How Palestinians Could Use Israel's Own Legal Analysis Before The ICC

Palestinian President Mahmud Abbas gives a speech in the West Bank city of Ramallah on January 4, 2015. Abbas spoke about the steps he took to try and get membership for Palestinians to the International Criminal Court, in a move strongly condemned by both Washington and Israel. AFP PHOTO/ ABBAS MOMANI (Photo credit should read ABBAS MOMANI/AFP/Getty Images)
Palestinian President Mahmud Abbas gives a speech in the West Bank city of Ramallah on January 4, 2015. Abbas spoke about the steps he took to try and get membership for Palestinians to the International Criminal Court, in a move strongly condemned by both Washington and Israel. AFP PHOTO/ ABBAS MOMANI (Photo credit should read ABBAS MOMANI/AFP/Getty Images)

WASHINGTON -- The International Criminal Court announced Friday that it will open a preliminary examination of alleged war crimes committed in the Palestinian territories. The move, which comes shortly after the Palestinians moved to join the court, could prompt years of legal wrangling over a number of issues, including Israeli settlement construction in the Palestinian territories.

Experts on the Israeli-Palestinian conflict believe a formerly classified legal document could help the Palestinians make the case that Israel is committing war crimes by constructing settlements in the territories captured from Jordan in the 1967 Arab-Israeli War. That document, which could be used to argue that Israeli settlements violate international law, was written shortly after the war -- by a lawyer for the Israeli government.

As journalist Gershom Gorenberg explained in 2006, the memo, written by Theodor Meron, legal counsel to Israel's Foreign Ministry, responded to a question about whether international law allowed settlement in the territories Israel had recently conquered. Meron concluded that “civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."

Foundation for Middle East Peace President Matthew Duss speculates that the memo could be a “huge asset.”

“If and when a case against settlements is initiated at the ICC, I would be very surprised if the Meron report were not introduced into evidence,” Duss wrote in an email to The Huffington Post. “It's one thing to argue that the settlements are a violation of international law, which is how most of the world already sees them. It's quite another to show that the Israeli government knew they were illegal before they began building them. Since 1967, successive Israeli governments have attempted various legal defenses of the settlements, but the Meron report shows that the Israeli government was advised of their illegality at the outset."

"That seems like a pretty devastating piece of evidence for the case against them,” Duss added.

Meron told HuffPost that the legal opinion “still represents my best reading of international law.” The lawyer added that he wouldn’t be surprised if his memo counted as evidence in any investigation of settlement construction. (Meron, who now serves as the president of the International Criminal Tribunal for the former Yugoslavia, told the BBC in 2013 that he believes the settlements “make no contribution to peace.”)

In his memo, Meron did concede that settlement would be legal if it was done "by military bodies rather than civilian ones" on temporary military bases. Yet about 610,000 Israeli civilians now live in settlements in the occupied territories, according to the most recent reliable data. Israel has increased its spending on housing subsidies for the territories since Prime Minister Benjamin Netanyahu took office in 2009. This has led some Palestinians, along with certain members of the Israeli Knesset, to charge that Netanyahu’s government is tacitly encouraging Israelis to move to the territories in order to disrupt the prospects for a viable, contiguous Palestinian state.

Bill van Esveld, Israel and Palestine researcher at Human Rights Watch, told HuffPost that he suspected Meron’s memo would “undoubtedly be mentioned" at the ICC, though he wasn't sure how conclusive it would be.

"It is one opinion by someone who had an extremely illustrious international law career that followed," he said, "but it won’t be the only thing that [the ICC] would look at."

Following its failed bid for statehood at the U.N. Security Council in December, the Palestinians acceded to the Rome Statute, the ICC's founding treaty. U.N. Secretary-General Ban Ki-moon confirmed earlier this month that the Palestinians will become the 123rd member of the court on April 1. But ICC prosecutor Fatou Bensouda is already weighing information about possible crimes and settling jurisdictional issues to decide whether to pursue a full investigation.

Bensouda’s announcement of the initial probe didn't come as a surprise, since she said in 2013 that, as a matter of policy, she would initiate preliminary examinations if the Palestinians gave the ICC a valid declaration accepting the court's jurisdiction.

The preliminary investigation is meant to determine whether the alleged crimes are serious enough to warrant the court's attention, and that such crimes aren't already being investigated by Israel. Judges at the ICC must approve any request by the prosecution office for a full investigation, which could involve charges stemming from any aspect of the "situation" referred to the court by the Palestinians. That means the court would have the option to investigate a number of issues, including settlement construction. (The Palestinians have asked the ICC to exercise jurisdiction over any crimes committed in the occupied territories since June 13, 2014, meaning the court may decide to only investigate settlement construction that started after that date.)

International law, as articulated in the Geneva Conventions, prohibits the direct or indirect transfer of civilians into territories conquered in war. Experts have hypothesized that the court could investigate whether Israel has incentivized citizens to move to the West Bank.

The 50-day war between Israel and Hamas militants in Gaza last summer, during which more than 2,100 Palestinians and 73 Israelis were killed, could become a topic for investigation as well. The ICC could also decide to investigate rocket attacks launched against Israel by Hamas, the Gaza-based militant group, during the war.

After the Palestinians moved to join the ICC, Israel, which is not a member of the court and has rejected its jurisdiction, retaliated by halting transfers of the tax revenue it collects on behalf of the Palestinians. Israeli Foreign Minister Avigdor Lieberman called the opening of a preliminary investigation “outrageous” on Friday.

"The court, which after more than 200,000 killed in Syria did not see fit to intervene ... finds it necessary to 'examine' the most moral army in the world," Lieberman said in a statement. "We will act in the international arena in order to bring an end to this court."

The ICC has struggled to complete cases and secure convictions, leading critics to argue that it has focused too heavily on pursuing charges against African warlords while being unable to intervene in conflicts elsewhere.

Van Esveld explained that with the new probe, the ICC is entering uncharted territory, and that any legal targeting of the settlements is likely to be far off.

“It’s going to be a very long time,” he said.

CORRECTION: An earlier version of this story said nearly 700,000 Israeli civilians live in settlements in the occupied territories. According to the most recent reliable data from the Israeli Central Bureau of Statistics, there are about 610,000 living in the West Bank and Golan Heights and East Jerusalem.

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