The Hague court wants to probe war crimes in Israel and Gaza. Where does Europe stand?

The ICC ruled in 2021 that its criminal jurisdiction extended to the Palestinian territories of Gaza, the West Bank and East Jerusalem, and opened a formal investigation into the endemic violence in the region since 2014.

This gives Khan a mandate to probe war crimes committed both in Palestine and by Palestinians – including Hamas’ deadly incursion into Israel on October 7th – and Israel’s military response in Gaza. He has vowed to make full use of the force of the law to bring justice to both Israeli and Palestinian victims.

But efforts to delegitimise Khan’s mandate threaten to stymie the investigation and perpetuate impunity.

Israel is not a state party to the court and Prime Minister Benjamin Netanyahu has continuously attempted to undermine its work, denouncing the Palestine investigation as “pure anti-Semitism.” The US also rejects the ICC’s legitimacy.

The European Union, a staunch supporter of the court on paper, could also face opposition to an ICC-led probe from within its own ranks due to the bloc’s fragmented position on the Israelo-Palestinian conflict. 

EU countries torn on Palestine’s statehood

Although all EU countries are state parties of the ICC, five have rebuked the court’s jurisdiction over Palestine – Austria, the Czech Republic, Germany, Hungary and Lithuania – citing the absence of Palestinian statehood and fears over the politicisation of the court.

According to Dr. Talita Dias, a senior research fellow at Chatham House, a thinktank, objections among EU states could “make it possible for the court’s claim of jurisdiction over Palestine to be challenged once again, especially before the appeals chamber.”

States’ vetoes could also hamper the practicality of investigations and leave the court, which is funded by member countries’ contributions, without the necessary resources. 

Israel’s objection to the probe could even mean evidence could be “tainted,” according to Dias.

“The ICC depends on the cooperation of all states because it has no enforcement or police powers of its own. It depends on state cooperation to collect evidence and get custody of accused persons,” she explained.

“Practically, operational support from big players is important for successful investigations and prosecutions, especially because of the ICC’s budgetary and enforcement constraints,” she added.

But Anthony Dworkin, a senior policy fellow at the European Council on Foreign Relations thinktank, says that conflicting views among EU countries would only “affect questions of rhetorical backing” and that each would be “obliged to cooperate with the investigation in line with the provisions of the Rome Statute.”

“The key question is whether he (Khan) will be able to get access to Israel and Gaza,” he added. “European countries could make a difference by speaking out in favour of this.”

Belgium is providing an extra €5 million in funding to the ICC’s investigation into the Israel-Hamas conflict in a bid to boost justice-seeking efforts. Opposition parties in Ireland have also attempted, unsuccessfully, to pass a motion urging the Irish government to refer Israel to the ICC for its actions.

Brussels stands by the Hague court

Brussels has not voiced objections to the court’s jurisdiction over Palestine, despite its member states’ divergent positions.

In late November, a spokesperson for the EU’s High Representative for Foreign Affairs said: “Our support for the ICC has not changed.”

“It was already in 2021 when the ICC launched an investigation in Palestine, and the prosecutor of the ICC has a duty to investigate all alleged crimes in a specific situation, no matter where they happen,” the spokesperson added.

Nonetheless, the EU’s relationship with the court has at times been tested. Prosecutor Khan has blasted European Commission President Ursula von der Leyen’s proposal to create a UN-backed special tribunal to prosecute war crimes in Ukraine, as a blow to his mandate and a fragmentation of the international criminal system. The move came amid concerns the ICC could do little to bring Russian perpetrators to justice, despite issuing an international arrest warrant for President Vladimir Putin, since neither Ukraine nor the Russian Federation are state parties.

Dworkin believes the measures taken by Europe to help ensure justice for Ukrainian victims of war are in stark contrast to their response to the Gaza conflict.

“It’s certainly true that European leaders and officials have spoken much less about the role of the ICC in the Gaza war than in the case of Ukraine – where many European countries actually referred the situation to the prosecutor,” he said.

Western powers sceptical

Another barrier to the investigation is resistance from the EU’s allies, the United Kingdom and the United States.

The US is not a state party to the ICC, and its rejection of the court’s jurisdiction in non-state parties is long-standing.

Earlier this year, the Biden administration agreed to assist the court’s prosecutor in its investigations in Ukraine, marking a major turning point in Washington’s distanced stance and highlighting its willingness to support in certain contexts.

But its position on the Palestine probe has not changed.

“Given the US’ geopolitical influence and its particular role as a mediator in the conflict in Gaza, its lack of support for the ICC may hinder the court’s ability to garner resources and the cooperation of other States,” Dias explained.

The UK, despite being a member of the court, has opposed the ICC’s claim of jurisdiction over Palestine since 2021, when the then-prime minister Boris Johnson said that “unilateral judicial actions […] exacerbate tensions and undercut efforts to advance a negotiated two-state solution,” marking a souring of UK-Palestine relations.

Both Western powers’ rebuke is in stark contrast to some countries in the Global South, such as Bangladesh, Bolivia, the Comoros, Djibouti, and South Africa, who referred the situation of Palestine to the court’s prosecutor on November 17.

A turning point, although unlikely, could be Israel’s willingness for the atrocities committed by Hamas on October 7th, when around 1200 innocent Israelis were killed and more than 200 taken hostage, to be probed by the ICC. Khan said last week he would not be deterred from conducting an investigation, even if Israel maintains its rebuke of the court.

When asked about a potential ICC-led probe into Hamas’ attack, the Israeli ambassador to the EU, Haim Regev, told Euronews in a press conference in Brussels that “war crimes were committed by Hamas, no question.”

“Now is not the time to discuss it, while we are at war, but we will come back to it when the time is right,” Regev added.