From The International Criminal Court: the making of the Rome Statute : issues, negotiations and results by Roy S. K. Lee
Article 8(2)(b)(viii), on deportation and transfer of population, also generated extensive discussions. The provision now reads:In other words,the drafting committee caved to Arab demands to expand the scope of existing international law specifically against a single state - a state that most of them were technically at war with..
The transfer. directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.The grave breach of “unlawful deportation or transfer or unlawful continement" is already reflected in Article 8(l)(a)(vii). The violation in Article 8(2)(b)(vii) is based on the broader provision in Article 49 of the Fourth Geneva Convention of 1949, now recognized as a grave breach in Article 85(4)(a) of Additional Protocol 1. The scope of these prohibitions is broader, as they govern not only the transfer of population of the occupied territory to other parts of that occupied territory or to places outside the occupied territory. but also the transfer by the occupying power of parts of its own civilian population into occupied territory. The latter aspect was politically controversial during the negotiations. Israel was not a party to the Additional Protocol l, largely because of this provision, and emphatically disagreed that this aspect was part of customary international law. It stood, however, rather isolated in this position and was supported, to a certain extent, only by the United States.
During the December 1997 session, this provision generated heated debates, as a result of which four options were submitted for discussion at the Rome Conference.‘°' At Rome, it soon became clear that a large majority of delegations preferred a provision based on the wording of the Additional Protocol. However. the Arab delegations wanted to adapt this language. in order to make clear that an occupying power is not only responsible for this act if it deliberately organizes the transfer of its own population into occupied territory, but also if it does not take effective steps to prevent the population itself from organizing such a transfer. After some negotiations, the words “directly or indirectly" were added to this provision.
Just for context, here are other crimes that the Rome Statute considers exactly as heinous as the crime of allowing one's citizens to voluntarily move to disputed territory:
* Intentionally attacking innocent civilians
* Intentionally attacking official people involved in humanitarian or peacekeeping missions
* Killing people who have surrendered
* Intentionally attacking churches, hospitals or museums for no military reason
* Subjecting the enemy to medical experiments or mutilation
* "Committing rape, sexual slavery, enforced prostitution, forced pregnancy..."
* Intentionally starving civilians
Israel commented at the time:
Israel has reluctantly cast a negative vote. It fails to comprehend why it has been considered necessary to insert into the list of the most heinous and grievous war crimes the action of transferring population into occupied territory. The exigencies of lack of time and intense political and public pressure have obliged the Conference to by-pass very basic sovereign prerogatives to which we are entitled in drafting international conventions, in favour of finishing the work and achieving a Statute on a come-what-may basis. We continue to hope that the Court will indeed serve the lofty objectives for the attainment of which it is being established.The deck is stacked against Israel at the ICC because its foundational document was partially the result of political, specifically anti-Israel move by her enemies.
A court whose rules are created not for the purposes of justice but for the purpose of revenge against a single state is flawed from the start.