On International Law and Jewish Residence in Judea and Samaria

Responding to a post by Prof. Eugene Kotorovich in which he notes the irony of Mahmoud Abbas attempting to use Turkey as its partner in foing to the International Criminal Court on the issue of "settlements", writing

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...If anyone should be loosing sleep over settlements suits in the ICC, it would be Turkey [which occupies part of Cyprus]...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.

Dr. Kevin Jon Heller wrote, while disagreeing with Konorovitch's position, Heller nevertheless makes an important distinction:-

...The mere fact of settlement in occupied territory is not a war crime; the actus reus of the crime is “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.”  Article 8(2)(b)(viii) thus targets state officials whose actions facilitate the transfer of civilians into occupied territory; it does not target the settlers themselves...

I left this comment there in response to another commentator:

Pain over occupation should not be relative to this or that presumption of insensivity.  Many Jews consider the occupation of Judea and Samaria by the Hashemite regime in 1948 and its illegal annexation in 1950 - in addition to the results of the 1947-48 hostilities which came about because the Arabs states and the Arab community in the Palestine Mandate rejected the territorial compromise proposal (yet another partition of the Jewish National Home after the 1922 truncation of the area to facilitate a new home for a Saudi Arabian refugee who was intent upon fomenting violence to assist his brother dislodged from the throne in Damascus, the 1937 partition plan and the 1939 one) which were the final ethnic cleansing of Jews from all Arab-held areas to be very painful, historically unjust as well as illegal.
That the revival of Jewish communities in those areas, gained in a war of defense in 1967 following Arab aggressive moves, should be considered somehow illegal and we residents as part, passive as KJ Heller makes clear, of a "war crime" when all we are doing is not transfer (or being tranferred) but recreating the life that was in those areas for many centuries, even prior to the Arab illegal conquest and occupation in 638 CE, is not only an insenstive position to hold and advance but, I would suggest immoral and untenable.
The 19 years between 1948 and 1967 were the only time in some 3000 years when Jews were totally banned and excluded from that area although in early periods temporary prohibiition by foreign occupiers were in effect in various locations, off and on, to be hiostoricall accurate.   In fact, in was only under the Mandate regime of 1922-1948 that the local Arabs, some recent immigrants themselves, managed to destroy permanently (well, until 1967) Jewish life in Gaza, Shchem [Nablus], Jenin, Hebron among other locations.  How ironic for a situation whereby the League of Nations decided to "reconstitute the Jewish nation home" in those areas (after all, they were west of the Jordan River; what was excluded from the Mandate was east of the river) and the Mandate was to "facilitate close Jewish settlement on state and waste lands" (Article 6).  
KJH suggests that Israeli officials who have been doing that, facilitating the movement of Jews into Judea and Samaria, and previously, Gaza, are somehow war criminals.  Odd and illogical to me and not only insensitive.

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Someone commented:

Art. 8 “does not target the settlers”?  Well, without addressing the alleged responsibility of a direct perpetrator, what about accomplice liability under Art. 25(3)(c) when they intentionally engaged in conduct and knew or were aware that that conduct can or will facilitate the conduct of a direct perpetrator?

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