This is the third piece in our ongoing symposium on Palestine and the International Criminal Court. For all of the contributions, see our list here.
An Israeli security officer peers through a damaged part of the separation wall between Israel and Palestine (Photo: Abbas Momani / AF)
Before delving into how a potential intervention by the International Criminal Court (ICC) could affect the prospects for a sustainable peace between Israel and Palestine, it is important to warn against subscribing to either overly catastrophic or overly optimistic hypotheses that suggest that the ICC will either save or destroy the Middle East peace process. First, both hypothesis give the ICC a potency it simply does not have. The Court cannot – and never will be able to – single-handedly make or break peace. Second, while claims within the so-called “peace versus justice” debate may be intuitive, hard evidence of exactly how the ICC impacts peace processes across different contexts and types of conflicts remains thin. And third, Israel and Palestine are in what might be called a protracted negotiated state. ICC or no ICC, neither party has been able to achieve a solution to the conflict. But neither can they fully leave the negotiation table.
The question is thus not whether either side will all of a sudden leave or agree to everything because of an ICC intervention. Rather, the question should be: how can the Court shape the context in which the peace process is taking place?
My argument is simple. The primary effect of the ICC on conflicts is on the conflict narrative – the dominant understanding of the causes and dynamics of political violence. Any potential intervention by the Court should be seen as a means of changing or challenging the story of one of the most stubborn conflicts in the world. This story is what Noah Feldman has aptly called “the framing” through which we understand the peace process as well as Israel and Palestine’s role in the conflict.
Every conflict has a dominant narrative. It is what informs us of who is right and wrong; of who is responsible and who is a victim; of who needs to be held to account and for whom. Usually these narratives come in the form of a binary: one side is good, the other evil. To date, the conflicts in which the ICC has intervened have tended to have dominant conflict narratives. In northern Uganda, there is a broad consensus that the conflict is between an ‘evil’ LRA and a ‘good’ Government of Uganda. In Libya, there was a clear sense that the Court intervened in support of ‘good’ opposition forces against the ‘evil’ regime of Muammar Gaddafi .
Historically, the Israel-Palestine conflict has been presented with a severely asymmetrical narrative. In recent years, this has been challenged by the work of groups such as the UN Fact-Finding Mission which led to the 2009 Goldstone Report as well as the critical coverage of last year’s military operations in Gaza. But generally speaking and certainly in the West, Israel has been seen as the legitimate democratic ‘good’ side fighting against Palestine, often viewed as “Arab”, terrorist, and ‘bad’.
For Israel, as it is with all ‘good’ sides in conflicts, this perception is invaluable. It thus needs to be continuously cultivated and protected. It should thus come as no surprise that successive Israeli governments have invested heavily in, and have been remarkably good at, ensuring that this is the primary narrative of its conflict with Palestine. Internationally, this narrative is bolstered by the proscription of groups like Hamas and (previously) Fatah as terrorist groups. As a result, Israeli governments can portray Israel as a liberal democratic bastion against Palestinian aggression, justify continued occupation of Gaza, legitimize control of Palestine generally, and insist that periodic demonstrations of force in the occupied territories are necessary and legally permissible.
This vastly asymmetrical conflict narrative constitutes the very backdrop of the peace process. And this narrative can be seen in the official campaign against the ICC. According to Prime Minister Benjamin Netanyahu and Foreign Minister Avigdor Lieberman, by allowing Palestine to accede to the Rome Statute, the ICC is a sponsor of terror and doing work on behalf of terrorists. Moreover, if we’re to believe Netanyahu and Lieberman, the Court will unfairly target law-abiding Israeli officials and drag them to The Hague at the behest of terrorist groups. What officials won’t say is what everyone else has long known – that if the ICC did intervene it would almost certainly go after alleged crimes committed by Palestinian factions first.
But Netanyahu and other senior Israeli political figures cannot admit that the ICC would investigate Palestinian groups because that would, in a sense, put both Israel and Palestine on equal footing before the Court. In other words, to admit that both will be investigated risks suggesting that both have done something wrong, thus bringing a semblance of balance to a highly guarded asymmetrical narrative.
It is in this context, I believe, that Palestine’s decision to cede jurisdiction over its territory and its citizens to the ICC must be understood – as a means to level the conflict narrative. Here, it is important to note that, if Palestine does decide to refer itself to the ICC, it will mark the first ever referral and first potential ICC intervention prompted by the widely recognized ‘bad’ side of a conflict.
So, by shaping the dominant conflict narrative, can an ICC intervention positively affect the peace process? I think it can in at least three possible ways: Continue reading