Jurisdiction over Israeli Settlement Activity in the International Criminal Court

35 Pages Posted: 10 Mar 2013

See all articles by Eugene Kontorovich

Eugene Kontorovich

George Mason University - Antonin Scalia Law School, Faculty

Date Written: March 9, 2013


In the wake of the U.N. General Assembly’s recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could challenge the legality of Israeli settlements. This Article explores the previously unexamined jurisdictional hurdles for such a case. (To focus on the jurisdictional issues, the Article assumes for the sake of argument the validity on the merits of the legal claims against the settlements.)

First, the ICC can only consider situations “on the territory” of Palestine. Yet the scope of that territory is undefined. An “occupation” can arise even in an area that is not the territory of any state – but ICC jurisdiction does not extend there. Thus even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of Palestine. Moreover, the ICC lacks the power to determine the boundaries of states, and certainly of non-member states. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in the West Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.

Second, the ICC only takes situations of particular “gravity.” Yet settlements are not a “grave breach” of the Geneva Conventions. No international criminal tribunal has ever prosecuted non-grave breaches. The ICC’s gravity measure involves the number of people killed; for settlements it would be zero. Indeed, the ICC prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most only have jurisdiction over settlement activity from the date of Palestine’s acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the Court’s gravity threshold.

The impact of these issues goes beyond a possible settlements case. The controversy over a referral of Israel, a non-member state, raises important questions about the meaning of the ICC Statute. These have great importance for other non-member states, such as the United States. They also demonstrate the extent to which major aspects of the ICC Statute remain vague and undefined.

Keywords: Israel, Palestine, War Crimes, International Criminal Court, jurisdiction, settlements, Geneva Conventions

JEL Classification: K10, K19, K30, K33

Suggested Citation

Kontorovich, Eugene, Jurisdiction over Israeli Settlement Activity in the International Criminal Court (March 9, 2013). Northwestern Law & Econ Research Paper No. 13-10, Available at SSRN: https://ssrn.com/abstract=2230987 or http://dx.doi.org/10.2139/ssrn.2230987

Eugene Kontorovich (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

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703-993-8151 (Phone)

HOME PAGE: http://https://www.law.gmu.edu/faculty/directory/fulltime/kontorovich_eugene

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