On the situation in Palestine and the war crime of transfer of civilians into occupied territory

Kearney, Michael G (2017) On the situation in Palestine and the war crime of transfer of civilians into occupied territory. Criminal Law Forum, 28 (1). pp. 1-34. ISSN 1046-8374

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Abstract

This paper considers the war crime at Article 8(2)(b)(viii) of the Rome Statute, 'the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies', by addressing the doctrinal elements of the provision in light of the impact which the practice of transfer of Israeli civilians into occupied territory has had on the application of the rule of international law to the broader situation in Palestine. The provision is distinct among war crimes within the Court's jurisdiction as it refers to the activity of a state – the occupying power – in addition to that of the individual perpetrator. This feature reflects the structural issues that the provision was designed to address, and emphasizes that its purpose is not so much to confront direct physical violence, but rather to prevent colonial practices. Despite the political significance of the underlying conduct there has been comparatively little analysis of the war crime itself. Following an overview of how Israel's transfer of civilians into occupied territory challenges international law's distinction between civilian and combatant and has given rise to the charge of apartheid, the paper considers the drafting history of Article 8(2)(b)(viii) of the Rome Statute, reflecting on the provision's unusual construction, before reviewing Israel's state responsibility for unlawful transfer, and considering the temporal jurisdiction of the ICC and the nature of continuing and continuous crimes.

Item Type: Article
Keywords: International criminal court Palestine Israel settlements transfer colonialism occupation accountability
Schools and Departments: School of Law, Politics and Sociology > Law
Research Centres and Groups: Sussex Centre for Conflict and Security Research
Subjects: K Law
K Law > KZ Law of Nations
K Law > KZ Law of Nations > KZ1165 Trials > KZ1168 War crime trials
Depositing User: Michael Kearney
Date Deposited: 21 Dec 2016 14:44
Last Modified: 09 Jun 2017 14:37
URI: http://sro.sussex.ac.uk/id/eprint/65973

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