A Court for Some: The EU’s Reluctance Toward ICC Investigations Involving Israel
The European Union prides itself on being a leading defender of international law. Its officials often speak of a “rules-based international order” and uphold the International Criminal Court (ICC) as a cornerstone of global justice. EU foreign policy documents affirm support for the Court’s mandate, and EU member states contribute significantly to its budget and institutional standing.
Yet when the ICC turns its attention to Israel, many of these same champions of justice grow noticeably quiet — or openly obstructionist.
A Pattern of Reluctance
In 2021, the ICC announced the opening of a formal investigation into alleged war crimes committed in the occupied Palestinian territories — by both Israeli and Palestinian actors. The move, though grounded in legal precedent and investigative findings, was met with uneven and often hostile reactions from within the EU.
Several EU member states — Germany, Austria, Hungary, Czechia, Poland, the Netherlands, and others — swiftly distanced themselves from the ICC investigation:
- Germany, while affirming its general support for the Court, issued a public statement asserting that the ICC “has no jurisdiction” to investigate alleged war crimes in Palestinian territories, arguing that Palestine is not a state under international law. This position not only aligned with Israeli objections but also contradicted the UN General Assembly’s recognition of Palestine as a non-member observer state and the ICC's own Pre-Trial Chamber ruling.
- Austria echoed Berlin’s stance, emphasizing its opposition to what it described as a “politicization” of international justice. Austrian officials expressed concern that the investigation would harm the peace process — a position that effectively equates accountability with instability.
- Hungary went further, framing the ICC investigation as a “dangerous precedent”, undermining the integrity of international institutions. Its Ministry of Foreign Affairs stated that the probe threatened to delegitimize Israel and misuse legal instruments for political purposes.
- Czechia also joined the dissenting camp, submitting an amicus curiae brief to the ICC opposing the Court’s jurisdiction. It argued that only states recognized under international law can delegate jurisdiction to the ICC — implicitly denying Palestine's right to seek justice.
- Poland and the Netherlands, while less vocal, aligned themselves with a more cautious and non-committal approach, expressing “concerns about the timing and scope” of the investigation, and quietly supporting efforts within the EU to avoid public division.
- Meanwhile, the European External Action Service (EEAS), the EU’s diplomatic arm, issued a carefully worded statement that refrained from endorsing the ICC investigation. It emphasized the need for a two-state solution and cautioned against “unilateral steps,” implying that legal accountability could be construed as a political obstacle — a framing that displaces law in favor of diplomacy.
This posture stands in stark contrast to the EU’s support for ICC proceedings elsewhere — whether in Ukraine, Sudan, or Myanmar — where the Court’s jurisdiction has been affirmed and applauded, even in the absence of clear state party consensus.
In sum, while not all EU states opposed the ICC outright, a coordinated pattern of resistance or cautious disengagement emerged — not in defense of international law, but in protection of a state accused of violating it.
Double Standards in Practice
What emerges is a troubling inconsistency: International law is upheld when it confronts the enemies of Europe’s geopolitical order, but marginalized when it implicates allies. The ICC’s credibility is thus not undermined by the Global South — as often alleged — but by those who claim to be its most fervent supporters.
The EU has often criticized non-cooperation with the ICC from countries like the United States, Russia, or China. But its internal divisions and political caution regarding Israel mirror those very same evasions.
Legalism or Political Expediency?
While some EU states may frame their opposition in technical legal terms — disputing jurisdiction or procedural grounds — the pattern reveals a broader political discomfort with holding Israel legally accountable, even when the evidence demands it. In effect, the ICC is treated as a flexible instrument, its universality sacrificed at the altar of diplomatic priorities.
The Ethical Question
Can a court be truly international — and credible — if powerful states selectively defend or deny its reach?
And can the EU still claim moral leadership if it supports accountability for all, except those it considers too close to offend?