February 10, 2009

(English version of a  Financial Times Deutschland op-ed published on 2/10/09)

 A failure by the EU to seek accountability for perpetrators of war crimes in the Middle East risks undermining international criminal law. This is equally valid for Israel and Hamas.

Now that the fog of war is lifting from the Gaza Strip, it is clear that both Israel and Hamas have perpetrated serious violations of the laws of war. The question is: will the impunity for war crimes that has long characterised the Israeli-Palestinian conflict persist? And if it does, how much damage will that do to the credibility of international justice  and  to institutions like the International Criminal Court. The EU worked hard to create this institution to secure accountability in other places where grave crimes have been committed such as Darfur.

From a laws-of-war perspective, the situation in Gaza is not a pretty one. Human Rights Watch is currently investigating a wide range of alleged violations by Israel and Hamas.  These alleged violations include using weapons, such as heavy artillery, indiscriminately in densely populated areas; using civilians as human shields or otherwise placing them at unnecessary risk; firing on or otherwise preventing ambulances and emergency medical care from reaching persons in need; firing rockets deliberately or indiscriminately into civilian areas; targeting persons seeking to communicate their civilian status with white flags.

Every victim brutalized by this conflict has a name and so too do the individuals responsible for perpetrating and ordering atrocities. Justice for war crimes is not simply a moral luxury. Those whose lives the Gaza conflict has shattered have just as much a right to see justice done as victims of war crimes anywhere in the world.

Unacceptable double standard

Unfortunately, past experience shows that neither Israel nor Hamas can be counted on to conduct genuine investigations or to hold their forces accountable for war crimes.

Although the EU is not always consistent, it has taken leadership in pursuing accountability and justice for war crimes and invoking punitive measures for impunity around the world. However, past experience shows that the EU has been unwilling to apply those policies and mechanisms for crimes committed in the Israeli-Palestinian conflict.

This double standard has to change. There is a growing recognition that impunity entrenches and prolongs armed conflict and civilian suffering. There is also evidence from the Balkans, West Africa and Latin America that when nations come together to pursue accountability for the perpetrators of the most serious crimes-Charles Taylor, Radovan Karadic, Slobodan Milosevic, Augusto Pinochet-the results can be positive. Such prosecutions recognize the humanity of victims and  send a strong message of deterrence. This message can in turn contribute to stabilizing an entire region.

Impunity worsens conflicts

It is high time to apply the same principles  to the Israeli-Palestinian conflict where  a culture of impunity has  bred cynicism, hatred, despair, radicalisation,and  loss of civilian life a large scale and has not served the legitimate desire of Israelis and Palestinians to live in security.

Is it not time to apply the same principles of accountability to the Israeli-Palestinian conflict? The culture of impunity in the Middle East has bred cynicism, hatred, despair, radicalisation, and, when conflict breaks out, loss of civilian life and destruction of civilian property on a large scale. This has lead to a perpetuation and perhaps a regionalisation of conflict. In any case it has not served the legitimate desire of Israelis and Palestinians to live in security.

Applying the mechanisms of accountability to the Middle East will not be easy. No one expects to see anyone in the dock soon for war crimes in Gaza. But the work has to start now in the form of an impartial, international commission of inquiry to determine key facts and to recommend mechanisms for holding violators accountable and providing compensation to victims. If the UN Security Council cannot agree to establish such a commission, then Secretary-General Ban Ki-moon should take the initiative and do it himself. Either way, it will require profound leadership to see it done, and none are better placed than the 27 EU member states to show the way.

Israel has not joined the International Criminal Court. The court would therefore need a decision by the UN Security Council to investigate and prosecute the crimes in Gaza - as was the case for Darfur following the recommendation of a UN investigating commission set up by the EU.

Failure to push for accountability in the Middle East would undermine the EU's global voice and the credibility of international justice institutions which it has reinforced and supported. Given the extent of atrocities still being committed around the globe, this is a risk the EU cannot afford to take.