Properties in Jewish settlements on sale in London

Is this aiding and abetting a war crime?

Properties in Jewish settlements on the West Bank are on sale in London. The Guardian reported on 16 November 2007 [1] that, at the Israel Property Exhibition on 11 November 2007 in Brent town hall, a company called Anglo-Saxon Real Estate was offering properties for sale in the West Bank settlements, Maale Adumim and Maccabim.

(At the time of writing – 20 November 2007 – the company’s website [2] has 67 new properties on offer in Maale Adumim and 6 in Maccabim, with prices of up to $US 1 million. The company makes no distinction between the West Bank and the rest of Palestine – the Green Line isn’t marked on the map on their website.)

This isn’t the first time that properties in Jewish settlements on the West Bank have been offered for sale in Britain. According to The Guardian article, they were also on offer at a fair at Finchley synagogue in north London in October 2007. The poster advertising this fair called on potential buyers to “strengthen your portfolio and Israel’s future”. Visitors to the fair received a free property guide, The Key to Israel, containing a map that omitted the Green Line and gave Palestinian cities Hebrew names, for example, Nablus was named Shechem. This fair was organised by a company called BayIt Beyisrael (in English: Your Home in Israel) which also ran a fair at Alexandra Palace in March 2007.

Tonge’s cheek

The latter prompted a question in the House of Lords by Liberal peer, Jenny Tonge, on 17 April 2007. She asked:

“My Lords, is the Minister aware that, at a real estate exhibition at Alexandra Palace on 18 March, property was being offered for sale or rent in Har Homa settlement, which is being built on a forested mountain on Palestinian land between Jerusalem and Bethlehem? Can she assure us of what the Government have said many times, which is that settlements built on Palestinian land are illegal and against all international law? Can she also assure us that that land, with or without settlements, will be returned to the Palestinians in the future?” [3]

Foreign Office minister, Baroness Royall, replied for the Government as follows:

“My Lords, I can categorically state that, in the view of this Government, settlements built on Palestinian land are illegal. The Government constantly make that position clear to the Israeli authorities at every level. However, it would be impossible for the Government to give the undertaking that that land could be returned to the Palestinians. Unfortunately, that is not within their [our?] remit.”

Since the British Government deems these settlements to be “illegal”, one might have thought that real estate agents offering properties in these settlements for sale in Britain might be liable to prosecution in British courts.

The planting of settlers on occupied territory is unquestionably contrary to the Fourth Geneva Convention (on the Protection of Civilians Persons in Time of War), Article 49.6 of which states:

“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” [4]

No doubt that is why the Government deems these settlements to be “illegal”. But there is little point in deeming them to be “illegal” when there is no judicial body in this world capable of convicting the state that built these settlements (or its agents) and applying a suitable punishment, including undoing the colonisation.

Israel convicted

Of course, this matter is within the remit of the Security Council – it has acknowledged this by passing resolution 446 [5], which called upon Israel to cease and undo its colonisation. The operative part of this resolution is:

“[The Security Council] Calls once more upon Israel, as the occupying Power, to abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories;”

This resolution was passed on 22 March 1979. Israel has ignored it for nearly 30 years. When the resolution was passed there were less than a hundred thousand Jewish settlers in the West Bank and East Jerusalem. Today, there are around 450,000.

But no punishment applied

By passing resolution 446 in 1979, it could be said that the Security Council convicted Israel of colonisation, but it has yet to apply a suitable punishment, let alone force Israel to undo its crime. Resolution 446 was passed under Chapter 6 of the UN Charter and, as such, didn’t include any enforcement measures to compel Israel’s compliance.

In the light of Israel’s non-compliance, the Security Council could have proceeded to pass a resolution under Article 41 of Chapter VII of the UN Charter requiring all UN members to apply prescribed economic sanctions against it until such times as it complied. Failing that, the Security Council could even have authorised military action against it under Article 42 of Chapter VII to enforce compliance. But the Security Council didn’t do either. It’s like a domestic court convicting somebody of robbery but setting him free to continue a life of crime, in the full knowledge that he is going to take advantage of the freedom granted to him.

The Security Council has never passed a Chapter VII resolution against Israel, despite its manifold aggressions against its neighbours contrary to the UN Charter (most recently, its air attack on a target in Syria on 6 September 2007) and the annexation of territory belonging to neighbouring states – not to mention the colonisation of the territories it has occupied.

Israel immune

Israel’s immunity from punishment is a direct result of the immunity that the US, UK and the Soviet Union accorded themselves in the Security Council after World War II, and granted to France and China as well, immunity that continues up to the present day. The immunity is a consequence of the veto (enshrined in Article 27 of the UN Charter) that each has over all Security Council decisions, which means that no resolution can be passed by the Security Council that is opposed by any one of them. As a consequence, they can engage in aggression against other states, as and when they like, as the US/UK did against Iraq in 2003, without fear of a slap on the wrist from any organ of the UN, let alone economic or military sanctions.

Crucially, also, these five are in a position to grant immunity to other states of their choice. Today, the US accords Israel immunity by refusing to allow the Security Council to pass any resolution critical of it, let alone a Chapter VII resolution prescribing economic or military sanctions. It is of little consequence that Israel’s colonisation of the Occupied Territories is contrary to the Fourth Geneva Convention, when there is no judicial body in this world capable of forcing Israel to cease, and undo, its colonisation.

No US veto

The US didn’t veto resolution 446 in 1979 – it abstained, as did the UK and Norway, and the resolution was passed by 12-0. But it certainly would veto it today. In recent years, it has been the US practice to veto any resolution that is even mildly critical of Israel.

Furthermore, far from wishing to see the Jewish colonisation of the Occupied Territories undone, the present US administration has stated explicitly that it is reasonable for Israel to annex territory that it has colonised. Thus, in a letter to Prime Minister Ariel Sharon on 14 April 2004, President Bush stated:

“In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949 …” [6]

This explicit concession to Israel was a reward from the US for Sharon promising to withdraw from Gaza.

Other international judicial bodies

There are two other international judicial bodies – the International Court of Justice (ICJ) and the International Criminal Court (ICC) – which could, in principle, have a say on the question of Israel’s colonisation of the territories it occupied in 1967.

However, Israel has never accepted the “compulsory jurisdiction” of the ICJ and therefore a case could only be brought by a state against Israel in the ICJ with the consent of the Israeli government – which is less likely than pigs flying.

The ICC was established on 1 July 2002 to try individuals (not states) for serious crimes committed after that date in circumstances where states are unwilling or unable to prosecute them. These crimes – genocide, crimes against humanity, and war crimes – are defined in the Rome Statute [7] by which the ICC was established.

Article 8 of the Statute defines “war crimes”. In sub-section 2(b)(viii) of Article 8, the following is declared to be a “war crime”:

“The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies …”

In other words, it appears that Israel’s colonisation of the Occupied Territories is a “war crime” under the Rome Statute of the ICC. In principle, therefore, individuals responsible for it could be prosecuted by the ICC.

There is a catch: the jurisdiction of the ICC extends to crimes committed in the territories of states that have ratified the Rome Statute and over crimes committed anywhere by nationals of states that have ratified the Statute. 105 states, including Britain, have ratified the Statute at the time of writing (see [8]). Needless to say, Israel isn’t one of them.

Aiding and abetting a war crime?

But, are individuals offering properties for sale in the Jewish settlements in Britain guilty, under British law, of aiding and abetting a “war crime”? This interesting question was broached by Chris Doyle of the Council for Arab-British Understanding (CABU) in a letter to The Guardian on 20 November 2007 [9].

The International Criminal Court Act (2001) [10] (together with corresponding legislation in the Scottish Parliament) enabled the UK to ratify the Rome Statute. The Act makes genocide, crimes against humanity, and war crimes, as defined in the Rome Statute, offences under British law, but only if these offences are committed in Britain or by British nationals abroad (see Section 51 for England and Wales). So, only British nationals, if any, engaged in the settlement of Jews in the West Bank and East Jerusalem could be charged with a war crime in British courts.

But does the offering for sale in London of properties in the Jewish settlements constitute an offence of aiding and abetting a war crime under British law? Again, although the Act specifies an offence of aiding and abetting (see Section 52 for England and Wales), yet again it only applies to offences committed in Britain or by British nationals abroad.

So, although it appears that Israel’s colonisation of the Occupied Territories is a “war crime” under the Rome Statute of the ICC, it doesn’t much matter since no Israeli national will ever be tried for the offence, since Israel isn’t a party to the ICC – and never will be.

* * * * *

The plain truth is that there is no international judicial body that can bring Israel to book for its colonisation of the Occupied Territories (and for other matters). The Security Council could and should do so, but the US continues to give Israel immunity in the Security Council. Israel doesn’t accept the compulsory jurisdiction of the International Court of Justice (ICJ) and therefore no case can be brought against it without its consent. And, since it hasn’t signed up to the International Criminal Court (ICC), its nationals cannot be brought to book for the serious crimes that fall under the ICC’s jurisdiction.

David Morrison

Labour & Trade Union Review

20 November 2007

References

[1] www.guardian.co.uk/international/story/0,,2212347,00.html

[2] www.anglo-saxon.co.il/indexEng.asp

[3] www.publications.parliament.uk/pa/ld200607/ldhansrd/text/70417-0001.htm

[4] www.icrc.org/ihl.nsf/0/6756482d86146898c125641e004aa3c5

[5] www.david-morrison.org.uk/scrs/1979-0446.htm

[6] www.whitehouse.gov/news/releases/2004/04/20040414-3.html

[7] www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf

[8] www.icc-cpi.int/asp/statesparties.html

[9] www.guardian.co.uk/israel/Story/0,,2213885,00.html

[10] www.opsi.gov.uk/acts/acts2001/pdf/ukpga_20010017_en.pdf