The EU must endorse Palestine’s ICC quest for accountability

After more than 20 twenty years of laborious and intermittent negotiations, peace remains as elusive as ever in Palestine-Israel, while the civilian death toll, violations of international law and Israeli settlement expansion have increased relentlessly. As a deterrent, Palestine’s accession to the International Criminal Court (ICC) could be a significant turning point in this protracted conflict.

Following the UN Security Council’s rejection of the Palestinian attempt to set a deadline for Israel to end its occupation, President Mahmoud Abbas turned to the ICC to grant it jurisdiction over crimes committed within the occupied Palestinian territories. The move was described by Palestinian officials as the “peaceful, legal option to internationalise the conflict.” Ever since, the US and Israel have been reading from a pre-prepared script in terms of consequences for the Palestinian Authority, including a freeze on paying tax revenues, paralysing the PA’s ability to pay the salaries of its 160,000 employees.

In Europe, the Palestinian move has been met with an implicit rejection. Some EU member states argue that ICC involvement will undermine peace negotiations, grim as they have been. However, the broad parameters for peace have been known for years. What has been lacking is not talks, but an end to the plethora of international law violations by Israel, including settlements, the constant expansion of which is rendering a peace deal more elusive by the day. Israel’s settlements are widely condemned in Europe, by members of the public and their leaders. The ICC can help to halt their expansion.

Nothing harms peace more than impunity for the war crimes that characterise the conflict, be it settlement expansion, indiscriminate attacks, collective punishment or the blockade of Gaza, to name but a few. By acting as a deterrent to such crimes, the ICC could discourage major impediments to a peace agreement.

Given Palestinian vulnerability to prosecution, the EU’s reaction also implies a wish to keep Israelis beyond the reach of the ICC. Yet, it is the court of last resort. It is empowered to act only when national authorities have failed to conduct investigations and ensure accountability.

Both the Israeli and Palestinian governments have a dismal record in this regard. The Palestinian Authority initiated investigations but was unable to investigate alleged war crimes in Gaza fully and credibly as it had no access to the enclave, and Hamas has been accused of targeting Israeli civilians indiscriminately. Although the Israeli military prosecutor occasionally conducts investigations into alleged war crimes, they do not meet international standards and thus hardly ever result in prosecutions. For example, the Military Advocate General’s (MAG) investigations into exceptional cases following “Operation Protective Edge” have, unsurprisingly, failed to prosecute soldiers for carrying out its own orders. The ICC Prosecutor’s preliminary examination thus offers hope for Palestinian victims of war crimes and crimes against humanity who have been denied justice systematically under Israel’s internal accountability process.

Israel’s brazen statement that it would not cooperate with the ICC, and that of the US declaring that it would oppose any ICC action against its ally, coupled with EU silence, undermine the very human rights and international humanitarian law principles upon which a law-based international order is built, and reinforces selective justice. The ICC was established to bring an end to impunity and ensure the accountability of those persons who bear the greatest responsibility for the gravest crimes. It is first and foremost a tool of accountability, an essential element of peace.

There can be no real peace without justice. The role of the ICC in the Israeli-Palestinian conflict cannot be negligible as it involves demarcating borders, considering the legality of occupation and determining the nature of the conflict. Absent these conditions, Israel will continue to expand settlements and impose an unacceptably high civilian toll with its military offensives, while refusing to prosecute offenders; this is hardly a path that the EU can endorse.

Israel has already launched a diplomatic assault to lobby state parties to the ICC for them to cut their funding of the court. This will be a test for the EU and its member states, which will determine how highly they regard international law and their own declared values.

The EU pledged to advance universal support for the ICC by encouraging the widest possible participation, preserving its integrity and independence, supporting its effective and efficient functioning and promoting cooperation with its processes. It is time to translate words coherently into actions. The Palestinian decision to defy misguided threats and embrace the jurisdiction of the ICC should be applauded and supported, not undermined. The EU should also call on its partner Israel to sign up to the ICC. By standing for values it vowed to defend and spread, the EU can contribute positively to ending this conflict.

The writer is the president of the Euro-Mediterranean Human Rights Network.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.