There have been many claims posited as to why the Prosecutor or the International Criminal Court (ICC) should not open an investigation into alleged crimes perpetrated on the territory of Palestine by Israeli and Palestinian actors. Among the rarer claims is the assertion that such an investigation would undermine a negotiated settlement to the ongoing and protracted conflict between Palestine and Israel. Still, the claim is not altogether missing. But does it have any veracity? Could ICC action undermine the Middle East peace process? If so, what peace is at stake?
As part of a special issue to be published in the coming months at the Journal of International Criminal Justice and organized by Chantal Meloni and Triestino Mariniello, I have written an article entitled ‘No Justice without Peace, but what Peace is on Offer? Palestine, Israel, and the International Criminal Court‘. A draft is now available here and a snippet follows below:
The International Criminal Court will ruin prospects for peace in the Middle East! Such declarations, or ones similar to them, are relatively rare among the panoply of arguments levied against a potential investigation by the International Criminal Court (ICC) in Palestine. This is curious. Israel, Palestine, and a rotating concert of foreign powers have been engaged, in fits and starts, in efforts to craft a lasting solution to the conflict between Palestine and Israel for decades. Moreover, among the most popular criticisms of the ICC is that its activities squander prospects for negotiated peace whenever the Court intervenes in situations of ongoing conflict. Yet this argument has largely been omitted by Israel which, along with some of its allies, have waged a vociferous campaign to undermine the ICC.
In this article, I critically assess the possible ICC investigation into alleged atrocities committed by both Palestinian and Israeli actors against claims made in the so-called ‘peace versus justice’ debate. While it behooves observers of international criminal law and justice to remember that every actual and potential situation before the Court is unique, the analysis below shows that the Palestinian context is particularly distinct. Concerns that the ICC could undermine peace seem unlikely at best, and vapid at worst. Without genuine interest in a negotiated peace from key actors who could initiate a renewed round of negotiations, it is wrong to suggest that the ICC will undermine peace. On the contrary, the ‘peace’ that is currently on offer for Palestinians and Israelis may itself be a threat to peace and security in the region.
This should not lead to the hasty conclusion that the Court should intervene in Palestine. Nor should it be read to suggest that the Court will positively contribute to peace negotiations. But assertions that the Court should not intervene because it may ruin prospects for peace between Palestine and Israel appear to be a politically motivated red herring as opposed to the articulation of a concrete risk.
This paper proceeds as follows. In the next section, I examine the key claims made in the so-called ‘peace versus justice’ debate as well as some of the debate’s shortcomings. I then outline some of the specific arguments made in the context of a possible ICC investigation in Palestine that touch upon concerns over the Court’s impacts on peace processes and negotiations. Following this, the paper critically assesses the validity of these assertions, arguing that while it would be wrong to conclude that the ICC will invariably have positive impacts on efforts to establish peace, there is no evidence that the Court will undermine whatever ‘peace’ is currently on offer for Palestinians and Israelis. On the contrary, this ‘peace’ may itself be a threat to resolving the conflict peaceably and to long-term stability in the region. Finally, I conclude with some reflections on the peace-justice debate and its applicability to the Israel-Palestine situation.
Again, a draft of the paper is available in full here. As always, please do share your thoughts here on the blog or with me via e-mail. And thanks for reading!