Article

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

Michael G. Kearney

• Criminal law forum, Vol. 28, issue 1, March 2017, p. 1–34

English

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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 in addition to that of the individual perpetrator. 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) before reviewing Israel's state responsibility for unlawful transfer, and considering the temporal jurisdiction of the ICC.

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