In contemporary discourse, few concepts have garnered as much momentum as transitional justice. While it remains contested, a broad definition can be put forth as ‘how societies respond to the legacies of massive and serious human rights violations’. Thus far, the presence of any meaningful efforts at transitional justice in Israel-Palestine have been few and far between, with existing endeavours focused on international criminal proceedings.
The Israel-Palestine conflict is a contentious, asymmetrical, and enduring dispute concerning competing claims of territory and self-determination. Central to the conflict are issues of settler-colonialism[1] and diverging historical narratives.[2] Despite the Prosecutor of the International Criminal Court (ICC) announcing the opening of an investigation into the situation in the State of Palestine on 22 January 2020, a landmark judgement on 5 February 2021 establishing criminal jurisdiction over Gaza and the West Bank, receipt of referral from five State Parties on 17 November 2023, and more recently the Prosecutor filing applications for warrants of arrest before Pre-Trial Chamber I, further developments on this front have stalled with the actual issuing of arrest warrants and prosecution seeming unlikely to be initiated. Furthermore, at the time of writing the conflict has entered a new and distressing phase. Following the 7 October attacks and Israel’s ensuing war on Gaza, hostilities have reached new heights. Over 40,000 Palestinians and 1,200 Israelis have been reported killed, violence against Palestinians in the West Bank is surging and illegal Israeli settlements are rapidly expanding. Nonetheless, ongoing human rights atrocities must be understood in their broader context of settler-colonialism, as part of a social structure and historical chain of injustice that cannot be severed.[3] The basic assumption of restorative justice is that crime has its origin in social conditions and relationships in the community. Given the lack of prior attempts at a truth-seeking mechanism, ICC inertia, conflict escalation, and the entrenched social and historical dimension of the conflict, it seems pertinent to examine the role that restorative justice can play in addressing legacies of human rights atrocities in the region. This post does not seek to claim that a truth commission is a panacea for addressing legacies of human rights atrocities in Israel-Palestine. Rather, it should be only one aspect of a multifaceted approach needed to secure enduring peace.
Prospects of a Truth-Seeking Mechanism in Israel-Palestine
Inherent to the notion of transitional justice, is a period of transition.[4] While some scholars such as Dudai argue that truth commissions should be engaged with, during transition and before formal peace negotiations begin in Israel-Palestine, these views were proposed prior to the current outbreak of aggression.[5] Although there is merit to the notion that transitions are not linear, often being a long and fragmented process,[6] this appears to be a point from which Israel-Palestine is departing rather than moving towards. The humanitarian impact in Gaza has been termed by the head of UN peace efforts in the Middle East as ‘cataclysmic’ whilst ‘relentless expansion’ of Israeli settlements persists in the occupied West Bank. Prior to 7 October, decades of peace talks had been characterised by a state of impasse. Hayner correctly asserts that it is better to not have a truth commission than a badly designed and implemented truth commission;[7] a plethora of contextual factors ought to be considered.[8] Political and practical factors exacerbated by escalation of conflict in the region have severely limited prospects of any well designed and implemented truth commission. Moreover, the perception of the ICC as a panacea for transformation[9] and its ensuing inaction have only compounded these limiting factors.
Firstly, a fractured and asymmetrical state of governance persists in Israel-Palestine that raises concerns over the viability of a truth commission. It is typical of truth commissions to be established within the jurisdiction of a single state, as a product of negotiations between relevant stakeholders. [10] In South Africa, Guatemala and Peru there was a clear transformation to a unified democratic regime prior to the establishment of truth-seeking mechanisms.[11] Contrastingly, governing structures in Israel-Palestine are characterised by fragmentation and division. Israel is led by an increasingly extreme national emergency government headed by Bejamin Netanyahu. Conversely, the Palestinian authorities are divided between the Palestinian National Authority which exercises partial civil control over the West Bank,[12] and Hamas which have governed the Israeli blockaded Gaza Strip since 2007. The schism has led to a lack of Palestinian unity, negotiation stalemate and status quo that heavily favours Israel.[13] Nevertheless, there is limited precedent for a binational truth commission. For example, East Timor and Indonesia’s Commission on Truth and Friendship created to establish ‘conclusive truth’ regarding the history of violence in East Timor.[14] However, the Israel-Palestine context is distinguishable by its status as an escalating conflict and the resultant complicity of governing officials in human rights violations, exemplified through government statements. The Israeli Minister of Defence Yoav Gallant has openly referred to Palestinians as ‘human animals’ and President Isaac Herzog stated that ‘an entire nation … is responsible’ for the 7 October attack, determining that Israel would ‘break their backbone’.[15] Correspondingly, Hamas have termed the 7 October attack that killed around 1,200 a ‘necessary step’. Any official truth-seeking mechanism relies upon unified political support for its establishment and creation of a mandate.[16] In Israel-Palestine, it seems apparent that neither government is willing or able to commit to a formal process amidst ongoing and escalating hostilities.[17] Considering this polarised landscape, the prospects of a binational truth commission requiring the three government entities to reach consensus seems unviable. Furthermore, any suggestions of a truth-seeking mechanism risks inevitably incurring accusations of individual political agendas being endorsed through the vehicle of its mandate. Therefore, the fragmented state of governance in Israel-Palestine vastly limits the prospects of a truth-seeking mechanism.
Furthermore, establishment of a truth commission is contingent upon tangible public will of both Israelis and Palestinians to engage with the process.[18] For example, Mazze claims El Salvador’s truth commission was unable to facilitate true and lasting reconciliation due to its failure to engage meaningfully with the public.[19] In Israel-Palestine any truth commission would struggle against a tide of largely hostile and divided public opinion.[20] Unofficial efforts at establishing a partial truth-seeking mechanism have previously been attempted. For example, the Israeli NGO Zochrot created a Truth Commission on the Responsibility of Israeli Society for the Events of 1948–1960 in the Negev, unprecedented in the region.[21] The group sought to address the legacies of human rights atrocities committed during the Nakba and endorsed the view that that peace will only occur ‘after the country has been decolonized’. This approach was met with anger, critique and criminalisation in Israel.[22] An article published in the Times of Israel accused the group of promoting false ‘Nakba-centred narratives’ and ‘[suppressing] the all-important historical context.’ Similarly, Palestinians who engage in such civic activity are threatened by the prospect of being perceived as abettors of the occupation.[23] Nevertheless, scholars such as Bracka contend that greater support may exist for a truth-telling mechanism than commonly assumed.[24] Bracka cites that there have been significant shifts leading to increased political tolerance and acceptance of critical narratives in Israel.[25] However, recent escalation in conflict has likely further entrenched ideological divides that would prevent victims and perpetrators from both sides converging for any truth-seeking mechanism. Hence, absence of public will limit prospects for a truth commission in Israel-Palestine.
On a practical level, matters of safety and resources impact prospects of a truth-seeking mechanism. The overt violence commonplace in a state of ongoing conflict, inevitably dampens enthusiasm for the exposition of truths. The outlook for the Israel-Gaza crisis remains bleak, with conflict exhibiting no signs of abating. UN independent experts, scholars, and states, including South Africa before the International Court of Justice (ICJ), have warned that acts committed by Israel in this latest aggression may amount to genocide.[26] Under these conditions, it seems premature and hazardous to suggest that a truth commission can take place. For both victims and perpetrators coming forward, concerns over retaliative measures against them or members of their respective communities would be prevalent. Therefore, the matter of safety constrains the prospects of a truth-seeking mechanism in Israel-Palestine.
Indeed, whilst conflict persists prospects for a truth commission will remain restricted. In addition, the narrative of the ICC as the primary mechanism of transitional justice is problematic in and of itself, and without narrative transformation the prospects for a truth-seeking mechanism will remain limited. Pursuing ‘elite, top-down interventions’[27] can never wholly fulfil victims, who have likely experienced unimaginable pain and adversity, nor can it operate as a ‘justice panacea’.[28] Moreover, the ICC’s capacity in Israel-Palestine is inherently limited by both its temporal jurisdiction and the politics of power to act as a responsive, ad hoc transitional justice measure.[29] Therefore, it seems implausible that it could be part of a larger transition intended to move Palestinians and Israelis away from the circumstances of colonial conflict.[30] As noted by Palestinian minister Mustafa Barghouti, while the Palestinian authorities have been providing information for over a decade, ‘in less than two months the ICC … sent 42 investigators to Ukraine.’ The majority of Palestinian society feels abandoned by the ICC and have come to believe that armed struggle is more effective than negotiations for peace. This perception of the ICC as the gold standard for transitional justice and its inevitable inertia has only entrenched governmental and societal division. The ongoing escalation of conflict and deepened divisions can in part be attributed to this sentiment, which accordingly have limited the prospects of a truth-seeking mechanism. Therefore, this perception of the ICC can only lead to disillusionment that exacerbates pre-existing political and societal limitations to the prospects of a truth commission.
In light of these considerations, the prospects of establishing a truth commission, let alone an effective one, are extremely limited as an ongoing conflict and complex political climate have resulted in: a fractured state of governance and lack of political will; a lack of will from society; and security risks for all those involved. Moreover, lack of developments at the ICC has further impaired prospects of a truth commission.
*The author writes in an independent capacity and the views contained here are her own.*
[1] Brendan Ciarán Browne, Transitional (in)Justice and Enforcing the Peace on Palestine (Palgrave Macmillan 2023) 2.
[2] Jeremie Bracka, Transitional Justice for Israel/Palestine (Springer 2021) 122.
[3] Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native,’[2006] 8(4) Journal of Genocide
Research 387.
[4] Marta Minow, ‘The hope for healing: What can truth commissions do?’ in Robert I. Rotberg and Dennis Thompson (eds.), Truth v. Justice: The Morality of Truth Commissions (Princeton University Press 2000) 239.
[5] Ron Dudai, ‘A Model for Dealing with the Past in the Israeli–Palestinian Context’ [2007] 1(2) 249.
[6] Naomi Roht-Arriaza, Transitional Justice and Peace Agreements (The International Council on Human Rights Policy 2005).
[7] Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (Routledge 2001).
[8] Priscilla B.Hayner, ‘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 2000) 338.
[9] Timea Spitkia, National and International Civilian Protection Strategies in the Israeli-Palestinian Conflict (Springer 2023) 153.
[10] Priscilla B.Hayner, ‘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 2000) 338.
[11] Johnny de Lange, ‘The historical Context, Legal origins, and Philosophical Foundation of the South African Truth and Reconciliation Commission,’ in Charles Villa-Vicencio and Wilhelm Verwoerd (eds.) Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission in South Africa (Zed, 2000).
[12] Geoffrey R. Watson, The Oslo Accords : International Law and the Israeli-Palestinian Peace Agreements (OUP 2000).
[13] Noam Chomsky and Ilan Pappe, On Palestine (Penguin 2015).
[14] Philip Rapoza, ‘Hybrid Criminal Tribunals and the Concept of Ownership: Who Owns the Process?’ [2006] 21(4) American University International Law Review 525.
[15] United Nations Human Rights Council Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 by Special Rapporteur Francesca Albanese (25 March 2024) UN Doc A/HRC/55/73.
[16] Damian Etone, ‘The Prospects and Potential Advantages and Disadvantages of a Regional Truth-Seeking Mechanism in the West Balkans’ [2013] 2(2) The International of Conflict & Reconciliation 1.
[17] Jeremie Bracka, Transitional Justice for Israel/Palestine (Springer 2021) 238.
[18] Rosalind Shaw, ‘Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone’ (Special Report no 130, United States Institute for Peace 2005).
[19] Julie M. Mazze, ‘Finding Shame in Truth: The Importance of Public Engagement in Truth Commissions’ [2011] 33(2) 431.
[20] Jeremie Bracka, Transitional Justice for Israel/Palestine (Springer 2021) 238.
[21] Brendan Ciarán Browne, Transitional (in)Justice and Enforcing the Peace on Palestine (Palgrave Macmillan 2023) 52.
[22] Brendan Ciarán Browne, Transitional (in)Justice and Enforcing the Peace on Palestine (Palgrave Macmillan 2023) 52.
[23] Raf Nets-Zehngut, ‘Transitional Justice and Addressing the History of Active Conflicts: The Case of the Israeli-Palestinian Conflict’ [2011] 1, 18.
[24] Jeremie Bracka, Transitional Justice for Israel/Palestine (Springer 2021).
[25] Ibid, 124.
[26] United Nations Human Rights Council Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 by Special Rapporteur Francesca Albanese (25 March 2024) UN Doc A/HRC/55/73.
[27] Brendan Ciarán Browne, Transitional (in)Justice and Enforcing the Peace on Palestine (Palgrave Macmillan 2023) 61.
[28] ibid.
[29] Shannon Maree Torrens, ‘The Politics of the ‘Decider’ and the Implications of the ICC’s response to the Afghanistan and Palestine Situations’ in Emma Palmer, Susan Harris Rimmer, Edwin Bikundo and Martin Clark, (eds.) Futures of International Criminal Justice (Routledge 2022); Jeremie Bracka, ‘A False Messiah? The ICC in Israel/Palestine and the Limits of International Criminal Justice’ [2021] 54(2) Vanderbilt Journal of Transnational Law 283.
[30] Brendan Browne, ‘Transitional Justice: The Case of Palestine,’ in Cheryl Lawther, Luke Moffett, and Dov Jacobs (eds.) The International Handbook on Transitional Justice (Edward Elgar Publishing, 2017).
A Contrario ICL 