less clear.

It is also possible to distinguish between continuous and continuing crimes. In Nahimana the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) famously found that it has no jurisdiction over acts of incitement to genocide that occurred in 1993, even if they had continued until the time period that fell within the tribunal's ratione temporis jurisdiction.Footnote ¹⁷³ The ICTR held that the relevant radio broadcasts could not constitute one continuing incitement to commit genocide because the crime is completed once the material in question is published.Footnote ¹⁷⁴ In contrast, the provision against child soldiers criminalises their conscription or enlistment.Footnote ¹⁷⁵ This means that one of the alternative constituent elements (namely the enlistment) is repeated every day. Rastan argues, therefore, that we should not speak of a continuing crime, but rather of repeated acts that have their origin before the entry into force of the Rome Statute.Footnote ¹⁷⁶ This logic would apply also to acts of indirect transfer. These acts induce settlers to migrate or remain in the occupied territory on a daily basis because the financial benefits are being paid on a regular basis. As a result, the constituent element of the crime is constantly repeated, even if the original policy was implemented long before the entry into force of the Rome Statute.

8.2. Continuing Crimes and ICC Jurisdiction

The impact of continuing crimes on the ICC's temporal jurisdiction is not entirely clear. Rastan argues that the Court could exercise its jurisdiction over those parts of the crime that continue to occur after the entry into force of the Statute without offending Article 11 and the prohibition against retroactivity in Article 22.Footnote ¹⁷⁷ The Court's case law on the matter, however, is scarce. In a decision relating to the situation in Côte d'Ivoire, the ICC Pre-Trial Chamber acknowledged that the jurisdiction of the Court could generally cover conduct that lies beyond the commencement date of the respective authorisation to investigate in the case of ongoing and continuous crimes.Footnote ¹⁷⁸ Whether the Court will apply the same logic to conduct prior to 2002 is yet to be seen.