When gravity fails: Israeli settlements and admissibility at the ICC

Eugene Kontorovich*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

3 Scopus citations

Abstract

In the wake of the UN General Assembly's recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to challenge in the International Criminal Court (ICC or the Court) the legality of Israeli settlements. This article explores jurisdictional hurdles for such a case. To focus on the jurisdictional issues, the article assumes for the sake of argument the validity of the merits of the legal claims against the settlements. The ICC only takes situations of particular 'gravity'. Yet settlements are not a 'grave breach' under the Rome Statute. No modern international criminal tribunal has ever prosecuted crimes that do not involve systematic violence and physical coercion. The ICC's gravity measure involves the number of persons killed; for settlements it would be zero. Indeed, the ICC Prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most have jurisdiction over settlement activity only from the date of Palestine's acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the ICC's gravity threshold.

Original languageEnglish (US)
Pages (from-to)379-399
Number of pages21
JournalIsrael Law Review
Volume47
Issue number3
DOIs
StatePublished - Oct 2 2014

Keywords

  • International Criminal Court
  • Israel
  • Palestine
  • gravity
  • settlements

ASJC Scopus subject areas

  • Law

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