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
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
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
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