ICC Prosecutor Wants to Arrest Netanyahu and Sinwar

Eye-rolling moral equivalence that will lessen respect for international law.

The Economist (“The ICC’s threat to arrest Binyamin Netanyahu has shocked Israel“):

It had been been expected in Israel for weeks, but the moment was still a shock when it arrived. On May 20th the prosecutor for the International Criminal Court (ICC), Karim Khan, announced that he was requesting arrest warrants for Binyamin Netanyahu and Yoav Gallant, Israel’s prime minister and defence minister, along with the leaders of Hamas, the Islamist movement that launched the deadly attack on Israel on October 7th last year, on charges of war crimes.

The prospect of their leaders appearing in the dock along with the perpetrators of a massacre against them is unthinkable for Israelis. But it is a sign of the horror with which many in the world have come to view their government’s devastating war in Gaza. Mr Khan, a British lawyer, issued detailed and lengthy accusations against both sides. He opened with the allegations against the Hamas chiefs, Yahya Sinwar (pictured right), Mohammed Deif and Ismail Haniyeh, detailing the wanton murder, sexual assault and kidnapping of Israeli citizens. But the charges against the Israeli ministers were no less pointed.

Mr Khan noted that Israel has the right to protect its citizens, but he accused it of having pursued “starvation as a method of war” in Gaza. Israel has denied this charge, pointing to the aid convoys that have been allowed through. But this has mainly happened in the last couple of months and under international pressure. There is ample evidence that Israel has closed routes into Gaza and disrupted the supply of humanitarian aid. Earlier in the war Israeli ministers also made clear in public their intention to impose a “total siege” on Gaza. Mr Khan has chosen to focus on these war tactics, rather than the bombing of civilian areas. He has also chosen, at least for now, to target Israel’s political leaders rather than the generals of the Israel Defence Forces (IDF). Nor did the charge sheet include the allegation of genocide, which is being investigated separately by the International Court of Justice. Mr Khan may be sticking to crimes that are somewhat easier to prove.

This is only a first step. The judges in the ICC’s pre-trial chamber must now agree that there is sufficient evidence to issue the arrest warrants. Even if they do, Israel has not ratified the Rome Statute establishing the icc and so is under no legal obligation to hand over its leaders. Mr Sinwar and Mr Deif are hiding somewhere in Gaza and Mr Haniyeh rarely if ever travels to a country which is a party to the treaty. An actual trial in The Hague is extremely unlikely any time soon.

But it is still devastating, far more so for Israel, a country with a democratically elected government and aspirations to be part of the Western world, than for Hamas, a terrorist organisation. Some Western leaders have already criticised the icc for asserting an equivalence between the leaders of Hamas and Israel’s prime minister. However, if the prosecutor’s request is granted by the pre-trial panel, they would be legally bound as signatories to the Rome Statute to arrest Mr Netanyahu, should he travel to their countries.

WaPo (“ICC prosecutor seeks arrest warrants for top Israeli, Hamas figures“) adds:

The ICC is the only permanent international court that wields power to prosecute individuals for genocide, crimes against humanity and war crimes. Its announcement Monday was historic: Although Israel is not a signatory to the Rome Statute, upon which the court is founded, the arrest warrants, if issued, would nonetheless stigmatize the country’s senior leaders.

[…]

The timeline for a decision remained unclear Monday: Historically, the court has taken several months to decide whether warrants should be issued.

Current figures with outstanding ICC arrest warrants include Russian President Vladimir Putin, for the crime of unlawful deportation and population transfer from occupied areas of Ukraine to Russia, and the deposed president of Sudan, Omar Hassan al-Bashir, for crimes against humanity and genocide.

WaPo (“Biden calls ICC prosecutor’s decision ‘outrageous’“):

President Biden slammed the International Criminal Court’s decision on Monday to seek to issue arrest warrants for senior Israeli officials, calling the applications “outrageous.”

“Let me be clear: Whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” Biden said in a statement. “We will always stand with Israel against threats to its security.”

Secretary of State Antony Blinken said in a statement Monday that the United States “fundamentally rejects” the ICC prosecutor’s decision to seek the arrest warrant against “senior Israeli officials, together with warrants for Hamas terrorists,” calling the equivalence “shameful.”

“The United States has been clear since well before the current conflict that ICC has no jurisdiction over this matter,” Blinken said. The United States and Israel are not signatories to the ICC and do not come under its jurisdiction.

Blinken also criticized the procedure leading to prosecutor Karim Khan’s decision as raising some “deeply troubling process questions” that “call into question the legitimacy and credibility of this investigation,” adding that the decision would do little to help “ongoing efforts to reach a cease-fire agreement.”

WaPo (“Muted response from world leaders to ICC prosecutor’s decision“):

Reaction from world leaders to the news that the prosecutor of the International Criminal Court has requested arrest warrants for the leaders of Hamas and Israel was relatively muted on Monday — outside of the United States.

[…]

A spokesperson for British Prime Minister Rishi Sunak called the prosecutor’s request “not helpful in relation to reaching a pause in the fighting, getting hostages out or getting humanitarian aid in.” The European Union has yet to comment publicly.

In a statement, the office of South Africa’s president welcomed the ICC’s decision. “The law must be applied equally to all in order to uphold the international rule of law, ensure accountability for those that commit heinous crimes and protect the rights of victims,” the president’s office said. South Africa previously accused Israel of genocide at a different international body, the International Court of Justice.

Human Rights Watch said the decision to seek arrest warrants “in the face of pressure from U.S. lawmakers and others reaffirms the crucial role of the International Criminal Court.”

It added that people in both Israel and the Palestinian territories have “faced a wall of impunity for decades.” The group said that this “principled first step by the prosecutor opens the door to those responsible for the atrocities committed in recent months to answer for their actions at a fair trial.”

ICC member countries should “stand ready to resolutely protect the ICC’s independence as hostile pressure is likely to increase while the ICC judges consider [Prosecutor Karim] Khan’s request,” Human Rights Watch said.

It’s almost a certainty that war crimes have been committed by Israeli forces; that’s the case for even the most professional militaries in any war of this scale. And there have certainly been policy decisions by the Israeli government that merit scrutiny under the laws of armed conflict.

That said, announcing an intent to arrest Netanyahu, Gallant, and Simwar simultaneously is outrageous and counterproductive. The October 7 massacre is indisputably a criminal act, whereas the accusations against Israel have to be weighed against the military value of the targets. The former requires essentially zero investigation. So, rather obviously, the announcement regarding Sinwar should have come months ago.

Lumping the two together creates a false equivalency that will undermine support for the ICC and the very concept of international law in the United States, the United Kindgom, Germany, and other important players in the system. It’s just foolish.

FILED UNDER: Crime, Law and the Courts, Middle East, World Politics, , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Not the IT Dept. says:

    I’m good with it. A trial to put everything out in the open will not redound to Hamas’ credit, and Netanyahu gets his – you’ll pardon the expression – day in court to state Israel’s position.

    As for “outrageous”, I say nonsense. There could be a great public relations opportunity here for Israel if they dial down the emo and seize it. They won’t, of course, but being outraged doesn’t really help their argument.

    17
  2. Kathy says:

    There’s this:

    Israeli soldiers and police tipping off groups that attack Gaza aid trucks

    Let’s say Bibi did not direct the army and police to do this. What’s he doing to stop it?

    19
  3. Gustopher says:

    Dr. Joyner notes:

    the accusations against Israel have to be weighed against the military value of the targets.

    Sure.

    Per the Economist:

    Mr Khan noted that Israel has the right to protect its citizens, but he accused it of having pursued “starvation as a method of war” in Gaza. Israel has denied this charge, pointing to the aid convoys that have been allowed through. But this has mainly happened in the last couple of months and under international pressure. There is ample evidence that Israel has closed routes into Gaza and disrupted the supply of humanitarian aid. Earlier in the war Israeli ministers also made clear in public their intention to impose a “total siege” on Gaza. Mr Khan has chosen to focus on these war tactics, rather than the bombing of civilian areas. He has also chosen, at least for now, to target Israel’s political leaders rather than the generals of the Israel Defence Forces (IDF). Nor did the charge sheet include the allegation of genocide, which is being investigated separately by the International Court of Justice. Mr Khan may be sticking to crimes that are somewhat easier to prove.

    What is the military target when cutting off food and water to a civilian population?

    13
  4. Michael Reynolds says:

    I forget, did we ship food to Japan during WW2? Has any army, ever, supplied food to an enemy territory? Legit question – I don’t know. But I’m going to guess the answer is, ‘no.’

    People who mount their high horse when discussing the use of The Bomb against Japan might think about the fact that the alternative strategies were either, 1) Invade and kill the civilians who’d be directed into banzai charges, or, 2) Use napalm to burn the country to the ground, then set up a naval blockade, and starve out the people. I guess it’s all in the timing, eh? Otherwise Harry Truman should have been charged with genocide. Had we better get started on tearing down all monuments to Truman?

    And God knows we should be wiping away all trace of Churchill whose policies caused in the range of 1 to 4 million deaths by starvation, not even in an enemy country, but in India, the jewel in the crown of empire. Most of the deaths would be women and children.

    Morality is very time and place specific it seems. At some point between 1945 and the present, it became obligatory to feed your enemy.

    I’m not defending Netanyahu or the settlers, but sometimes American hypocrisy is hard to swallow. Before, ‘from the river to the sea,’ there was, ‘from sea to shining sea,’ manifest destiny. We live on blood-soaked land we took by force, and we’ve never given an acre of it back. It’s fun to be the world’s greatest land thieves, one of the world’s greatest slavers, and the exterminators of Indians, and then denounce others once we’ve safely banked all our ill-gotten gains.

    But, carry on, dudgeon must be kept high at all times.

    11
  5. Joe says:

    So this is the first time I can recall hearing or reading the name Yahya Sinwar even though I tend to read a lot of news. I think its telling how, in the general media, Hamas has no name and no face. It’s speaks to the lack of agency anyone attributes to them. While Israel has a government to blame for its actions, Hamas just sort of happens.

    4
  6. James Joyner says:

    @Kathy: I’m highly skeptical of inflammatory charges from activist groups. Where’s the evidence?

    @Gustopher: The problem with the whole campaign is that Hamas and the civilian population of Gaza are indistinguishable because of Hamas’ illegal actions. If you allow supplies to the civilians, you allow it for Hamas. If you allow civilians to escape, you allow Hamas to escape.

    @Michael Reynolds: 1619 is not 2024. Laws, rules, and norms evolve over time. There was no such thing as the laws of war in 1850 and most of current International Humanitarian Law arose from the ashes of World War II.

    1
  7. steve says:

    It’s a little difficult to think of another situation where another country had such an effective blockade around a nation that had close to zero ability to provide its own food. While I cant think of any case where when at war one nation fed another I also cant think of another where they so deliberately, and ably, cut off supplies. Again, I cant think of anyone claiming Israel should feed Gaza, its a big country so maybe they are out there, but rather that Israel wasn’t letting other countries who were willing to do so provide that aid.

    On topic, totally agree that the timing sucks. It’s sort of like Hamas committed first degree murder and Israel committed burglary. Both are crimes but one is much worse than the other and the timing makes for a false equivalency.

    Steve

    Steve

    3
  8. Michael Reynolds says:

    @James Joyner:

    Laws, rules, and norms evolve over time. There was no such thing as the laws of war in 1850 and most of current International Humanitarian Law arose from the ashes of World War II. Indeed, the ICC didn’t exist until 1946.

    Norms don’t evolve over time so much as they evolve to flatter some while denigrating others. We used Agents Blue and Orange in Vietnam to destroy rice crops. Not ancient times. And worth noting that the US does not belong to the ICC convention – a decision we made in 1994 after urging the rest of the world to sign up. We still hold ourselves above such trivial things as international law because, well, we’re special.

    4
  9. Kathy says:

    @Michael Reynolds:

    WWII was a total war. That is, all production of food, mining of minerals, and production of goods, prioritized the war effort at the various fronts. Therefore all the country and its population was legitimately regarded as a military target. This was true of all the major combatants.

    The same does not appear to be true of the war in Gaza.

    5
  10. JohnMc says:

    @James Joyner: Briefly dropping in to just say that the Guardian story reads as very well reported.

    3
  11. Andy says:

    Meanwhile, Bashar Assad sits laughing his ass off in Damascus.

    And various international institutions certainly do not have any kind of Jewish or anti-semitism problem. It’s just a total coincidence that the only Jewish country gets treated entirely differently. The ICC is the court of last resort, except for Israel, in which case it’s the court of first resort, because: reasons.

    7
  12. Michael Reynolds says:

    @Kathy:

    The same does not appear to be true of the war in Gaza.

    Israel very much sees it as a war for survival, whereas the survival of the US was never in question in WW2. Our cities were not bombed. There were no war refugees.

    I wonder how sanguine we’d be if terrorists wiped out every living person in, say, Chapel Hill NC or Galveston TX? They’re about equal, relatively, to the number of deaths Hamas caused in its attack on Israel. I seem to recall that just 3,000 deaths from terror were enough to cause us to invade and occupy two entire countries, with civilian deaths totaling north of 250,000. A ratio of what, about 80 to one? For Israel to pull even with us they’d have to kill three times more civilians than they have. And again: our survival was never in doubt, and this was not ancient history.

    4
  13. drj says:

    Lumping the two together creates a false equivalency…

    I find it interesting that this is the main criticism leveled against Khan’s decision (see also Biden’s remarks). No defense whatsoever of Israel’s policy choices. Feels like a red herring, to be honest,

    …that will undermine support for the ICC and the very concept of international law in the United States, the United Kingdom, Germany, and other important players in the system.

    I would argue that Khan’s decision strengthens the notion that international law should apply equally, not just to the enemies of the West.

    In fact, Khan’s decision undermines the often-heard accusation that the rules-based order is just a tool of the West – which isn’t necessarily the majority view in the US, the UK, or Germany, but certainly is in other parts of the world. Not entirely without reason, I would say.

    3
  14. DK says:

    Lumping the two together creates a false equivalency that will undermine support for the ICC and the very concept of international law in the United States, the United Kindgom, Germany, and other important players in the system.

    Wishful thinking, maybe. Our hypocrisy on international law is not lost on the world. We have already helped make international law meaningless by arming a country we openly admit is sponsoring terror in the West Bank.

    The implied subtext here is that international law is only valid when carrying water for the West’s center-right. This attitude is cause of the existing crisis in respect for international courts.

    Not a good look when we are left sputtering that even though Netanyahu’s government is funding terror and committing war crimes, accountability is “unhelpful” (the status quo’s favorite weasel word) because something something optics and respectability.

    Most people understand the difference between Hamas and Israel. And we who continue to enable Netanyahu are the ones losing respect. Our misplaced outrage towards college students would be directed more often at Netanyahu himself, were Israel’s so-called friends were intellectually honest.

    Netanyahu pursued a policy of boosting Hamas. Si Netanyahu lumped himself together with Hamas, poking the US in the eye to marginalize moderate Palestinians and destroy the Israel peace movement. 7 Oct was Netanyahu’s Mission: Accomplished moment.

    Netanyahu is not accused of Hamas’s crimes — he’s accused of his own. Like Trump, Netanyahu is facing the fruits of his own narcissism, corruption, and criminality.

    We criticize both Democrats and Republicans, acknowledging Republicans are worse. In the same convo, we can criticize the US and Israel and Iran and Hamas. That doesn’t automatically draw equivalence. The tribalists on either side just want to control the narrative, but cannot, because they’re both simping for violent, fanatical thugs addled on zero sum ethnoreligious dogma.

    6
  15. gVOR10 says:

    Israel is not going to extradite Netanyahu or anyone else. Even if Netanyahu loses office, is tried for past crimes in Israel, and sentenced, Israel isn’t going to extradite. Sinwar and the other Hamas people aren’t as secure against arrest, but it is highly unlikely they’ll ever face trial. This is all Kabuki.

    Is W. Bush still possibly subject to arrest if he travels abroad?

  16. Raoul says:

    I don’t get the issue. Because Hamas committed crimes Israel cannot be found to have done the same? Would it make people feel better if the ICC had released the paper on a different day or in a different form? It is unquestionable that the IDF has been committing gross violations of human rights and continues to do so, so yes, the leader of the government is responsible. Full stop. Let’s be clear on what happening in Gaza, the Israeli government and Bibi Netanyahu have no clue what they are doing and because of that, you see a lot of IDF illegal acts. Sure, thing happens in war, but since I read that every other day another 20-30 women and children get killed it is obvious Israel is not attempting to mitigate or change the course of what they are doing. They simply just prefer to commit atrocities. Tell me I’m mistaken.

    9
  17. Kathy says:

    @Michael Reynolds:

    Total war refers to the extent and breadth of the war effort, not to the stakes involved. The US faced no threat of even minor attack on its mainland, but it was at total war status anyway. Oh, BTW, at least one US colonial possession, the Philippines, was invaded by Japan.

    Israel employs conscription of vast parts of its population. Have reserves even been called? I know the country’s not rationing food or raw materials needed to feed and equip the army. So, no total war on their side, regardless of what they imagine the stakes to be.

    4
  18. Andy says:

    @Raoul:

    There are a couple of issues:

    First is that Israel is being singled out for alleged crimes that could be applied against most any country at war.

    Second is that the ICC has not taken similar actions against many persons who have mountains of evidence against them for much worse. See Bashar Assad for example. If the ICC is going to claim to enforce the “gravest crimes of concern to the international community” then it can’t be selective about it and take actions that look entirely political. There is no universe where a warrant is justified against Netanyahu and Gallant and not against Assad and dozens of others.

    It’s a completely reasonable and warranted question to ask why Israel is singled out in this way.

    Additionally, if Israel’s conduct in this war is going to be the standard for issuing arrest warrants, then by extension, that means that most participants in most wars are going to be subject to ICC arrest. Is that actually what the ICC is intending here? Somehow I doubt it. This is, IMO, about Israel being an unpopular state and antisemitism and not about the facts or merits of any alleged war crimes or changes in scope of ICC policy.

    3
  19. Michael Reynolds says:

    @Kathy:
    WW2 was not ‘total war’ for the US. We were the only country whose calorie consumption actually rose during the war, we lost no cities, we suffered no famine, no outbreaks of disease. Israel, OTOH, is very often attacked with missiles from Hamas and Hezbollah, not once or twice, but many, many times, and for decades.

    Interesting that this is not the first time I’ve pointed out that we all live in West Bank settlements, all of us on stolen land. I don’t recall anyone, ever suggesting we should give Arizona back to Mexico, or well, the whole country back to the Indians. This is the morality the rich and successful impose on weaker people, once their own crimes are grandfathered in.

    Here’s a question for you. If Russia launched say, three nukes and took out some ICBM sites in North Dakota, our current policy is to retaliate using nuclear weapons against military targets in Russia. We would target military sites, but we’d certainly kill tens of thousands of civilians. Would you in that situation be against retaliation?

    1
  20. Franklin says:

    @Michael Reynolds:

    Has any army, ever, supplied food to an enemy territory?

    I’m not sure we’re asking Israel to feed them so much as kindly not blocking others from doing so.

    8
  21. Michael Reynolds says:

    @Franklin:
    Imagine it’s early 1945, and a ship loaded with rice approaches Yokohama. What do you think the odds are of that ship making port?

  22. Kathy says:

    @Michael Reynolds:

    WW2 was not ‘total war’ for the US.

    Yes, it was. Don’t argue with the facts. You can’t win.

    We were the only country whose calorie consumption actually rose during the war,

    And right before the war, you had the great depression. That’s hardly a good yardstick for comparison.

    I don’t recall anyone, ever suggesting we should give Arizona back to Mexico, or well, the whole country back to the Indians.

    No. You should pay rent for the country, including back pay for the last few centuries. And that would be true of all nations in the Americas, where the native populations survived at all.

    Yes, I’m aware that won’t ever happen.

    As to your last question, it’s too devoid of context for a cogent answer. Rationally, though, if that were the extent of the Soviets’ attacks, and retaliation risked escalation, I’d answer that strongly held principles are not a suicide pact.

    3
  23. gVOR10 says:

    @Michael Reynolds:

    I forget, did we ship food to Japan during WW2? Has any army, ever, supplied food to an enemy territory? Legit question – I don’t know. But I’m going to guess the answer is, ‘no.’

    We shipped food to Japan. Hostilities had ceased by the time we occupied the Home Islands. But we were still at war when we occupied Okinawa, which was Japanese territory. We provided food to the populace.

    4
  24. Michael Reynolds says:

    @Kathy:
    By what standards would you claim it was total war for us, but Israel is not engaged in total war? And by what moral standard would it make a difference? Is it the magic word, ‘total?’

    As to your last question, it’s too devoid of context for a cogent answer. Rationally, though, if that were the extent of the Soviets’ attacks, and retaliation risked escalation, I’d answer that strongly held principles are not a suicide pact.

    Uh huh. But Israel should hold to principle even if it is a suicide pact? You know one big difference between the Japanese or Germans in WW2 and Hamas now? Japan and Germany never called for our extermination.

    You’re rationalizing so that you can cling to a hypocritical – and very convenient for us – position. You are discounting Israeli lives and ignoring @Andy’s clearly true point that all participants in all wars commit at least some war crimes.

    @gVOR10:
    After we had taken complete control. We did not send rice to Okinawa while we were still busy killing Japanese.

    The ability of people here to rationalize so as to cling to their posture of moral scold, stands equal to the Evangelical ability to rationalize their bullshit.

    1
  25. Kathy says:

    @Michael Reynolds:

    I’ve explained the concept of total war twice already. That’s my daily limit. You’re probably using your own definition.

    Uh huh. But Israel should hold to principle even if it is a suicide pact?

    No, but that’s what Bibi and his coalition partners are doing. they’re making Israel a pariah state. This is based on two principles: 1) Bibi must be kept out of jail until his natural demise, 2) the zealots should be allowed to settle as much land int eh West Bank and Gaza as they want.

    Japan and Germany never called for our extermination.

    Depends on what you mean by “our.” The US, it’s been claimed, did not fight Imperial Japan and nazi Germany single-handed. One wanted to effectively wipe out China and subjugate it, the other had the same designs for Russia, or at least the western portions of it. And don’t forget the lebensraum principle called for vast numbers of German settlers in such areas.

    2
  26. Gustopher says:

    @Andy:

    It’s a completely reasonable and warranted question to ask why Israel is singled out in this way.

    They’re clearly not being singled out, when the ICC prosecutors are seeking indictments against Hamas leadership on the same day.

    Anyway, I think a large part of it might be Israel flaunting UN resolutions for decades regarding the treatment of the Palestinians, as well as the attacks on UNRWA and other aid organizations.

    But, when the defense is “everyone else gets to do war crimes, why can’t we?” it’s a pretty weak defense.

    1
  27. Andy says:

    @Kathy:
    @Michael Reynolds:
    @gVOR10:

    As I’ve been pointing out for some time now, this conflict is unusual in that civilians are intentionally NOT allowed to flee the conflict zone unlike most every other conflict.

    Providing aid to civilians in the middle of a dense urban war zone while simultaneously conducting combat operations at scale is inherently difficult, and pretty much unprecedented. The expectations placed solely on Israel by outsiders, while those outsiders contribute nothing, are pretty remarkable.

    Despite what some people would like to allege, these are choices that Israel didn’t make or didn’t make alone. No country wants Palestinian refugees or will accept them. Egypt has its army on its border and has threatened to shoot people who cross. The world, through its collective action and inaction, has decided that Palestinians must stay in a war zone with all the consequences and risks that come with that.

    Just as every country would rather force Palestinians to stay in Gaza, even as some claim Israel is starving them, no country has offered to enter Gaza to set up a safe zone or provide any alternative mechanism for aid delivery and management. The only exception is the US, which has the JLOTs pier for seaborne aid deliveries.

    And now the cynicism of the ICC issuing arrest warrants for conditions and circumstances the international community is complicit in enabling, while Assad next door, who used chemical weapons on civilians – among many other black letter war crimes – gets nothing. What a fucking joke.

    5
  28. Andy says:

    @Gustopher:

    They’re clearly not being singled out, when the ICC prosecutors are seeking indictments against Hamas leadership on the same day.

    It’s being singled out for a standard that other countries have not been held to.

    But, when the defense is “everyone else gets to do war crimes, why can’t we?” it’s a pretty weak defense.

    That’s a strawman and isn’t the defense I am making.

    But I can see the challenge you have in attempting to justify this action and come up with a reasonable rationale to try to explain it on the merits, considering the ICC’s lack of action on the large number of black letter war criminals over many years.

    I wouldn’t have a problem with this if the ICC acted consistently with consistent standards, but it hasn’t and didn’t. It’s ignored massive crimes and gone after Israel for an edge case that most militaries could be guilty of. If you are OK with that because you really hate Israel, and want to see them get whatever opprobrium anyone will dish out to them, then fine, enjoy it.

    But if the ICC wants to be a credible agent for adjudicating war crimes in the future, and if one cares about its ability to do that and its institutional mission, then this actually hurts the ICC a lot more than Israel. No one is going to take the ICC seriously if it doesn’t act with integrity and consistency – acting arbitrarily and inconsistently for what appear to be political and potentially racist reasons does the opposite.

    2
  29. SKI says:

    @Kathy:

    WWII was a total war. That is, all production of food, mining of minerals, and production of goods, prioritized the war effort at the various fronts. Therefore all the country and its population was legitimately regarded as a military target. This was true of all the major combatants.

    The same does not appear to be true of the war in Gaza.

    How so? Hamas siphons off everything and there is extensive documentation of weapons and military aid being smuggled inside of aid going back decades. I think that Israel should be less strict (and they did ease off under pressure) but there is a strategic and military reason they restricted purported aid shipments.

    ______
    On the broader point, Israel is unquestionably less than scrupulous in terms of avoiding civilian casualties. A portion of that is perhaps understandable given Hamas uses the civilian population as shields.

    But let us look at the actual numbers, whoch while tragic and horrifying, should be surprising. The UN has stated, based on information from Hamas, that ~35,000 Palestinians have died in Gaza.
    Back in February, Hamas acknowledged that 6,000-8,000 of its fighters have been killed at that point. Israel, in May, projected the number of Hamas militants killed was 12, 000 – 14,000 and asserted that they calculated an additional 16,000 civilians.

    In prior conflicts, Hamas Ministry of Health (which is no longer providing the numbers) was accurate in estimating total dead and Israel was accurate in estimating the number of militants killed. Given these were smaller clashes but that is the best guide we have today on who to trust for what.

    And when we look at the estimates, there isn’t a huge difference between the total dead (Hamas asserting 35k and Israel 30 k). Hamas has not updated its February admission of fighters killed (and in fact later denied the numbers) but the recent dramatic reduction by the UN of women and children killed “from approximately 14,500 children and 9,500 women in its previous reports to 7,797 children and 4,949 women, even as the overall toll remains roughly the same“, when combined with the pre-conflict estimations that Hamas had 40,000 fighters in its 24 battalions, Israeli estimates of militants killed seem realistic.

    So, we can calculate that there have been 35,000 casualties (max Hamas number) of which 12,000 (minimum Israeli number) were militants (note that a not insignificant number of the militants would also fall into the “child” category given Hamas’ widespread use of soldiers under 18). That would be a ratio of just under 2 civilians for every militant.

    In 2017, the ratio of civilians to militants dead in the Battle for Mosul was 10,000 civilians to 4,000 militants for a ratio of 2.5. I say this not to minimize the losses or the tragedy that is ongoing but to point out that this is the reality of modern urbanized warfare against entrenched militants. And obviously, there were no ICC charges brought against the political or military leaders of the Coalition.

    Fundamentally this situation sucks. Hamas, the government of Gaza, launched an attack on Israeli and especially targeted the civilian population and took hostages. Israel fought back and invaded Gaza. Hamas is unwilling to surrender unconditionally and while negotiations are ongoing, they two sides haven’t agreed on conditions of surrender and are actively fighting.

    Do I wish that Israel was more careful about civilian casualties? Yes but nothing we have seen would justify the claims and charges being made if they were anyone else.

    1
  30. Steve says:

    “ Providing aid to civilians in the middle of a dense urban war zone while simultaneously conducting combat operations at scale is inherently difficult, and pretty much unprecedented.”

    Again, people aren’t really expecting Israel to provide aid, just allow others to bring it in, allowing Israel to inspect first.

    Steve

    4
  31. Andy says:

    @Steve:

    Again, people aren’t really expecting Israel to provide aid, just allow others to bring it in, allowing Israel to inspect first.

    I understand that, but it is the two things happening at the same time in the same area. Combat and civilians don’t mix well. Combat and humanitarian aid don’t mix well.

    Israel has been managing this by trying to isolate activities in certain zones and moving civilians out of areas where it intends to conduct operations. But Gaza is small, there are a lot of people. Hamas moves around in and attacks rear areas. Some civilians refuse to move or are prevented from moving. The fog of war is always present, etc. There hasn’t been a remotely similar situation in any recent US conflict or any other I’m aware of.

    3
  32. DK says:

    @Gustopher:

    They’re clearly not being singled out, when the ICC prosecutors are seeking indictments against Hamas leadership on the same day.

    Israel’s enablers are looking as unhinged and ridiculous as Hamas fluffers, desperate to talk about anything but the fact that Israel is sponsoring terror and committing war crimes.

    Look at all the angry deflections:
    But Truman
    But WW2
    But the United States
    But Germany
    But Arizona
    But Mexico
    But Assad
    But Chapel Hill
    But Galveston

    Blah blah blah. Netanyahu and Sinwar are still butchers sponsoring terror and committing war crimes.

    That’s a strawman and isn’t the defense I am making.

    But I can see the challenge you have in attempting to justify this action and come up with a reasonable rationale to try to explain it on the merits…

    Um, but then the defense that followed was based on the ICC’s handling of other war crimes:

    …ICC’s lack of action on the large number of black letter war criminals over many years.

    I wouldn’t have a problem with this if the ICC acted consistently with consistent standards, but it hasn’t and didn’t. It’s ignored massive crimes and gone after Israel…

    Which is not an argument from merit. An objection focused not on what Israel and Hamas are doing now, but on what the ICC has and hasn’t done to others is not merit-based. It’s clearly an argument from context and comparison. Such discussions are valid and not unimportant, but they do not address whether the charges are accurate or not.

    There’s no difficulty to explain the charges on the merits: Sinwar, and Netanyahu’s government, are committing war crimes. That’s the merits. It’s more difficult to argue why guys who are committing war crimes should not be so charged. “Because other war criminals have not been charged” is one answer, but we claim to eschew that defense.

    3
  33. Gustopher says:

    @Andy:

    As I’ve been pointing out for some time now, this conflict is unusual in that civilians are intentionally NOT allowed to flee the conflict zone unlike most every other conflict.

    The government of Israel was very clear that the goal was ethnic cleansing. Several government ministers said this outright, and were not sacked.

    The refugees would never be allowed back.

    Your incessant claim that the world isn’t helping the refugees falls flat when it is that the world will not help Israel commit ethnic cleansing. Nor will countries sign up for 1.8 million or so new permanent refugees. Absorbing that many immigrants would destabilize the country accepting them.

    Meanwhile, Israel could create refugee camps in Israel for the civilians they are displacing. These people were born and raised in Israeli occupied territories — they’re a hell of a lot more Israeli than Egyptian, Jordanian, French or wherever you want to send them.

    Or, if they had an idea of what a post-war Gaza looked like, that might let them change the parameters of the war and not be creating so much death and destruction, and so many refugees.

    3
  34. The Q says:

    (Preface, what happened on Oct. 7 is inexcusable and is rightly condemned for the atrocious act it was. Hamas needs to be neutralized and a two state solution pursued. Criticism of the IDF does not mean solidarity with Hamas)

    Andy and Mr. Reynolds, please look at the pictures (which the Israeli government has tried to block by not allowing media into Gaza) of the total devastation of Gaza. They’ve reduced it to rubble. Google the pics. This isn’t surgical strikes intended to root out Hamas terrorists, it’s the equivalent of the indiscriminate Dresden or Tokyo or Berlin fire bombings meant to kill and demoralize civilians. Or the rape of Nanking by the Japanese Imperial Army. The Israelis are taking a page out of the Nazi handbook – kill one of our Gestapo and we kill a thousand villagers. 1200 dead Israelis = 30,000 Palestinian dead or 40,000 or 100,000 – where Andy do you draw the line or ratio? It seems to me you could justify all 2 million killed if this is “total war” where a country’s survival is at stake and the terrorists are “hiding” behind civilians. So Andy and Mr. Reynolds, where is the line drawn? How many dead are one too many? One dead Israeli should equal how many dead Palestinian civilians? 30 to 1? 100 to one? 1,000 to one?

    Andy, during the Revolutionary War, the patriot farmers and tradesmen would “hide” behind civilians by blending in with their compatriots after attacking the Redcoats. I guess you and Mr. Reynolds would justify the British killing of civilian colonialists since after all, the Minutemen were armed “terrorists”, striking at the British soldiers, then disappearing back into civilian anonymity, using their neighbors as “human shields”, no? So Andy, fair game? Under your ROE, the Brits should be able to murder civilian colonials as long as they harbor those pesky, cowardly Patriots. Just level whole towns like the IDF is doing, since, you know, the uppity colonials deserve it for supporting those jackbooted thugs we now call heroic rebels who are passionately venerated in today’s America. To Andy, they were war criminals using human shields, justifying the British reaction.

    As for Mr. Reynolds’ constant assertions that the IDF can’t be criticized since we wiped out the Indians, the Mexicans, Hiroshima etc. – two wrongs don’t make a right. I guess we should let Russia take over Ukraine, since we took over Texas and California and therefore, we look like hypocrites, so, sorry Zelensky, our hands are tied. Good luck. We have to let Russia do its thing, since we did that to the Spanish and Mexicans.

    And the comparisons to WW2 and Gaza are ridiculous. Gaza is not a country. Gaza is not autonomous. Gaza is/was under the indirect rule of the Israeli authorities who blocked their borders and choked off access. Oddly, if Gaza were a part of a sovereign Palestine, and attacked Israel, another sovereign nation, the Israelis would be on an entirely different legal and moral plane and could lawfully annihilate them, as under international law, one country attacking another is grounds for retaliation. But this isn’t the case for occupied territory, no matter how you define it. Palestine does not exist. It’s part of Israel or under their domination.

    Finally, and it pains to write, but like many liberal American Jews, Mr. Reynolds looses all perspective when it comes to Palestine. This ain’t your father’s Israel. The underdog in 1947, the surprise attacks in 67 and 73, Black September, Munich, Entebbe…THAT Israel had the near unanimous support of the America public, and for good reason.

    But now, after 20 years of Likud hostility toward American disapproval of settlements and the abandoning of any two state solution, the support of the U.S. is seriously flagging. AS IT SHOULD.

    Raise your hands, how many times have you spoken to one of your Jewish friends, who are intelligent, informed, soft spoken, liberal and wholly committed to progressive ideas….until you mention “Palestinians”. Then, like Jekyll and Hyde, venomous epithets come spewing out – “those animals, they don’t deserve to exist” or “we will never give a homeland to barbarians out to destroy us” or “We did not send rice to Okinawa while we were still busy killing Japanese.”

    Yeah, been there, done that. Of course, if you have relatives with numbers tattooed on their arms or whose whole families were wiped out at Dachau, I think we all understand the outrage. But blind hatred and emotional policies based on this anger, are not necessarily the correct policies to pursue. It’s like the answer Dukakis should have given about his wife: “yes of course I would want to kill the mother fu#$%er and cut off his dyck and feed it to the alligators, but, this is not rational justice or legal, so I would let the law proceed and be done with it.”

    What is going on NOW in Gaza is a moral outrage. Decrying the unnecessary civilian carnage is not anti Semitic, nor a propping up of Hamas terrorism. It’s the old Metternich/Morgenthau position of pursuing one’s national interest. Ours does not align lockstep with Israel’s.

    The kids protesting are right and wrong. Right to criticize the IDF and the needless pain and suffering they are causing, but wholly wrong to support Hamas or gainsay the tragedy of Oct. 7.

    11
  35. JohnSF says:

    @Kathy:
    Almost all wars are total to those directly involved in them.

    2
  36. Kazzy says:

    “…that’s the case for even the most professional militaries in any war of this scale. ”

    What scale of war would you not expect war crimes?

  37. JohnSF says:

    @The Q:

    “…indiscriminate Dresden or Tokyo or Berlin fire bombings meant to kill and demoralize civilians…”

    A point:
    I happen to have had a couple of long conversations with an RAF operations staff planning officer from Bomber Command, WW2.
    The objective of the bombings of German cities was not, primarily, to “demoralize”, though that was regarded as a useful secondary effect, but to cripple German industrial war production, on several levels:
    – direct destruction of production capacity
    – diversion of capacity to defence
    – diverion of capacity to repair
    I assure you, RAF Command calculated such things.
    And, no, they did not much concern themselves about German civilian deaths consequent on such actions.
    Just as they launched the preparatory air campaign for D-Day knowing it would cause massive casualties of French civilians: some 65,000, as it turned out.
    And the French government in exile approved those bombing operations.
    War is often rather a rather hard school.
    I suggest you judge less and reflect more.

    3
  38. steve says:

    Some people think it is a sign of inconsistency that the ICC did not charge Assad. Explanation at link why they did not. Syria is not a member of the ICC. If you are not then you need a referral from the UN Security Council. Russia, and China IIRC, have blocked that.

    https://slate.com/news-and-politics/2013/09/assads-war-crimes-why-hasnt-he-been-charged-with-war-crimes-by-the-international-criminal-court.html

    Steve

    1
  39. dazedandconfused says:

    @Michael Reynolds:

    Japan still had an air force, a navy of sorts, and something of a real army. The false equivalence is stupendous. I rather doubt pictures of starving kids coming out of Gaza would help Israel myself, but apparently that’s what the settlers and at least some of the IDF want.

    “It is worse than a crime, it is a blunder.” -Talleyrand

    3
  40. Ken_L says:

    Respect for the rule of law seems in danger of disappearing completely in the United States. Members of Congress are already threatening to impose sanctions on the ICC merely because a prosecutor, on the advice of a panel of experts, has applied to the court for a number of warrants. This is, needless to say, a blatant attempt to interfere in potential indictments; going ahead and imposing sanctions would be state-sponsored obstruction of justice.

    I guess the mentality that courts are there to do the bidding of their political masters was an inevitable consequence of judges being categorised as Republicans or Democrats. But Washington is apparently taking that approach further with respect to the ICC, insolently demanding the right to tell it how to go about its business while refusing even to acknowledge its authority.

    2
  41. Crusty Dem says:

    @Michael Reynolds:

    I wonder how sanguine we’d be if terrorists wiped out every living person in, say, Chapel Hill NC or Galveston TX? They’re about equal, relatively, to the number of deaths Hamas caused in its attack on Israel.

    You’re off by a factor of 50. I live in Chapel Hill, there’s nearly 70,000 people here. The number of Israelis killed in October 7 was 1,143, exactly equal to the budding metropolis of Mound City, Missouri.

    1
  42. Andy says:

    @Gustopher:

    The government of Israel was very clear that the goal was ethnic cleansing. Several government ministers said this outright, and were not sacked.

    What minor government ministers say does not matter compared to reality on the ground and the actual decisions of the people who are actually in charge of the war.

    The refugees would never be allowed back.

    A claim that has become a catechism that is also a convenient dodge for avoiding any moral responsibility for denying Palestinians any agency in determining their own fate for judging for themselves the risks of staying or the potential future risks of leaving. Who are you or anyone else to make that call?

    @DK:

    There’s no difficulty to explain the charges on the merits: Sinwar, and Netanyahu’s government, are committing war crimes. That’s the merits.

    Sinwar, yes, for Israel, the charges are speculative at best.

    “starvation of civilians as a method of warfare” – This war has been going on for seven months, why haven’t all the Palestinians starved to death yet? Since February, various agencies have said that a famine is either happening or imminent. Well, it hasn’t happened yet. Israel certainly has the power to do it if it wanted to. The fact that we are not seeing pictures of thousands of fly-covered emaciated Palestinian children on our screens suggests that Israel probably doesn’t actually want to starve the Palestinians and that the idea that Israel has an intentional policy of starving civilians as a method of warfare (and intentionality would have to be proven, not just alleged) is disproven by the facts on the ground. As I noted above, delivering food aid in the middle of a war in a small area with a large population is very challenging and it would be a lot easier to do that if those civilians weren’t in the middle of the war.

    “intentionally directing attacks against a civilian population” – Israel’s policy has been to call individual Palestinians, to drop leaflets, to do “roof knocks”, to publish evacuation corridors and safe zones, to announce to the enemy where it is going to attack by clearing civilians from the zone beforehand, etc. That is and has been Israel’s policy from the top leadership from the beginning of the conflict. That’s not a policy that aims to intentionally direct attacks against the civilian population.

    Now, at lower levels of command, there have been, I’m sure, cases where units, individual soldiers, and commanders have, I’m sure, intentionally directed attacks against civilians. Those who have done so ought to be prosecuted for that by Israel, and, if Israel refuses, then by the ICC. But it’s ludicrous attacking civilians is Israeli policy directed from the leadership based on – again – facts on the ground.

    So no, the bothsidesing (something you usually hate) of Israel and Hamas doesn’t work here.

    And yes, selective, arbitrary prosecution that lacks consistency is a very big problem, especially when such thin charges just happen to be deployed against the only Jewish country, which makes them more arbitrary and less consistent. It tends to make people think the reasons are actually not based on merit but on something else.

    @The Q:

    Andy and Mr. Reynolds, please look at the pictures (which the Israeli government has tried to block by not allowing media into Gaza) of the total devastation of Gaza. They’ve reduced it to rubble. Google the pics. This isn’t surgical strikes intended to root out Hamas terrorists, it’s the equivalent of the indiscriminate Dresden or Tokyo or Berlin fire bombings meant to kill and demoralize civilians.

    Look at Mosul, look at Falluja, look at Bakhmut, look at all the cities and towns in Normady where we killed 20k French civilians during the D-Day invasion. Look at any city in the history of modern warfare where there has been heavy conventional fighting. Gaza is not exceptional, and you are wrong to assume that all the destruction was caused by Israel. Two parties are fighting in this war. Hamas is not a bystander doing nothing while Israel randomly blows up buildings. This is what urban warfare does to cities.

    The Israelis are taking a page out of the Nazi handbook – kill one of our Gestapo and we kill a thousand villagers. 1200 dead Israelis = 30,000 Palestinian dead or 40,000 or 100,000 – where Andy do you draw the line or ratio? It seems to me you could justify all 2 million killed if this is “total war” where a country’s survival is at stake and the terrorists are “hiding” behind civilians. So Andy and Mr. Reynolds, where is the line drawn? How many dead are one too many? One dead Israeli should equal how many dead Palestinian civilians? 30 to 1? 100 to one? 1,000 to one?

    If you’ve read my comments here, I’m about the only one here who strongly advocates for getting civilians out of the combat zone. See my recent comments to Gustopher above and many other threads on this topic. There is NO WAY to conduct urban warfare with civilians present that does not result in huge numbers of civilian deaths. It’s unavoidable. The people, some commenting on this blog, who claim that Israel just needs to be more careful do not know what they are talking about. It’s impossible to fight in urban terrain and not kill many civilians while they are present in the battlespace. The unique thing about Gaza is that civilians can’t flee unlike most every other conflict.

    Since no one wants to do what I want, which is to allow Palestinians the right to have the choice to temporarily go somewhere safe – either in a safe zone controlled by a third-party in Gaza or a third country, then the only option is for civilians to continually move around in Gaza to avoid the areas where fighting is occurring. That’s challenging because there is no frontline. Hamas infiltrates around Gaza and retakes formerly secure areas, which Israel reclears. Israel – unlike Hamas – does try to clear civilians when it can before fighting. Hamas, by contrast, doesn’t. Civilians are caught in the battle when Hamas initiates engagements in areas that haven’t been cleared. For the planned operations, such as in Rafah, Israel is clearing areas of civilians before attacking. Doing this actually hinders Israel’s military efforts because it tells Hamas where its next offensive area will be and lets Hamas prepare. That is not Gestapo tactics. That is not, as the ICC claims, “intentionally directing attacks against a civilian population.” It’s the opposite of that.

    3
  43. Gustopher says:

    @Andy:

    What minor government ministers say does not matter compared to reality on the ground and the actual decisions of the people who are actually in charge of the war.

    There have been no statements from higher level ministers as to the post-war Gaza situation. None.

    And the minor ministers who openly stated the goal was ethnic cleansing are still in the government, which suggest that it is not something the government of Israel would be opposed to.

    If the HUD secretary under Biden was advocating for slaughtering enough people in New Mexico that they would go back to Old Mexico, they would get fired. And if not, it would be reasonable to think that this might be the policy of the administration.

    And the actions on the ground also support a goal of ethnic cleansing. The population was driven right up against the Egyptian border as if the Israelis were hoping the Egyptians would blink and relent.

    They cut food and water to the civilian population. They attack relief organizations trying to feed and water the civilian population.

    These are the tools of ethnic cleansing and genocide, used at a scale that makes that a very reasonable interpretation of Israel’s actions on the ground, especially when there is no goal for a post-war Gaza.

    It looks like the goal is the violence, starvation, death and destruction. And Israel certainly hasn’t advanced any other goals.

    A claim that has become a catechism that is also a convenient dodge for avoiding any moral responsibility for denying Palestinians any agency in determining their own fate for judging for themselves the risks of staying or the potential future risks of leaving. Who are you or anyone else to make that call?

    I think every country has the right to decide if they want 1.8M permanent refugees. It seems that each country decides no, for understandable reasons.

    You can argue that this violates the rights of asylum, but no country is going to accept so many refugees that it destabilizes their society.

    And let’s be clear about where the agency lies: Israel has chosen to create this situation. Israel chose how to respond to the October attack knowing the situation they would create. Not the rest of the world. Not even Hamas. Israel.

    2
  44. @Michael Reynolds:

    I’m not defending Netanyahu

    Actually, you kind of are.

    5
  45. James Joyner says:

    @steve: Israel isn’t a signatory, either. Nor, rather obviously, is Hamas.

    @Crusty Dem: Israel is a country of 9.5 million people. Per capita, October 7 was the deadliest terrorist attack since at least 1970, exponentially more deadly than 9/11.

    1
  46. Eusebio says:

    “Per capita, October 7 was the deadliest terrorist attack since at least 1970, exponentially more deadly than 9/11.”

    Yes, but it’s an odd bit of rhetoric since the event was not distributed over a population like, say, Covid. The death toll and manner of the Oct attacks was horrific as is. The per-capita comparison has been used quite a bit, but IMO, it’s usually distracting from the message.

  47. James Joyner says:

    @Eusebio:

    it’s an odd bit of rhetoric since the event was not distributed over a population like, say, Covid

    But that’s just the thing: it was. Israel is a tiny country. Pretty much every Israeli personally knew someone who was murdered that day. That wasn’t even true of Manhattanites, much less every American, for 9/11.

    1