Settlements and Settlers in the Occupied Territories from the International Criminal Law Lens

October 7, 2023, marked a significant turning point that not only disrupted regional dynamics and agreements but also once again brought the longstanding Israeli-Palestinian conflict to the forefront of global attention and legal discourse. Following an attack by the Hamas group, the Israeli occupying and apartheid regime launched a massive and unprecedented assault on Gaza.
When considering the right to use force in accordance with jus ad bellum, it is important to recognize that occupation is intended to be a temporary and transitional circumstance. Occupying territory during times of war does not strip the occupied government of its national sovereignty, nor does it confer national sovereignty upon the occupying forces. Furthermore, prolonging the occupation does not legitimize the act of occupation. It is on these grounds that international law does not recognize actions that seek to make an occupation permanent.
The International Court of Justice, in its advisory opinion on the construction of a barrier wall by the Zionist regime in the occupied territories, affirmed that member states of the Fourth Geneva Convention are obligated to not recognize the illegal situation created by the occupation, including the construction of the barrier wall, and to abstain from providing any assistance in its construction. Under the provisions of the four Geneva Conventions, the humanitarian rights of individuals in occupied territories are to be upheld, regardless of whether the occupation is met with armed resistance or not.
The guiding principle of occupation law is to safeguard the sovereignty of the occupied government and protect the security and rights of the inhabitants of the occupied areas. The post-World War II world order, founded on the United Nations Charter, emphasizes the prohibition of using military force and upholding the territorial integrity and political independence of nations, thereby deeming occupation a form of territorial aggression. Humanitarian law underscores the temporary nature of military occupation and prohibits any actions that seek to alter the demographic composition of occupied regions.
While it is possible to establish occupation without resorting to ethnic cleansing and to occupy uninhabited land, ethnic cleansing serves as a clear indicator of the occupier's intent to perpetuate and institutionalize the occupation, with the aim of supplanting the original inhabitants and establishing their own rule. Ethnic cleansing, while not explicitly listed as a standalone crime under international law, aligns with the broader category of forced population transfer and deportation, both of which constitute international crimes.
The occupied state of Palestine serves as a poignant example of the repercussions of such war crimes, particularly in terms of violating the fundamental right of a people to determine their own destiny, safeguarding against the enduring impacts of prolonged occupation, and preventing actions that seek to entrench the occupation's longevity.
Expulsion entails the removal of individuals from one country to another, whereas forced population transfer involves the displacement of civilians within a country's borders, without necessitating their crossing into another nation. While deportation is explicitly defined in the statutes of international criminal tribunals, forced population transfer has been expressly codified in the Rome Statute, under the broader category of "other inhumane acts".
In conclusion, the perpetuation of occupation through actions such as ethnic cleansing, forced population transfer, and deportation not only flouts international law but also undermines fundamental human rights and perpetuates cycles of conflict and injustice. It is imperative for the international community and legal scholars to remain vigilant in upholding the principles of temporary occupation and safeguarding the rights and integrity of occupied populations.
The crime of population eviction comprises two essential elements: coercive behavior leading to forced eviction and displacement of the population. The mandatory element of the crime of deportation involves what is known as "open behavior," where the perpetrator may engage in various acts such as murder, sexual violence, robbery, and torture to carry out the deportation. Coercion in this context does not necessarily involve violent actions; the use of coercive conditions alone is sufficient. In addition to eviction, the destruction of homes and available resources to establish new settlements violates the right to occupation.
In its 2004 advisory opinion, the International Court of Justice explicitly declared Israel's policy of constructing and developing settlements from 1977 onwards as contrary to Article 49 of the Fourth Geneva Convention. This policy was deemed an example of the illegal transfer of the population to occupied territories, a blatant violation of international law. The transfer of settlers to illegal settlements is considered a criminal act, similar to the settlements themselves, as it is typically done voluntarily and with the complete consent of the settlers. Thus, accountability falls upon the settlers themselves, a responsibility that is often forgotten.
The Rome Statute, like the Geneva Convention, considers voluntary transfer as part of the crime, aiming to protect the population of the occupied territories rather than the transplanted individuals. Even in cases where settlers voluntarily move to occupied areas with various motivations, individual criminal responsibility may still apply. This aspect sheds light on unexplored facets of occupation rights, challenging the common notion that population transfer is solely a state crime attributable to the occupying government's actions.
Some argue that ordinary individuals settling in occupied areas without governmental support should not be held accountable, as voluntary settlement may not always be malicious. However, according to experts such as "Dinstein," an Israeli authority on humanitarian law, voluntary settlement can still pose legal implications if done in coordination with occupation forces or through organized efforts.
The research herein analyzes the settlement actions of the Zionist regime in Palestinian occupied territories and the influx of Jewish settlers into these regions. The study concludes that Israeli settlement constructions, necessitating ethnic cleansing of the occupied areas, constitute criminal behavior, alongside the resettlement of settlers within these territories. Settlement involves the acquisition of land and property from original non-resident inhabitants, an act constituting war crimes and significant violations of humanitarian rights, punishable under the Rome Statute.
Voluntary settlement, being a form of population transfer, carries criminal responsibility for the settlers involved. Thus, under international criminal law, the construction of Israeli settlements and the relocation of settlers to occupied territories, achieved through ethnic cleansing and forced displacement of native Palestinians, are deemed war crimes for which both settlers and those facilitating or encouraging such acts are held accountable.