This summer’s war in Gaza was the latest episode in a cycle of mistrust, aggression and destruction. Yet again the world is counting the cost in lives, homes, hospitals, schools, factories and other civilian infrastructure. More than 2,100 Palestinians were killed in the conflict, at least half of them civilians and around a quarter of them children. Sixty-six Israeli soldiers also died, as well as five civilians, including one child.
This cycle of violence will only be broken when the international community insists upon greater accountability and ceases to turn a blind eye to the horrific human rights violations committed by both sides.
One way of facilitating accountability would be for Palestine to join the International Criminal Court. The I.C.C., where I sat as a judge for five years, hears cases concerning the most serious international crimes: genocide, crimes against humanity and war crimes. It plays a vital role in deterring future violence and ensuring justice for crimes that are not being tried or cannot be tried at the national level. The Rome Statute, which is the legal basis of the I.C.C., entered into force on July 1, 2002; 122 countries have acceded.
The I.C.C. currently has no jurisdiction over Israel or Palestine because neither party has acceded to the court’s statute. Israel, fearing possible war crimes charges, has decided not to become a party. Palestine, which has been able to accede to the I.C.C. since it was accorded Observer State status at the United Nations in 2012, has threatened to become a party, though it seems reluctant to follow through for fear of losing a political bargaining chip.
If Palestine accedes, the I.C.C. would have jurisdiction to investigate crimes committed by all sides in the territory of Palestine, which includes the West Bank and Gaza Strip, irrespective of Israel’s nonmembership. But the problem is that Europe and the United States oppose Palestinian accession. In the latter case, it’s not surprising; indeed, America is not even an I.C.C. member. But it is less understandable for individual European member states and the European Union as a whole to take this position.
The European Union is a staunch supporter of the I.C.C. It uses its trade and development deals to encourage other countries to join, and it has withdrawn aid from countries for refusing to cooperate with the court. But in stark contrast to its position on other conflicts, and in violation of the obligations of I.C.C. members to promote the universality of the Rome Statute, European officials have warned Palestine “to use constructively its U.N. status and not to undertake steps which would lead further away from a negotiated solution.” This mesage is clear: refrain from joining the I.C.C.
Europe should support Palestine’s bid to join the court because I.C.C. jurisdiction could become the ultimate deterrent that breaks the cycle of conflict.
It could ensure that both Palestine and Israel are held accountable for future war crimes. After decades of impunity, and no redress for crimes committed — including indiscriminate firing of rockets, bombing of civilians and targeting of hospitals and schools — I.C.C. accession would deter the worst violence.
Would Hamas continue to fire rockets into Israel or hide militants in schools if it knew its leaders would appear in the dock? Would Israel shell hospitals or shoot down children if it knew its leaders could be jailed in The Hague? The specter of the I.C.C. could be a game changer in preventing or drastically reshaping the dynamics of any future conflict. And by promising serious legal consequences for those who commit war crimes, it would encourage both sides to stay at the negotiating table.
Furthermore, if the Palestinians joined the court, the Israelis would need to think carefully about continued settlement expansion because the I.C.C.’s 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” — which would arguably apply to Israel’s settlement activity.
Europe should not be concerned that I.C.C. accession might obstruct peace talks. On the contrary, it is exactly what is needed to build trust and encourage cooperation. For the last few decades there has been no notable progress in the peace talks, precisely because of the lack of an accountability mechanism. Repeated violations of international humanitarian law have gone unpunished, leading to a breakdown of trust and a refusal to negotiate in good faith.
The best contribution the Europeans can make to peace between Israel and Palestine would be to abandon their hypocrisy and encourage Palestine to accede to the I.C.C.
As Palestinian leaders debate whether to join the court, constructive European engagement could make the difference. By removing their opposition, they could send a clear signal that impunity must come to an end, and in doing so boost the chances of success in future peace talks.
Navi Pillay was the United Nations High Commissioner for Human Rights from 2008 to 2014 and a judge at the International Criminal Court from 2003 to 2008.