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!
Justice in Conflict 
Important issues presented here. Too many complications. But, you are occupied with the issue of whether, such investigation, can undermine peace process or not. What the paper lacks, is the observation or analysis of the dynamic for potential peace deal, and instead, rather, cites officials, scholars etc……
The underlying problem is the following:
Both sides, declare that their true wish is peace and negotiation. But, the Palestinian side claims, that preliminary conditions must be achieved. Above all, freezing settlements or construction in the West bank. On the other hand, the Israeli side claims, that he who wishes truly and genuinely peace process, must come straightforward at once to the negotiating table. No preliminary conditions.
Now, the Palestinian side, threatens, or have threatened constantly the Israeli side, that if preliminary conditions wouldn’t be fulfilled, it would address (as it did indeed) the International arena, de-legitimatizing the Israeli state, and above all:
Lodging a complaint in the ICC as it did. So:
The Israeli side (which is the relevant side in this regard) claims, that by leveraging and threatening the Israeli side, no peace process is seriously possible. So:
The very fact, that Palestinians had such path or possibility to lodge complaint, was influencing them or permitting them, not to exhaust every cost and sit and talk. But, threatening the Israeli side, to “comply or die”.
So, this is why the Israeli side at least, is sure, that the ICC, would undermine peace process. The Palestinians, holds leverage, and can quite and run out, and fulfill their threats instead of negotiating.
One may buy it or not. What counts, is to understand the dynamic.
Thanks
Here, already in 2012, titled:
“PA threatens ICC action over settlement plans
Ramallah warns that it may file war crimes charges against Israel with International Crimes Court if it refuses to halt east Jerusalem construction plans”
https://www.ynetnews.com/articles/0,7340,L-4315675,00.html
While here, one may read, how ( in 2013) the Palestinians demand preliminary conditions for any talks, while Netanyahu, rejects it:
https://www.reuters.com/article/us-palestinians-israel-idUSBRE96K03H20130722
El Roam it’s axiomatic that you can’t concluded a valid treaty agreement at gunpoint during a military occupation and try to employ it as the basis for your subsequent legal claims in order to deny the permanent sovereignty of the Palestinian people and their right of self-determination.
The Vienna Convention on the Law of Treaties was a codification of the customary rules and says as much. It also has a compromissory clause that requires the ICJ and the Secretary General take action in the case of protracted disputes:
Article 52 Coercion of a State by the threat or use of force A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.
Article 53 Treaties conflicting with a peremptory norm of general international law (“jus cogens”) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
….
Article 66 Procedures for judicial settlement, arbitration and conciliation If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed: (a) any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration; (b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations