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The European Union staunchly supports the International Criminal Court. It advocates universal ICC membership to extend the reach of justice for grave abuses and to contribute to “peace and the strengthening of international security.” Yet EU member states are pressing Palestine not to seek ICC membership.

The UK and France, which together have given some 200 million Euros to the ICC, are among the EU member states that have publicly opposed Palestinian ICC membership. Such opposition runs counter to their usual position – the UK, for example, has a policy to increase ICC membership and gain wider regional support for the court. It also violates their obligations as ICC members to support the court’s purpose of ensuring that serious international crimes do not go unpunished.

These governments claim that ICC jurisdiction over Palestine would threaten peace negotiations with Israel. Why? Apparently Israel’s implied threats that it would sever the talks if Palestine goes to the ICC.

On July 22, the EU Foreign Affairs Council similarly warned the Palestinian leadership “to use constructively its UN status and not to undertake steps which would lead further away from a negotiated solution.” The message was implicit but clear: don’t go to the ICC.

European governments are the “biggest financial contributor” to the ICC, as well as to the Palestinian Authority. From 2002 to 2010, the EU carried out more than 340 demarches to encourage scores of countries to join the ICC – it even demarched Israel, which signed but later “unsigned” the ICC statute. The EU should press Israel to reconsider, and to stop putting pressure on Palestine, both directly and through allies like the United States, not to join the ICC.

Giving in to demands for impunity by abusive governments that threaten to walk out of peace negotiations encourages more abuse. In any case, Israel’s policies in the occupied territories have been consistently unlawful, whether during periods of active negotiations and when talks have broken down. And unchecked war crimes, whether Hamas rockets, Israeli attacks in Gaza, or settlement expansion, undermine the trust needed to reach a peace agreement. 

The third escalation in hostilities between Israel and Hamas in six years – and the most destructive in Gaza’s recent history – took place in the absence of any real threat of international justice. And from past experience, the chances that the parties will adequately investigate, prosecute and punish their own for apparent war crimes are exceedingly slim.  Hamas has no record of doing so, and Israel has an abysmal record.

In other conflict situations, the EU and its member states have pressed for justice, readily acknowledging that continued impunity, not justice for such crimes, is the real impediment to peace.  The Israeli-Palestinian conflict should be treated no differently.

In its trade and development agreements, the EU, the world’s largest economy, systematically seeks the inclusion of a clause supporting the ICC. The EU’s Cotonou Agreement on poverty eradication and sustainable development obliges some 75 states to “take steps towards ratifying and implementing” the ICC statute. When Sudan refused to join the agreement following the ICC’s issuance of an arrest warrant for President Omar Bashir, the EU withheld more than 300 million Euros in assistance. The EU denied benefits to South Sudan when, citing a need to avoid difficulties with Sudan, it backed away from the agreement and failed to accede to the ICC. Its position on Israel and Palestine contradicts this global policy.

The EU has spent 5.6 billion Euros since 1994 on aid to the Palestinian Authority. Palestine’s occupied economy depends on foreign donations, and hundreds of millions of Euros a year pay the salaries of Palestinians in the public sector, the largest employer. The EU says that its continued financial support for Palestinian state-building requires a credible prospect of “a viable Palestinian state, based on respect of the rule of law and human rights.” Pushing Palestinians to forego possible international justice for war crimes including settlement expansion is not bringing a Palestinian state or the rule of law any closer.

In the same July statement that seemingly warned Palestinians against the ICC, the EU recognized that Israel’s continued settlement expansion, settler violence, evictions, forced transfer of Palestinians and demolitions (including of EU-funded projects)risked the irreversible “loss of the two state solution.” Six weeks later, Israel announced the largest land grab for settlements in three decades in the West Bank.

Palestinian leaders have harmed their own case as well. Rather than treat the ICC as a principled matter of international justice to which all war-crime victims are entitled, Palestinian President Mahmoud Abbas has treated it as a bargaining chip to be deployed if Israel doesn’t make concessions in peace negotiations. Even Hamas, whose officials are vulnerable to ICC prosecution for indiscriminate rocket attacks on Israel, says it supports joining the ICC, but Abbas continues to equivocate.

The ICC is not a panacea for the Israeli-Palestinian conflict. But the absence of justice has fueled decades of suffering under war crimes while undermining the trust needed to advance peace. Europe’s principles, its substantial investments in Palestine and in the ICC, and its legal obligations all point in the same direction: promoting, not thwarting, Palestine’s ICC membership. 

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