On the Situation in Palestine and the War Crime of Transfer of Civilians into Occupied Territory

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.


I INTRODUCTION
The war crime set forth at Article 8(2)(b)(viii) of the Rome Statute as, Ôthe transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies', and the rule at Article 49(6) of the Fourth Geneva Convention from which it is derived, that ÔStates may not deport or transfer parts of their own civilian population into a territory they occupy', are marked by several characteristics distinguishing them from the corpus of rules and crimes with which they are categorized. In particular, the war crime refers to the activity of the state -the occupying power -in addition to that of an individual perpetrator, a detail emphasizing that its purpose is not merely to confront direct physical force, but also to oppose colonialism and its attendant structure of violence. This de´calage between the war crime and the other provisions of Article 8 is evident in the claim that since not explicitly relating to Ôatrocity', the conduct prohibited is not serious enough to warrant labelling and proscription as a war crime. In 1998, explaining its refusal to vote in favour of adoption of the Rome Statute due to the inclusion of Article 8(2)(b)(viii), Israel's delegate asked: Ôcan it really be held that such an action as that listed in Article 8 above really ranks among the most heinous and serious war crimes, especially as compared to the other, genuinely heinous ones listed in Article 8?' 1 Although an isolated position then, the question requires some attention since there is a broader unease with how the thrust of international law discourse can appear to be locked into ad hoc responses to crisis and to Ôexcessive' or Ôheinous' violations, while reluctant to confront the political and cultural structures which undergird the broader reality of perpetual war. 2 That international criminal law is alert to the administrative and structural elements of oppression has been evident since the prosecution of serious violations of human rights as the crime against humanity of persecution by the post-Second World War tribunals. 3 The rationale for criminalizing apartheid in the 1973 Apartheid Convention 4 was not to respond to atrocity, but to condemn and confront a racist system of administrative and structural domination. A similar approach can be seen in the International Criminal Tribunal for the Former Yugoslavia's affirmation that the crime of persecution can encompass Ôacts which, although not in and of themselves inhumane, are con-sidered inhumane because of the discriminatory grounds on which they are taken'. 5 The impetus towards advancing the application of international criminal law beyond atrocity is clearly perceived in contemporary analyses of poverty, 6 discrimination, 7 asylum status, 8 and hate speech. 9 A particular, contextual, characteristic of the war crime as applied to the situation in Palestine is the rarity with which political discourse around Israel's settlement policy acknowledges its criminal nature. Addressing the notion of Ôhuman shields' in the context of colonial rule and of Israeli military policy, Judith Butler cautions that ÔTo assume Ôthat a Ôwar crime' is easily recognised, and that there will be general consensus that one has been committed', is merely a wager. 10 While the international community has been consistent in reaffirming that Israel's settlement policy is unlawful, such statements appear in abstracto, and there remains a broad refusal to recognize and to condemn the transfer of Israeli civilians into occupied territory as criminal activity for which individuals must bear responsibility.
Contrary to the Ôunimaginable atrocities' of the Rome Statute's Preamble, the transfer of Israeli civilians into occupied territory has, for a prolonged period, been an overt and organised state policy, executed on a large scale and in a systematic manner, such that it is a defining feature of the military occupation of Palestinian and Syrian territory. Beyond the civilian and combatant statuses definitive of the law of armed conflict, a significant section of Israel's settler population may be more appropriately categorised as commuters, such is the extent to which Israel's imposition of Ôfacts on the ground' has incorporated the settlement population and infrastructure into the state of Israel. Bearing in mind Kamari Maxine Clarke's observation that continuing violations such as colonialism or apartheid, since they challenge strict notions of legal time, Ôpresent us with less stable questions of perpetratorhood and create multivalent legal dilemmas [involving] questions of jurisdiction, admissibility and evidence', 11 it will be demonstrated that the war crime of transfer of civilians into occupied territory, while lacking significant precedential guidance, and to a significant extent obscured by the need to respond also to direct and massive physical violence, remains a war crime. It addresses, with adequate clarity and certainty, a clear and specific criminal conduct which continues to be pursued as a matter of systematic public policy.
Following an overview of how Israel's transfer of civilians into occupied territory undermines 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 then considering the temporal jurisdiction of the ICC and the nature of continuing and continuous crimes.

II TRANSFER WITH IMPUNITY
Since 1967 Israeli governments have justified the transfer of parts of their civilian population into occupied territory by reference to a combination of strategic/military and religious/nationalistic goals. 12 The Israeli High Court, having chosen not to acknowledge the applicability of Article 49(6) of the Fourth Geneva Convention, established the legalistic basis by which land in occupied territory was to be seized for the construction of settlements in the Beth El case of 1978. 13 The Court predicated its approval of construction of civilian settlements on the ability of the military commander to demonstrate that the settlement would serve a verifiable strategic military function. By this method, as noted by David Kretzmer, the Court's view on Ôthe security function of civilian settlement […] paves the way for actions that are not compatible with the occupying power's fundamental 11  duty not to use the occupation as a means of acquiring territory by use of force.' 14 According to the UN's Office for the Coordination of Humanitarian Affairs, since 1967 Israel has officially established approximately 150 settlements in the occupied Palestinian territory, in addition to some 100 Ôoutposts' erected by Israeli civilians without formal authorization. As of 2011 the Israeli civilian population in occupied Palestinian territory was estimated at 520,000, while some 43% of West Bank territory was allocated to settlement municipal councils. 15 While sustained violence and the denial of the Palestinian right to self-determination are clear consequences of the settlement policy, 16 in the context of such figures, the prolonged nature of the occupation, and Israel's claims to have annexed occupied territory, two additional consequences necessitate some comment.
The first relates to the increasing currency attached to claims that the system of segregation between Israeli civilians in occupied territory -the settlers -and the Palestinian population -the Ôprotected persons' of the Geneva Conventions -constitutes apartheid. 17  severely and disproportionately affect the Palestinian population in the Occupied Palestinian Territory'. It expressed extreme concern at: the consequences of policies and practices which amount to de facto segregation, such as the implementation by the State party in the Occupied Palestinian Territory of two entirely separate legal systems and sets of institutions for Jewish communities grouped in illegal settlements on the one hand and Palestinian populations living in Palestinian towns and villages on the other hand. 18 The Human Rights Council's 2013 Fact-finding Mission Report on Israel's settlement activity, while avoiding the apartheid label, also stressed this point, reiterating that the settlements Ôare established for the exclusive benefit of Israeli Jews' through a Ôsystem of total segregation … supported and facilitated by a strict military and law enforcement control to the detriment of the rights of the Palestinian population'. 19 Beyond the use of physical force against Palestinians by Israeli state officials in maintaining this regime, there is an increasing convergence between and among sectors of the settler population and the occupying power's military/security apparatus. 20 In addressing the Ôcorrelation between the two forms of Israeli violence -institutional military violence and non-institutional civilian violence', 21 Nir Gazit describes how the political and legal structures of the Israeli occupation have provided Ôthe necessary Ôdegrees of freedom', so to speak, that allow, and even support, a proliferation of settlers' violence against Palestinian civilians.' 22  the identities of settlers who are responsible for violence and intimidation are known to the Israeli authorities, yet these acts continue with impunity. The Mission is led to the clear conclusion that there is institutionalised discrimination against the Palestinian people when it comes to addressing violence. The Mission believes that the motivation behind this violence and the intimidation against the Palestinians as well as their properties is to drive the local populations away from their lands and allow the settlements to expand. 23 Such developments, and the challenge which the status of settlers' pose to the principle of distinction under international humanitarian law present a particular dilemma to the application and coherence of international law. Their collective presence in occupied territory is unlawful, their function at least partially military, yet as civilians, they enjoy immunity from attack, and are thus on a formally equal footing with the Palestinians whose land they have seized. International law places no restriction as to the numbers of combatants an occupying power may choose to deploy and accepts that a number of civilians will be required to support the military function of occupation forces: Geneva Convention III for example requires that certain categories of civilian are to be accorded Prisoner of War status. 24 That these are exceptions to be understood restrictively is illustrated by the commentary to Article 63(1) of Additional Protocol 1 -that civil defence organisations in occupied territory Ôshall not be required to give priority to the nationals or interests of that [Occupying] Power' -which notes: Ôas the transfer of the Occupying Power's own civilian population into occupied territory is prohibited by the Fourth Convention, there should really only be Ômilitary' nationals of the Occupying Power in such territory, apart perhaps from [the] exception of some civilians who had settled there before the occupation.' 25 In its written pleading to the International Court of Justice before the Wall Advisory Opinion, and in a rare petition for the application 23  of humanitarian law to occupied territory, Israel reminded the Court of the civilian status of settlers and their immunity from attack: ÔEven the harshest of Israel's critics have been constrained to acknowledge that such attacks are a violation of the norms of international humanitarian law and general international law and cannot be justified.' 26 An example of such acknowledgement is an Amnesty International report of 2002 on the violence of the Al-Aqsa Intifada rejecting claims on the part of Palestinian armed groups that Ôthe prohibition on attacking civilians does not apply to settlers in the Occupied Territories because the settlements are illegal under international humanitarian law; because settlements may have military functions; and because many settlers are armed'. Condemning Palestinian attacks on settlers as crimes against humanity, Amnesty concluded that Ôsettlers as such are civilians, unless they are serving in the Israeli armed forces.' 27 While this conclusion is correct, though a contemporaneous Human Rights Watch report distinguished settlers taking a direct part in hostilities, 28 the analysis acknowledged, though without further comment as to deeper problems this revealed, that: ÔAlthough the militarization of settlements is strongest in Gaza, some of the settlements in the West Bank also have military functions. The IDF may use them as staging posts for their operations or to detain people in their custody. A large number of settlers are armed and settlers have sometimes attacked Palestinians and destroyed Palestinian houses and other property.' 29 In the context of a prolonged occupation, characterized by colonial settlement, the Israeli courts have set aside international humanitarian law's categorization of Palestinians in occupied territory as protected persons, prioritizing instead settlers' needs as commuters to be protected. Eyal Weizman has explained how the World Zionist Organisation, in preparing its 1983 ÔMasterplan for Settlement in the West Bank through the year 2010', identified that state subsidies to specific settlements would be related to economic 26  damning conclusion that ÔThe chaotic and bloody world around us is the rule of law.' 34 Echoing the statements made by Israel at the Rome Conference in 1998, a recent commentary denied that the transfer of Israeli civilians into occupied territory could be of significance to the International Criminal Court since the provision is a Ôwar crime with no direct victims and the commission of which in the circumstances in question does not involve violence'. 35 Eugene Kontorovich's evaluation reflects a broader strand of rhetoric capitalising upon the emergence of a Lawfare narrative, itself a reaction to Palestinian legal advocacy, 36 which seeks to retool human rights so as to reconstitute Israeli settlers as victims, and the establishment of a Palestinian state or proposals to remove settlements as being tantamount to ethnic cleansing. Kontorovich for example, could go so far as to criticise the war crime for being Ôa highly restrictive and xenophobic zero immigration rule'. 37 41 The Report did not engage expansively with international criminal law, simply acknowledging that ÔThe transfer of Israeli citizens into the OPT, prohibited under international humanitarian law and international criminal law, is a central feature of Israel's practices and policies', 42 and remarking that Palestinian ratification of the Rome Statute Ômay lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.' 43 Other than a jurisdictional hearing before the ICTY where the defence drew on Article 49(6) and Rule 130 to successfully oppose an apparent charge of a Ôcrime of colonisation', 44 it was not until 2014 and the United Kingdom Supreme Court's judgment in Richardson and another v DPP that judicial consideration, albeit brief, was given to the scope and meaning of the war crime. 45 The appellants in Richardson unsuccessfully challenged convictions for aggravated trespass arising from a protest against the sale in a London shop of Ahava products manufactured at an Israeli settlement in occupied Palestinian territory. It was put to the Court that Ahava was guilty Ôof aiding and abetting the transfer by the Israeli authorities of Israeli citizens to a territory (the OPT) under belligerent occupation' and that aiding and abetting such transfer was Ôan act ancillary to a war crime' under the Rome Statute as incorporated into the law of England and 46 The only jurisprudence relevant to the prohibition of transfer of civilians noted in the ICRC customary law study was the condemnation by post-Second World War tribunals of ÔGermanization' policies executed by the Nazis in occupied Europe. 47 The indictment in the Case of the Major War Criminals before the International Military Tribunal at Nuremberg, in alleging the war crime of plunder, referred to portions of occupied territory in Eastern Europe as having been reserved Ôfor exclusive settlement, development, and ownership by Germans and their so-called racial brethren', while a separate count, ÔGermanization of Occupied Territory', charged that ÔIn certain occupied territories purportedly annexed to Germany the defendants… introduced thousands of German colonists' in violation of Ôthe Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed and Article 6(b) of the Charter.'' 48 The judgments at Nuremberg and other post-war trials tended to address what would become a series of discrete international crimes as more generalized bundles of conduct, on this particular issue not leaving much specific jurisprudence of a positively precedential character. 49 Pictet's Official Commentary to the Fourth Geneva Convention, as ratified by Israel in 1951 and Palestine in 2014, explains the motive for the prohibition in Article 49(6) as the prevention of a practice Ôadopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize 46 Ibid § 10. and changes to the demographic composition of an occupied territory' are an Ôexceptionally serious war crime'. The Commentary states that: Ôit is a crime to establish settlers in an occupied territory and to change the demographic composition of an occupied territory… Establishing settlers in an occupied territory constitutes a particularly serious misuse of power, especially since such an act could involve the disguised intent to annex the occupied territory.' 54 Article 20(c)(i) of the Commission's 1996 draft Code of Crimes against the Peace and Security of Mankind, also declared, without further commentary, that ÔThe transfer by the Occupying Power of parts of its own civilian population into the territory it occupies' is a war crime when committed wilfully in violation of international humanitarian law. 55

Negotiations at Rome
Article 8(2)(b)(viii) of the Rome Statute sets forth the war crimes of Ôtransfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.' Where William Schabas states that negotiation of the provision Ôproved troublesome' due to Israeli opposition, he concludes that it was Ônot very controversial, as it was well accepted by most delegations'. 56 Yoram Dinstein considers that the provision was the prime example of the Ôcontroversial segments' of the definition of war crimes since, while Geneva Convention IV set deportation as a grave breach, the transfer of civilians into occupied territory was not. 57  due to the sensitivity of the issue, were almost exclusively conducted between interested delegations behind closed doors'. 58 Academic commentaries on the drafting process at Rome are replete with similar, typically sparse, and frequently inconclusive observations as to the provision.
The war crime had been on the table from the informal texts of April 1996 under the subhead Ôother serious violations of the laws or customs of war'. 59 An August 1996 working paper draft statute submitted by France made no reference to the transfer of civilians into occupied territory, 60 though it reappeared in a February 1997 working paper prepared by the ICRC and submitted by Switzerland and New Zealand. 61 The provision was initially placed in square brackets as para 19(f) in informal working papers 62 though the brackets were promptly dropped. 63 A subsequent informal working paper included the option of deleting the provision, 64 while a new formulation was proposed by Cyprus, Egypt, Greece, and Switzerland. 65 This was included as option 3 in the Zutphen Draft Statute, that was to set the base for negotiations at Rome, and which provided for four options on sub-paragraph (f) 66

Option2
The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; Option3 (i) The establishment of settlers in an occupied territory and changes to the demographic composition of an occupied territory; (ii) The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; Option 4 No paragraph (f).
The Summary Records of the meetings of the Committee of the Whole and of the Plenary Meetings through June 1998, while showing an even split between states favouring options 2, 67 or 3, 68 provide little insight to the debates. China leaned towards option 2, seeking the addition of the words Ôwhich is not justified by the security of the population or imperative military reasons' after, Ôinto the territories it occupies'. 69 Option 1 received less overt support, 70 though the UK stated that it Ôwell understood the preference for options 2 and 3 but preferred option 1, because option 2 overlapped with the ''grave breaches'' provisions of the Geneva Conventions, which were in any event covered by section A, and option 3 made new law.' 71 Japan also stated that sub-paragraph (f) Ôshould be included as it referred to a grave breach of Additional Protocol I', and that while flexible with regard to the options As negotiations continued the United States indicated that subparagraph (f) Ôshould ideally not be included in the Statute', but that if it were, then the words Ôdirectly or indirectly', not being drawn from Additional Protocol I, Ôshould be deleted.' 73 This phrase had been added to the option 2 construction of the crime in a Bureau Discussion Paper dated 6 July 1998, the alternative options having been excised. 74 The academic consensus is that the words were included as a result of wide support for the Arab Group's efforts to ensure clarity with regards to the acts or omissions of the occupying power with whom the crime is linked. 75 According to Kittichaisaree, by this reading responsibility is to be attributed to an Occupying Power not only Ôif it deliberately organizes the transfer of its own population into occupied territory, but also where it takes no effective steps to prevent its own population from organizing such a transfer'. 76 Israel was the only state to steadfastly support the deletion of the provision, 77 and Ôparticularly opposed' the reference to Ôtransfer directly or indirectly' on the grounds that it Ôhad no basis in customary international law.' 78 This opposition appears to have been primarily based on the Ôindirect' aspect, which David Scheffer understood as having been an Egyptian inspired move Ôto snare the Israeli practice of providing tax incentives to its citizens to move to the Israeli settlements on the West Bank and in Gaza, which most of the world regarded as occupied territory following the 1967 war'. 79 Ultimately, option 2 of the Zutphen Draft, with the addition of the phrase Ôdirectly or indirectly', was adopted as the first part of Article 8(2)(b)(viii).

The Elements of Crimes
The Elements of Crimes with respect Article 8(2)(b)(viii) adopted by the Assembly of States Parties in 2002 read: 1. The perpetrator: (a) Transferred, [FN 44: the term Ôtransfer' needs to be interpreted in accordance with the relevant provisions of international humanitarian law] directly or indirectly, parts of its own population into the territory it occupies; or (b) Deported or transferred all or parts of the population of the occupied territory within or outside this territory. 2. The conduct took place in the context of and was associated with an international armed conflict. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
During negotiations, the US delegation at Prepcom sought to significantly raise the threshold for the commission of the war crime in order to allay Ôfears' that (im)Ôpermissible gloss' had been placed on Article 49(6) of Geneva Convention IV by the addition of the term Ôdirectly or indirectly'. 80 The US proposal, which does not appear to have received any support, would have required that the perpetrator Ôintended to effect the compulsory transfer, on a large scale, of parts of the population of the Occupying Power into such occupied territory'. Additional elements of the proposal required that the perpetrator Ôeffected such transfer', Ôintended that such transfer would endanger the separate identity of the local population in such occupied territory', and that Ôthe transfer worsened the economic situation of the local population and endangered their separate identity.' 81 Conversely, the Arab Group proposal sought to broaden the scope by spelling out what appear to be the applicable modes of liability: ÔThe perpetrator, directly or indirectly: (a) Induced, facilitated, participated or helped in any manner in the transfer of civilian population of the Occupying Power into the territory it occupies'. 82 The text as adopted was as initially proposed by Costa Rica, Hungary, and Switzerland: ÔThe perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies.' 83 This text had been supplemented by an oral amendment proposed by Switzerland to include Ôcivilian' and Ôof the Occupying Power' as found in Article 8 itself, so as to read: ÔThe Perpetrator: (a) Transferred, directly or indirectly, parts of the civilian population of the occupying power into the occupied territory it occupies'.
The Swiss intention had been to retain the reference to the occupying power as present in the Statute, rather than refer to the individual perpetrator only. According to von Hebel, this was rejected due to the Arab Group's concern that reference in the Elements to the Occupying Power might be Ôinterpreted as requiring some form of government involvement and thereby as limiting the scope of the provision.' 84 Strikingly, the Elements omit the word Ôcivilian' before Ôpopulation' as is found in the Statute, an omission which not Do¨rmann (or anyone else) can explain: ÔGiven that the substantive discussions were held among some interested delegations, it is not clear whether the omission was a conscious decision, and if so for what reason, or a mere drafting error.' 85 von Hebel notes that after a final compromise on the text had been reached in August 1999, Turkey made an informal suggestion to add the word Ôcivilian' in order to bring it in line with the Statute, yet the amendment as proposed, and the decisions to reject it, Ôwere not exclusively based on grammatical reasons.' 86 The final text also includes a footnote to the word Ôtransferred', noting that ÔThe term Ôtransfer' needs to be interpreted in accordance with the relevant provisions of international humanitarian law.' Do¨rmann surmised that the footnote Ôstates the obvious, without Von Hebel considers the final text of the Elements to be grammatically incorrect -as clearly seen in the manner by which the paragraph seems to refer to the act of individual and of a state in the selfsame breath such that Ôthe perpetrator' transfers Ôits own population' into the territory Ôit occupies', where the Ôit' in question relates to a state as an occupying power -and that it would have been preferable for the Swiss proposal to have been adopted with the inclusion of the oral amendment, 90 a reasonable conclusion.

Directly or Indirectly
Regarding the inclusion of the phrase Ôdirectly or indirectly', RS Lee queried whether ÔIn legal terms… this additional language has any significant impact'. 91 As previously noted, the phrase has been understood as reaffirming that the responsibility of the occupying power for transfer may be triggered by acts or omissions. It also appears that the Arab Group understood the phrase as confirming, unnecessarily, that the Statute's various modes of liability apply also to this particular provision. One issue on which the phrase has been regarded as declarative, is the opinion that transfer of civilians encompasses both voluntary and forced transfer.
A another state which it has occupied as a result of the resort to armed force.' 92 This contention, that humanitarian law prohibits only the forced transfer of civilians into occupied territory, finds little, if any, support. Kretzmer has noted that the International Court of Justice's rejection of suggestions that the term Ôtransfer' in Article 49(6) implies an element of coercion, was Ôwell-founded', on the basis that the object of the Fourth Geneva Convention Ôis to protect civilians in the occupied territory and not the population of the occupying power', and that ÔFrom the point of view of the protected persons, whether the transfer of outsiders into their territory is forcible or not would seem to be irrelevant.' 93 Dinstein, noting that ÔA transfer entails movement of persons into an occupied territory with a view to settling there' stresses that where the first paragraph of Article 49 speaks of Ôforcible transfers' the attachment Ôforcible' is absent from the sixth, a point made even clearer in the Rome Statute, Ôthough strictly speaking no embellishment is required.' 94 In the Wall Advisory Opinion, the International Court of Justice stated that Article 49(6): prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory. In this respect, the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of Settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6… 95 With respect the war crime in the Rome Statute, the ICRC similarly understand that: ÔThe inclusion of ''indirect'' indicates that the population of the occupying power need not necessarily be physically forced or otherwise compelled. Therefore, acts of inducement or 92  Given the reference to an occupying power, the war crime can be understood also as a type of Ôcrime' of state. It is not dissimilar to the Statute's crime of aggression, yet in several respects it closer resembles the concept of a crime against humanity. Schabas  the language of the chapeau to Article 8, Ôthat the court shall have jurisdiction in respect of war crimes when committed as part of a plan or policy or as part of a large-scale commission of such crimes', had in general terms aligned war crimes more closely with crimes against humanity, 99 and the provision here seems emblematic of Cherif Bassiouini's remark that ÔCrimes against humanity and genocide are essentially crimes of state, as are sometimes war crimes, because they need the substantial involvement of state organs, including the army, police, paramilitary groups, and the state's bureaucracy'. 100 The general rule on state responsibility for internationally wrongful acts is that Ôthe only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State.' 101 In the Wall Advisory Opinion, the International Court of Justice cited with approval UN Security Council resolution 446 (1979) calling upon ÔIsrael, as the occupying Power, to abide scrupulously' by Geneva Convention IV and Ônot to transfer parts of its own civilian population into the occupied Arab territories'. The Court also referred to Security Council resolution 465 (1980) which described ÔIsrael's policy and practices of settling parts of its population and new immigrants in [the occupied] territories' as a Ôflagrant violation' of the Convention. 102 Affirmation of the illegality of Israel's settlement policy and practice has been widespread, repetitive, and consistent. The legal opinion of the US State Department on Israel's settlement policy, as stated in 1978, was that Ôthe establishment of the civilian settlements in those territories is inconsistent with international law.' 103 The Conference of the High Contracting Parties to the Fourth Geneva Convention and the Council of the European Union 104 reaffirmed Ôthe illegality of the settlements in the said territories and of the extension thereof.' 105 Military occupation of foreign territory is perhaps the ultimate manifestation of the state's exercise of public authority, primarily through its military organs, but also through the legislative, executive, and judicial branches. Article 3 of Hague Convention IV of 1907 provides that a belligerent party Ôshall be responsible for all acts committed by persons forming part of its armed forces', 106 while Article 91 of Additional Protocol 1 ensures that a party to the conflict Ôshall be responsible for all acts by persons forming part of its armed forces'. 107 In the Armed Activities Case, the International Court of Justice, having concluded that Uganda was an occupying power in Ituri, the Democratic Republic of the Congo, found that: Uganda's responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation. 108 In the section on Palestine in its November 2015 Report on Preliminary Examination Activities, the ICC's Office of the Prosecutor noted under ÔAlleged Crimes' that ÔSuccessive Israeli governments have allegedly led and directly participated in the planning, con- struction, development, consolidation and/or encouragement of settlements on West Bank territory' and that Ôsettlement activity is allegedly created and maintained through deliberate implementation of a carefully conceived network of policies, laws, and physical measures.' 109 While merely a preliminary document, the Report's emphasis on alleged acts of state officials reflects the idea that it is not individual settlers who would be the subject of ICC proceedings concerning the war crime of transfer of civilians, but that individuals in positions of power (likely including certain settlers), those most responsible for planning and implementing the overall policy of transfer, who are likely to be identified as individually criminally responsible.
The substance of two reports commissioned by Israeli governments concerning settlements not Ôofficially' authorized by the state illustrate the nature of the occupying power's acts and omissions relating to the transfer of civilians into occupied territory. Talia Sasson's 2005 Report, while eschewing consideration of Ôauthorised' settlements or of international law, found: Sasson found that the state had Ôofficially acknowledged and encouraged the settlement enterprise', until policy changed in the 1990s: The Israeli governments were no longer officially involved in the establishment of settlements, apparently due to Israel's international situation, and the negative position of most nations towards the settlement enterprise. That was not the case for public authorities and other Israeli government bodies, who took, along with others, a major role in establishing the unauthorized outposts. Some of which were inspired by the political echelon, sometimes by over- The Sasson Report, approved but not implemented by the Israeli government, was followed by the 2012 Levy Report of ÔThe Commission to Examine the Status of Building in Judea and Samaria'. Variously received as a Ôtravesty', 112 and Ôan ethical obstruction' for its treatment of the rule of law, 113 the Levy Report asserted that the law of occupation Ôcannot be considered applicable', and that the provisions of the Fourth Geneva Convention Ôwere never intended to apply to the type of settlement activity carried out by Israel.' 114 In considering attribution of responsibility for acts to the state, a pertinent excerpt is the Report's affirmation that: With regard to settlements established in Judea and Samaria [the occupied West Bank] on state lands or on land purchased by Israelis with the assistance of official authorities such as the World Zionist Organization Settlements Division and the Ministry of Housing, and which have been defined as Ôunauthorized' or Ôillegal' due to the fact that they were established without any formal government decision, our conclusion is that the establishment of such settlements was carried out with the knowledge, encouragement and tacit approval of the most senior government level -government ministers and the Prime Minister, and therefore such conduct is to be seen as implied agreement. 115 Regarding Ôunofficial' settlement Ôoutposts', Israel's state responsibility for transfer is triggered, whether by covert approval as documented above, or by overt and indispensable action in having the Israeli military assist, enable, and protect those civilians being transferred into occupied territory. The HRC's 2013 Fact-Finding Mission Report was alert to subterfuge on the part of the Israeli state, noting that ÔGovernment investment in the settlements has not been made explicit in the Public Budget, but allocated through hidden provisions in a process that has been described as ''partially secretive'' and ''a political tool'''. 116 The Report concluded that Ôthe State of Israel has had full control of the settlements in the OPT since 1967 and continues to promote and sustain them through infrastructure and security measures.' 117 V TEMPORALITY AND TRANSFER Addressing the Assembly of State Parties to the Rome Statute in December 2014, Palestine's ambassador asked: ÔIf the Rome Statute states that Ôthe transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies' is a war crime, then, in the case of illegal Israeli settlements and settlers in our occupied land, isn't it logical to go to the ICC so as to prosecute and bring an end to this ongoing war crime and to prosecute this continuing crime?' 118 Andreas Zimmermann opposed the idea that the transfer of civilians is a continuing war crime rather than an instantaneous war crime: ÔAs a matter of fact, once settlers have already been settled in an occupied territory, their transfer has been completed even if they then continue to be induced [by state incentives] to stay in such territory.' 119 Such a conclusion was said to have been Ôconfirmed by the drafting history of the norm' and specifically the decision not to have incorporated option 3(1) of the Zutphen Draft into the Statute. Zimmermann interpreted the phrase Ôthe establishment of settlers in an occupied territory' in the draft as Ôhinting at an ongoing and continuous character', a meaning then, which was to be denied to the term Ôtransfer' as finally adopted. 120 116  International criminal law on the scope and nature of continuing crimes does not support such a restrictive opinion. Judge Shahabuddeen, dissenting from a three to two majority decision of the ICTR Appeal Chamber in 2008 that direct and public incitement to genocide was not a continuing crime, but, Ôis completed as soon as the discourse in question is uttered or published', 121 remarked ÔThere is not much authority in the field. This no doubt is why the judgement of the Appeals Chamber has cited no cases in support of its conclusion.' 122 In 2012, and also in a dissenting opinion, Judge Canc¸ado Trindade at the ICJ noted that Ôalthough the notion of continuing situation has roots in the international legal thinking of as early as the first half of the twentieth century, it has passed almost unnoticed, and remains virtually unexplored, in doctrinal writings to date, in public international law.' 123 The subject has been addressed by the ICC on several occasions, and can be understood as comprising two distinct yet often overlapping concepts. The first concerns the Court's temporal jurisdiction and whether a crime such as the transfer of civilians into occupied territory, commenced prior to the Statute's entry into force, continues in such a manner that the Court has the power to investigate and prosecute (i.e. continuing crimes). The second concerns how the Court views ongoing conduct characterised by the serial repetition of discrete acts over a prolonged period of time (i.e. continuous crimes.) At the ICC's Pre Trial Chamber, Judge de Gurmendi considered the majority's reasoning with respect to Ôongoing and continuing crimes' to have been too narrow in the context of the Prosecutor's suggestion that the Chamber might decide to extend the temporal scope of the investigation in Coˆte d'Ivoire. This was so even despite the majority having accepted that crimes committed prior to or after the date of the Prosecutor's application were covered by the grant of authorisation so long as they Ôat least in a broad sense, involve the same actors, and have been committed within the context of the same attacks (crimes against humanity) or the same conflict (war crimes). 124 While finding it inappropriate that the Prosecutor was required to revert to the Chamber with further information in order to investigate other crimes committed prior to the dates within the grant of authorization, de Gurmendi held that Ôexamples of continuing crimes under the Statute include those of enforced disappearance of persons, enslavement, imprisonment, or other severe deprivation of physical liberty, sexual slavery, enforced prostitution, persecution and the crime of apartheid.' 125

Continuing Crimes
Mohamed El Zeidy's analysis as to whether the ICC could prosecute crimes that commenced prior to the Statute's entry into force and which continue thereafter, notes that the issue was raised during negotiations at Rome but was left for the Court itself to resolve. 126 During drafting of the Elements a footnote was added to Article 7(1)(i) on enforced disappearances as a crime against humanity: ÔThis crime falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after the entry into force of the Statute.' El Zeidy concludes that since the drafters' intentions were directed and restricted to this crime, then the ICC Ômay not be barred from applying the doctrine and exercising jurisdiction over any other crime of the same nature' and that the Court is Ôbarred only from looking at completed crimes committed before the Statute's entry into force as opposed to continuing crimes.' 127 Such an approach was shared by Judge Pocar, also dissenting in the Nahimana Appeal in a comment which illustrates the overlap 124  soldiers as continuing crimes, notes that while the elements of the former constitute a series of cumulative acts -detention, abduction, and denial -the requisite element of the latter is singular, such that Ôthe essence of the prohibition' is not merely the original recruitment as Ôa discrete event in time' but equally the Ôcontinued membership', even if commenced prior to the Court's temporal threshold. 133 As a discrete criminal act, a clear parallel can be drawn between the crimes of enlistment and conscription of children as addressed in Lubanga and the crime of transfer of civilians into occupied territory. It is no stretch to assert such that the latter should also be recognised as a continuing crime, committed at the moment parts of the civilian population are transferred into occupied territory and perpetuated until such time as the civilians leave the occupied territory.
By this reading, which also serves the legal values of opposition to colonialism and the prerogative that occupation be temporary which lie behind the criminalization of the practice of transfer, one can readily argue that any transfer committed from the time the crime became a matter of customary law has continued in full such that the individuals responsible for the original transfer as well as the individuals responsible for maintaining the presence of those civilians transferred into prior to, and present in, occupied territory from June 2014 are liable to ICC prosecution.

Continuous Crimes
Rastan concluded with respect to Lubanga and the enlistment and conscription of child soldiers, that ÔStrictly speaking, this is less a continuing crime, but more an extension of the idea of repeat acts that have their origin before the entry into force of the Rome Statute.' 134 This is also the case with respect to the transfer of civilians into occupied territory, since given the situation in Palestine, the evidence will show that the vast majority of settlers will have returned to Israel and been transferred back into occupied territory on numerous occasions since June 2014. The very purpose of the settlement project as a colonial enterprise is to fully incorporate the settlements and settlers into the state of Israel, a policy which provides the basis for the charge of apartheid by its exclusion and domination of Palestinians, and effected by Israel's claims to have 133  annexed certain occupied territory. The project itself, and the transfer of civilians in particular, is most accurately understood not as an Ôevent', but as a structural pursuit of a specific end point, namely the erasure of the distinction between colony (occupied territory) and metropole (Israel). 135 The social and physical infrastructure embedding settlements with Israel is such that one cannot properly conceive of transfer solely in the manner as suggested by Zimmermann since the movement of individual Israeli civilians to and from occupied territory is an act repeated on a regular and ongoing basis. Judge de Gurmendi had noted that a Ôrestrictive definition of ''continuous crimes'', or delictum continuatum, includes only those crimes involving a multiplicity of individual acts of the same perpetrator, each of them satisfying the legal elements of crimes of similar kind, which should be treated as only one act as a result of their tight internal and external connection'. 136 A similar approach to continuous offences, Ôwhere each act in a series of separate but closely related acts fulfils all the elements of a certain criminalisation' had been suggested by Judge Pavel Dolenc at the ICTR: Ôit is possible to regard the entire transaction, or series of repeated crimes, as a single crime. For these acts to be joined together, certain linking elements should be taken into account, such as the repetition of the same kind of crimes, the uniformity of the perpetrator's intent, the proximity in time between the acts, the location, the victim or class of victims, the object or purpose, and the opportunity.' 137 The multiplicity of similar acts constituting the transfer of parts of Israel's civilian population into occupied territory should be similarly constructed as a continuous crime in the case of individuals prose- conscription into a national armed force or armed group or use to participate actively in hostilities of children under the age of fifteen was recognized as constituting a crime within the jurisdiction of the Court, Ôthe Chamber considers that it is advisable to treat (1) all instances of enlistment into a national armed force or armed group, (2) all instances of conscription into a national armed force or armed group, and (3) all instances of use to participate actively in hostilities of children under the age of fifteen years, as a continuous war crime'. 139 Given the parallels between patterns of crimes addressed in Lubanga and the patterns of transfer of civilians into occupied territory, it seems appropriate that the prosecution of an alleged perpetrator, aligned with and responsible for the implementation of the policy of transfer of civilians, be similarly based on each instance of transfer cumulatively presented as a continuous crime.

VI CONCLUSION
The Palestine section of the ICC Office of the Prosecutor's 2015 Report on Preliminary Examinations, under subhead ÔAlleged crimes by IDF', reflects the tendency to consider Ôsettlement activity' through the exclusive lens of state responsibility. One should not, perhaps, be overly sensitive to a document which serves quite an indeterminate function, and which stresses that its descriptions Ôshould not be taken as indicative of or implying any particular legal qualifications or factual determinations'. Nonetheless, in light of the centrality of settlement and of transfer to ongoing widespread and systematic human rights abuses under occupation, it is insufficient that, rather than address the transfer of civilians into occupied territory as a war crime, the Report merely refers to Ôa scheme of subsidies and incentives to encourage migration to the settlements'. 140 The destruction and confiscation of land and property, the repression of the right to self-determination, and the implementation of an apartheid system are both the pre-condition for and the consequence of the overall settlement policy. Still, the Report chose to refer to Ômigration' to describe the conduct criminalised in Article 8(2)(b)(viii) rather than apply the Statute's terminology of Ôtransfer'. Having provided an overview of the nature, scope, and purpose of the war crime in the context of the situation in Palestine, and confident in concluding that this crime can be investigated and prosecuted with adequate clarity and certainty, what remains remarkable is the absence of direct reference to, or acknowledgement of, the crime: It does not, for example, feature in the OTP's examples of crimes which have Ôbeen traditionally under-prosecuted'. 141 The centrality of the war crime to the consolidation of the occupation was clearly affirmed by Israel's explanation of its vote against the adoption of the Rome Statute. Appropriate labelling of criminal conduct is a perennial concern of international criminal law, and while the situation in Palestine encompasses a particularly broad range of international crimes, it cannot continue to be the case that a crime which goes to the core of this situation remains unspoken.

OPEN ACCESS
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