Sample Coursework 3

IPOL 305: Transitional Justice

Simulation Reflection Paper

Israel-Palestine Case Study

October 2022

Transitional Justice Dilemmas

The Israel-Palestine conflict has been going on for several decades now, starting from 1948. Since then there have been several attempts from different sides to resolve the issue, although none seem to be working out. After doing our research to look into the conflict we found three transitional justice dilemmas that we thought were worth highlighting.

The first one is in relation to the ongoing ICC investigation and whether it should halt the investigation of the crimes being committed in the state of Palestine. After it opened a preliminary examination of the Israel-Palestine situation in 2015, the prosecutor announced the opening of the investigation in march 2021[1]. Even though there were questions about ICC’s jurisdiction over the territories, the court announced that it has jurisdiction over the area, including Gaza, the West Bank, and East Jerusalem.

So, the question is, should the ICC halt its investigation so as not to jeopardize achieving peace between the two states? Even though answering this question is hard it can be approached from two ways. One is that the ICC investigation can potentially worsen the relationship between the two states. They are already in a conflict and adding this investigation could be like adding fuel to the fire. Keep in mind that Israel is not willing to cooperate with ICC in addition to denying its jurisdiction over the territories since according to them, Palestine is not a sovereign state who can qualify to join the ICC. In addition to this, the ICC prosecutes individuals only, and in cases like this where there is a conflict between two states, the results are questionable. This could mean that the ICC investigations might not produce fruitful results in the end.

But on the other hand, the ICC investigations can be important in establishing the truth and prosecuting individuals who have participated in war crimes, although what that would look like in practice is questionable.

The second transitional justice dilemma is in relation to reparations and who is responsible in giving reparations. Reparations are a form of restorative justice where victims are the central focus. When we discuss reparations, we start by acknowledging human rights violations, victims’ sufferings, and in the end, it’s all about making efforts to restore the damage that has been done[2]. Reparations are in different forms which means it could be in the form of money or other materials. In relation to the Israel and Palestine situation, one of the questions asked was should Israel provide reparations to Palestinians? And, what should the reparations look like as well as which violations should they address? Looking at the damages and the atrocities, it is obvious that Israel needs to pay Palestine reparations and not the other way around. Due to this conflict, several Palestinians have lost their lives and their homes. According to Amnesty International Palestinians have been subjected to forced evictions, torture, death, detention, and other mistreatments all committed with almost total impunity[3]. These are the things to consider when thinking about what reparation should look like. In efforts to try to restore the damages, Israel needs to pay reparations in form of money, as well as return occupied land and engage in other forms as well. Rehabilitation centers should also be constructed to help Palestinians who had to face difficult atrocities due to the conflict. Overall, all the crimes that are committed by Israeli forces need to be addressed when giving reparations.

The third policy dilemma is related to truth-seeking, should a truth commission be established in Palestine and Israel? And if so what would that look like? Truth commissions are official bodies that investigate war crimes and human rights violations that happened in the past. Truth commissions don’t often deal with contemporary issues meaning that for a human rights violation that is ongoing right now, it would be tricky. Establishing a truth commission can be beneficial because they clarify the facts and figures of the crimes and help acknowledge perpetrators and victims from both sides. In this case, establishing a truth commission from both sides could help establish the truth but for that to happen, a third party needs to be involved in order to avoid bias.

Theoretical debates in Transitional Justice

One of the key theoretical debates in transitional justice is peace versus justice. Whether it is appropriate to pursue peace and impunity or justice and prosecution. Palestinians have been fighting for justice for several decades now. As the situation keeps worsening one of the questions that is asked is the fact that is it okay to accept peace without any form of justice for the sake of living in peace. The answer depends on different perspectives but in relation to this case, I would personally say peace should come first and then justice. But then this could mean Palestinians would probably have to sacrifice their land for the sake of peace. Which is a huge issue as land holds such a big value. But I believe keeping the people at peace should be the priority at first, no matter the cost. From a transitional justice perspective, I don’t think it is possible to achieve peace between these two states while also protecting both their interests. Mainly because these two states have contrasting interests that go in the way of reaching an agreement.

Another key debate is truth commissions versus people’s tribunals, where each can be an important body with its own limitations. Truth commissions are set up by government bodies while people’s tribunals are set up by citizens or NGOs which means they don’t have legal authority. Although truth commissions are set up by government bodies that don’t necessarily mean they are effective since their effect depends on whether action is taken or not. Overall each has its own quality and limitations as a transitional justice mechanism.

Simulation exercise reflection

My role during the simulation exercise was a transitional justice practitioner. One of the main challenges I faced was trying to formulate a policy proposal for the transitional justice dilemmas. The Israel and Palestine conflict is an ongoing situation, there were several solutions that were tried but failed. And trying to come up with a policy that could work is almost impossible.

The second challenge I faced was during the research process, trying to find appropriate sources was hard as well. There were several scholarly articles and sources written about the topic, and deciding on which ones to use for the simulation was quite challenging.

The debate was a very interesting debate and new experience, as I have never done simulations like this before. I learned a few things from the previous simulation debate, like trying to use the time efficiently and also taking notes while others are speaking. But while I was doing the simulations, I found it a bit hard to take notes while my peers were speaking. In addition, trying to find answers to the questions I was getting from my simulation peers was also challenging. I have learned that it requires thinking on the spot and finding practical solutions within a short period of time. Now that it is over, if I had to do it again, I would have tried preparing by formulating questions ahead of time, because that would save me time while it is happening. Trying to guess potential questions that might come up during the simulation and researching them could also be helpful. Other than this, I would have taken my time in trying to answer the questions that came up, because I now know that rushing can be distracting to me.

The whole process had make me rethink some of the policy proposals that I had suggested during the exercise. For the first policy dilemma about the ICC’s investigation, I suggested that the ICC should halt its investigation of crimes committed in this conflict. Since the establishment of the state of Israel in 1948, the Israeli-Palestinian conflict has been ongoing, making it one of the longest-running conflicts. The situation escalates occasionally causing death and destruction in the territories. Between 2008 and 2022, over 6000 Palestinians have died while more than 130,000 have been injured, according to the United nations office for the coordination of humanitarian affairs (OCHA)[4].

While on Israel’s side 273 Israelis were killed and over 5900 were injured. The ICC has been investigating this conflict after it concluded its preliminary examination of the conflict in 2019. This examination determined that the criteria have been met to proceed with a formal investigation of the crimes being committed. Even though the ICC is an important actor that contributes to the establishment of rule of law, I suggested that it should halt its investigation of crimes committed in this conflict. This was because, from my understanding, the ICC has not been effective historically and also because it does not have a lot of authority. (According to the coalition for the international criminal court), of the thousands of cases that could have been investigated by the ICC, only 44 individuals have been charged with only 45 cases currently

being investigated as of 2020[5]. In addition to this, I highlighted the fact that Israel is not cooperative with the ICC, which I saw as an obstacle to the success of the ICC’s investigation of the conflict. I also discussed the fact that ICC cannot prosecute states, but they can only prosecute individuals which I saw as a major issue. Instead, I suggested that opting for peace talks while involving international actors is beneficial for both states.

Although the above conditions are important, I would have changed my policy proposal now that I understand the situation differently. One of the outcomes of investigations like this is their power to establish the truth. Even though it might take time, the ICC could potentially get Palestinians the justice they deserve. And when it comes to peace talks, there have been many attempts for peace talks that ended up with no actual solution. Different peace talks had different solutions that ended up with no agreement, like efforts to reach two-state deals, so opting for peace talks cannot be a solution[6].

Secondly, I proposed the establishment of truth commissions as another form of solution. This was because truth commissions are one form of transitional justice mechanism that promote reconciliation and forgiveness among perpetrators and victims. And this was through the involvement of neutral investigators in order to achieve an unbiased truth. But of course, before truth commissions are set up, the two states need to reach to an agreement first. This process should be followed by forms of memorialization to preserve the memories and history of the war crimes committed and preserve the history. I wouldn’t change this policy proposal as I believe it is important to establish the truth although it is a challenge practically.

The third solution as a transitional justice practitioner, I emphasized the importance of reparations as a form of exercising transitional justice. That is the reparation of lost property, compensation for damages, an acknowledgment of the harm done, or a combination of all. Since the beginning of the conflict, in addition to the killings, there has been mass looting, pillaging, and destruction of villages in Palestine. There are also thousands of Palestinian refugees that were forced to exile that need proper compensation as well. Under international law, “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.” I wouldn’t change this policy because reparations are one of the victim-centered TJ mechanisms that are very beneficial.

Conclusion

Throughout this simulation exercise, one of the important lessons I have learned is that one form of transitional justice mechanism is not always enough. Different mechanisms often need to be followed by some form of transitional justice approach. For example, setting up truth commissions needs to be followed by reparations or some sort of victim-centered initiative for it to be successful. Without it, it won’t effectively benefit citizens. Truth commissions have the power to establish the truth by investigating war crimes, so establishing the truth is not enough if prosecutions or reparations are not followed. If we look at the truth and reconciliation commission of South Africa, one of the reasons why it fell short was that the commission didn’t follow up with its mandate. Even though reparations were promised to the people, only some people were able to get the financial compensation and some reported that they received it in half or less[7]. In addition to this, although the commission promised that those perpetrators who did not apply for amnesty or those whose amnesty was denied will be prosecuted, this wasn’t put into action after the TRC was concluded.

Another lesson I learned is that amnesty is not always the best option for victims. This came from the Ukraine and Russia simulation exercise. Although sometimes amnesty is essential in efforts to bring preparators forward and tell their truth, it could contribute to the culture of impunity, which later could affect people’s trust in the rule of law.

Overall, the importance of negotiations in peace talks was discussed in the two simulation exercises. In order for the two parties to reach some sort of agreement, both parties need to be able to compromise on their policies while also maintaining their interests.

Bibliography

Legal sources

“State of Palestine.” International Criminal Court.

“Data on Casualties.” United Nations Office for the Coordination of Humanitarian Affairs – occupied Palestinian territory.

Academic journal articles

Goodman, Sarah J. “The Effectiveness of the International Criminal Court: Challenges and Pathways for Prosecuting Human Rights Violations.” Inquiries Journal. Inquiries Journal, 2020.

David Backer, “watching a bargain unravel? A panel study of victims’ attitudes about transitional justice in Cape Town, South Africa,” International Journal of Transitional justice 4 (2010)

Bar-Tal, Daniel. “Israeli-Palestinian Conflict: A Cognitive Analysis.” International Journal of Intercultural Relations 14, no. 1 (1990): 7–29.

“The 1948 Arab-Israeli Conflict and International Law.” International Law, 2021.

Books

Simić, Olivera. An Introduction to Transitional Justice. Edited by Olivera Simić. Second edition. Milton Park, Abingdon, Oxon; Routledge, 2021.

Sabahi, Borzu, ‘Modern Reparation Doctrine in International Law and Investment Treaty Arbitration’, Compensation and Restitution in Investor-State Arbitration: Principles and Practice, International Economic Law Series (Oxford, 2011; online edn, Oxford Academic, 22 Sept. 2011)

Media articles

“Israel ‘Will Not Co-Operate’ with ICC War Crimes Investigation.” BBC News. BBC, April 9, 2021.

“Israel and Occupied Palestinian Territories Archives.” Amnesty International.

“Palestinian President Abbas Calls on Israel to Resume Negotiations Immediately.” Reuters. Thomson Reuters, 2022.

Academic blog articles

“World Report 2022: Rights Trends in Israel and Palestine.” Human Rights Watch, April 11, 2022.

“Justice System – Mapping Palestinian Politics.” ECFR, March 20, 2018.

“A Threshold Crossed.” Human Rights Watch, January 24, 2022.

[1] “State of Palestine.” International Criminal Court.

[2] Simić, Olivera. An Introduction to Transitional Justice. Edited by Olivera Simić. Second edition. Milton Park, Abingdon, Oxon; Routledge, 2021.

[3] “Israel and Occupied Palestinian Territories Archives.” Amnesty International.

[4] “Data on Casualties.” United Nations Office for the Coordination of Humanitarian Affairs – occupied Palestinian territory.

[5] Goodman, Sarah J. “The Effectiveness of the International Criminal Court: Challenges and Pathways for Prosecuting Human Rights Violations.” Inquiries Journal. Inquiries Journal, 2020.

[6] “Palestinian President Abbas Calls on Israel to Resume Negotiations Immediately.” Reuters. Thomson Reuters, 2022.

[7] David Backer, “watching a bargain unravel? A panel study of victims’ attitudes about transitional justice in Cape Town, South Africa,” International Journal of Transitional justice 4 (2010)