May 22, 2014

How can founding ICC members such as the UK and France support the work of the court while opposing Palestinian membership, asks Clive Baldwin?

The British government has said many times that it is a strong supporter of international justice and the International Criminal Court (ICC).  William Hague, the foreign secretary, set this out in a 2012 speech in which he described how “the cycle of war”… “has been fuelled by the uneven application of international law in different parts of the world, feeding a perception that governments that commit crimes still have a chance of getting away with it.” The government’s published strategy on the ICC says it strongly supports widening the court’s membership and will press states that are not members to join.

But British foreign policy seems to make one exception to these fine standards, one exception where the UK seems to believe justice would get in the way of peace and opposes ICC membership. That is Palestine. Now accorded “non-member observer state” status by the United Nations General Assembly, and having just signed up to a host of human rights treaties, Palestine could apply for ICC membership. According to statements by some Palestinian officials, it is considering doing so. But since the possibility of Palestine joining the ICC has become real, Hague and the rest of the British government have publicly stated their strong opposition. Hague went so far in 2012 as to say that the UK’s recognition of Palestine’s statehood depended on it agreeing not to join the ICC.

The UK is not alone in this: Israel, the US, France, Canada and several other states have also indicated they oppose Palestinian ICC membership. The views of Israel and the US are predictable – neither is an ICC member and both tried to ‘unsign’ the court’s treaty after initially signing it. But the opposition of the UK, France and Canada, founding members of the ICC, is a clear double standard. They are effectively saying that the ICC is only good for some states, not all. Laurent Fabius, the French foreign minister has said that whereas Palestine has the “right” to join the ICC it would be “counter-productive,” suggesting he opposes membership at present.

The UK position on Palestine is utterly inconsistent with its declared support for universal ICC membership. Hague’s main argument, set out in a speech in Parliament in 2012, seems to be that ICC jurisdiction over the occupied territories could make a “return to negotiations impossible.”

This was a blatant contradiction of his speech a few months earlier.  “Institutions of international justice are not foreign policy tools to be switched on and off at will,” Hague said then, discussing the claim that the ICC and other tribunals complicate the search for peace. He rejected that claim, saying, “We have learnt from history that you cannot have lasting peace without justice, accountability and reconciliation.”

So it seems that in the UK’s eyes, it is only for Palestine and Israel that justice appears to get in the way of peace.  Hague has never spelt out precisely why he thinks Palestine and Israel should be a special case. In fact if we look at what Palestinian ICC membership would actually mean it is difficult to see how it would threaten peace.

Palestine’s membership would give the court jurisdiction over the West Bank, East Jerusalem and Gaza. Its prosecutor could investigate people suspected of committing war crimes or crimes against humanity in or from that territory, including launching attacks into Israel or other countries.  The crimes the court could prosecute would include the war crimes set out in its statute, such as targeting attacks on civilians, torture, and forced displacement in or transferring civilian settlers into occupied territory. For the first time there would be a real possibility of accountability for rocket attacks targeting Israeli civilians, for torture of people in custody, and for Israeli expansion or creation of new settlements.

The UK has regularly condemned such crimes, including attacks on civilians by all sides. Only last month Hague repeated the UK’s consistent position that “settlements are illegal and an obstacle to peace.” But mere condemnation has done little to deter these crimes.  A real likelihood of accountability for the crimes just might.

For an ICC founding member like the UK to try to prevent Palestine from joining the court matters beyond Israel and Palestine, as it gives a very clear example of double standards in international justice. Such clear inconsistency from one of the ICC’s strongest supporters is a gift to enemies of the court and of international justice around the world.

It is time for Hague to live up to the principles he set out in his 2012 speech, reminding himself that uneven application of international law undermines respect for the law. The UK should not be leading the charge for double standards in international justice by saying Israel and Palestine should be a special ICC-free zone. Instead as a founder of the ICC, it should be pressing both Palestine and Israel to join the Court, supporting them if they do, ensuring that real accountability and deterrence can begin for the crimes that continue to be committed.

Clive Baldwin is senior legal advisor at Human Rights Watch. Follow on Twitter @cliveabaldwin