The Israel-Palestine conflict is a complex and long-standing dispute that centres around competing claims to land and sovereignty as both Palestinians and Israelis claim historical and religious ties to the territory. The conflict has been ongoing for seven decades and its resolution is critical to achieving lasting peace and stability in the region. As of yet, transitional justice measures have been largely absent in resolving the conflict. There has been a particular focus in contemporary literature on the merits of establishing a truth commission which is a mechanism of restorative justice.
Truth Commissions are defined as ‘official, nonjudicial bodies of a limited duration established to determine the facts, causes, and consequences of past human rights violations’[1]. Through the collection of testimonies from both victims and offenders, they seek to achieve three fundamental objectives: ‘to establish the facts about violent events that remain disputed or denied’[2]; ‘to protect, acknowledge, and empower victims and survivors’[3]; and ‘to inform policy and encourage change’ through the publishing of final recommendations[4].
A truth commission is a mechanism of transitional justice, and as the name suggests, it is contingent on a transition. However, in the Israeli-Palestinian context, the conflict is still ongoing with no peace envisioned in the near future. Therefore, this post argues that the prospects of establishing a truth commission remain slim due to the active conflict and political climate, which create a multitude of complications.
The particular political climate of Israel-Palestine produces serious complications concerning the institutional capacity to set up a commission. Typically, truth commissions are established within the jurisdiction of a single state, following a peace agreement and as a result of a negotiation between the relevant stakeholders. Nevertheless, the situation of Israel-Palestine is particularly unique because it consists of two nations with significant power asymmetry; the State of Israel and the Occupied Palestinian Territories. The situation is further complicated as within the aforementioned states exists three separate Governments; the Israeli Government, the Palestinian Authority (PA) and Hamas Government. Conflict exists both inter-state between the Palestinian governments and the Israeli Government, as well as intra-state between the PA and Hamas. Thus, the existence of three competing political agendas and separate institutions, as well as the stagnation of negotiations means that there is no existing arena in which all governmental entities can come together and agree upon the establishment of a truth commission. Moreover, it would require the bridging between three separate institutional systems for implementation.
Secondly, the fact that the conflict has been ongoing for over half a decade and has led to the existence of an extensive universe of victims and perpetrators that inhabit a ‘grey zone’ further complicates the setting up of a truth commission. According to Hayner[5], the composition of a commission has the greatest impact on the actual work of the commission. A commission may be staffed by either nationals, non-nationals or take a hybrid form. In the case de quo, due to the extensive grey zone and a situation where essentially ‘everyone is somehow complicit’[6] the task of finding unbiased local staff is rendered especially difficult. Indeed, it is doubtful that the same actors who are being implicated in the investigations would be able to examine the past without any bias[7]. On the other hand, non-nationals may not be able to grasp the complexities of the situation which may inhibit their abilities to design and implement an effective truth commission. Furthermore, it will reduce national ownership of the mechanism which will negatively affect its legitimacy and effectiveness[8]. Similarly, establishing a mandate will be complex as it would have to contend with questions regarding where the investigation will be carried out, which acts or events will be investigated and over what period of time; a seemingly impossible task considering the length of the conflict, the array of human rights abuses that is still ongoing and the endless number of victims and perpetrators.
Next, without a regime change brought about by a transition, the same institutional actors involved in the conflict remain in Government. This has important implications bearing on the political will for the initiative and the ability for final recommendations to be implemented. As regards political will, studies have shown that the prospects of the establishment and ultimate success of a commission depends significantly on the existence of political will[9]. For example, one of the reasons cited for the relative failure of the Uganda commission was the lack of political will[10]. As regards the ongoing conflict in Israel-Palestine, there is a clear lack of political will from both sides. As Bracka[11] suggests ‘ongoing conflict has rendered both the PA and the Netanyahu government relatively incapable and/or unwilling to officiate transitional justice practice’. Furthermore, it is noted that a truth commission’s enduring legacy is the final report it publishes that summarises its findings and recommendations to bring about institutional reform. However, a lack of regime change would imply that the same institutional actors which are named or implicated in the final report published by the Truth Commission would be expected to implement its recommendations.
Fourthly, transitional justice measures implemented during an ongoing conflict can put both victims and those implementing the measures at risk of violence. In the case at hand, with violence and tension still high, implementing a truth commission in Israel-Palestine can pose serious security risks for all those involved. Moreover, victims may fear retaliation if they testify, especially considering that there has been no change in Government. For example, according to a poll carried out in 2022 by the Palestinian Center for Policy and Survey Research, 62% of people living in the Gaza Strip feel that they cannot criticize Hamas without fear whilst 54% living in the West Bank fear to criticize the PA.
Finally, it is integral that victims and witnesses are supportive of the establishment of a truth commission and are willing to cooperate. The Office of the United Nations High Commissioner for Human Rights (OHCHR) has stressed that ‘a truth commission is not appropriate for every country or every transition, and the decision to have a commission must always be taken by nationals’. They should only be established following a broad consultation process with local communities. Nevertheless, the Israeli-Palestinian conflict is highly polarised, with deeply entrenched political, religious, and cultural divisions, which could make it difficult to gain broad-based support for the commission. Indeed, neither society appears able or willing to undertake such a formal process amidst sustained hostilities[12].
In light of these considerations, the prospects of establishing a truth commission, let alone an effective one, is extremely slim as an ongoing conflict and complex political climate have resulted in: (1) a negotiation stalemate forgoing any potential for talks or institutional bridging; (2) an improbability of selecting unbiased commissioners or establishing an adequate mandate; (3) a lack of political will; (4) an unlikelihood that recommendations would be implemented; (5) security risks for all those involved; and (6) a lack of will from society. As the United States Institute for Peace information handbook on transitional justice suggests: ‘If critical resources, political will, or impartiality are lacking, it may be better not to convene a truth commission at all, rather than to initiate a process that will not be able to fulfil its goals’.
In the 21st century, Transitional Justice has become a popular and valuable tool that is resorted to in post-conflict or transitioning societies as a means to contend with past human rights atrocities. In particular, truth commissions are a staple of restorative justice which promote truth, healing, reconciliation and accountability. Nevertheless, as this post has highlighted, they cannot simply be established in any situation without taking into account specific contextual factors. As the Israel-Palestine conflict demonstrates, for a truth commission to be established, the conflict must first come to an end. Indeed, the prospects of establishing a truth commission in Israel-Palestine are extremely slim due to the complex political climate, ongoing conflict and lack of political and national will. Moreover, as civilians are faced with more immediate risks to their safety due to ongoing hostilities, they are unable to attain the typical advantages that may be brought about by a truth commission in a transitional society such as healing and reconciliation. On the contrary, a premature truth commission may increase resentment and division, as well as fuel the cycle of violence. The establishment of an Israeli-Palestinian truth commission should be stalled until a peace agreement is reached and should be established only following broad consultation with the affected individuals and communities.
[1] González, E, Varney, H. eds. (2013). ‘Truth Seeking: Elements of Creating an Effective Truth Commission’, p.9 Amnesty Commission of the Ministry of Justice of Brazil and International Center for Transitional Justice Available at: https://www.ictj.org/publication/truth-seeking-elements-creating-effective-truth-commission
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Hayner, P. (2000), ‘Past Truths, Present Dangers: The Role of Official Truth Seeking in Conflict Resolution and Prevention’ in National Research Council, International Conflict Resolution After the Cold War: National Academies Press Available at: https://nap.nationalacademies.org/read/9897/chapter/10 3
[6] Meyerstein, A. (2007) ‘Transitional Justice and Post-Conflict Israel/ Palestine: Assessing the Applicability of the Truth Paradigm’ Journal of International Law (Online) 38 (2), p.318 Available at: https://scholarlycommons.law.case.edu/jil/vol38/iss2/5/
[7] Bracka, J. (2021) Transitional Justice for Israel/Palestine: Truth Telling and Empathy in Ongoing Conflict. Springer.
[8] Hayner, P. (2000), ‘Past Truths, Present Dangers: The Role of Official Truth Seeking in Conflict Resolution and Prevention’ in National Research Council, International Conflict Resolution After the Cold War: National Academies Press Available at: https://nap.nationalacademies.org/read/9897/chapter/10
[9] Etone, D. (2016). ‘The Prospects and Potential Advantages and Disadvantages of a Regional Truth-Seeking Mechanism in the West Balkans’, The International Journal of Conflict & Reconciliation, (Online) 2(2). Available at: https://www.researchgate.net/publication/272303428_The_Prospects_and_Potential_Advantages_and_Disadvantages_of_a_Regional_Truth-Seeking_Mechanism_in_the_West_Balkan_Region
[10] Quinn, J. (2004) ‘Constraints: The Un-Doing of the Ugandan Truth Commission’ Human Rights Quarterly (Online) 26 (2) p. 417 Available at: https://www.jstor.org/stable/20069732
[11] Bracka 2021 p.246
[12] Ibid.
A Contrario ICL 