Every time the International Criminal Court (ICC) opens an investigation into an ongoing war, versions of the following question will inevitably be asked: Does the search for accountability risk leaving the warring parties with no motivation other than to continue the war? fight?
The same question arises again now that ICC Prosecutor Karim Khan has taken the historic step of seeking arrest warrants for top Israeli and Hamas leaders.
For years, I have tried to get to the bottom of what is often called the “peace versus justice” debate. I wrote a book about how this debate played out with the ICC interventions in Libya and Uganda. I have also published findings on peace-justice relations in Ukraine, Israel and Palestine and elsewhere. Although responses to the debate often rely more on what-ifs and what-ifs than hard facts, the reality is that there is no particular key to unlocking the relationship between war resolution and accountability for atrocities. committed in times of war.
There is no single answer to this question that applies to different contexts. But here are some facts that are true: The ICC can complicate peace negotiations. But “more complicated” peace negotiations do not necessarily mean “worse” peace negotiations. Take for example Colombia, where the ICC conducted a preliminary examination that lasted ten years. Accountability processes negotiated during the peace process have resulted in significant justice for many war atrocities committed by the government and the rebel group the Revolutionary Armed Forces of Colombia (FARC). Furthermore, for the ICC to undermine peace negotiations, there must first be a realistic prospect of a peace process. If such negotiations do not exist, the claim that pursuing accountability would ruin them is likely a red herring, an argument intended to protect perpetrators of atrocities.
In the conflict between Israel and Palestine, there are no peace negotiations that the ICC can complicate or undermine. In other words, justice cannot undermine peace if peace is not on the table.
Ongoing negotiations over the release of hostages and a ceasefire appear unlikely to be affected by the ICC mandates given that they have been requested from leaders on both sides and the war already appears politically existential for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. . And if mandates affect negotiations, that could actually be positive. Yuval Shany, a professor of international law at the Hebrew University of Jerusalem, made precisely this point in response to the ICC prosecutor’s request for an arrest warrant, saying it “could be a new impetus for Israel end the war, as it does indeed appear to be in a state of free fall.” Another hope is that, given that Israel is a democracy, the ICC’s action will encourage the Israeli people to overthrow their government and replace it with one that seeks peace and a Palestinian state – and one that does not starve don’t and don’t so greedily massacre civilians.
Beyond its possible consequences on the ceasefire negotiations or on the peace process, could the ICC’s action worsen the situation on the ground, making it more dangerous and deadly for civilians?
Israel has said it would punish the Palestinians, among other things, by freezing the transfer of tax revenue it collects for the Palestinian Authority, if the ICC issues arrest warrants. The United States, Canada and others have already threatened the Palestinians with consequences, including the withdrawal of aid to Palestinian humanitarian organizations, if the ICC goes after Israeli leaders.
But this is not the work of the ICC. Israel is not obligated to express its displeasure with the arrest warrants by administering more violence against Palestinian civilians. If Israel chooses to respond to ICC mandates by withholding aid from Palestinians in Gaza, it will not be because of the ICC, but because the Israeli government has normalized the starvation of civilians in retaliation.
There is no moral, legal or political justification for Israel’s allies to punish civilians for an investigation by the only credible, impartial and independent tribunal investigating atrocities committed against Palestinian and Israeli victims of atrocity crimes . Penalizing Palestinians for supporting the use of international law is reprehensible and in itself constitutes an act contrary to peace that must be condemned.
To those who say that the ICC’s action will make the situation on the ground worse, we should ask: Worse than what? More than 35,000 people have been killed in Gaza in the seven months since October 7. The International Court of Justice has declared that there are plausible arguments that Israel is committing genocide against Palestinian civilians in Gaza. The United Nations has declared famine in northern Gaza. Children are being deliberately starved en masse. Every university in Palestine has been systematically destroyed by Israeli forces, giving rise to allegations of “scholasticide.” Most hospitals and drinking water sources have been destroyed or damaged. More than a million people face a real threat of massacre in Rafah.
The list goes on. So, again: how could the ICC make things worse? The last 20 years have shown how brutal and violent this conflict is and how irresponsible it is. Now is the time to change course. It is false to claim that it is responsibility, rather than the perpetrators running the show, that could ruin the chances for peace between Israel and Palestine.
Does this mean arrest warrants will bring peace? Of course not. The ICC’s mission is not to restore peace. Its aim is to seek accountability for war crimes, crimes against humanity and genocide. But be wary of self-serving claims by Israeli government supporters that the ICC is undermining so-called “peace negotiations” that do nothing other than promote the status quo of impunity.
The hungry Palestinian people also have no access to justice. It may not bring peace, but it is too late to give justice a chance.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Tel Aviv Tribune.
