1. Introduction
The UN General Assembly (GA), in a closely watched vote on 29 November 2012, granted Palestine ‘non-member observer’ status.Footnote 1 A major impetus of the resolution was to give Palestine access to the International Criminal Court (ICC), which had previously rejected an Article 12(3) declaration on the grounds that Palestine is not a ‘state’ within the meaning of the ICC Statute.Footnote 2 In the wake of the Resolution's passage, commentary and media coverage has focused on the new possibility of ICC investigations into the Israeli settlements in the West Bank, which many regard as a violation of international humanitarian law.Footnote 3 Indeed, Palestinian leaders repeatedly state their intention to ‘go to the ICC’ over continued Israeli settlement construction. Palestinian forbearance on ICC action has been used as a central incentive for Israel to enter into negotiations with a promise of making major concessions.Footnote 4 Yet all these moves assume that a situation focused on Israeli settlements would be admissible before the Court.
There are numerous potential obstacles to the jurisdiction of the ICC over settlements. For example, Palestine may not be a ‘state’ under the ICC Statute despite the GA vote.Footnote 5 Even if it is, it may be argued that the activity does not take place ‘on the territory’ of Palestine.Footnote 6 This article puts those questions aside in order to focus on a novel question that a possible referral of settlement activity would raise: whether the alleged crimes meet the gravity requirement for admissibility.Footnote 7 Under the ICC Statute, a situation is inadmissible when it ‘is not of sufficient gravity to justify further action by the Court’.Footnote 8
The Israeli settlements present a question of first impression regarding gravity. The ICC's Office of the Prosecutor (OTP) has never investigated a situation that is defined primarily by non-grave breaches of Geneva norms, or that do not involve the killing, wounding or physical coercion of masses of people.Footnote 9 Whether such a situation would meet the gravity threshold requires thinking more systematically and comprehensively about how to measure and assess gravity, and compare the gravity of different crimes and situations. This article considers a variety of metrics for gravity and applies them to the Israeli civilian presence in the areas of Mandatory Palestine formerly under Jordanian occupation.Footnote 10 It concludes that a situation focused primarily on Israeli settlements may not meet the gravity requirement, or at least would represent the lowest gravity situation the Court has yet dealt with, and would set a very low bar for the future.
The ICC Statute requires all situations to meet a ‘gravity’ threshold as a basic condition of admissibility, along with complementarity. The OTP must make an affirmative determination of gravity in order to open an investigation, and the Court must then also satisfy itself that the gravity requirement under Article 17 of the ICC Statute has been met. Finally, aside from situational gravity, particular crimes – cases brought against individual defendants – must also satisfy a gravity test. Thus both the overall situation under investigation, and any crimes that are ultimately charged, must be of sufficient gravity, although presumably the required gravity of a situation composed of myriad crimes would be higher than that for individual charges.Footnote 11
Article 17(1)(d) of the ICC Statute provides that an otherwise proper situation involving crimes within the Court's jurisdiction is nonetheless inadmissible if it ‘is not of sufficient gravity’. Some suggest that the requirement is inherently paradoxical in light of the reference in Articles 1 and 5 to the Court having jurisdiction over ‘the most serious crimes’ of concern to the international community. The way to reconcile the tension is to understand that Article 17 explicitly ‘limits’ the Court's jurisdiction over the enumerated crimes; that is, from among these already extremely serious crimes, the jurisdiction of the Court is restricted by the gravity requirement to the most serious violations of the already serious crimes within the Court's jurisdiction. As the Court itself put it, the gravity requirement is an ‘additional safeguard’; a necessary consequence is that even some of the ‘most serious’ international crimes will not meet the test.Footnote 12
Indeed, other provisions make clear that even for the crimes that appear in the ICC Statute there is a spectrum of gravity: life imprisonment is authorised only for those convicted of a crime of ‘extreme gravity’.Footnote 13 Thus the ICC Statute contemplates a spectrum from crimes ‘not of sufficient gravity’ which are inadmissible, to the standard case of ‘sufficient’ gravity, and the outlier ‘extreme gravity’ that warrants a life sentence.
Discussing the gravity requirement is an even more speculative endeavour than most ICC analysis. The ICC Statute and its drafting history offer no definition of ‘gravity’. The Court has never defined it, and in almost all the situations before the Court the gravity of the crimes has been manifest, involving situations of mass atrocity,Footnote 14 as contemplated by the Preamble. The policy of the OTP, which has at times addressed gravity, has offered some guidance on its interpretation of the term, but this too has been inconsistent. Of course, a situation involving the indiscriminate targeting of civilians, as might arise from the 2014 Gaza campaign, would more easily satisfy the gravity definition. However, with a situation involving such crimes, settlement activity would clearly be the least grave crime within the situation, and thus even less likely to satisfy the gravity requirement for individual cases.
This poses important methodological limitations. It is impossible to demonstrate definitively whether a situation that focuses on Israeli settlements would satisfy the gravity requirement, as the floor for gravity has never been set. Rather, this article shows that the settlement crime, as allegedly committed by Israel, would be at the bottom of the Court's implicit hierarchy of crimes. Moreover, the timing and manner of commission of the alleged crime puts it below other instances already within the Court's jurisdiction. It would be inconsistent with the basic mission of the ICC to redress ‘unimaginable atrocities that deeply shock the conscience of humanity’ to accept a situation defined primarily by such lesser gravity crimes.Footnote 15
Thus far, situations before the Court have almost exclusively involved what would be characterised as mass atrocities, and thus the definition of gravity has not been well clarified. Yet there are several explicit sources of guidance on the general criteria for evaluating gravity. First, the OTP has formulated general criteria of gravity to guide its otherwise very discretionary determinations. Second, the ICC Statute mentions gravity in two other relevant contexts that could inform the admissibility criteria. Third, the interests protected by the prohibition itself provide a standard by which to evaluate the gravity of its breach. Finally, general principles of law and international criminal law establish some framework considerations. Under all of these tests, the settlements arguably fail to meet the standard. At the very least, admitting an Israeli settlements case would require the setting of an extremely low and flexible gravity threshold.
This article uses the potential Israel/Palestine settlements issue as an occasion to explore the widely undefined concept of gravity, to identify novel problems and questions, and to suggest benchmarks to render it more precise. The answer to the gravity question in a Palestinian referral is not determined by what the Court has done, but will determine what the Court will be.
2. Temporal Limitations
2.1. Settlements Going Forward
The ICC would not have jurisdiction over the ‘settlement enterprise’ as such – the current Jewish population of the West Bank. Rather, it would have jurisdiction only over the incremental movement of Israeli civilians into the territory. It would be able to consider Israeli civilian migration into the occupied territories from the date of Palestine's acceptance of jurisdiction or, at best, the date of its recognition as a state by the GA, depending on how one views the retrospective effect of an Article 12(3) declaration. The explanation of the purely prospective understanding of declarations will be presented below. The only ‘deportation or transfer’ that would count towards the gravity of the crime would be those that occurred after the effective date of jurisdiction.
The Court's limited temporal jurisdiction has a quantitative and qualitative impact on the gravity assessment. How many Jewish civilians need to move to constitute an offence on a par with others with which the Prosecutor has proceeded? In recent years, somewhere between three and five thousand Israeli Jews have migrated into the West Bank annually;Footnote 16 the vast majority of population growth is from births, which are much harder to fit into the ‘deport or transfer’ category of crime. In one recent year, 3,600 Jews migrated to the West Bank,Footnote 17 most into communities very close to the Green Line. It is not clear whether a campaign of violence that killed ten people a day would meet the ICC's gravity threshold, whereas here the conduct in question is simply facilitating civilian migration, albeit in contravention of international law.Footnote 18
According to the OTP's guidelines, the ‘scale’ component of gravity has a temporal component. ‘[L]ow intensity’ crimes over a long period apparently are less grave than brief, intense eruptions.Footnote 19 According to both the Prosecutor and the Court, the inquiry into gravity focuses on surges – what the Court has called ‘temporal intensity’Footnote 20 – not on dribbles. Many may see the long-standing nature of Israeli migration as an aggravating circumstance, but in light of the policies behind Article 49(6) of the Fourth Geneva Convention, this is not the case. Economic and demographic shocks and dislocations come from large, sudden migrations, not slow trickles. Indeed, the migration of peoples across frontiers across a period of decades is difficult to protect against even for a territory not under occupation. Thus, the settler population has grown, but so has the Palestinian population. As a result, when Palestine first accepts jurisdiction, the gravity of the crime will be zero or close to it. As gravity is determined at the outset and not prospectively, if Palestine were to immediately file a referral or declaration, it would be particularly hard to find gravity satisfied at that point.
Some will suggest the inevitable end-run around prospectivity: the notion of the continuing offence, but the relevant prohibition focuses quite particularly on the act of ‘transfer’.Footnote 21 There is no separate prohibition on civilians being in occupied territory. While the transferee may (or may not) remain in the occupied territory after the fact, the crime is the movement into the territory, which is transitory.Footnote 22 For example, if, after some years, transferees were to emigrate from the occupied territory, the crime would nonetheless have already been consummated. Moreover, the actus reus is clearly the actual transfer, and the ICC Statute does not allow for liability for acts prior to its entering into effect. The notion of a continuing offence is belied by the failure to require any removal of settlers in any of the several international peace plans dealing with such situations elsewhere, such as Cyprus, Morocco and East Timor.
2.2. Purely Prospective Jurisdiction
The ICC can deal only with crimes committed within its temporal jurisdiction, which runs from when the treaty came into effect for the relevant member state.Footnote 23 The prospectivity requirement is consistent with, and complementary to, the Court's lack of authority to exercise universal jurisdiction and with the principle of nullum crimen sine lege.Footnote 24 Yet some have argued that there is a loophole by which the Court may exercise jurisdiction over Palestine retroactively, perhaps even backdated to the establishment of the Court in 2002.Footnote 25
There are two ways in which a state can accept the ICC's jurisdiction: by becoming a member, which is a blanket acceptance, or by making a ‘declaration’ pursuant to Article 12(3) to ‘accept the exercise of jurisdiction by the Court with respect to the crime in question’. The declaration provision interacts with the temporal jurisdiction provision of Article 11, which provides:Footnote 26
If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.
Some commentators have suggested that the provision can be read to exempt Article 12(3) declarations from the general prospectivity rule.Footnote 27
However, a stronger and more natural reading holds that Article 11(2) of the ICC Statute addresses temporal jurisdiction, dealing with the most common situation – that of member states. Indeed, the only purpose of Article 11(2) is to define temporal jurisdiction for member states that join after the Statute's entry into force. For those states, it provides the basic rule: jurisdiction runs from the entry into force for that state. However, there is one exception for the rule of prospectivity for member states. This is signalled by the word ‘unless’, which does not introduce a new rule of temporal jurisdiction for Article 12(3) declarations; rather, it explains the effect of a prior declaration on subsequent membership. It makes clear that where there has been a prior Article 12(3) declaration by the new member state, jurisdiction may relate back to that declaration, at least with respect to the relevant crimes. Thus the membership subsumes and supersedes the prior declaration in a manner that is entirely consistent with nullum crimen sine lege. Indeed, were it not for this ‘unless’ language in Article 12(3), one might have thought that the acceptance of membership destroys jurisdiction created by a prior declaration.
Thus Article 11(2) says nothing about the nature of temporal jurisdiction created by a declaration, but only about the jurisdiction arising from membership, which can be backdated to a prior declaration.
This helps to explain the wording of Article 11, which states the general rule of prospectivity. It provides that jurisdiction runs from the date of entry into force of the ICC Statute for a state ‘unless’ a declaration had been filed – but yet Article 11 does not provide a clear alternative temporal jurisdiction rule for such a situation. What this means is that when a state becomes a party to the treaty but had already filed a declaration, the treaty comes into effect from the time of the declaration. In other words, when a declaration is superseded by full accession, jurisdiction relates back to the date of the earlier instrument. The ‘unless’ wording clearly shows that the only retrospectivity arises in the context of the Statute entering into force for a state. Thus Article 11 simply has nothing to do with the temporal scope of a declaration.
Indeed, the notion of retrospective Article 12(3) declarations is inconsistent with Article 11(2), as the latter reaffirms that jurisdiction depends entirely on acceptance of jurisdiction at the time of the relevant conduct.Footnote 28 Such a view is consistent with the policy of encouraging states to become full members. Allowing retrospective jurisdiction over non-nationals through declarations would allow states to opportunistically invoke the jurisdiction of the Court at their convenience, without assuming the broader obligations of membership. Given the strong policy of the Statute for full assumption of obligations,Footnote 29 providing more flexibility for piecemeal acceptance of jurisdiction would seem to be inconsistent with this stance. The clear policy of the Statute, reflected in numerous articles, is prospectivity on a state-by-state level – as opposed to global prospectivity from the coming into force of the Statute – and any departure from that would need clear textual and policy expression. Indeed, the prospectivity policy is so strong that states may only withdraw from the Statute on a year's notice – to protect settled expectations of other states – and such withdrawal is not allowed to have any retrospective legal effect.
Further support for the prospective view of declarations comes from the chapeau of Article 12(2), which provides that ‘the Court may exercise its jurisdiction if … [the relevant states] are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3’.Footnote 30 The chapeau equates membership with a declaration for jurisdictional purposes, suggesting an equivalent, prospective, jurisdiction ratione temporis. Moreover, the chapeau is in the past tense – it speaks of states that ‘have’ made a declaration at the time when the conduct occurred. If declarations could be retrospective, it should say ‘have or will’.
The drafting history and purpose of Article 12(3) also do not support retrospectivity. Declarations are made about ‘the crime in question’, a phrase that has been understood to refer to a particular ‘situation’ rather than a ‘crime’ in the sense of the offences specified in Article 5.Footnote 31 The language was taken from an early draft that envisioned the Court's jurisdiction to always be of an ad hoc nature; when a ‘situation’ would arise, the states involved could give the Court power to deal with crimes occurring in that ongoing situation. Yet nothing about this suggests that the Court may consider prior conduct in that situation, any more than if a state accepts full membership in the middle of a ‘situation’. Rather, it encourages states involved in ‘situations’ to promptly issue declarations.
To be sure, the Pre-Trial Chamber (PTC) has apparently allowed some retrospective effect with regard to Côte d'Ivoire, the only Article 12(3) case it has considered so far. Yet the decision is far from conclusive of the issue. The country filed a declaration in 2003, and subsequently renewed it in 2010 and 2011. The Prosecutor's application to the PTC described the time frame under investigation as being ‘since 28 November 2010’ until ‘the filing of this Application’ in 2011.Footnote 32 The PTC's ruling concluded that the Court has jurisdiction over all crimes since 2002 on the basis of multiple, updated declarations. Thus, it authorised six months of retrospective jurisdiction based on the 2003 declaration.Footnote 33 Yet the opinion contained no discussion or explanation of the retroactive application, which also appears to be dicta, since it predates the period for which the Prosecutor sought an investigation. Moreover, given that Côte d'Ivoire did not object to the Court's exercise of jurisdiction, the issue was not specifically raised.
3. The Prosecutor's Practice and Guidelines
The primary approach of the OTP in assessing the gravity of a situation focuses on a combination of the number of victims and the nature of the crime. While numerous qualitative factors affect gravity, the basic inquiry is a product of the number of victims and the degree of brutality, which is often captured by the type of crime.Footnote 34 As one commentator has observed, ‘practice suggests that the scale of atrocities must be quite extensive before the ICC Prosecutor will agree to devote resources to a case’.Footnote 35
3.1. The Scale of the Crimes
The Prosecutor has said that the primary criterion is the ‘number of victims’, particularly the number of deaths.Footnote 36 This is the quantitative part of determining the ‘scale’ of the crimes.Footnote 37 Generally, this approach focuses on victims who have suffered ‘bodily or psychological harm’.Footnote 38 Thus the Prosecutor has refused to proceed with a case involving 12 unlawful killings by British soldiers in Iraq because it was ‘of a different order’ from the typical case that involves at least thousands of killed or injured.Footnote 39 Qualitative factors also come into play, but they do not supplant objective, quantitative gravity. Proceeding with an investigation into Israeli settlements would constitute a massive departure from the OTP's past practice. As one commentator describes it:Footnote 40
[T]he number of victims is the only factor that has played a significant role in the OTP's situational gravity determinations – an emphasis that it has defended on three different grounds. First, the OTP argues that its limited investigative resources require prioritizing situations involving mass atrocity. Second, the OTP believes that the international community is more likely to view investigations of situations involving large numbers of victims as legitimate. And third, the OTP points out that the number of victims tends to be reliably reported, making it a relatively objective factor.
Perhaps the ‘smallest’ situation the Court has accepted concerns the 2007 election violence in Kenya; this involved, in just a few weeks or months, roughly 1,200 murders, more than 900 rapes and the displacement of 350,000 persons. The murders and rapes were often accompanied by extraordinary brutality, such as burning persons alive, gang rapes and dismemberment.Footnote 41 Nonetheless, the situation was seen by some commentators, and perhaps the dissenting judge, as one of inadequate or borderline gravity.Footnote 42
3.2. The Nature of the Crimes
A qualitative factor cited by the OTPFootnote 43 and the PTCFootnote 44 is the ‘nature’ of the crimes, with killings, sexual violence and attempts to destroy a group highlighted as crimes of a particularly grave nature. Aside from the quantitative scale of a particular crime, there is an implicit hierarchy of types of crime in international criminal law which reflects broader patterns throughout criminal law. Indeed, the OTP has recently acknowledged that some crimes within the ICC's jurisdiction are inherently graver than others, and that investigatory emphasis should be placed on the former.Footnote 45
Crimes involving murder are the most serious, followed by sexual violence and those involving torture or extreme physical or psychological suffering. Somewhere after these may fall crimes involving deprivation of liberty or endangerment, such as the forcible conscription or use of child soldiers. Crimes against property ‘rank at the low end of the gravity spectrum’.Footnote 46 The sentencing practice of the ad hoc international tribunals reflects such differences in gravity. Scholars have found that sentencing practices reveal a hierarchy, with genocide the most seriously punished, followed by crimes against humanity and then war crimes.Footnote 47 The Court's docket thus far has focused only on the high end of this spectrum, with all investigated situations involving ‘hundreds or thousands of the gravest forms of crimes (such as murder or sexual violence)’.Footnote 48
Notably, all of the situational gravity determinations involve aggregating bodily violence and coercion. Never has a situation that does not result in death or serious physical injury, implemented through large-scale violence, been held to satisfy the gravity criteria. Lubanga, for example, involved the crime of enlisting child soldiers, which does not necessarily involve physical coercion, though it does involve actions against individuals without their consent. However, he enlisted the child soldiers to ‘us[e] them to participate actively in hostilities’Footnote 49 that left many dead, maimed and traumatised. If they had merely sat around a clubhouse wearing uniforms, all things being equal, the situation would not have satisfied the gravity criteria. Similarly, several defendants have been charged with ‘destruction of property’, which is not a crime of violence against people. However, these charges have again been in situations characterised by crimes against humanity, large-scale murder and other war crimes. The property crimes did not create or characterise the gravity of the situation, and indeed were vastly overshadowed by other charges.
The ‘transfer’ crime does not involve murder or direct physical violence. Indeed, it is not even a property crime in the conventional sense. Though its commission may involve property crimes, it need not do so. Unlike perhaps any other crime, ‘settlement activity’ may, according to many authorities, be purely consensual – as when the settlers purchase property in the occupied territory. Indeed, the reason why groups like Peace Now are required to fly over the territories or pore through housing tenders to document settlement activity is that otherwise no one might know it happens, because this activity is not carried out against a person.Footnote 50 The transfer crime falls entirely outside the murder–property crime continuum, protecting more intangible interests.Footnote 51
Aside from the violence/non-violence distinction, another way of describing the difference between transfer into occupied territory – and even more so, the indirect transfer – and other ICC crimes is the malum in se/prohibitum distinction.Footnote 52 Acts that constitute crimes of violence against the person or property crimes are illegal everywhere, independent of the existence of an armed conflict. Yet the migration of civilians into a territory, or indirect assistance to such migration, is a regulatory offence – that is, malum prohibitum. Some states choose to allow or even encourage immigration; others variously restrict it. By contrast, personal violence, physical coercion, property crimes and the like are universally criminalised and seen as morally wrong.
Notably, there was no corollary to the ‘transfer’ norm in the Hague Conventions. Moreover, the drafters of the Fourth Geneva Convention incorporated the new norm only ‘after some hesitation’,Footnote 53 underscoring its mallum prohibita nature.Footnote 54 The ‘transfer’ norm, as it is widely interpreted, provides a default immigration rule for the occupied territory (and by modern liberal standards, a highly restrictive and xenophobic zero immigration rule). In the absence of a state of hostilities, such migration would be governed entirely by immigration law, which is not regarded as malum in se. The question here is not whether violations of such rules are war crimes, but rather how readily a situation characterised primarily by such crimes reaches the necessary gravity.
3.3. Crime Without Victims
Leaving aside the absence of dead or wounded, a secondary quantitative measure of gravity is the number of victims, regardless of the kind of injury they have suffered. This raises the question of how one calculates the ‘victims’ of a settlement. For all international crimes, the international legal order is in a sense a victim and, for crimes against particular groups, that group is in an abstract sense a victim. This more general aspect of injury is what gives the crimes an international character, but this is not what is meant by ‘victims’ in the ICC context. While an injury may be collective, it must also be ‘personal’ to create a victim.Footnote 55
The ICC Statute specifically identifies ‘victims’ as a distinct legal status that comes with various defined rights within the ICC system, such as participation in the proceedings and restitution.Footnote 56 The Rules of Procedure and Evidence provide the definition of ‘victims’ as ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court’.Footnote 57 This definition has two major elements: (i) a notion of ‘harm’, with (ii) a demonstrable causal link with the crime. ‘[H]arm’, as interpreted by the PTC in light of international human rights instruments and standards, encompasses physical, property and psychological injuries, such as that caused by seeing family members tortured or witnessing other violent events,Footnote 58 but the alleged injury must be ‘personal’ as opposed to purely collective. The causal link requires that the harm is ‘a consequence, a result’ of the commission of the crime.Footnote 59
‘[D]eportation or transfer’ of the occupying power's civilians poses an obvious challenge for the classic conception of victim. It is not done to particular protected persons or their property.Footnote 60 As the Commentaries make clear, Article 49(6) protects the occupied people as a ‘population’ or as a ‘separate … race’.Footnote 61 Such interests are entirely collective, and not personal.Footnote 62 Taking the case of residential construction within existing Jewish neighbourhoods, without new expropriation from Palestinian private owners, it would be difficult to demonstrate economic harm to particular Palestinians.Footnote 63 Indeed, it would be hard to demonstrate that the protected persons would have known about the new ‘transfers’ to established population centres if it were not for news accounts. Again, this is not to say the ‘deportation or transfer’ does not injure the ‘protected persons’; rather, it does not injure them in the personal and identifiable way that creates individual – and thus quantifiable – ‘victims’.
Moreover, the vast majority of ‘settlement activity’ over which the Palestinians complain takes place within a mile or so of the Green Line, which limits the number of protected persons that might be affected. Thus, there is no danger of a change in the demographic character of the occupied territory from these alleged ‘transfers’, or of undermining Palestinian self-determination: certainly since 2012, such activity has focused overwhelmingly on existing Israeli population centres.Footnote 64
3.4. Other Qualitative Factors
Both the PTC and the OTP have mentioned the ‘manner of commission’Footnote 65 of the relevant crimes and their ‘impact’.Footnote 66 The manner refers to the ‘means employed to execute the crime’. Thus the OTP has cited, in support of a finding of situational gravity, that killings were accompanied by massive brutality and torture – such as burning alive, hacking off body parts, gang rape and so forth. By contrast, the transfer crime is committed primarily through the issuing of permits for building houses, accompanied by the provision of municipal and other governmental services. It may occasionally be accompanied by land expropriation, though this has been quite rare since 2012; this involves issues frequently adjudicated in Israeli courtsFootnote 67 and is thus likely to be barred on the ground of complementarity. In any case, one cannot compare such a manner of commission with those of crimes that the Court has considered.Footnote 68 The means of commission may also refer to the ‘systematic’ nature of the crime.Footnote 69 Israeli settlement activity may be part of a government policy, but this would seem to be a necessary element of the crime itself, and thus it is not clear how it can substantially exacerbate gravity.Footnote 70 In any case, there is no precedent for the ‘systematic’ nature of a crime alone satisfying the gravity bar in the absence of mass physical violence and brutality.
Finally, gravity may include the social and economic effects of the crime, which will be discussed in Part 5, below.
4. Gravity Elsewhere in the ICC Statute
While the ICC Statute does not define ‘gravity’ for the purposes of admissibility, it does use the same term in three other contexts. These apparently refer to the same concept, and should be read to inform the Article 17(1)(d) definition. First, gravity is referred to in the Preamble in describing the kinds of situation to which the ICC was designed to respond; second, in the definition of war crimes, it borrows the Geneva Conventions' distinction between grave and non-grave breaches; and, third, the gravity of the crime is a factor in sentencing, distinct from aggravating circumstances.
First, the Preamble speaks of ‘such grave crimes’ in referring to ‘unimaginable atrocities that deeply shock the conscience of humanity’. It goes on to say that punishing such crimes is the mission of the Court. Thus, from the beginning, ‘grave crimes’ are situated in the context of mass violent atrocity. Furthermore, the Statute's definition of war crimes continues the Geneva Conventions' distinction between ‘grave breaches’ and other, less severe violations.Footnote 71 Non-grave breaches have traditionally been thought of as less objectively atrocious, and certainly of less international concern: the Conventions' extradite-or-punish rule does not apply to non-grave breaches. Article 49(6) of the Fourth Geneva Convention, on which subsection (viii) is based, is not a grave breach,Footnote 72 and is not treated as such by the ICC Statute.Footnote 73 This does not mean that non-grave breaches will always fail the Article 17(1)(d) test of gravity, otherwise there would be no point in including them as statutory crimes. However, it does mean that these offences are already at the low end of the gravity spectrum, and thus they will be much less likely, in themselves, to result in sufficient situational gravity. In this case, the absence of physical violence and direct victims should be decisive.
5. Gravity Defined by the Policies of the Crime
Looking beyond the practice of the OTP and the text of the ICC Statute, one might characterise a crime as sufficiently grave when its commission implicates the policies behind its criminalisation.Footnote 74 For violent crimes, the purpose is straightforward – protecting the life, body or freedom of the victim. Yet, for the crime of transfer, the object of the prohibition is not simply to render an area free from members of a particular nationality. Rather, the injury to be prevented is a worsening of the economic conditions of the ‘native population’ and threatening its ‘separate existence … as a race’.Footnote 75 Thus, transfer protects against two harms: economic welfare – on the aggregate, not individual, level – and racial purity or integrity.
The notion of ‘separate races’ seems anachronistic, and it is hard to measure racial existence. Nonetheless, these policies remain the underlying rationales behind the anti-transfer norm.Footnote 76 One might think this interest might come into play where the transferred population becomes a majority in the occupied territory, thus also potentially undermining the ability for self-determination.Footnote 77 Such ‘demographic busting’ transfers are, in fact, not uncommon – present day examples might include Northern Cyprus and Western Sahara, while earlier instances perhaps comprise East Timor and the Baltic states under Soviet rule. This does not destroy the protected population as a ‘separate race’, but does make a ‘separate’ existence more problematic. Yet Israeli settlers make up roughly just 10 per cent of the population of the occupied territory.Footnote 78
While it is hard to measure ‘separate existence as a race’, the Palestinian population has grown dramatically in parallel with settlement growth, tripling since 1967. While historians argue whether Palestinian national identity predates the Six Day War,Footnote 79 it is clear that the subsequent decades have resulted in a crystallisation and unprecedented invigoration of Palestinian nationhood.Footnote 80 Finally, if one takes ‘separate existence’ as an anachronistic expression for self-determination, it is undercut by the 2012 recognition of Palestine as a ‘state’ capable of accession to the ICC. Emergence as a state is the pinnacle of self-determination. The Palestinians did not achieve this in the 19 years under Jordanian occupation, a quarter-century of British administration or four centuries of Ottoman imperialism.Footnote 81 The economic injury is even more clearly absent; the Palestinian Territories have seen considerable economic growth since 1967, outpacing many neighbouring states and certainly their prior rate of growth.Footnote 82 In any case, it would be difficult to causally attribute any economic harm suffered by the Palestinians to ‘transfer’ rather than the occupation itself, which is not a crime.
6. Relative Gravity
The gravity of Israel's settlements may also be considered in relation to the magnitude of other arguable instances of the crime elsewhere in the world. Such comparisons are useful for a variety of reasons. First, gravity is in part an acknowledgement of the ICC's finite resources, and thus determinations should be guided with an eye towards the possible set of cases. Second, the rule of law requires a consistent approach to defendants regardless of nationality. There are at least two ICC member states currently suffering from occupation and potential violations of ‘deportation or transfer’ by non-member states – Cyprus and Georgia, occupied in part by Turkey and Russia, respectively. Turkish settlement in Cyprus is more long-standing – the Court would have jurisdiction from 2002 when Cyprus became a state party – and of significantly greater magnitude.
There is no precedent for the question of how one measures the scale of the transfer, but the policies behind the norm suggest that the number of transferees relative to the size of the target population would be the right measure, rather than the absolute number of transferees. Otherwise, if 1,000 persons are transferred into a territory of 500 inhabitants, it would not be considered grave, despite having massive demographic consequences for the protected persons. Turkish settlers today constitute an absolute majority in Northern Cyprus. By contrast, Israeli civilians constitute perhaps 10 per cent of the total population of the territories.
In occupied Cyprus, the influx of settlers has been accompanied by the significant net emigration of protected persons. This exacerbates the demographic effect of transfer, and is part of the paradigmatic case where violations of Article 49(6) of the Fourth Geneva Convention helped to effectuate de facto Article 49(1) breaches.Footnote 83 In the West Bank, by contrast, the population of protected persons has grown rapidly under occupation. In terms of the annual influx of settlers, the Cypriot situation is apparently more grave even in absolute numbers. Turkish settlers move into Northern Cyprus at a rate of roughly 5,000 a year, and in some of the more recent years for which data is available (2005–09) have come at more than twoFootnote 84 or three times that rate – sometimes as many as 18,000 a year.Footnote 85 Yet there has been no suggestion in the international community that the Turkish settlement activity is a particularly grave crime worthy of the Court's attention.
Aside from the alleged transfers in the territory of ICC member states, one might consider the Moroccan conduct in occupied Western Sahara, where again an absolute majority of the current inhabitants are Moroccan settlers who have migrated there since the takeover of the territory in 1975.Footnote 86 This may be of particular relevance to the ICC as Western Sahara is now also considering emulating the Palestinian turn to the GA for non-member state status.Footnote 87 All of these examples suggest that if there is a gravity spectrum for ‘transfer’, Israel's policies do not put it at the top of the world's gravest violators. Indeed, from the complete absence of any discussion by academics, NGOs or world leaders about an ICC situation regarding Turkish, Moroccan, RussianFootnote 88 or Armenian settlement activity – which are cited as significant obstacles to peace within their respective conflicts – one might conclude that there is an implicit confirmation that the international community concurs with the analysis here and places such offences well at the bottom of the ICC's gravity spectrum.
7. Can Settlements Ever Satisfy Gravity?
Some might argue that the gravity argument proves too much. If deportation and transfer, because of the absence of death, physical injury and individual victims, do not constitute a particularly ‘grave’ crime, one might worry that it would effectively render moot Article 8(2)(b)(viii) of the ICC Statute. Presumably, its inclusion in the Statute means that there should be some circumstances under which the crime would be admissible.
The first response is to note that while rendering the provision nugatory is problematic, merely giving it a narrow application is entirely consistent with the practice of international criminal tribunals and the ICC itself. Not once since the drafting of the Fourth Geneva Convention has anyone been prosecuted for this offence. The gravity requirement is intended to be an additional jurisdictional limitation, beyond the definition of particular serious crimes. So it would be difficult to argue that applying the gravity requirement of the ICC Statute unduly cuts back on international humanitarian law in practice.
Moreover, the definition of crimes of inherently different levels of severity (from genocide to property offences), coupled with an independent gravity requirement, necessarily means it will be much harder to establish situational gravity based purely on the less severe offences. One can also argue narrowly that Israeli policies do not meet the gravity criterion because the transferred population does not constitute a sufficient percentage of the occupied area's population without, in principle, precluding situational gravity based solely on such charges.
Another response is that that claims of situational gravity based primarily on Article 8(2)(b)(viii) violations might indeed be quite unusual and difficult to make. However, the transfer of an occupying power's population into a territory is often, and perhaps typically, accompanied with a concomitant expulsion of protected persons – as in Cyprus, Georgia, Nagorno-Karabakh, and elsewhere. Such expulsion violates Article 8(2)(a)(vii) and is a ‘grave breach’ violation enshrined in Article 49(1) of the Fourth Geneva Convention, Article 49(6) of which is a derivative non-grave offshoot of Article 49(1). Indeed, the paradigmatic case of settlements, the German colonisation of Poland and the Ukraine in the Second World War, involved the classic one-two punch of expulsion of the protected population followed by the importation of settlers. Thus, violations of other prohibitions of Article 49 of the Fourth Geneva Convention might magnify the gravity of violations of Article 8(2)(b)(viii) of the ICC Statute.Footnote 89
Indeed, the fact that the novel crime of transfer into occupied territory was made part of Article 49 of the Fourth Geneva Convention, rather than a stand-alone offence, suggests that the drafters understood these as being two sides of a common process.Footnote 90 In practical terms, the expulsion–transfer combination is much more likely to threaten the protected population's separate existence as a race. Thus, taking the gravity requirement seriously does not render the offence a dead letter in the ICC Statute.
Indeed, in the future, situational gravity will rarely turn primarily on Article 8(2)(b)(viii) because the underlying armed conflict could itself raise sufficient gravity questions. For example, the ICC has opened a preliminary examination concerning crimes in the Russo-Georgian war of 2008. While the investigation does not currently include Article 8(2)(b)(viii) charges, it could be broadened to include such issues if the settlement efforts of the Russian occupation regime continue. Such issues would only have to satisfy the gravity criterion for individual defendants, not for the situation. In the case of Israel, the underlying armed conflict is severed from the subsequent transfer by the Court's non-retroactivity principle.
Finally, the notion of a crime in the ICC Statute that does not typically meet the gravity criteria unless committed with other offences is not anomalous. For example, incitement to genocide in situations where no genocide occurs is formally a serious international crime, but in practice it is not one that rises to the level of gravity to warrant international proceedings. Incitement is a separate and complete offence under the Genocide Convention that is entirely freestanding from the commission of genocide,Footnote 91 just as transfer is formally independent of expulsion in the Fourth Geneva Convention.Footnote 92 Individuals have been prosecuted for incitement without taking part in the subsequent genocide. However, despite some well-known ongoing examples of pre-genocidal incitement, ‘no international court has ever brought an incitement prosecution in the absence of a subsequent genocide or other directly related large-scale atrocity’.Footnote 93 Such conduct, while entirely within the letter of the prohibition, is in practice treated as less grave.Footnote 94
8. Social Alarm
Many will find any discussion of gravity in the context of settlements surprising: they are widely considered one of the greatest outrages in the world. Yet most would admit that as bad as they are, settlements are not as bad as the killing of civilians, mass rape or sending children to die. One can speak of degrees of gravity, and indeed the ICC Statute requires us to do so. The question thus becomes a technical one: what is the cut off imposed by Article 17 of the Statute, a cut off which necessarily leaves out very serious international crimes?
The widespread international condemnation of Israeli settlements as illegal and an obstacle to peace does nothing to establish their gravity under Article 17(d) because the particular international ‘social alarm’ caused by a crime is not part of the gravity calculus. Some commentators have argued for taking into account the ‘social alarm’ caused by an alleged crime in measuring gravity.Footnote 95 Social alarm refers to the level of concern of the international community. The explicit purpose of such a qualitative factor is to make it easier to establish jurisdiction over crimes committed by Western states.Footnote 96
By any measure – GA resolutions, UN Human Rights Council agenda items or international activism – few issues command attention as much as Israel's settlements. However, this also shows the danger of referring to concern: social alarm may mask bias or hostility. It turns admissibility into a popularity contest. Certainly if international criminal law were the television programme ‘Survivor’, Israel would be voted off the island. Perversely, if social alarm, as measured by, say, Human Rights Council resolutions, was central to gravity, Israeli settlements would qualify – but few other situations would. Indeed, the ICC's case selection demonstrates that it has not taken account of ‘social concern’. International society, as reflected in GA pronouncements, has often been entirely unconcerned about some of the African conflicts that the Court has dealt with.
In any event, ‘social alarm’ of this kind is not part of the gravity determination. First, ‘social alarm’, whatever it means, has been rejected by the Appeals Chamber as a measure of gravity on the ground that ‘social alarm’ has no basis in the ICC Statute and would politicise determinations by relying on ‘subjective and contingent reactions to crimes rather than upon their objective gravity’.Footnote 97 Similarly, the subjective nature of such an inquiry has been sharply criticised by other commentators.Footnote 98 The international community may be unconcerned about crimes in ‘remote’ corners of the world, or by powerful states that cannot be stopped.
Second, the ‘social alarm’ test, even if it were adopted as a factor in the assessment of gravity, applies at a greater level of generality. The question is not concern about Israeli settlements, but rather about the crime of transfer as a worldwide phenomenon. In Lubanga, the only ruling in which the PTC has mentioned ‘social alarm’, it did not refer to the concern about the particular factual situation – the Congo – but rather the particular crimes (the use of child soldiers).Footnote 99 By this standard, transfer clearly does not cause social alarm. It has taken place in numerous other contexts – such as Western Sahara, Northern Cyprus, Lebanon, Cambodia, Russian-occupied Georgian territories and the Nagorno-Karabakh region – without much or any international condemnation. Indeed, social alarm has focused almost solely on Israeli violations, suggesting that the offence in general is not alarming. Thus, under the Lubanga model, the specific international condemnation of Israeli settlements would be irrelevant when considering their gravity as a war crime under Article 17.
9. Conclusion
The ICC was created to deal with situations of mass atrocity and conduct that shocks the conscience of mankind. In addition to having its jurisdiction limited to particular defined crimes, the Court is further limited by the requirement that particular situations and cases be particularly grave. The gravity requirement by definition means that some situations, despite being extremely serious, will not meet the test.
The crimes within the ICC's jurisdiction vary greatly in severity. Overlaying the gravity requirement onto this underlying variance means that some crimes – such as genocide – will more readily satisfy the gravity test than others. The transfer norm, which is a non-grave war crime with no direct victims and the commission of which in the circumstances in question does not involve violence, is thus particularly tenuous from a gravity perspective. The failure of gravity in the Israeli case is made particularly clear given both the goals of the Court – preventing mass atrocities – and the transfer prohibition itself.
This does not mean the Court could never prosecute for ‘deportation or transfer’. Such crimes may cross the gravity threshold either in themselves, because they fundamentally change the demographic composition of the occupied territory (as in Northern Cyprus, for example) or because they occur alongside other grave crimes in an international armed conflict.
