Germany has adopted a position that the Israeli government will likely interpret as support for its policies of occupation and settlement.

The German government is rightly proud of its role as the world’s second-biggest donor to the International Criminal Court (ICC). Almost 20 years after the ICC came into being, Germany continues to regard the institution as central to the prevention of grave crimes under international law. Yet the country currently opposes the court’s investigation into the situation in Palestine. This attempt to shield Israel from such an investigation relies on a legalistic argument, contradicting Germany’s declared opposition to Israeli policy on settlements in the West Bank and the annexation of Palestinian territory.

In December 2019, ICC Chief Prosecutor Fatou Bensouda declared that all “criteria under the Rome Statute for the opening of an investigation [into the situation in Palestine] have been met”. Although this would have been enough to launch a formal investigation, she has asked the court to rule on her assumption that it has territorial jurisdiction over Palestine, which comprises the West Bank – including East Jerusalem – and Gaza. (The Pre-Trial Chamber’s ruling on the matter has been postponed due to the covid-19 crisis.)

In February, Germany submitted an amicus curiae (friend of the court) opinion, arguing that the ICC could not launch a formal investigation as Palestine does not meet the definition of a state under the Rome Statute. Accordingly, Germany never officially recognised Palestine’s accession to the court. But, despite this, Palestine has joined numerous international bodies and conventions since 2012, when the United Nations recognised it as a “non-member observer state”. Indeed, on 1 April 2015, Palestine became a party to the Rome Statute – making it the 123rd member of the court – with the approval of the UN secretary-general.

Germany made its decision to oppose an ICC investigation under massive pressure to do so from Israeli Prime Minister Binyamin Netanyahu – who went so far as to accuse the court of anti-Semitism. Instead of refuting this untenable claim, Germany has adopted a position that the Israeli government will likely interpret as support for its policies of occupation and settlement, and as further encouragement to act on a growing consensus with the United States on the annexation of parts of the West Bank.

Although Germany and the European Union have warned Israel against annexation, neither has signalled that they will impose any real costs for such action.

Israel’s recently formed unity government has agreed that legislation on proceeding with annexation can be brought forward this summer. Although Germany and the European Union have warned Israel against annexation – and miss no opportunity to underline their continued support for a two-state solution to the Israel-Palestine conflict – neither has signalled that they will impose any real costs for such action. Nor has the EU formulated a response to the plan to resolve the conflict put forward by US President Donald Trump, which supports Israeli claims to large parts of the occupied territories.

In its opposition to an ICC investigation, Germany has joined a small coalition of fellow EU member states that take this position. These states include Austria, the Czech Republic, and Hungary – which have repeatedly deviated from the EU’s firm opposition to illegal settlements, and that support, or have considered supporting, Trump’s decision to recognise Jerusalem as the capital of Israel and to relocate the US embassy to West Jerusalem. Like Germany, the US opposes the ICC investigation into the situation in Palestine.

Germany’s stance complicates the EU’s collective position on both the role of the court and methods for discouraging Israel from violating international law. Furthermore, it undermines the integrity of the court, which has come under fire from the Trump administration. In March, Secretary of State Mike Pompeo personally threatened ICC officials in an attempt to disrupt the court’s investigation into alleged war crimes committed by US personnel in Afghanistan.

This is a critical opportunity for Germany and other EU member states to defend the ICC’s impartial role and the ruled-based international order more broadly. A full-scale investigation would provide a rare opportunity to address Israel’s 50-year occupation of Palestinian territory, as well as the climate of impunity surrounding the current Israeli leadership’s expansion of settlements and annexation of land. While the EU has continuously condemned settlement construction, settler violence against Palestinian communities, and alleged Israeli war crimes in Gaza – as well as indiscriminate attacks by Palestinian militants on Israeli civilians – it has never acted to hold the perpetrators of these crimes responsible. Furthermore, the bloc has not fully implemented the principle of territorial differentiation between Israel and the settlements, as enshrined in UN Resolution 2334, in its relationship with Israel. This has led to a situation in which Israel can rest assured that violations of international law will not seriously undermine its ever-stronger relationship with the EU.

Given the pressing threat of further annexation, Germany should support the prospective ICC investigation. The country should also attempt to re-energise the debate within the EU over whether to respond to such annexation by recognising Palestine as a state. There were many “final opportunities” to save the two-state solution – all of which passed. Annexation will only accelerate the rapid disintegration of Palestinian institutions and cement the one-state reality on the ground. Without international intervention and the establishment of effective accountability mechanisms, this process will have grave consequences for Palestinian and Israeli civilians alike.

Read more on: European Power, New European Security Initiative, International Justice, Multilateral institutions, The Middle East and North Africa

The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.