EU obligated to prosecute war crime suspects

EU Parliament President Hans-Gert Poettering talks with Palestinians during his visit to the Gaza Strip one month after the end of the Israeli assault. (Wissam Nassar/)

Over the past year, the European Union and Israel have deepened their relationship. The enhanced partnership that provides for closer political and mutually beneficial trade and investment relations as well as economic, social, financial, civil scientific, technological and cultural cooperation. The EU will pump 14 million euros ($18 million) of taxpayer money into the cooperation over the next seven years. However, talks to upgrade the current association agreement were suspended in January 2009 because of Israel’s 22-day assault on the Gaza Strip. On 23 April, EU commissioner for external relations Benita Ferrero-Waldner said in a statement that “the EU deeply deplores the loss of life during this conflict, particularly the civilian casualties, and would follow closely investigations into alleged violations of international humanitarian law.” Ferrero-Waldner chastised Israel’s refusal to endorse a Palestinian state. Israel quickly responded, warning the EU to tone down its criticism.

In the midst of the Gaza invasion, numerous experts pointed out that Israel was committing severe and massive violations of international humanitarian law. The Hague regulations and Geneva conventions specifically mention the illegality of collective punishment, targeting civilians during wartime and rules on military necessity and proportionality. Israel did not allow journalists and international monitors to enter Gaza during the invasion, and these opinions were based on limited eyewitness and media reports. In order to come to a full understanding of the operations and assess the harm done, human rights organizations, UN bodies and the Arab League have undertaken fact-finding missions and investigations. As the conclusions from these various investigations are released, it is now apparent that Israel does indeed have a case to answer to on many alleged war crimes.

As High Contracting Parties to the 1949 Geneva Conventions, EU countries are obligated to bring the legal duties of the Fourth Geneva Convention into their law. The basic starting point is enacting any legislation necessary to provide effective penal sanctions for persons committing or ordering any of the grave breaches of the convention (i.e., war crimes). The following grave breaches mentioned in the convention seem relevant to the assault on Gaza:

“[W]illful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, or willfully depriving a protected person of the rights of fair and regular trial, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, if committed against persons or property protected by the Convention.”

EU countries also have the obligation to search for persons alleged to have committed or to have ordered such grave breaches, and must bring such persons, regardless of their nationality, before its own courts (or extradite them to another country that is prepared to prosecute).

The authoritative commentary on the Fourth Geneva Convention, published by the International Committee of the Red Cross (ICRC), states that:

“As soon as a contracting party realizes that there is on its territory a person who has committed … a [grave] breach, its duty is to ensure that the person concerned is arrested and prosecuted with all speed. The necessary police action should be taken spontaneously, therefore, not merely in pursuance of a request from another State.”

The ICRC commentary confirms that EU countries have an obligation to actively search for suspected war criminals. It follows that this duty should include maintaining border controls that enable a state to ensure that known suspects seeking to enter the jurisdiction are arrested on arrival. Many studies by human rights organizations, including Amnesty International, Human Rights Watch and the Redress Trust, have looked at the compliance of states with their legislative obligations under the Geneva conventions and these reveal some shocking failures by major EU countries. Austria, France, Greece and Italy have simply done nothing to make it possible for suspected war criminals to be prosecuted in their countries under the principle of universal jurisdiction. Meanwhile, full compliance with the principle of universal jurisdiction has not been achieved in several countries and in Malta and Latvia the situation is not fully clear and requires further research. For example, in Belgium the requirements to exercise universal jurisdiction do not comply with the Geneva conventions, because they contain a series of complex rules regarding the status of the suspect and the victim, none of which are permitted in the conventions.

The mere presence of a suspected war criminal of whatever nationality on the territory of a state should be enough to trigger universal criminal jurisdiction, regardless of the nationality or current whereabouts of the victim. Moreover, with the EU’s obsession about the safety of borders and preventing undesirable people from entering the free market area, one would have thought that the member states would coordinate to ensure European countries never become safe havens for suspected war criminals.

Palestinian victims of alleged war crimes, just like other victims of war crimes, seek justice and the fair application of the rule of international criminal law to their cases. On 4 May, Judge Fernando Andreu of the Spanish National Court announced the decision to continue the investigation into the July 2002 bombing of al-Daraj, Gaza. This attack resulted in the deaths of 16 Palestinians, including 14 civilians. The decision represents a major step towards achieving justice for the victims. It opens the door for accountability, whereby suspected Israeli war criminals may be held responsible for the suffering they have inflicted on Palestinians in Gaza.

Fair criminal trials in EU member states, especially if they result in convictions, could provide genuine deterrence and begin to provide justice for Palestinian victims of Israeli actions. The EU has a massive role in that regard. Instead of paying lip service to injustices inflicted upon the Palestinian people by issuing statements “deploring the loss of life” and promises to “follow closely investigations into alleged violations of international humanitarian law,” EU countries would achieve much more by applying the rule of law to Israel, starting with making their laws match their obligations under the 1949 Geneva Conventions. After all, 60 years later there is little sign that the need for war crimes trials has reduced.

Daniel Machover is an attorney and co-founder of Lawyers for Palestinian Human Rights based in Great Britain, and Adri Nieuwhof is a consultant and human rights advocate based in Switzerland.