The Volokh Conspiracy

In addition to the IRS’s particular interest in right-wing groups focussed on domestic policy, it has taken an unusual interest in right-wing pro-Israel groups. (I am friends with the leader of the group written about in the link.)

One major question raised by the IRS scandal is where these ideas came from. At least as far as Jewish groups go, the IRS scrutiny is not a fluke. That is not to suggest it was ordered by the White House – that is highly unlikely. At the same time, it certainly does not come out of the blue. The past several years have seen a concerted campaign in the mainstream liberal press to bring the IRS down upon certain pro-Israel groups, particularly those that support activities in the West Bank (or the Territories Formerly Occupied By Jordan).

For example, in 2009 David Ignatius had a story in the Washington Post, A Tax Break Fuels Middle East Friction. “Critics of Israeli settlements question why American taxpayers are supporting indirectly, through the exempt contributions, a process that the government condemns,” he wrote. The Guardian in 2009 also had a piece calling for IRS action.

In 2010, the New York Times continued the theme with a massive, expose-style front page story, which concluded that while such tax breaks do not seem to be exactly illegal, it creates :a surprising juxtaposition: As the American government seeks to end the four-decade Jewish settlement enterprise and foster a Palestinian state in the West Bank, the American Treasury helps sustain the settlements through tax breaks on donations to support them.” The article then tried to raise questions about whether such groups really satisfied U.S. tax-deductible requirements, suggesting the IRS should look into them. The activities the supported, the Times article suggests, were illegal and extremist.

Picking up the gauntlet, J Street called on the IRS to “probe” groups that support settlements, despite there being no apparent violation of tax laws involved.

And last year, an op-ed in the Times by Peter Beinart argued that “we should push to end Internal Revenue Service policies that allow Americans to make tax-deductible gifts to settler charities.”

This is just a sampling: the notion that right wing Jewish groups should be “probed” by the IRS because they do not line up with President Obama’s (former?) absolutist anti-settlement policy is not a new one. All the organs of intelligent opinion agreed that some generally right wing Jewish groups need to be dealt with by the IRS because they contradict government policy, not because of any evidence of tax fraud. And surely IRS bosses read the Post and the Times; it may even be their “absolute truth” as Times editor Jill Abramson memorably put it.

It would be interesting to find out whether the particular groups mentioned in these articles received any unusual requests from the IRS: I’d love to know either way.

Of course, there may be no direct connection between the campaign for such audits, and the action the IRS in fact took. But nor can one say the IRS action came out of nowhere, was some random frolic and detour.

Similarly, the action against Tea Party groups is not surprising. If one reads that they are racist, dangerous groups, then one might think their tax status is worth looking into.

In an important but largely ignored case, a French Court of Appeals in Versailles ruled last week that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments long made against the blanket application of the relevant provisions of the Geneva Conventions to Israeli settlements. National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says.

In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would be grateful for corrections on matters of language that I have misapprehended. I venture forward because it is an important decision that deserves attention, yet has been met by complete silence by international legal scholars.

The Jerusalem Light Rail, which began running last year after a long period of construction, links the Western part of the city with the parts occupied by Jordan prior to and annexed by Israel after the 1967 War. The project was widely criticized by pro-Palestinian groups, as was the participation of French rail companies in the project. Along with a variety of political pressure and boycott activities, a Palestinian group sued the French-based multinational conglomerate Alstom Transport for its role in in the project. The case was dismissed below in 2011, and the Court of Appeals upheld the decision last week.

Crucially, the Court held that only the Government of Israel, and not private parties, can violate the relevant provisions of the Geneva Conventions. The arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that “The Occupying Power shall not deport or transfer its civilian population into the territory it occupies.” The provision was also relied on heavily in the lawsuit. The Court ruled that 49(6) only speaks to and applies to action by the Israeli government (“the Occupying power”), and does not regulate Alton’s activities in the occupied territory.

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

This conventional reading of 49(6) as generally banning Jewish settlements is disconnected from the text, which only speaks of “transfers” carried out by the Government. Some scholars, including myself, have long maintained that private movement of persons is in no way covered by 49(6), and the Court apparently adopts this position (though I am unclear how much of a role domestic legal principles played). Now one might say the government is always “involved” – roads, security, zoning, etc., but ubiquitous “background” roles do not trigger the state action doctrine in U.S. constitutional law, and it is not clear why they would under international law. (On the other hand, if one gets a package bus/light rail ticket, it would be an unusual literal case of “transfer” into occupied territory.)

Indeed, the French case would be a strong one for inferring governmental role, since the defendant worked under contract with Israeli governmental entities. My understanding of the Court’s opinion is a little fuzzy here, but it seems they say contractual privity is not enough to trigger 49(6) either. This would certainly make it inapplicable to the vast majority of Israeli settlers (not all, necessarily, since 49(6) is ultimately a case-by-by-case factual question.

The Court goes on the reject the notion that the relevant norms have become customary or jus cogens and apply without the particular textual restrictions of 49(6).

Israel’s critics have long claimed that “everyone agrees” that all “settlements” (a term referring to all Israeli activity in the West Bank, at least that benefits Jews) clearly violates international law, and that only Israeli apologists could believe the arguments to the contrary. I assume the Versailles Court of Appeals won’t be accused of being unduly sympathetic to the Jewish State.

Indeed, many might share my surprise on such a decision coming from a European court, especially given the supposed uniformity of views on the underlying legal issues. Perhaps two factors may explain the surprising decision: this is not an international court, but an ordinary municipal one, and it was an important French industrial concern, rather than Israel, in the dock. International lawyers may what could positively be described as professional or scientific knowledge of the matter, or more cynically as guild orthodoxy. Judges unversed in these verities might see things differently. And of course, here international law is being used against important and powerful domestic interests.

The plaintiffs could still appeal to the Cour de Casssation, which however is not obligated to hear the appeal.

[Cross-posted on OpinioJuris.]

I have put up a new working paper on SSRN, entitled Jurisdiction Over Israeli Settlement Activity in the International Criminal Court. It is not about the legality of settlements. Rather, it is about whether repeated and growing threats by Palestine and its supporters to make an international case out of it are consistent with the admissibility requirements of the ICC. I welcome substantive comments (as well as inquiries from law review editors).

Here is the abstract:

In the wake of the U.N. General Assembly’s recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could challenge the legality of Israeli settlements. This Article explores the previously unexamined jurisdictional hurdles for such a case. (To focus on the jurisdictional issues, the Article assumes for the sake of argument the validity on the merits of the legal claims against the settlements.)

First, the ICC can only consider situations “on the territory” of Palestine. Yet the scope of that territory is undefined. An “occupation” can arise even in an area that is not the territory of any state – but ICC jurisdiction does not extend there. Thus even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of Palestine. Moreover, the ICC lacks the power to determine the boundaries of states, and certainly of non-member states. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in the West Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.

Second, the ICC only takes situations of particular “gravity.” Yet settlements are not a “grave breach” of the Geneva Conventions. No international criminal tribunal has ever prosecuted non-grave breaches. The ICC’s gravity measure involves the number of people killed; for settlements it would be zero. Indeed, the ICC prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most only have jurisdiction over settlement activity from the date of Palestine’s acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the Court’s gravity threshold.

The impact of these issues goes beyond a possible settlements case. The controversy over a referral of Israel, a non-member state, raises important questions about the meaning of the ICC Statute. These have great importance for other non-member states, such as the United States. They also demonstrate the extent to which major aspects of the ICC Statute remain vague and undefined.

The Geneva Convention is generally thought to apply to Israel’s occupation of the West Bank – that portion of the League of Nations Mandate for Palestine previously occupied by the Jordan. This is important because the legal argument against settlements is that they violate Art. 49(6) of the Fourth Geneva Convention, a provision which did not reflect prior international law.

Art. 2 of the Convention provides:

In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Because the West Bank was not part of the sovereign “territory of a High Contracting Party” (or of any country) in 1967, and Israel has argued that “occupation” within the meaning of the Convention can only exist in such territory. Of course, most international lawyers disagree, though in the years after 1967, some very prominent ones agreed.

What is more interesting is what people thought the provision meant before 1967, that is, before they knew the identity of the alleged violator. There is very little written on this, and few have looked at pre-1967 sources. However, one quite serious (pro-Israel) blogger has unearthed this intriguing discussion from Hans Kelsen in 1952, which clearly does not assume that the occupation of non-sovereign territory has the same consequences as the occupation of sovereign territory:

The principle that enemy territory occupied by a belligerent in course of war remains the territory of the state against which the war is directed, can apply only as long as this community still exists as a state within the meaning of international law. This is hardly the case if, after occupation of the whole territory of an enemy state, its armed forces are completely defeated to that no further resistance is possible and its national government is abolished by the victorious state. Then the vanquished community is deprived of one of the essential elements of a state in the sense of international law: an effective and independent government, and hence has lost its character as a state. If the territory is not to be considered a stateless territory, it must be considered to be under the sovereignty of the occupant belligerent, which—in such a case—ceases to be restricted by the rules concerning belligerent occupation. This was the case with the territory of the German Reich occupied in the Second World War after the complete defeat and surrender of its armed forces. In view of the fact that the last national government of the German Reich was abolished, it may be assumed that this state ceased to exist as a subject of international law.

There is a lot of research to be done in this vein. I recently came across a discussion in the U.N.’s International Law Commission from 1950, as part of the drafting of the Draft Declaration on Rights and Duties of States. There were quibbles from countries such as France about whether annexation is always banned, or whether there might be various exceptions.

In response, the Secretary observed: “It might be suggested that in order to constitute a crime under international law an annexation must be carried out through the use of armed force, with a view to destroying the territorial integrity of another State.” [See I Yearbook of Int. Law Comm. 137 (1950).]

Indeed, it was not surprising that there was some confusion and concern about the extent of an annexation norm, since as the delegates admitted, there were some “frontier adjustments” made by the Allies after WWII.

In a press conference recently, Mahmoud Abbas threatened to use Palestine’s G.A.-recognized “state” status to challenge Israel’s settlements in the International Criminal Court. He picked a most unlikely venue for the presser – Ankara, in a joint conference with the the Turkish president. The absurdity of this is that Turkey continues to occupy northern Cyprus, and is responsible for a massive settlement program there.

I’ve written before about “other countries’ settlements,” but one might think that an increasing discussion of Israel’s civilian communities in prosecutorial terms would increase the discusion of other (often more blatant) violations of the same international norm. Not quite.

Cyprus was a state with clear borders when Turkey invaded in 1974, and is a charter member of the ICC. If anyone should be loosing sleep over settlements suits in the ICC, it would be Turkey. Interestingly, no one has suggested in the past decade that Cyprus’s ICC membership would scare the Turks out of N. Cyprus, or get the Turks to agree to a peace deal). But a referral by Cyprus would not face the various thorny temporality and territoriality issues of a Palestinian complaint. Moreover, Cyprus is a particularly gross case of changing the demographics of occupied territory through settlement, with settlers now outnumbering protected persons n the territory.

Apart from the manifest hypocrisy, what should be disappointing for believers in international humanitarian law is the failure of anyone to call Abbas (or Erdogan) on it. I am not aware of any news, NGO, or governmental response pointing out the unseemliness of Abbas invoking the ICC from Ankara.

But it turns out that Europeans have for the past decade taken a different kind of interest in the Turkish occupation, as Dore Gold reports. Priced out of the French Riviera and Amalfi coast, Europeans wanting to buy a Mediterranean vacation property increasingly flock to Turkish-occupied Cyprus.

Gold observes:

European governments have warned their citizens that former Greek residents of Northern Cyprus may initiate legal proceedings in European courts against those who take over their properties. But there is no objection being stated in principle against European citizens moving into these territories in order to build vacation homes.

But the European foreign ministries cannot have it both ways: they cannot condemn Israelis who build homes in the West Bank for violating international law, while they approve, in principle, or are at least silent about Turkish settlers and their European business partners who benefit from the lands Turkish Cypriots have taken over, as they develop what has been one of the hottest Mediterranean real estate markets for Europeans seeking a place in the sun.

Discussions of a potential ICC referral often focus on potential liability by Palestinians as a factor that would dissuade them (or the Court) from proceeding. But Israel’s best bet for heading off such a suit would be to advertise the implications for other non-member states that would clearly be on the settlement hook: Turkey and Russia.

For the record, I think it quite unlikely that the ICC will indict Israeli leaders over settlements, but I’d bet the farm it wouldn’t indict Israel and Turkish leaders in this decade. Indeed, if I were the Israeli government, I’d spend less time preparing an ICC defense that working up a Cypriot case against Turkey, as a favor to its new bestie.

By the way, the Europeans who are “settling” N. Cyprus do not themselves violate the Geneva Conventions, because i) only the “occupying power” can violate it, and ii) it only prohibits “transfer” of “nationals of the occupying power.” Assuming the Europeans are not Turkish citizens, they can’t be settlers. Similarly, American Jews who move to, say East Jerusalem as American citizens cannot be said to be “settlers,” though popular usage may vary.

ADDENDUM: Because Cyprus is an ICC member, ANY member state can refer the situation of Turkish settlements to the ICC (or the prosecutor could begin an investigation on his own motion, which would be more exceptional). It does not have to be Cyprus – they’ve already consented to jurisdiction by signing the treaty. Given the great odium the international community attaches to settlement, it is interesting that there has not even by serious discussion of a such a referral.

The General Assembly’s recognition of Palestine as a state (which I’ve discussed previously) is widely regard as having the central upshot of facilitating a case against Israeli officials in the International Criminal Court. Indeed, Prime Minister Abbas has already threatened such action in regard to Israeli settlements – which are said to constitute an unlawful “deportation or transfer” of Israeli civilians into occupied territory.

Yet the GA’s recognition of Palestine’s statehood does not establish that the Israeli civilian population centers are “on its territory,” a basic requirement for ICC jurisdiction, as I explain today in a post an the European Journal of International Law’s blog. Here is part of it:

The mere fact of Israeli occupation does not make the territory part of Palestinian sovereign borders... the dominant interpretation of the Geneva Conventions is that an “occupation” can arise even in an area that is not the territory of any state. Yet even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of the Palestinian state.

To put it differently, even if violating the Geneva-based norm of transfer need not take place in the territory of a state, it still must be “on the territory” of a state for the ICC to have jurisdiction, as the ICC exercises delegated territorial jurisdiction. This is consistent with the respective roles of the Geneva Conventions and the ICC. The Conventions, which have near universal adherence, are interpreted broadly because of a desire to not have gaps in coverage. With the ICC, which has a limited and particular jurisdiction, gaps in jurisdictional coverage are inherent.

I am working on a longer article on the jurisdictional issues that would be raised by a Palestinian referall of the settlements issues, which will discuss the question of gravity, and the implications of such case for other potential ICC situations, like Cyprus/Turkey, or Georgia/Russia.

This is a talk I gave this summer to a group of Jewish college students, which in broad strokes outlines the international law reasons the West Bank cannot be considered “Palestinian territory,” independent of the political or equitable merits of creating a Palestinian state there.

Please watch the whole thing before commenting.

Hopefully I say more more to say soon on the Palestinian statehood vote (I’m shopping around an op-ed on the subject).