Analysis: Will Amona lead to a war crimes showdown with the ICC?

How would the passage of the currently-debated Legalizations Bill impact Israeli leaders and settlement leaders before the International Criminal Court?

November 29, 2016 14:26
4 minute read.

Amona. (photo credit: MARC ISRAEL SELLEM)

Amona is most likely going to be evacuated December 25, as scheduled around two years ago.

The political and legal forces pushing in that direction are likely stronger than those trying to save Amona. But the much bigger game here is the Settlement Bill.

What if the bill passes or what if Attorney-General Avichai Mandelblit’s Monday night idea of slightly moving the Amona settlers to an abandoned area nearby for eight months goes forward? How would this impact Israeli leaders and settlement leaders before the International Criminal Court? The ICC has been preliminary examining alleged war crimes in the Israeli-Palestinian conflict since January 2015 when it recognized “Palestine” as a state over vehement Israeli objections.

The scenarios need to be played out step-by-step to see how the ICC may react.
MK Hotovely on legality of settlement resolution and regarding Amona

First, regarding the Settlement Bill scenario, the Knesset would need to pass the bill over Prime Minister Benjamin Netanyahu’s objections.

If the bill did pass, temporarily the legal playing field would be changed and the December 25 evacuation date would be invalid. Suddenly, Amona – and also far more importantly around 2,000 other currently unauthorized homes in the West Bank on private Palestinian land – would all have been retroactively legalized.

But this would likely be just another delay like the failed attempt to get the High Court of Justice to postpone the December 25 evacuation for more talks with the Amona settlers on voluntary relocation.

When the settlers of Amona and Prime Minister Benjamin Netanyahu just recently asked the High Court to indefinitely delay the evacuation of the Amona outpost beyond December 25, they had not learned the lesson of the settlers of Migron.

The Migron settlers and Netanyahu tried exactly the same thing, but, rightly or wrongly, were eventually evacuated in September 2012.

The Settlement Bill would remove the most immediate hoop to keeping the Amona outpost by overriding a 2005 government-sponsored study that had sealed the fate of Migron, Amona and others, as illegal outposts by categorizing them as such.

Right or wrong, conventional solid sounding legal arguments, such as that there is no concrete Palestinian claimant to “private property,” that Palestinian claimants have shoddy evidence or their evidence is vague about exactly what areas they own, were never going to convince the High Court to back off evacuations of outposts the state itself defined as unauthorized.

In contrast, the Settlement Bill changes the entire legal framework in which the High Court analyzes whether Amona must be evacuated.

The question had been: when will the state enforce its own policy to evacuate unauthorized outposts on private Palestinian land? If the bill passes, the question becomes: is it legal to essentially annex private Palestinian land in certain circumstances where the land was not being used by Palestinians and compensation is provided? Even Mandelblit, who was picked partially for being deferential to the Knesset and close to Netanyahu, says that he could not defend such a move in the High Court as it would blatantly violate international law.

But if the High Court decides it cannot veto the law, Mandelblit and essentially the entire government legal establishment have said that annexing the land would push the ICC into opening a full criminal investigation whereas they may currently be on the fence.

Northwestern Prof. Eugene Kontorovich, expressing the opinion of many on the Israeli Right, recently told the Knesset Constitution, Law and Justice Committee that the ICC should not be decisive on the issue.

He said that the international law of occupation does not apply to Judea and Samaria and that there is nothing illegal about the Settlement Bill.

Even in the event that the ICC would disagree with his opinion, he said this disagreement would be based on the principle that every piece of Jewish building in the West Bank is illegal and potentially a war crime, and Amona and the Settlement Bill are not going to significantly impact the ICC’s conclusions.

In contrast, The Jerusalem Post has learned that much of the government legal establishment still believes Israel has a strong potential defense to keep the ICC from going after the settlement enterprise.

They would likely point out that there is no historical precedent of the ICC having jurisdiction over building housing, as opposed to genocide. Additional arguments could include state practice in Cyprus and other countries, a gray legal framework regarding balancing the rights of Jews and Palestinians living in the West Bank and High Court decisions ,which have alternately validated or invalidated certain settlements depending on case-by-case circumstances.

In this view, ignoring Mandelblit’s warning that the Settlement Bill violates international law would be the ultimate legal coup for the Palestinians against Israel before the ICC, whereas following his view would be the ultimate affirmation that Israel’s legal system is independent, impartial and fully committed to international law.

Mandelblit’s other suggestion, to move Amona to a nearby abandoned property temporarily for eight months would also avoid newly provoking the ICC.

But all signs are that this compromise idea is dead-on-arrival both on the Left and the Right.

What is left then is for the Knesset to decide if the Settlement Bill is important enough to take the gamble.

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