'Pompeo drove a stake into a vampire by discarding Hansell memo'

Politicians and attorneys argued over whether Israel's pro-settlement policy isolates Israel internationally and endangers it at ICC, when speaking before the Kohelet Policy Forum.

By YONAH JEREMY BOB
(photo credit: AMMAR AWAD / REUTERS)
(photo credit: AMMAR AWAD / REUTERS)
Politicians ignored or were combative toward the International Criminal Court, while legal experts were concerned, at the Kohelet Policy Forum conference in Jerusalem on Wednesday, as if living in parallel worlds.
On December 20, ICC Prosecutor Fatou Bensouda announced she was moving forward toward a full investigation of alleged war crimes by Israelis relating to the settlement enterprise and potentially also to IDF conduct.
Prime Minister Benjamin Netanyahu threw down the gauntlet before the ICC on Wednesday, saying its investigation would “not deter us from building in the settlements.”
Netanyahu’s recent speeches have also included many references to a desire to move forward with annexing or applying Israeli law to parts of the West Bank.
Defense Minister Naftali Bennett did not even mention the ICC, but he announced, “I declare officially that the ‘C territory’ [of the West Bank] belongs to Israel,” adding that he was directing a team of IDF officials to work on blocking any Palestinian building in Area C. Area C of the West Bank, so-called by the Oslo Accords, is the largest unsettled part of the disputed area.
This announcement is likely to bring even heavier scrutiny from the ICC and could even serve as the basis of new war-crimes allegations.
Bennett and Likud MK Nir Barkat competed with each other, giving estimates of increasing the number of Jewish settlers living in the West Bank up to one million or two million. Not including east Jerusalem, around 400,000 Jewish settlers currently live in the West Bank.
Tossing out these numbers could also build the ICC prosecutor’s case that she need not hold off investigating alleged war crimes to wait for peace negotiations to conclude, as the ICC could claim the Israeli side is dramatically shifting the playing field.
In contrast, many lawyers expressed high concern about the ICC probe.
Former Canadian diplomat and lawyer Vivian Berkowitz said the ICC probe is “uncharted territory,” and that if the ICC pretrial chamber endorses the probe in March as expected, Israel will be entering “very, very delicate territory.”
Ex-IDF International Law Division director Col. (res.) Pnina Sharvit-Baruch was even more explicit, saying what made the threat from the ICC so different from prior condemnations from UN bodies was that it came with “teeth,” or enforcement capabilities.
She said once a criminal investigation is opened, Israeli officials could be arrested, and that “there is no immunity even for a head of state.”
Approximately 125 countries are members of the ICC and are obligated to comply with its arrest orders, including most European countries.
Former Foreign Ministry legal adviser Robbie Sabel was also concerned by the latest ICC developments, saying Israel would have a hard time convincing the world of its legal justifications for the settlements. He said even if it was wrong for the ICC to be treating settlements as a war crime, along the same lines as genocide, Israel’s best practical defense is to change the playing field with a new diplomatic initiative focused on improving the situation on the ground.
Besides the practical issue of the ICC, multiple lawyers and officials stressed the importance of US Secretary of State Mike Pompeo’s statement that the settlements are not inherently illegal.
George Mason University law professor and Kohelet legal director Eugene Kontorovich said Pompeo had killed a 1978 US legal memorandum declaring the settlements illegal so completely that it was like driving a stake through the heart of a vampire and burying it deep in the ground.
He reviewed arguments that try to frame the settlements as illegal, saying they were exposed as political by the bizarre “scope of illegality” that they try to use as a tool against Israel.
Kontorovich noted that the Fourth Geneva Convention often cited as the basis for viewing the settlements as illegal is meant to apply only in a time of war, not for more than 50 years and to every house ever built in an area where no one was living but which happens to be generally disputed.
Likewise, former Foreign Ministry director-general and current Jerusalem Center for Public Affairs president Dore Gold said it was “obscene” that the Geneva Convention discussion of the Nazis’ forced deportation of Jews to death camps was now being used against Jews who wish to build homes in their ancestral homeland.
The settlements started as an Israeli security measure to prevent invasions, and UN Security Council Resolution 242 explicitly authorized Israel to remain in control of portions of the disputed West Bank land, Gold said.