Palestine's accession to the Rome Statute and the question of settlements

This legal brief analyses the impact of Palestine’s accession to the Rome Statute of the International Criminal Court (ICC) on the question of settlements.

Palestine’s 2 January 2015 accession to the Rome Statute of the International Criminal Court (ICC), and preceding declaration lodged under Article 12(3) of the Rome Statute, has created a new opening to hasten the achievement of justice and accountability for violations of international law in the occupied Palestinian territory (oPt).

In this brief, the Diakonia International Humanitarian Law Resource Center (IHLRC) revisits Israel’s ongoing oPt settlement enterprise in light of Palestine’s accession to the Rome Statute, with the aim of clarifying a number of key legal issues.

First, the brief examines Israel’s settlements under international humanitarian law (IHL), including the obligations of third States not to aid or assist such acts and not to recognize the facts they establish, including their underlying legislative and administrative regime.

Second, it examines Palestine’s accession to the Rome Statute and Article 12(3) declaration. This assesses the potential shift from the Office of the Prosecutor’s (OTP) current preliminary examination of the situation into a full-fledged investigation.

Third, it examines the definition of the crime that settlements may amount to under the Rome Statute, and within the context of possible investigations and prosecutions.

Fourth, it summarizes the UN Human Rights Council report about the impact of settlements on Palestinian human rights and assesses the report’s relation to the ICC.

Fifth, it examines the Government of Israel’s (GoI) position, including political and legal justifications for these acts. Sixth, and finally, it examines how the Israeli Supreme Court has treated the settlements and settlement-related issues.

The brief concludes with specific recommendations, including those aimed at encouraging third States to support this exceptional opportunity to pursue investigations and prosecutions of individuals responsible for the establishment, continued maintenance and expansion of Israel’s oPt settlement enterprise. It also recommends actions States can take to put an end to the whole of the settlement enterprise.