CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

OPINION


Do Israeli Settelemnts in Occupies West Bank Constitute a War Crime ?


The landscape of the occupied West Bank is dotted with an ever growing number of Israeli settlements. These are closed off enclaves inhabited and accessed only by Jewish Israeli citizens in the occupied territories. Some are as big as an entire town, with business facilities as well as universities.  

The establishment of settlements is a crime under international law, as it permanently alters the geography of a place, steals resources and forces displacement of population. Almost every day, and even during the current COVID-19 pandemic, Palestinian homes are being demolished to steal land to give way to illegal Israeli settlements.  

The core purpose of such settlements is indeed to foreclose the possibility of a contiguous and independent state of Palestine. Settlements are meant to break up, ghettoise and turn the West Bank into bantustans. They serve as a model for other such colonial fantasies, as expressed clearly by an Indian diplomat with reference to Kashmir post the abrogation of Article 370.  

The state of Palestine has brought the matter of Israeli settlements to the International Criminal Court, demanding investigation and prosecution, given that ICC's Rome Statute as well as other aspects of International Law and International Humanitarian Law deem such settlements as a war crime (including 4th Geneva Convention referring to populations under occupation or in war zones). The following extract from a recent paper by Ghislain Poissonnier and Eric David, legal experts, shows the intent behind these settlements as repeatedly pronounced by Israeli politicians. Since 1967, 249 such settlements have been established, with over 60,000 settlers living in them.  

III. The mental element of the crime of transfer by the Occupying Power of parts of its civilian population into a territory it occupies  

For there to be a crime, the mental element of the offense must be established. This mental element, also called "psychological element171", can be defined as the link (will or criminal intent) existing between the criminal act and the author172.  

A voluntary criminal offense implies that the perpetrator acted intentionally and is aware of the illegality of the act173. The intentional nature of the act may be presented, either in the form of a general criminal will -the general fraud- which results in the awareness of committing and the will to commit an offense174, or in the form of a specific intent -special intent- which is the intention to violate the law so as to produce a specific damaging result175.

Art. 8 (2) (b) (viii) of the Statute does not have any specific requirement with respect to the mental element. It is not necessary for the offender to have a specific intention or motive : it is sufficient to prove, since the material element of the offense is established, that the person wished to transfer the population of the Occupying Power to the territory occupied by it. The requirement of a single general fraud stems from the logic of the criminalization, which seeks to ensure the prohibition of such a transfer with a view to protecting the population of the occupied territory, whatever the reasons for the transfer176.  

However, the offender must be aware of the illegality of the act. This awareness is usually proven by a bundle of clues that reveal the criminal intent.  

The criminal intent of the perpetrators of the transfer of part of the Israeli civilian population to the Occupied Palestinian Territory can be inferred from the various decisions and actions taken to organize such a transfer. However, the use of such a bundle of clues is probably not necessary in this respect. Indeed, the mental element of the offense lies in the Israeli settlement policy, which presents a double peculiarity : on the one hand, the transfer by Israel, the Occupying Power, of part of its civilian population in the Palestinian territory has been repeatedly declared illegal in international law (B) and, on the other hand, the transfer is claimed by Israeli politicians (A).  

A. A policy claimed by Israeli politicians  

The Israeli settlement policy in the West Bank is officially supported and claimed by the Israeli authorities. Thus, in the event of an ICC prosecution, it will be easy for the Prosecutor to establish the intention of the highest-ranking officials in charge of the settlement policy to commit the act of transferring part of the Israeli population to Occupied Palestinian Territory.  

Since its creation in 1973, Likud, the main party of the Israeli right, has always been in favor of the settlement policy in the West Bank. Benjamin Netanyahu, leader of Likud since 2005 and leader of all successive Israeli governments since 2009, has repeatedly affirmed his support for Israeli settlements. For example, on 24 January 2016, he indicated : "The government supports the settlements at any time"177. On 3 August 2017, Benjamin Netanyahu, taking stock of his government's achievements, declared during a ceremony in the settlement of Beitar Illit : "No government has done as much for the settlements as the one I lead", before adding : "We act everywhere dynamically for the settlement movement"178.  

Since 2013, the political parties The Jewish Home and Israel Beytenou (Israel our home) have participated, alongside Likud, in the Israeli governments led by Benyamin Netanyahu. Accelerating the settlement policy and supporting settlers are part of their political agenda. The Jewish Home party claims the legacy of the National Religious Party, which has always been, with the Gouch Emounim (Bloc of Believers), the heart of the settlement movement. This party is led by Naftali Bennett, who from 2013 to 2015 was Minister of Economy, Religious Affairs, Jerusalem and the Diaspora, then, from 2015 to 2019, Minister of Education and the Diaspora. The Israel Beytenou party is led by Avigdor Liberman, who from 2013 to 2014 was Minister of Foreign Affairs and from 2016 to the end of 2018 Minister of Defense.  

The fact that the political parties represented in the government, who make up the majority in Parliament, claim the settlement policy in the West Bank has also resulted in legislative changes. On 6 February 2017, the Israeli parliament passed a law authorizing the Israeli State to appropriate, against compensation, Palestinian private land in the West Bank on which Israelis have built -without authorization- irregular settlements, or "outposts"179. The draft law was strongly criticized in December 2016 by the UN Special Coordinator for the Middle East Peace Process, Nickolay Mladenov180. The basic law of the country was also amended to facilitate settlement : Point 7 of the Basic Law "Israel as the Nation-State of the Jewish People", adopted on 19 July 2018, states : "The State views the development of Jewish settlement as a national value and shall act to encourage and promote its establishment and strengthening181".  

It is probably these Israeli leaders, along with the military leaders in charge of the West Bank administration, who are most likely to be prosecuted by the ICC Prosecutor for committing the offense described in Art. 8 (2) (b) (viii) of the Statute.  

The entire paper can be read here.

Ghislain Poissonnier is a french magistrate. He was judge and vice-prosecutor in Béthune, Lille and Paris. He worked as a lawyer in Kosovo, Palestine, Democratic Republic of Congo, Thailand, Afghanistan and Guinea

Eric David is professor emeritus of public international law and president of the centre of international law of the Free University of Brussels    

OPINION

  • River in a 'Court of Law' - Legal issues pertaining to its personality
  • Syria: A Testament To International Moral Bankruptcy
  • When the State Sought to Muzzle Privacy, U-Turn Now Only to Accommodate SC Verdict
  • The Bull in A China Shop Wrecks Indian Economy
  • When Buddha Looks The Other Way: The Plight Of The Rohingya
  • A Fatal Blow to The Judiciary
  • The Dramatic Rise in Wealth Inequality
  • Wild And Baseless Speculations of Crisis in the CPI(M)
  • Budget 2018: Fantabulous Schemes With Not A Paisa Earmarked
  • Kasganj: Sankalp Foundation and the Politics of Hate
  • PM Modi Sounds the Election Bugle: Congress and Hindutva the Agenda for 2019 Polls
  • The US Game Plan in Syria
  • Both Nehru and Patel Were the Need of the Hour in 1947-48
  • The Battle of the Two Begums of Bangladesh
  • Why Bangladesh Matters
  • Kejriwal's Apology is Not What the Media Claims
  • Arrest of a '5-minute Dalits' Proves Why SC/ST Act Dilution Will Grossly Impact Real Dalits
  • The Dalits and the Law
  • Winners May Be Losers In Karnataka's Catch 22 Endgame
  • Jinnah and the BJP
  • Jawaharlal Nehru (Nov 14 1889- May 27, 1964): We Still Live In A House That Nehru Built
  • Implications of Trump-Kim Summit: Nuclear Pays!
  • Thomas Reuters Foundation Survey: Measuring Safety, Generating Outrage
  • ROADMAP TO A CEASEFIRE: AFGN - PAK
  • What Are People Voting for?
  • Foreign Policy: A Double Whammy Awaits India
  • Changing Discourse
  • Assam: The Mythology of "Immigrants"
  • Imran Time is Here
  • 71 Years on, Forsty Relations Countinue
  • To Stop Climate Change, We Need to Open Bordera
  • Make Use of Bid to Postpone Provincial Elections
  • Cringing and Fuddled at 71
  • Ensuring Strident Voice Will Not Become Majority Voice
  • Nehru, Vajpayee and Modi
  • Religious Bias Okayed
  • The Oslo Accords: A Bloody Legacy of Betrayal
  • Crushing the Campus
  • Three Stories And Task of The Office Of Missing Person
  • Drama Over Indo-Pak Meeting
  • An ill Wind
  • Symbolic Actions Alone Are Insufficient For Long Term Change To Occur
  • If Democracy Subverts Itself
  • Returning Land to Civilians is a Promise That Needs Follow Up
  • Democracy In Crisis: What we Know and What we Don't
  • Reparations Office Can Bind The Nations Together
  • Implementation Challenges Facing The Ayushman Bharat Program
  • Subverting the Central Bank
  • Under the Yoke of New-Imperialism: A Fake War of Patriotism and Treason
  • India Joins the Club
  • The Third Phase
  • President is Best Situated to Resolve Political Crisis
  • No Country for Adventure: Challenges Extreme Sports Athletes Face in India
  • Setting A Perilous Political Precedent
  • What Rahul and Modi can do in the Next Four Months
  • Finding a Win-Win Solution to Break the Deadlock
  • Temple in the Age of Colliders
  • Four Parameters of a Political Solution at This Time
  • Resolve National Question With President's Support
  • Decapitating the Leadership
  • Four Takeaways From the 2018 Election
  • Science of Words
  • The Ace up Modi's Sleeve
  • The Government Must Not Deny The TNA
  • The Prolonged Wait For Justice And For Political Leadership
  • Endgame in Afghanistan
  • Pluralist Ethos is More Relevant to National Identity
  • A Concerned Citizen's Points For Inclusion in The Manifesto of Political Parties
  • In My Own Voice: Circle of Unreason
  • RBI To The Rescue of Modi Government - It's Election Time!
  • Say No to War
  • A terrifying Fallout
  • The Type of Leadership The Country Needs
  • Death Wish as Nationalism
  • Politics on Kashmir Need Not be About Optics Alone
  • Why an Urban Job Guarantee Scheme is Not a Bad Idea
  • National Security: The New in 'New Normal'
  • Re-Promulgating an Ordinance is a Fraud on the Constitution
  • Elections 2019: India at a Crossroads
  • Peace and Inclusive Development
  • NYAY Providing Basic Income Fulfills the Vision of Mahatma Gandhi and Changed Election Narrative Based on Basic Issues
  • Advani Should Blame Himself For Promoting Modi
  • Kashmir: Tracing the Degeneration of Mainstream Politics
  • Elections and the Issue of Civil Liberties
  • Jumlanomics:Chronicles of a Post-Truth Bharat
  • BJP: Hiding Failures, Targeting Nehru
  • A Mayawati Moment
  • Godse is a Synonym of Hindu Nationalism, Agenda of the RSS Combine!
  • Development Beyond Numbers
  • A Rational Approach to Countering Extremist Violence is Needed
  • In My Own Voice: Is This the Sprit of Democracy?
  • Prevention is The Best Migration Cure
  • The Rise of Hate
  • The Right Mantras for India's Change
  • Coming Home - Where Family Overpowers All
  • Easter Sunday Bombing Used to Create a Major Rift in Sri Lankan Society
  • Hacking Humanity
  • Environmental Rule of Law in India
  • Peace is a Word That West Has Taken From Afghans
  • Trump's War Games
  • Modi & States
  • Who is an 'Outsider' in West Bengal?
  • China on Maps
  • 19th Amendment Will Correct Itself at End of President's Current Term
  • Authoritarianism and the Crisis of Public Ethics in India
  • Presidential Candidate The People Want
  • Has India's Kashmir Cape Given Pakistan Reason for War?
  • Icons and Ideology of Religious Nationalism
  • Why NRC in Assam May Create Another Kashmir
  • Campaign to Abolish the Executive Presidency in Sri Lanka is a Red Herring
  • As US Tries to Isolate Iran, China Steps In
  • Of Hindi and Hierarchy
  • Why Sri Lankan Elections May Bring Far Reaching Change
  • What US Policy Tells Us About India's Growing 'Friendship' With It
  • Gandhian Philosophy is a Critique of Modernity and Power
  • Inner Party Democracy is Just as Important as Funding
  • India's Foreign Policy Has Dug Itself a Deep Hole
  • 'Broken Promises' and Politics of Hate': Is Political Autonomy The Way Forward For J&K?
  • The Ninth Betrayal: America Has Let Down Khurd, Yet Again
  • Who Benefits From The WhatsApp Hacking Case?: Pertinent Question Left Unanswered
  • State Elections Results Expose "Limits" of BJP's Nationalist Agenda
  • "Religious Belief" vs. "Rule of Law": Did SC's Ayodhya Verdict Legalise Building of a Theocratic State?
  • What Does Trump's "New Refugee Ban" Mean for America's Immigrants?
  • India Must Change Course as Rajapaksas Return on Sinhala Buddhist Wave
  • The Supreme Court's First Judgment Without an Author
  • Geopolitics in South Asia Renders Millions Stateless
  • "Shakespeare's Vision of the Improbale" Unfolds: Is Modi Today's Macbeth?
  • Sri Lanka Under Rajapaksa: Finding Areas of Mutual Agreement
  • "The Game of Religion is Played by Men": Women Speak From the Margins of Ayodhya Dispute
  • Telangana Ecounter- Failure of Local Police Poses Grave Danger to Democracy
  • The Changing Nature of War and Diplomacy
  • Sri Lanka: Government's Cooperation A "Temporary Phenomenon"?
  • The Role of Corruption in This Season of Revolts
  • New Citizenship Law to a "Brazenly Divisive Agenda"
  • Youth Agitation Against CAA Brings a Historic Generational Shift
  • "Digital Authoritarianism": With Internet Shutdowns Normalised, the Digital Space is Democracy's New Battleground
  • Sri Lanka: The Challenge of Development Amidst Devolution of Power
  • The Political Divides that Split India
  • 'Never Again': Echoes of Nazi Crimes Remain Alive 75 Years After Auschwitz
  • "Legacy of Mutual Suspicion" Plagues Opponents of the Modi Regime
  • "Toxic" India Sliding into an Environmental Abyss
  • Manufacturing Hate: From Anurag Thakur's 'Shoot the Traitors' to Pistol-Bearing Youth's 'Yeh lo Azaadi!'
  • Kejriwal Isn't Communal, But His Desire Not to be Seen Anti-Hindu May Prove Self-Defeating
  • Religion States Won't Oppose US-Taliban Deal
  • Lessons From Pathogens: Coronavirus, A wake Up Call?
  • The Geopolitics of the Covid 19 Pandemic
  • Cold War Begins As Nations Fued Over Coronavirus
  • India Fights Coronavirus...With Scriptures, Morals and Police
  • The Burden of COVID 19
  • Do Israeli Settelemnts in Occupies West Bank Constitute a War Crime ?
  • The Global Debate on COVID-19 Lockdown: Listen to Divergent Scientific Voices or Risk Manipulation by Big Businesses?
  • Sri Lanka's Easter Bombings And The Demand For Justice
  • How India Can Solve the "Catch-22 Situation" of Allowing Migrant Workers to Return Home
  • The Time for Universal Basic Income Has Arrived
  • COVID-19 Crisis Exposes Fatal Weaknesses of 'Strong' Leaders
  • The Pandemic Has Taught Us the Importance of Maintaining an Ecological Balance, Will we Remember IT?
  • The Muslim Elite Has Let Down the Muslim Poor
  • "There is Nothing Nationalist or Non-Nationalist in Reporting"
  • Why WHO Took 3 Months to Declare a Global Pandemic
  • A Political Lockdown That Silences Voices
  • The 'Relief Package' of Online Education May End up "Institutionalising Drop Outs"
  • Can Democracy Survive the Coronavirus?
  • As China Ups the Ante, This is What India Must do...
  • Tackling Racism With Compassionate Reporting-CNN Leads The Way
  • Sri Lanka: Pluralism In Governance Required In The Absence of Parliament
  • Idia's Tactical Non-Solutions To China's Incursions in Ladakh
  • "At The Brink of A New Cold War": Sino-US Ties at a Crossroads
  • In Light of Rising Conservatism, Can The Personal be Political Again?
  • India-China: The Complete Breakdown of Trust, How and Why
  • Rethinking Development After Covid-19
  • The Pandemic Must Transform Our Agriculture
  • Treacherous Road to Make Manu History
  •