The ICC is not in the business of peacemaking, but it can deliver justice

Whenever the International Criminal Court (ICC) opens an investigation into an ongoing war, versions of the following question will inevitably be asked: Does the pursuit of accountability risk leaving the warring parties with no incentive but to continue the fight?

The same question is again being asked now that ICC Prosecutor Karim Khan has made the landmark decision to request 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 that debate played out with the ICC interventions in Libya and Uganda. I have also published findings on the peace-justice relationship in Ukraine, Israel-Palestine, and elsewhere. While responses to the debate are often driven more by assumptions and hypotheticals than incontrovertible facts, the reality is that there is no special key that helps unlock the relationship between resolving wars and achieving accountability for wartime atrocities.

There is no singular answer to this question that applies across different contexts. But here are a few things that are true: The ICC can complicate peace negotiations. But more “complicated” peace negotiations do not necessarily mean “worse” peace negotiations. Take Colombia, for example, where the ICC had a decade-long preliminary examination. Accountability processes negotiated during the peace process there translated into meaningful justice for many of the wartime atrocities committed by the government and the rebel group the Revolutionary Armed Forces of Colombia (FARC). Moreover, for the ICC to undermine peace negotiations, there must be a realistic prospect of a peace process in the first place. If such negotiations do not exist, the claim that pursuing accountability will ruin them is likely a red herring, an argument intended to shield the perpetrators of atrocities.

In the conflict between Israel and Palestine, there are no peace negotiations for the ICC to complicate or undermine. Put another way, justice cannot undermine peace if peace is not on the table.

Ongoing negotiations over the release of hostages and a ceasefire seem unlikely to be affected by ICC warrants given that they have been requested for leaders on both sides and that the war already appears to be politically existential for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. And if the warrants affect the talks, it may actually be positive. Yuval Shany, an international law professor at Hebrew University of Jerusalem, made precisely this point in response to the ICC prosecutor’s application for arrest warrants, saying it “could be another impetus for Israel to bring the war to an end, because it does appear to be in a state of tailspin”. Another hope is that, as Israel is a democracy, ICC action will encourage the people of Israel to bring their government down and replace it with one that seeks peace and Palestinian statehood – and which does not so eagerly starve and slaughter civilians.

Beyond its possible consequences on ceasefire negotiations or a peace process, could ICC action make matters worse on the ground, more dangerous and deadly for civilians?

Israel has said it will punish Palestinians by, among other things, freezing the transfer of tax revenues it collects for the Palestinian Authority, if the ICC issues arrest warrants. The United States, Canada and others have previously threatened Palestinians with consequences, including the withdrawal of aid to Palestinian humanitarian organisations, if the ICC were to target Israeli leaders.

But that is not the ICC’s doing. Israel is not obliged to take out its discontent over arrest warrants by administering further violence against Palestinian civilians. If Israel chooses to respond to the ICC warrants by denying aid to Palestinians in Gaza, it won’t be because of the ICC, but because the Israeli government has normalised the starvation of civilians as an act of retaliation.

There is no moral, legal or political justification for Israel’s allies punishing civilians for an investigation by the only credible, impartial and independent court investigating atrocities against Palestinian and Israeli victims of atrocity crimes. Penalising Palestinians for supporting recourse to international law is reprehensible and itself an act opposed to peace that should be condemned.

To those who say the ICC action will make matters worse on the ground, 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 said there is a plausible case to be heard that Israel is committing genocide against Palestinian civilians in Gaza. The United Nations has declared a famine in northern Gaza. Children are being intentionally starved en masse. Every single university in Palestine has been systematically destroyed by Israeli forces, leading to allegations of “scholasticide”. Most hospitals and sources of clean drinking water have been destroyed or damaged. Over one million people face the real threat of slaughter in Rafah.

The list goes on. So, again: How could the ICC possibly make things worse? The last 20 years show how brutal and violent this conflict is without accountability. It is now time to change course. It is wrong to claim that it is accountability, rather than the perpetrators running the show, that might ruin chances at peace between Israel and Palestine.

Does this mean that arrest warrants will deliver peace? Of course not. The ICC is not in the business of peacemaking. It is in the business of pursuing accountability for war crimes, crimes against humanity and genocide. But beware of self-serving claims by the supporters of the Israeli government that the ICC will undermine so-called “peace negotiations” that do little other than promote the status quo of impunity.

The starving people of Palestine have also been starved of access to accountability. It might not deliver peace, but it is beyond time to give justice a chance.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.