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A Note by Michael Mandel, Professor,
Osgoode Hall Law School, York University, Toronto
November 2004

Under the Canadian Crimes Against Humanity and War Crimes Act 2000, c. 24, Israel's settlements in territories taken in the June 1967 war constitute war crimes punishable in Canada.

This is because the Act adopts for Canada the war crimes listed in Section 8, paragraph 2 of the Rome Statute of the International Criminal Court adopted by 120 states on July 17, 1998. Any acts contrary to the Rome Statute committed on or after that date are also punishable under the Canadian Act (section 6(4)). The Canadian Act further provides that acts contrary to the Rome Statute committed before July 17, 1998 may be considered punishable crimes in Canada, so long as they were also criminal according to customary international law. The settlements had probably acquired this character by 1977 because of the declaration in the 1977 Protocol I to the Geneva Conventions that such actions constituted ‘grave breaches’ (Article 85 (4)(a). Since 1977, the vast majority of states (but not Israel and the United States) have ratified the Protocol. This means that settlement activity since 1998 is clearly criminal in Canada, and settlement activity since 1977 is probably criminal, with the probability increasing from year to year.

Though Israel is not party to the Rome Statute, this is irrelevant to Israeli liability under Canadian law. The Crimes Against Humanity and War Crimes Act 2000 is an exercise of an internationally recognized "universal jurisdiction" that has been repeatedly re-affirmed since the Second World War, including by the Supreme Court of Israel in the case of Attorney-General of Israel v. Eichmann (1962) 36 I.L.R. 277.

One of the crimes described in Section 8 (2) of the Rome Statute, and adopted by Canadian law, is a repetition of part of Article 49 of the 4th Geneva Convention of 1951, ratified by both Israel and Canada. It provides:

2. For the purpose of this statute, "war crimes" means:

(a) grave breaches of the Geneva Conventions of 12 August 1949 …

(b) other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(viii) the transfer, 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;

Anyone is guilty of this crime who commits it, conspires or attempts to commit it, counsels it, or is an accessory after the fact to it, and it is punishable by up to life imprisonment.

A person may be prosecuted for this offence in Canada whether or not they are a Canadian citizen or a Canadian was a victim, or Canada was involved in the conflict, or whether or not the crime was committed before the Act came into force. It is enough that after the time the offence is alleged to have been committed the person is present in Canada.

Proceedings can be commenced anywhere in Canada. However, no proceedings can be commenced without the personal consent in writing of the Attorney General (currently the Honourable Irwin Cotler) or Deputy Attorney General of Canada, and those proceedings may be conducted only by the Attorney General of Canada or counsel acting on his behalf.

Though consent is needed for prosecution, it bears emphasis that, under the Act, an offender is no less guilty for not being prosecuted.

Diplomatic immunity extends to all serving members of a government and diplomats in post, but that immunity ceases when they leave office. State immunity for some official acts continues after a person leaves office but does not extend to war crimes and crimes against humanity committed while in office (Reg. v. Bow Street Magistrate, Ex p. Pinochet (No. 3) [2000] 1 A.C. 147 (H.L. (E.)).

Though Israel denies it, there is no question but that Israel is an Occupying Power for the purposes of the Geneva Conventions, the Rome Statute, and the Canadian Crimes Against Humanity and War Crimes Act. Any doubt on this matter was resolved by the unanimous Resolution 799 of the Security Council of December 18, 1992, which "reaffirm[ed] the applicability of the Fourth Geneva Convention of 12 August 1949 to all the Palestinian territories occupied by Israel since 1967, including Jerusalem". Israel is legally defined in the Resolution as "the occupying Power". The United States also voted in favour of this Resolution.

Israel's status as Occupying Power was unanimously re-affirmed once again by the International Court of Justice in its Advisory Opinion of 9 July 2004 (Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian Territory). Paragraph 78 of the judgment reads in part as follows:

The territories situated between the Green Line (see paragraph 72 above) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan.  Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power.  Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation.  All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.

Even the American member of the Court, Judge Buergenthal, who dissented on another point, agreed with this. In paragraph 2 of his opinion he wrote:

I share the Court's conclusion that international humanitarian law, including the Fourth Geneva Convention, and international human rights law are applicable to the Occupied Palestinian Territory and must there be faithfully complied with by Israel.