Friday

3rd Feb 2023

Member states divided over condemning Israeli attacks

European Union member states are sharply divided over whether to condemn Israel for its bombing of UN schools and other buildings during its 23-day war on Gaza.

Germany, Italy, the Netherlands and Romania are opposed to condemning the shelling of UN Relief and Works Agency infrastructure and do not want the EU to call for an international investigation of alleged war crimes by both Israel and the Hamas governors of Gaza, according to sources close to discussions amongst EU diplomats.

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  • UNRWA building in Gaza after Israeli shelling (Photo: Oxfam)

At the other end of the table, a coalition of five member states, Belgium, Cyprus, Greece, Ireland and Sweden, is demanding that the bloc call for an international investigation in its conclusions to come out of a meeting of EU foreign ministers next week.

Other member states however do not support this position. Despite UK Prime Minister's earlier strong words condemning Israel's shelling of the UN headquarters in Gaza as "indefensible", London is reportedly reluctant to back the five as it could set a dangerous precedent for its own military operations elsewhere.

The five have, however, managed to win language on the need to "respect and comply with obligations under international humanitarian law" into the draft text, which was not in the initial version of the document.

France meanwhile backs accountability for the attacks on the UN, but is working to achieve this "behind the scenes", rather than through a statement by EU foreign ministers.

Killed by mistake

On Wednesday night, Israeli foreign minister Tzipi Livni met informally with her European counterparts over dinner. Speaking to reporters afterwards, she firmly rejected the idea that Israel committed crimes against humanity.

"Israel is working in accordance with international and this is in accordance with our values that Israel shares with the international community and Europe," she said.

"The difference between Israel soldiers and the terrorists in Hamas is that we are acting against terror, trying to avoid any kind of civilian casualties, while these terrorists are looking, aiming and targeting civilians as part of their ideology."

"I would like to be judged by the international community according to the same values by which the international community is working," she continued. "There is a huge difference in any legal system ... between a murderer and someone who kills by mistake."

After visiting the ruins of the UNRWA compound in Gaza, UN Secretary Ban Ki-Moon on Tuesday (20 January) called for those responsible for bombing UN-run buildings and schools in Gaza to be held accountable.

"There must be a full investigation, a full explanation to make sure it never happens again. There should be accountability through a proper judiciary system," he said.

Despite Israel's insistence that the UN buildings were not targeted, UN officials have said that they furnished Tel Aviv with GPS co-ordinates of all their buildings.

Czech foreign minister Karel Schwarzenberg, whose nation currently chairs the EU's six-month rotating presidency, said he trusted the Israeli court system mount a prosecution, rather than the International Criminal Court.

"I have heard the declaration of the UN secretary-general, but to tell you the truth, we consider Israel a democratic state, where the rule of law exists, so of course, in the case of such a criminal act, which can happen in any state, especially during the course of war," he said, "then the Israeli prosecutor would take the steps that are necessary and then to a court where the case will be decided."

"The ICC is only a last resort if a country itself doesn't bring forward a case, [and] we are relying on the Israeli courts and the work of the prosecutor there."

ICC jurisdiction

The ICC has no jurisdiction over Israel or the occupied territories because Israel is a signatory but not a state party to the ICC, and the occupied territories are not a state and thus also not state parties to the ICC.

The International Criminal Tribunal for Yugoslavia and its counterpart for Rwanda however are ad hoc tribunals established by the UN Security Council. The UNSC is highly unlikely to establish such a tribunal for Israel and the Palestinian territories, as the US would veto such a proposal.

However, the UN General Assembly also has the power to do so under Article 22 of the UN Charter.

Other legal alternatives for cases brought against Israeli or Palestinian actors would have to be mounted in the four countries recognising universal jurisdiction: Germany, Spain, the UK and Canada.

Ahead of the EU meeting, lawyers petitioned a Belgian court petitioned to arrest the Israeli foreign minister upon her arrival in Brussels, Haaretz reports.

The Israeli daily said that the complaints filed by families of Belgian and French nationals with relatives wounded or killed in Gaza.

The Belgian Foreign Ministry was looking into the report as of Wednesday, although the country does not permit the arrest of senior foreign officials.

In a letter sent on Tuesday, human rights group Amnesty International called on EU Foreign Ministers, to make call for investigation of violations of international humanitarian and human rights law, including war crimes, committed by both parties to the conflict.

Humanitarian aid assurances

The EU ministers said that they had won commitments from Ms Livni that Israel would work to let humanitarian aid into Gaza, although the Israeli minister did not commit to opening border crossings.

"There are clear assurances from foreign minister Livni that everything will be done from the Israeli side to have effective humanitarian aid in the Gaza Strip," Mr Schwarzenberg said.

French foreign minister Bernard Kouchner was firm that the crossings be opened: "Open the gates. It is absolutely indispensable. We cannot continue as if the ceasefire did not exist," he told reporters.

Ms Livni was satisfied that she had won EU help in stopping arms smuggling into the occupied territory.

She did however warn against opening direct dialogue with the Gaza government, calling on Europe to "continue to delegitimise Hamas."

Some EU ministers, notably Finnish foreign minister Alexander Stubbs, have said that such dialogue may be necessary.

Ms Livni said: "What is needed is a coalition against terror and not something that ends by an agreement with them."

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