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:
First, a potential intervention could help to establish a greater sense of shared responsibility for the conflict. It could do so by helping to transform the asymmetrical narrative at the core of the conflict into one in which there’s a better factual, forensic and moral basis upon which to declare that both sides are responsible for a tremendous amount of injustice and suffering – in both Israel and Palestine. A more even narrative could help to create a clearer sense of obligation on both sides that there is no alternative but to take the peace process seriously. Put another way, and to evoke William Zartman’s conception of ‘ripe moments’ for negotiation, the ICC could help to contribute a more mutually hurting stalemate conducive to conclusive peace negotiations.
Second, an ICC intervention could raise the cost of non-genuine and non-conclusive negotiations. As it stands, the most effective way out of an ICC investigation is judicial activity and decision-making in Israel and Palestine with the aim of taking matters of judicial accountability for alleged war crimes and crimes against humanity seriously. Could Israel and Palestine set up their own court or judicial institution via peace negotiations? Perhaps. But doing nothing will virtually guarantee that, at some point, the ICC will intervene and issue arrest warrants. That is, almost all actors in the conflict have made clear at one point or another, not what they want to see happen.
Third, the ICC could help raise the costs of international inaction and apathy towards a comprehensive peace settlement. Indeed, there are hints that this may already be occurring. If the United Nations Security Council wants to place sufficient carrots and sticks behind a peace process, this might be one of the very few instances where even human rights groups would accept an Article 16 deferral in exchange for a comprehensive peace agreement. Either way, an ICC intervention could help to increase sense of urgency to resolve the conflict in a way that avoids arrest warrants being issued.
None of this is to say that the ICC intervention will necessarily have the above effects. But it could. Even just the potential of an ICC investigation can help rattle the stubborn status quo endemic to the Middle East peace process. That, in its own right, would be a welcome development.