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28 Crim. L.F. 1 (2017)

handle is hein.journals/crimlfm28 and id is 1 raw text is: Criminal Law Forum (2017) 28:1-34 © The Author(s). This article is published with open access at Springerlink.com 2016 DOI 10.1007/s10609-016-9300-9 MICHAEL G. KEARNEY* CrossMark ON THE SITUATION IN PALESTINE AND THE WAR CRIME OF TRANSFER OF CIVILIANS INTO OCCUPIED TERRITORY ABSTRACT. 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 under- lying 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 con- struction, 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, 'the 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 'States may not deport or transfer parts of their own civilian population into a territory they occupy', are marked by * Senior Lecturer in Law, School of Law, Politics and Sociology, University of Sussex, Brighton, UK. E-mail: M.G.Kearney@sussex.ac.uk

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