Israel and Palestine need a joint truth commission

My experience chairing UN commissions of inquiry has led me to conclude that there is no peace without justice. Israel and Palestine need to work together toward this goal.

By M. Cherif Bassiouni * | Jul. 14, 2015 |

Multiple peace initiatives have been launched over the past 80 years of the Israeli-Palestinian conflict. Yet none of them address reconciliation or issues of justice.

My experience has led me to conclude that there is no peace without justice. I have chaired several United Nations commissions of inquiry as well as national commissions investigating violations of international criminal law and human rights in the former Yugoslavia, Afghanistan, Libya and Bahrain, and I contributed to Iraq’s post-conflict reconstruction of its legal system. In Israel and Palestine as well, reconciliation and justice are essential to achieving long-lasting peace between the two nations and their peoples.

Over the course of the Israeli-Palestinian conflict, several commissions have investigated outbreaks of violence between the two communities. The first one was the 1936 Peel Commission, and the most recent one was the June 2014 UN Human Rights Council commission report into the 2014 Gaza war. This includes commissions established by Israel, such as the 1982 Kahan Commission investigating the Sabra and Chatila massacre in Lebanon, the 2000 Or Commission addressing the killing of 13 Arab Israelis at the beginning of the second intifada, the 2010 Turkel Commission, and the investigations by the Israel Defense Forces military justice office regarding the 2008–09 events in Gaza, the 2010 flotilla incident, and the 2014 Gaza violence. None of these have advanced the peace process.

In 2009 the Palestinian Authority first sought the involvement of the International Criminal Court, which was rejected. The PA filed two more submissions, in 2014 and 2015. The ICC prosecutor accepted them, and has opened a preliminary investigation.

Israel for its part is opening a dialogue with the ICC prosecutor arguing that Palestine’s submissions and the prosecutor’s preliminary investigation are legally invalid.

No matter what Israel’s legal arguments may be, and without prejudice to its right to raise these arguments, either before the prosecutor or via a petition to the ICC’s judicial body, that course of action is not likely to contribute to peace and reconciliation.

What is recommended is that the governments of Israel and of Palestine agree to establish a joint fact-finding commission. Such a commission could be modeled in part on the South African Truth and Reconciliation Commission, or on the many others established in South America and elsewhere. The two parties should agree upon the mandate, rules of procedure and evidence, processes and funding of the joint truth commission before it begins its work. The commission’s members could include a limited number of Israelis and Palestinians, public officials or not, and perhaps one or more international experts experienced with these matters and whose integrity and objectivity both sides can accept.

The commission’s report would be jointly published and made publicly available, but more importantly it would contain a provision that each side would commit to prosecute those who have committed violations of international humanitarian law and international criminal law. By doing so, it would satisfy the requirement of complementarity in the ICC statute, and the ICC would step aside because the parties are willing and capable of undertaking prosecutions under their own criminal laws.

The establishment of such a commission would be an important milestone in the history of both governments and peoples, ushering the way toward other similar reconciliation measures that would ultimately contribute to peace. There is so much that can be done cooperatively to enhance the peace process through reconciliation and confidence-building measures.

I have good reason to think that the idea could be acceptable to both sides if they approach it in a positive way. The Netanyahu and Abbas governments have many good reasons to cooperate in this matter, and each will have to evaluate the advantages and disadvantages of cooperating for a higher and better purpose than opposing each other and adding another layer of animosity to their already acrimonious relations. The Palestinian side would hopefully include a Hamas representation as well. This should be viewed positively by all concerned, as co-opting Hamas into the peace process is necessary to stop the escalating violence in Gaza.

As said in the Talmud, “The world rests on three pillars: truth, justice, and peace.” A commentary adds, “The three are really one. Because you cannot have justice without truth, and if you have justice and truth, then you have peace.”

What better guidance could be given to the leaders of both communities?