Where the Israeli High Court of Justice has approved specific settlements as legal, this could provide a complete defense to any allegations that they are war crimes, former International Criminal Court chief prosecutor Luis Moreno-Ocampo told The Jerusalem Post on Thursday.Moreno-Ocampo is saying that since the Israeli Supreme Court says most settlements are legal, then the accusation of "war crimes" in building there goes away, because there is legal cover for it.
Moreno-Ocampo is in Jerusalem lecturing at the The Fried-Gal Transitional Justice Initiative at the Hebrew University Law School.
Although Moreno-Ocampo has stepped down from his post, he was the boss of the current ICC chief prosecutor who will decide whether or not the settlements qualify as a war crime, is considered highly influential internationally and his statement could be a major coup in the debate over the issue.
Moreno-Ocampo did not by any means say that the settlements were legal under international law.
But he did say that “Israel’s High Court is highly respected internationally” and that anyone prosecuting Israelis regarding settlement activity would be incapable of proving criminal intent if those Israelis explained that they honestly believed their actions were legal once ratified by the country’s top court.
“At least they could show no intention” to commit a crime said the former chief ICC prosecutor.
The High court has weighed in many times over the years about whether particular settlements or outposts were legal or not, occasionally ordering the state to remove outposts for being built illegally, but mostly accepting the legality of the settlements in the context of Israeli-Palestinian negotiations.
In other words, the High Court has ratified most settlements as legal pending a deal that resolves the conflict, at which time politician decisions might be taken to withdraw from certain disputed areas of the West Bank.
But settlements that the Israeli government regards as illegal are by definition not illegal under international law!
Why? Because the Geneva Convention that people cite to say settlements are illegal only says that "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."
Forget about the fact that here is no way to regard Jews who quite voluntarily move across the Green Line as being "deported or transferred." The framers of Geneva did not consider the possibility of a members of a country wanting to move to territories on their own because of longstanding religious and cultural ties to that land, and there is no indication that they would have considered that illegal.
But besides that...
If these Jews are moving in opposition to Israeli law, then there is no possible way to regard Israel as violating the rule of transferring them!
So legalized settlements are not likely to be considered a war crime, and illegal settlements under Israeli law are by definition not illegal under international law.
When people say that "settlements are illegal," ask them which ones they are referring to and which international law they violate.
See also this 2008 article by Eugene Kontorovich and my previous article about all of the discussions at Geneva regarding this article, indicating that the "transfer" that is illegal in Geneva is involuntary.
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