Supporter or Bystander, What Is the EU’s Role at the ICC?

The ICC’s investigation into the situation in Palestine is a landmark moment. In the midst of it all, the inconsistent position of some Member States and their unwavering support to Israel is undermining the credibility of EU commitments to justice.

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April 10, 2021

By : Lavinia Parsi

On March 3rd, the International Criminal Court (‘ICC’) officially opened an investigation into the situation in Palestine. The decision was all but a rapid one, and faced many obstacles.
Palestine first approached the Court in 2009, prompted by the Israeli “Operation Cast Lead”, a military offensive in the Gaza Strip which, in only 22 days, resulted in the death of about 1,400 Palestinians, most of whom civilians, and 13 Israelis. After 3 years of silence, the then-Prosecutor of ICC Luis Moreno Ocampo refused to intervene, since he argued that, to open an investigation, the international community had to recognize Palestine as a State. Few months later, the UNGA upgraded Palestine to the status of non-member State. The new Prosecutor, Fatou Bensouda, acknowledged the development, but required Palestine to start over lodging a new request, or to become a State Party to the Court. Palestine accomplished both in January 2015, following another brutal Israeli offensive on the Gaza Strip. Bensouda, then, opened a preliminary examination in the situation, which was left pending for almost 5 years.

Finally, in December 2019, the Prosecutor announced that the preliminary examination had concluded “with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met”. While, as the Court later confirmed, these automatically cause the investigations to open, the Prosecutor requested the Pre-Trial Chamber to confirm that the territory subject to the jurisdiction “comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza”.
The answer could have been a simple matter, since the international community has repeatedly associated Palestinians’ self-determination with the OPT, reflecting its dogmatic support of the two-state solution. Yet, the request got stuck before the judges, until February 2021, when the territorial jurisdiction of the ICC was finally confirmed, and the investigation opened.

This decision represents a historical moment for the Palestinian victims of international crimes, who suffer a systematic denial of justice, despite their relentless attempts through Israeli and international avenues. The recent developments have been cherished by the victims’ representatives, NGOs and UN bodies as a decision that “made history“, an “important victory for the Palestinian people”, “a long-overdue step towards justice for victims” and a “major move towards ending impunity”.
These statements are far from being yet another rhetorical endorsement of human rights: the ICC, in fact, represents a very different forum, compared to the countless Courts and UN bodies addressed by victims throughout decades of occupation. As opposed to all the other international justice institutions, the ICC does not talk to States, but to individuals, and it does so through criminal law tools. This bears two major consequences: first, the final judgment does not take the form of an abstract condemnation of the State, it entails penalties for key actors found responsible of directing the criminal policies; second, even if the enforcement of such penalties didn’t succeed, criminal trials would ascertain and spread historical truths, a crucial (and often the main) aspect of victims’ retribution.

On the other hand, the opening of an investigation in Palestine is also a crucial moment for the ICC itself, which could take this chance to set aside the accusations of applying selective justice and being a neocolonial tool. However, the real revolution lies in the pulling effect that this case has already proved to have on the international community at large. Even though all the other courts and institutions engaged in praiseworthy activities, their findings were normally originating and terminating in a one-to-one dialogue with the victims, substantially ignored both by the Israeli authorities and by foreign States.
By contrast, the ICC managed to involve very different actors across the international arena. While the choice of the Pre-Trial Chamber to invite other parties to gather elements for the decision over the Court’s jurisdiction caused further delay, it had the merits of causing an unprecedented participation, enlarging the debate to victims’ representatives and NGOs, but also to legal scholars, international organizations and States.

Also in broader terms, the proceedings forced actors to show face vis-à-vis the ICC as an institution. Not surprisingly, Israel immediately opposed the Court’s action, condemning it as a manifestation of anti-Semitism, and maintaining that the responsibilities for war crimes allegedly committed could not be assessed, because Palestine lacks statehood – an argument that is legally incorrect, as the Pre-Trial Chamber clarified.
Just as predictably, the US (under the Trump and the Biden administrations) backed up the Israeli position, rejected the Court’s jurisdiction and maintained the sanctions and visa suspensions against the ICC staff, imposed after the opening of the investigations upon the situation in Afghanistan.

What was less straightforward was the opposition of some EU States, first and foremost Germany, a leading country in promoting and enforcing international criminal justice, and the second economical supporter of the ICC. This is despite the EU Member States, in line with a long-standing common position, re-asserting their commitment and support for the ICC, and the EU spokesperson for external affairs expressing support for the ICC’s action. In this light, the plain opposition manifested by Germany, Austria, Czech Republic and Hungary represents a grave delegitimizing attack, not only against the ICC, but also against the EU’s asserted position and legal obligations.

It is somewhat ironic that Germany – which has often urged the international community in general, and specifically the EU, to provide more funding and support to ensure an independent ICC – now leads a charge that not only threatens factual ICC independence, but also and strengthens critics that assume a lack of ICC independence. The irony is furthered by Germany – a key force promoting EU common positions – now threatening a key EU common position, for which itself was a key advocate.

In moments like this, where the detractors of the ICC are speaking and acting out loud, an equally strong voice would be needed from the Court’s defenders. Even though the matter in front of the Court is distinctly legal, and not political, political actions have been thwarting it and will keep doing so. Will the EU be capable of leading the common position of its Member States, or are its statements endorsing international criminal justice a pure exercise of rhetoric?

The views, thoughts, and opinions expressed in this article belong solely to the authors, and not to their employer, organization, committee or other group or individual.

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