The unsettling ICC gambit

The Jews are entitled to settle in the disputed territories: entitled legally, historically and morally. The prosecutor of the International Criminal Court has announced a “preliminary examination” into “the situation in Palestine.” This has understandably provoked a furious response by the Israeli government.

The ICC prosecutor chose to accept the UN General Assembly’s bogus and politically motivated designation of Palestine as a non-member “state.” And Israel’s reputation is besmirched by the opening of an inquiry into it by an ICC which was set up to prosecute war criminals.

It is intolerable that the ICC has first of all accepted that “Palestine” is a state, and second that it may put Israelis in the dock while they are the victims of true war criminals, the Palestinians.

The prosecutor’s preliminary examination, however, is merely standard procedure triggered by the Palestinians accepting the jurisdiction of the ICC. Any prosecution of Israelis will not depend on the Palestinians bringing a case but on whether the ICC itself decides to prosecute.

What it does mean is that the ICC will now ask the Israelis for information. It will be interesting to see how they choose to respond.

Whether the ICC will actually proceed with a prosecution, however, remains very much to be seen. The Palestinians think that, since the world is on their side, the ICC will be too. This, though, is far from clear, particularly since the ICC knows if it doesn’t display judicial integrity it is finished.

When it comes to Israel, that reputation is already shaky. Originally, Israel strongly supported the formation of such a court to end the injustice of impunity for war crimes or crimes against humanity.

But it pulled out after a group of Arab states secured a particular change during the drafting process of the ICC’s governing Rome Statute – a provision corresponding to Article 49 of the Fourth Geneva Convention, which prohibits an occupying power from “deporting or transferring” its civilian population into the territory it occupies.

As the international law expert Prof.

Eugene Kontorovich has observed, this provision was inserted specifically to target Israeli settlements – albeit through a highly tendentious, indeed twisted interpretation of the Geneva Convention to which the West subscribes. And it’s the settlements, rather than nonexistent Israeli war crimes in Gaza, which the Palestinians are thought to want to place in the ICC’s sights.

They know that the West endorses the view that Israel’s “occupation” and settlements are illegal. And at the heart of that claim is the view that Israel is belligerently expansionist and is grabbing Palestinian territory, which self-evidently is the principal obstacle to peace.

This widely held view is simply wrong. As international lawyers and eminent jurists and scholars such as Eugene Rostow, Howard Grief, Eugene Kontorovich, Alan Baker and others have attested, the only fair and logical interpretation of the relevant treaties and statutes is that the settlements are legal several times over.

Israel is entitled to retain territory seized in a war of self-defense while the people there remain belligerent. The claim that the settlements are illegal under the Geneva Convention is based on a clear misreading of its prohibition of population transfer; the Israelis living in the West Bank freely chose to migrate there.

Moreover, the treaty obligation under the Palestine Mandate requiring Britain to settle Jews throughout what is now Israel, the West Bank and Gaza as part of their unique right to that land was never abrogated.

After 1948, these territories comprised a collective no-man’s-land. Some of it belonged to individual Arabs from whom Jews legitimately bought those plots.

These territories were never “Palestinian” lands, because such a collective entity never existed – until it was invented purely to destroy the Jewish people’s legitimate claim.

According to Kontorovich and other lawyers, moreover, the fact that these were never sovereign territories means that they are not “occupied” as necessarily defined by the Hague Convention.

In Britain, nevertheless, the Foreign Office repeats the mantra that Israel’s “occupation” and settlements are “illegal.”

Anecdotally, I have been told the Foreign Office is well aware this is untrue but repeats it merely in order to suck up to the Arabs.

You can see that it’s nonsense from the egregious double standards employed by the UK and the rest, who never issue a peep of complaint about the illegal occupation and settlements imposed upon Cyprus by Turkey – which aggressively invaded the north of the island in 1974 and expelled the majority Greek population.

Yet people believe the Israeli settlements are illegal because “the UN and the International Court of Justice have said so.” But this is legal illiteracy. The UN merely said the settlements had “no legal validity.” The ICJ issued an advisory opinion, not even a ruling.

In any event, just because such bodies may say something is illegal doesn’t make it illegal. International law rests on the wording of the treaties and other legal instruments to which nations sign up. And the wording of these relevant agreements supports the legality of Israel’s actions in the territories.

The mystery is why Israel doesn’t shout this from the rooftops at every opportunity.

One reason is that it has never understood (nor perhaps cared) that, among Europeans, the belief that the settlements are illegal and unjust is absolutely central to the demonization of Israel.

Among many Jews opposed to the settlements, there is also a strong belief that they have corrupted Jewish ethics (most pronounced among those Jews who have scant knowledge of what Jewish ethics actually are).

In fact, it is those who demonize the settlers who have corrupted the moral sense of the West. There’s now a widespread view in such circles that if the settlers are attacked, they’re just getting what’s coming to them for living in “illegal” settlements.

The idea that people make themselves fair game for murder simply by virtue of where they choose to live is obscene. It is tantamount to supporting such attacks.

This is all about truth and justice. Whether Israel should give up or hold onto any or all of these territories is another matter altogether.

Critics elide law and policy, but they are categorically distinct from each other.

The Jews are entitled to settle in the disputed territories: entitled legally, historically and morally. Whether they are wise to do so is a different issue, but that’s a matter for them to decide.

The false claim that the settlements are illegal is designed to delegitimize Israel and destroy its defenses. That’s why those Jews who claim the settlements are a moral stain on Israel have themselves crossed over to the dark side.

Melanie Phillips is a columnist for The Times (UK). She will be giving the Raymond Kalman Memorial Lecture on “The British Left & the Jews: What went wrong” to the Jewish Historical Society of England Israel Branch in Jerusalem on January 27.