The ICC and Israel: Prosecuting the Punitive Demolition of Palestinian Homes

[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva.]

Last Friday, a car-ramming attack in the West Bank killed two Israeli soldiers and injured two others. While the suspect was apprehended shortly thereafter, Israeli Prime Minister Netanyahu pledged on Twitter to “work to demolish the home of the terrorist”. This statement reflects the commitment of the current Israeli government to an infamous policy of “punitive home demolitions”, which consists of demolishing the home of relatives of Palestinians suspected of security offences against Israel in the West Bank and East Jerusalem (two other types of demolitions are “administrative demolitions” of houses built without a permit and “clearing demolitions” carried out on the pretext of military needs such as during Operation Protective Edge in Gaza in 2014). Punitive demolitions have been widely documented (see e.g. here, here, here, here, here, and here) and denounced as amounting to collective punishment, a violation of IHL and a war crime under many national laws. Yet, the practice is surprisingly absent from the ICC Prosecutor’s preliminary examination reports on the situation of Palestine. In her 2015, 2016 and 2017 annual reports, Fatou Bensouda mentions house demolitions only under the heading of “settlement activities” which would seem to exclude punitive house demolitions.

The ICC does not have jurisdiction over the war crime of collective punishment as such. The case for including this crime in the Rome Statute has already been convincingly argued, but it was not proposed as an amendment at the 2010 Kampala Review Conference. However, as will be argued below, punitive demolitions could be prosecuted under other war crime counts. The OTP should include them in her preliminary investigation: not only could this lead to concrete charges before the ICC, and offer some prospect of justice for the hundreds of Palestinians who lost their homes since mid-2014, it could also deter the current and future Israeli governments from pursuing such a policy.

The first part of this post addresses the qualification of the policy as a “grave breach” of the Fourth Geneva Convention (GCIV), prosecutable under Art. 8(2)(a) of the Rome Statute, while the second part will address alternative qualifications as well as admissibility concerns.

The grave breach of extensive destruction of property

Israel’s policy of punitive demolitions could qualify as the grave breach of “[e]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”, under Art. 8(2)(a)(iv) of the Rome Statute. Below, I will examine the elements of this crime.

First, Art. 8(2)(a) crimes require an international armed conflict (IAC). The qualification of the situation in the West Bank as one of occupation, and hence an IAC to which IHL applies, should not raise any serious legal issues and is acknowledged by the Israeli Supreme Court. (The question of the conventional applicability of GCIV in the West Bank and whether this is condition for war crimes under Art. 8(2)(a) of the Statute is beyond the scope of this post. However, it can be argued that the grave breaches provisions of GCIV underlying Art. 8(2)(a) crimes need only apply as a matter of customary law. Note that this question would not arise for Art. 8(2)(b) war crimes, discussed in part 2 of this post, given the absence of reference to the GCs in the chapeau of the article).

A second contextual requirement for the applicability of all Art. 8 crimes is that “the conduct took place in the context of and was associated with an international armed conflict” (nexus requirement). Given that Israel views demolition orders as an administrative sanction, a claim that they constitute mere law enforcement measures unconnected to the conflict is foreseeable. This argument would not hold up. If ICC judges follow, like they did in the past, the Kunarac test (the conflict – or occupation – “must play a substantial role in the perpetrator’s decision, in his ability to commit the crime or in the manner in which the conduct was ultimately committed”), there is no reason to expect the Court to question the existence of a sufficient nexus. The practice of punitive demolitions is intrinsically linked to the occupation since it is carried out in response to acts committed against Israel as the occupying power, made possible because Israel controls the territory on which the houses are located, and implemented via the occupation apparatus (authorized by the military commander under the military law applicable in the West Bank and executed by the IDF as the occupying force).

A third consideration is the protective scope of Art. 8(2)(a)(iv). The chapeau of Art. 8(2)(a) requires that the property be “protected under the provisions of the relevant Geneva Convention”. GCIV does not define which property is “protected” under its provisions but it makes sense to follow the reasoning of the ICTY according to which property belonging to protected persons is itself protected under GCIV (Blaskic, TJ, para 149-150). Given that the owners of the houses destroyed by Israel in the West Bank “find themselves […] in the hands of [an] Occupying Power of which they are not nationals”, they are protected persons under Art. 4 GCIV and therefore their property can be said to be “protected” as required by the chapeau of Art. 8(2)(a). As to the type of property contemplated in Art. 8(2)(a)(iv) specifically, it includes property protected under Art. 53 GCIV, i.e. “real or personal property belonging individually or collectively to private persons” (William Schabas, paras. 291-292; Knut Dörmann, p. 83). The property of Palestinian suspects and their relatives would thus fall under the protective scope of Art. 8(2)(a)(iv).

Fourth, according to the ICC Elements of Crimes for Article 8(2)(a)(iv), the destruction must be “extensive and carried out wantonly” and “not justified by military necessity”. In Blaskic, the ICTY indicated that “[t]he notion of ‘extensive’ is evaluated according to the facts of the case” (Blaskic, TJ, para. 157). Referring to the ICRC Commentary for Art. 147 GCIV (on which Art. 8(2)(a)(iv) is based), the judges emphasize that a single act may (or may not) suffice to characterize an offence under this count. This reasoning suggests that the extent of the destruction can be deduced not only from one incident but also from a pattern. Thus, every single demolition by the Israeli Defense Forces (IDF) need not be extensive; rather, the cumulative effect of the demolitions accounts for the extensive nature of the practice. The adverb “wantonly” has been interpreted by the ICTY as meaning that “the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction” (Kordic, TJ, para. 346). Given that the punitive demolition of Palestinian homes is implemented as part of a policy, this element should not raise any doubt. Hence, a 2014 Expert Opinion authored by four Israeli scholars concludes that:

“While any individual house demolition operation, executed on the basis of a specific order, will likely fall short of the legal standard of extensive destruction, […] a Policy leading over the years to hundreds or even thousands of house demolition not justified by military necessity, may pass the threshold of wantonness under Article 8(2)(a)(iv)”.

The requirement that the destruction be carried out “unlawfully” should be “assessed in the light of the overarching concept of military necessity” (OUP Commentary, Chapter 71, para. 51; see also Dörmann, p. 83) (the fact that the ICC Elements of Crimes for Art. 8(2)(a)(iv) do not mention the “unlawful” element but only that of “military necessity” (Element 2) confirms this interpretation. The concept of “military necessity” is often understood as the equivalent of “necessities of war” (used in Art 23(g) of the 1907 Hague Regulations). The Israeli government has successfully argued before the Israeli Supreme Court that these demolitions comply with military necessity (for an analysis of these cases see here, here and here). While the exact meaning of “military necessity” is controversial, it is uncontroversial that it differs in nature from security considerations. One way military necessity has been explained is that “[t]here must be some reasonable connection between the seizure or destruction of the enemy property and the overcoming of enemy forces” (U.S. DoD Manual, 5.17.2). The punitive nature of the demolition cannot possibly be reconciled with even the most generous understanding of military necessity, which is prospective in nature. The use of the term “deterrent” by the Israeli government, in an effort to signal the preventive as opposed to punitive nature of the policy seems to reflect no more than a difference in rhetoric – Israeli executive and judiciary branches did use the term “punishment” throughout the 1970s and 1980s to designate the same practice. Destroying private housing to sanction a perceived affiliation with “the enemy” is too far removed from the objective of overcoming enemy forces. In addition, claims that the policy is “necessary” have been challenged on the basis of empirical data showing that the policy is, in fact, ineffective at deterring terrorism. The 2014 Expert Opinion further argues that the unlawfulness of the demolitions also derives from the fact that they constitute collective punishment.

Alternative qualifications

In addition to the grave breach qualification under Art. 8(2)(a)(iv), the punitive demolitions could also amount to the war crime of “[d]estroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war”, under Art. 8(2)(b)(xiii). Curiously, none of the legal analyses of Israel’s punitive demolitions that I have encountered discuss this alternative qualification. If the reason is that “the enemy’s property” is understood as covering only the public property owned or controlled by the enemy party (the State of Palestine), such a restrictive reading is unwarranted.

It is true that the ICC Elements of Crimes for Art. 8(2)(b)(xiii) only indicate that the property must be “property of a hostile party”. However, the travaux of the PrepCom (which drafted the Elements of Crimes) suggest that this includes private property. Indeed, the Proceedings of the PrepCom issued at the end of its 3^rd session specify: “Such property was private or public property of the hostile party” (see PCNICC/1999/L.5/Rev.1/Add.2). Since this interpretation was not disputed, the clarification was eventually deleted (Dörmann, p. 251). ICC case law relating to the destruction of property in NIAC confirms this (while Art. 8(2)(e)(xii) applicable in NIAC uses the slightly different formula “property of an adversary” instead of “enemy’s property” under Art. 8(2)(b)(xiii), the two are considered synonymous, see Dörmann, p. 485). The Katanga trial judgement confirms that enemy property includes private property (para. 892).

Furthermore, the meaning of “enemy” should be understood lato sensu, as including civilians perceived as being affiliated with the enemy. Katanga was indeed convicted for the war crime of destruction of property based on the finding that “the predominantly Hema population of Bogoro were considered “adversaries” by the attackers because of their allegiance to the UPC” (para. 943, emphasis mine). Multiple declarations by Israeli officials could constitute evidence that victims of punitive demolitions are perceived as “the enemy” in the context of the occupation: in fact, they are targeted precisely because of their alleged ties with “terrorists”, a qualifier which cannot be understood in isolation from the situation of occupation.

As to the possible justification of “necessities of war”, the reasoning on military necessity developed in Part 1, applies equally (for an analysis in relation to Art. 8(2)(b)(xiii) specifically see Schabas, pp. 293-294).

Alternatively, the Prosecutor could prosecute punitive demolitions as “inhuman treatment”, a grave breach and war crime under Art. 8(2)(a)(ii) and Art. 8(2)(b)(xxi) respectively, due to its nature as collective punishment (see Al-Haq report, p. 15 and Expert Opinion p. 37). Finally, some have argued that the practice may amount to the crime against humanity of persecution (Al-Haq report, p. 53) – but considering the strong connection with the situation of occupation, the war crime qualification appears more straightforward.

Admissibility concerns

Art. 8(1) of the Rome Statute encourages the Court to focus on war crimes “committed as part of a plan or policy or as part of a large-scale commission of such crimes”. Punitive house demolitions are not only a practice but also a clear policy of the Israeli government, sanctioned by Israeli law. As such, it falls within the scope of this statutory guidance.

Turning to issues of admissibility, a potential case focused on (or including) charges for punitive demolitions would likely pass the tests of complementarity and gravity under Art. 17 of the Rome Statute. It is clear that Israel is not prosecuting any State officials for this conduct (‘the same case’ test in ICC case law), and it is probable Israel would be found “unwilling” to prosecute its officials for designing and implementing what is after all an official State policy of the Israeli government (the same goes for settlements activities, illegal under international law but sanctioned by domestic law). Complementarity should therefore not pose any major issue.

As for gravity, a potential case would seem to meet the criteria the Court has identified in an attempt to “objectivize” this inherently discretionary notion. According to PTC case law and OTP policy papers and practice, the OTP should assess gravity in relation to the crimes as well as in relation to the potential accused. The latter consists of determining if the accused are “those who may bear the greatest responsibility for the alleged crimes committed” (see e.g. Article 53(1) Report related to the Flotilla incident, paras. 133, 135). Given the State policy nature of the crime, those most responsible for the crime would likely be Israeli civilian and/or military leaders (even though the leadership position of the accused should not be a factor of gravity, see here p. 23).

The gravity of crimes is assessed based on quantitative and qualitative considerations, along four non-exhaustive indicative factors: the scale, nature, manner of commission of the crimes and their impact (see a useful review of case law here). Regarding the scale, according to data collected by B’Tselem (and used by the Special Rapporteur on the situation of human rights in the Palestinian territories), 272 people have lost their homes since mid-2014 (the date from which the ICC can exercise jurisdiction). As to the nature of the crime as being one of destruction of property, the al-Mahdi conviction demonstrated that gravity does not necessarily imply crimes against persons. And as highlighted below, the loss of one’s home has very real consequences on one’s life and dignity. The fact that the crime amounts to collective punishment, a violation of IHL, is also relevant. In addition, the destruction of one’s private home is connected to two human rights, namely the right to housing and the right to property, which could also account for the grave nature of the crime. As to the manner of commission, it is relevant that punitive home demolitions are part of a policy (a criterion mentioned in the OTP report on the Flotilla incident, para. 140).

Finally, the impact of the crimes must be assessed from the perspective of the direct victims and also the local communities more generally (see OTP Kenya Request, paras. 56-59). The economic, social and psychological impact for direct victims of punitive demolitions is well documented. Furthermore, punitive demolitions arbitrarily attribute collective responsibility for individual acts, thus perpetuating the stigmatization of Palestinians as “terrorists”. The consequences of such stigmatization on the peace process cannot be overstated.

In conclusion, there are strong arguments in favor of including the punitive demolitions of Palestinian homes in the OTP’s next preliminary examination report. This would send a clear signal that the Israeli state’s leadership must cease its illegal activity if it wishes to avoid ICC proceedings.