In the coming weeks there is a very good chance that Israel’s prime minister, Benjamin Netanyahu, will be pursued by the International Criminal Court as a wanted man. On Monday, the court’s chief prosecutor, Karim Khan, applied for an arrest warrant for Israel’s leader and its defense minister, Yoav Gallant.
That Netanyahu and Gallant’s warrant applications were announced alongside warrants for three Hamas leaders responsible for the October 7 massacre is the first of many flaws in this disgraceful case. Secretary of State Antony Blinken was right when he called the equivalence of Israel with Hamas “shameful.”
Then there’s the fact that Israel is not a party to the treaty that created the International Criminal Court, or ICC. Blinken said that “the United States has been clear since well before the current conflict that ICC has no jurisdiction over this matter.” Finally, Blinken noted “deeply troubling process questions.” Israel has said it was willing to cooperate with the court and that Khan had been due to visit Israel next week. Instead he abruptly announced his application for a warrant, which “call[s] into question the legitimacy and credibility of this investigation,” Blinken said.
But even assuming Khan is waging a credible, legitimate prosecution, there is another problem with the case. Khan’s central accusation against Israel is that the Jewish state has “intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.” That is a crime under international law. And Khan argues in a press statement that Israel has used “starvation of civilians as a method of warfare” to collectively punish Gaza’s 2.3 million people and to pressure Hamas to release the hostages it captured on October 7.
We have heard many accusations of starvation over the course of this war, but there has been scant evidence. (According to The Wall Street Journal, over the past seven months Hamas claims that 31 Gazans have died because of malnutrition and dehydration.) More, the ICC ignores abundant evidence that Hamas is hoarding the food and medical aid meant for the population it purports to govern. As the U.S. military was building a pier in Gaza to deliver aid last month, Hamas fired mortar rounds at the construction area. The Israel Defense Forces have posted many videos and photographs of Hamas gunmen commandeering aid from the United Nations Relief and Works Agency (UNRWA). On May 2, State Department spokesman Matthew Miller acknowledged that Hamas was diverting aid.
“Israel is letting the aid into Gaza,” an Israeli defense official who works closely on administering aid delivery into the territory told The Free Press. “But the aid is diverted by Hamas. We have lots of intelligence on how the aid only goes to Hamas members and their families.”
Nonetheless, international humanitarian organizations as well as the UN secretary-general claim that Israel has allowed Gazans to starve. Stephen Rapp, the former U.S. ambassador-at-large for war crimes issues in the Office of Global Criminal Justice under President Obama, told The Free Press he thought Israel’s case was hurt by Israeli extremist attacks against aid trucks entering Gaza. “They are being attacked by extremists,” Rapp said. “And I have not seen incidents of them being arrested.”
The failure of Israel to prosecute its own vigilantes weakens the country’s best argument before the International Criminal Court, Rapp said, but he still sees the prosecution as wrongheaded. “My general attitude is that this is a nation and system based on the rule of law. We count on them to investigate themselves; don’t take them to the Hague,” he said.
ICC prosecutor Khan also recommended arrest warrants for senior Hamas leaders who kidnapped, tortured, and murdered hundreds of Israelis, among other atrocities. But the fact that the prosecutor recommended the arrests for Israeli and Hamas leaders suggests that both parties are equal violators of international humanitarian law.
President Biden rebuked the court on Monday for making that parallel. “Let me be clear,” he said. “Whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas.”
Eli Lake is a Free Press columnist. Follow him on Twitter at @EliLake and read his piece “Does Suing Colleges for Antisemitism Actually Work?”
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One onders what would have happened if the ICC was around at the end of WWII. Would it have brought war crimes prosecutions against the Nazis AND the Allies? There were plenty of summary executions of SS and other Germand by Allied soldiers, particularly when they saw the concentration camps.
I’m proud of Biden’s statement. I think it was very good.
Credit where credit is due.