The hypocrisy at the heart of Europe’s engagement with Palestine

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This article has been co-authored with Sir Desmond Lorenz de Silva, QC, KStJ

Today, foreign ministers from Europe, the Middle East and America will gather in Cairo for a conference to discuss reconstruction of Gaza, following its bombardment by Israel earlier this year during Operation Protective Edge. The Palestinians are asking for $4bn from the international community – enough to fix half the damage caused by the recent conflict, which claimed over 2000 Palestinian lives.

Most donors agree, as they prepare to make the journey to Cairo, that they cannot simply keep providing money to rebuild Gaza, without attempting to break the cycle of destruction, whereby each war starts where the last left off, and the casualties and damage are ever-greater. Speaking in advance of the conference one EU diplomat admitted his concern “that whatever we help rebuild will be destroyed again”.

Indeed, there is something Sisyphean about the way Europe, Palestine’s biggest aid donor, keeps implementing aid projects in the territories only to have them flattened by the recurring conflict.

There is also hypocrisy at the heart of Europe’s engagement with Palestine. Even as they continue their generosity ($600m a year from the EU alone, plus separate donations from individual countries), and condemn illegal settlement expansion by the Israelis, European member states are stubbornly opposing a measure that could incentivise peace and provide a strong deterrent to future destruction: namely Palestininian accession to the International Criminal Court (ICC).

The ICC is an independent, permanent court that hears cases concerning the most serious international crimes, namely genocide, crimes against humanity and war crimes. It only acts if a case is not being prosecuted at the national level, and it can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC statute, or that have otherwise accepted the jurisdiction of the ICC through an ad hoc declaration.

Neither Palestine nor Israel is a member of the ICC, the latter because it does not accept its jurisdiction (along with countries such as China, Sudan, Zimbabwe, and the US), the former because its 2009 attempt to give jurisdiction to the ICC was unsuccessful because it was not officially recognised as a state. However, since 2012 Palestine has had observer state status at the UN, meaning that it is now eligible to accede to the ICC – a fact confirmed recently by the current ICC prosecutor, Fatou Bensouda.

The leader of the Palestinian Authority, Mahmoud Abbas, is currently focusing his efforts on securing a UN Resolution that sets a timetable for Israeli withdrawal, but has indicated ICC membership would be the next step, should this Resolution be vetoed. Under pressure from the US and Israel, Abbas would be more likely to pursue this option if the EU ceased its opposition, and helped create the space for him to do so.

Palestinian accession to the ICC is desirable because it would mean both sides could be held accountable for war crimes and would thus deter future violence. It would also discourage settlement expansion because the statute defines as a war crime, "the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies". For donors, ICC accession would provide a greater guarantee than they have at present that their money and aid projects would not be wasted or destroyed.

And yet, in spite of the numerous arguments in favour, the EU has been leaning heavily on the Palestinians not to go down the ICC route. The conclusions from July’s EU Foreign Affairs council warned Palestine “to use constructively its UN status and not to undertake steps which would lead further away from a negotiated solution”. Behind the scenes the message is allegedly blunter: do not go to the ICC.

Informed by fear of the Israeli reaction, this approach is misguided and short sighted. Having an accountability mechanism in place does not preclude meaningful negotiation - on the contrary – it makes peace more likely in the long term. And acceding to pressure from governments that threaten to walk out of peace negotiations only encourages more abuse. As a spokesperson from the UN Relief and Works Agency said recently, “without […] accountability for violations of international law by all parties to the conflict we fear a return to the unsustainable pattern of blockade, rockets and destruction.”

The EU position is hypocritical given its consistent support for the ICC in general, and its strong encouragement to other countries to join (ICC ratification is an explicit condition in some EU trade and development agreements, and the EU has withdrawn aid from countries for failing to ratify). It is also a violation of its obligations as an ICC member to support the court’s purpose. Ultimately, the EU stance undermines its own interests and investments, as well as the hopes of lasting peace.

This weekend, as well as putting their money into reconstruction, enlightened donors – especially the EU - should stop opposing Palestinian ICC membership. This would give both Palestinians and Israelis access to the justice they deserve, and would be a step towards ending the impunity that is at the heart of the heartbreaking cycle of violence and hatred in the Middle East.

Sir Desmond Lorenz de Silva, QC, KStJ, is a prominent British lawyer, and former United Nations Chief War Crimes Prosecutor in Sierra Leone.

Sir Geoffrey Nice, QC worked at the International Criminal Tribunal for the Former Yugoslavia between 1998 and 2006 and led the prosecution of Slobodan Milošević, former President of Serbia.

Sir Geoffrey and Sir Desmond are co-authors of the ‘Ceasar’ report on torture in Syria.