International Criminal Court action filed vs. settlements

August 7, 2014

While a hypothetical Palestinian turn to the ICC has gotten a great deal of buzz and hopeful anticipation, an actual invocation of the Court’s existing jurisdiction has been met with a yawn by the international community and human rights groups. A group of Cypriot refugees and a European parliamentarian have recently filed a complaint with the Prosecutor, alleging Turkey has violated the Rome Statute by directly or indirectly deporting or transferring its civilian population into occupied territory. Because Cyprus is a state party, the Court already has jurisdiction over the crimes, and the Prosecutor can open an investigation based on the information received in such complaints.

I have previously wondered at the absence of any such action about settlements in Cyprus, and now it has happened.

The Republic of Cyprus has joined the complainants in accusing Turkey of war crimes, and responded to the complaint by placing itself “at the Court’s disposal to provide documentation on the colonization of the occupied area of Cyprus by Turkey.” Notably, Nicosia has not actually filed a formal referral as a state party; while this is not required for jurisdiction, it would have the affect of putting an the matter on an expedited investigatory track.

If the Prosecutor happens to be interested in prosecuting civilian migration as a war crime, the Cyprus case presents these issues on a silver platter. Cyprus has been a charter member of the ICC, and as it was already an independent state at the time of Turkish invasion, there is no question that the activity occurs on its territory. So the Court would clearly have jurisdiction not just over ongoing Turkish settlement activity, but all such activity since 2002. Moreover, the demographic effects of the Turkish settlement is particularly extensive: the settlers constitute roughly half the population of the occupied territory, according the the complaint (as a reference point, Israeli communities in the occupied territories amount to around 10% of the total population).

The complaint contains some interesting information on this score. Apparently Turkish settlement activity has “reached new heights” in the past decade according to a Wikileaked cable from a U.S. ambassador, with as many as 18,000 settlers arriving every year (apparently not counting “natural growth”). Given the population of the occupied territory, that is quite a number.

Still, the chances of the complaint resulting in an investigation, let alone charges, quite small. It is unlikely the OTP would be eager to pursue charges against Turkey, which under Erdogan’s increasingly deranged leadership will almost certainly not cooperate, and may become more bellicose. Indeed, I expect there would great EU pressure on the Prosecutor to avoid massively antagonizing the ever more volatile Erdogan. The Europeans would likely argue that an ICC investigation would spell the end of peace negotiations between Cyprus and Turkey, regardless of how unpromising they currently look.

The OTP may be looking down the road at a possible Palestinian complaint about settlements, and rightly figure that it would be much harder to not investigate there if it opens an investigation into Turkish settlements. But I think the opposite is more likely to be the case. The Prosecutor already has myriad political reasons to avoid pursuing Turkish settlements, independent of Israel. Of course, this would make it much difficult to justify opening an investigation into Israeli settlements, having ignored a dozen years of Turkish settlement activity within its jurisdiction, though I doubt anyone would be much troubled by such inconsistency.

On the other hand, there are political considerations cutting the other way. Cyprus in principle should be more attractive because it is so clear all the crimes are committed by one side. That is a rare level of cleanliness, and very useful for the Prosecutor in getting the cooperation of at least one side. (For example, Ukraine is not rushing to accept ICC jurisdiction, because my understanding is they shell cities pretty indiscriminately in their rather successful effort to retake territory from rebels). It also shields the ICC from accusations that it is unfairly focussing too much on one side of a conflict.

The Cypriot complaint also gives the Court an opportunity for a powerful response to long-standing and mounting African complaints that it targets those countries. That is where the crimes and jurisdiction are, is the European response. Here there is an allegation of war crimes on the territory of the European Union itself. Don’t hold your breath.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.
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