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UNHRC: Israel could be sent to ICC for settlements
By TOVAH LAZAROFF
01/31/2013
Fact finding mission concludes Israeli settlements leading to "creeping annexation" of the W. Bank; Israel rejects report.
 
The International Criminal Court could hold Israel culpable for West Bank settlement activity if the Palestinians become party to the Rome Statute, a UN Human Rights Council probe concluded on Thursday.

The three-person fact-finding mission released a draft copy of its report in Geneva in advance of a March 18 council debate on the matter.

Israel cut its ties with the council when the probe was announced last March, in anticipation that it would add fuel to the Palestinian drive to bring Israel to the ICC on the settlement issue.

In its conclusions, the mission’s report stated that Israel had an obligation under international law not to transfer its population into the Palestinian territories, as it had done by constructing West Bank settlements.

“The Rome Statute establishes the ICC’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying power of parts of its own 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 report stated.

“Ratification of the statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims,” it added.

Still, the report stopped short of advocating that the issue be brought to the ICC.

It did, however, call on Israel to stop settlement activity and withdraw from the West Bank and east Jerusalem.

The report stated a long-held UN belief, that settlements violate international human rights laws and international humanitarian law.

Private companies that do business with the settlements also bear responsibility not to violate those laws, the report said. It asked them to take “all necessary steps” to ensure that they were respecting human rights, “including by terminating their business interests in the settlements.”

Israeli settlement activity should be seen as a subtle form of annexation, the report added.

“The establishment of the settlements in the West Bank including east Jerusalem is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian state and undermines the rights of the Palestinian people to self-determination,” it read.

At a press conference in Geneva, mission head Christine Chanet of France explained that Israel had refused to cooperate with the mission and had barred its entry into Area C of the West Bank, where the settlements are located.

She and the two other mission members, Asma Jahangir of Pakistan and Unity Dow of Botswana, held hearings in Jordan on settlement activity, in which they heard from members of Palestinian and Israeli civil society.

The Foreign Ministry in Jerusalem rejected the report, warning that it made it more difficult to restart the frozen negotiations with the Palestinians.

Israel has consistently warned that the Palestinians are trying to resolve the issue of settlements outside the context of negotiations, and that reports such as this encouraged such efforts.

“The only way to resolve all pending issues between Israel and the Palestinians, including the settlements issue, is through direct negotiations without preconditions,” the Foreign Ministry said on Thursday. “Counterproductive measures, such as the report published today, will only hamper efforts to find a sustainable solution to the Israel- Palestinian conflict.”

The ministry added that “the Human Rights Council has sadly distinguished itself by its systematical, one-sided and biased approach toward Israel. This latest report is yet another unfortunate reminder of [that] approach.”

In Geneva on Thursday, the judicial mission responded directly to that statement by saying a report was needed precisely because settlements were a core issue in the conflict.

The Human Rights Council settlement probe is the sixth council investigation into Israeli activity in the Palestinian territories or on its borders, including in Lebanon and the Gaza Strip.

But the report is the first one issued since the UN General Assembly upgraded the Palestinian status to that of a non-member observer nation in November, a move that could allow it state rights before the ICC.

Chanet said the report was careful to state what the mission considered judicial facts, rather than drawing concrete conclusions, particularly given that the question of Palestinian status visà- vis the Rome Statute had yet to be determined.

Article 49 of the Fourth Geneva Convention prohibits the transfer of civilian populations into an occupied territory, as does Article 8 of the Rome Statute, she said.

“Article 8 is the chapter of war crimes,” Chanet said. “We can say that to put people directly or indirectly [into occupied territory] is a war crime. But that does not mean that this war crime can be prosecuted.”

Only a court could conclusively determine whether Israel’s transfer of population in this situation is a war crime, she said.

It was also impossible to know if the Palestinians could legally sign on to the Rome Statute, Chanet said.

“We are a fact-finding mission,” she stated. “We have found facts. The facts are linked to law and to prohibition of law.

That is all we can say.”

Dr. Hanan Ashrawi of the PLO Executive Committee welcomed the report, which she said was a “clear and unequivocal indictment of the illegal Israeli settlement policies and practices.”

The report’s conclusions, she said, meant that “Israel is liable to prosecution. The report reaffirms that Israel must end its illegal practices, including withdrawing their settlers from the State of Palestine immediately and without any conditions.”

The office of UN Secretary- General Ban Ki-moon said in response to the report that the Human Rights Council was an independent body.

But the office added that Ban had long stated that “all settlement activity in the occupied Palestinian territory, including east Jerusalem, is illegal under international law. It also runs contrary to Israel’s obligations under the road map.”
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