In December 5, the Office of the Prosecutor of the International Criminal Court issued its yearly report on preliminary examination activities. In it, the prosecutor confirmed that it was particularly focusing on reported settlement-related activities engaged in by Israeli authorities in the West Bank and east Jerusalem. This means that for the prosecutor of the ICC, what she calls settlement-related activities are considered international crimes under the Rome Statute.
On December 20, the prosecutor filed a motion with a pre-trial chamber requesting a ruling on the scope of the exercise of the court’s territorial jurisdiction. In that motion the prosecutor indicated that she considered that all conditions were met for the opening of a formal investigation in the situation of Palestine, pending the pre-trial chamber’s determination on territorial jurisdiction.
Interestingly, in her motion, the prosecutor relies heavily on the idea that settlement activities are per se illegal, to advocate that Israel would be principally responsible for Palestine’s incapacity to exercise its right to self-determination, and that therefore, despite the fact that all relevant criteria of statehood would not be fulfilled at this point in time, Palestine should still be considered a state under international law.
These statements coming from the ICC prosecutor follow by a few weeks the announcement by US Secretary of State Mike Pompeo that “the establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law,” thus reversing the Obama administration’s position adopted in 2016, especially when it supported UNSC 2334 of 23 December 2016, apparently drafted by the UK with the help of the Palestinians, which considered all settlements illegal under international law.
This announcement has sparked considerable reaction and commentary on whether it was legally grounded or not, in other words, on the legality of Israeli activities in Judea and Samaria and east Jerusalem. This is not the place to enter into these discussions. What is interesting here is to explore one specific aspect of them and uncover what is behind the position that the Israeli presence in Judea and Samaria and east Jerusalem is per se illegal.
If one analyzes the arguments put forward in that respect, it becomes apparent that those who support them, willingly or unwillingly, serve the cause of a certain narrative. What is this narrative? That there exists an Arab autochthonous (indigenous) population and that logically this population owns the land by virtue of a right of first occupant.
This forms the basis of the Palestinian narrative advocated since the creation of the PLO in the 1960s. In this context, Jewish Israelis are portrayed exclusively as settlers coming from Europe. As a consequence of this narrative the idea is put forward that the State of Israel is the result of the colonization of the territory by a foreign population. Why? Because colonization – especially in the context of the decolonization process of the 1960s, being as such an illegitimate process – the State of Israel could be denounced as illegitimate.
SINCE THE question in this narrative is to determine who the first occupant was, this implies that historical Jewish presence must be denied and that, as a corollary, Palestinians need to prove that they were the first occupants. The consequence of this narrative is that anything Jewish is erased from the history of the country.
For example, recently, Palestinian academics denied archaeological evidence of Jews in Israel, part of a narrative to portray Jews as recent invaders. More generally, this creates an impossible historical conundrum, since the presence of an Arab population emerged as a notable community in the territory of Israel after the Muslim conquests of the seventh Century and that, thereafter, this population always cohabited with the Jewish and Christian communities that remained after the conquests.
More specifically, the aspect of this broad narrative relating to the inherent illegality of Jewish presence in Judea and Samaria implies a certain view of the history of the past century. One could even say that this narrative requires a sort of Orwellian rewriting of the past, to erase key moments that fit uneasily with such a narrative.
Indeed, it requires a rewriting of the recognition of a Jewish right to self-determination that followed the Balfour Declaration of 1917. It ignores the conditions under which Judea and Samaria, as well as Gaza, were occupied respectively by Jordan and Egypt from 1947 to 1967. It ignores the circumstances of the 1967 Six Day War when Israel took control of this territory in a defensive war. It ignores the negotiated terms of the Oslo Agreements in relation to the distribution of authority in Judea and Samaria and the lack of final status of both borders and territories.
The wide-sweeping argument of illegality per se also ignores the diverse nature of each individual presence in these territories, in terms of where it is, how it came into existence, what legal regime applies to it, etc.
As in a courtroom, the issue comes down to the identification of competing narratives before the international community acting as a judge. Each side is therefore faced with the choice of which narrative to choose from. Some narratives can be reconciled. Others cannot.
The fact remains that the position that settlements are illegal as such serves a war-like narrative that denies any legitimacy to Jewish presence on the entire territory of Israel, as exemplified by numerous declarations, including a recent declaration by a Fatah official that Palestinian people will not relinquish a grain of soil from the land of historical Palestine from the [Mediterranean] Sea to the [Jordan] River.
The December 20 announcement by the ICC prosecutor that she is ready to open a formal investigation with settlement-related activities at its core will undoubtedly be seen as a first narrative victory for those challenging Jewish presence in Israel. This can only be countered if another narrative is presented, not just in public discourse, but at the ICC itself, which provides genuine procedural opportunities for participation in the judicial debate, as we noted in an editorial last September.
Emmanuel Altit is lead counsel and Jennifer Naouri is counsel at the ICC. Dr. Dov Jacobs is an international criminal law professor and trial lawyer at the ICC.