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MG Kearney On the Situation in Palestine and Transfer CLF 2016.pdf (364.26 kB)

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

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journal contribution
posted on 2023-06-09, 04:29 authored by Michael G Kearney
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 – the occupying power – in addition to that of the individual perpetrator. This feature reflects the structural issues that the provision was designed to address, and emphasizes that its purpose is not so much to confront direct physical violence, but rather to prevent colonial practices. Despite the political significance of the underlying conduct there has been comparatively little analysis of the war crime itself. 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) of the Rome Statute, reflecting on the provision's unusual construction, before reviewing Israel's state responsibility for unlawful transfer, and considering the temporal jurisdiction of the ICC and the nature of continuing and continuous crimes.

History

Publication status

  • Published

File Version

  • Published version

Journal

Criminal Law Forum

ISSN

1046-8374

Publisher

Springer Netherlands

Issue

1

Volume

28

Page range

1-34

Department affiliated with

  • Law Publications

Research groups affiliated with

  • Sussex Centre for Conflict and Security Research Publications

Full text available

  • Yes

Peer reviewed?

  • Yes

Legacy Posted Date

2016-12-21

First Open Access (FOA) Date

2016-12-21

First Compliant Deposit (FCD) Date

2016-12-21

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