The Israeli prime minister, Benjamin Netanyahu, responded with predictable vitriol to international criminal court (ICC) accusations against him and the Israeli defense minister, Yoav Gallant. Yet his arguments are all spin, designed to divert attention from their devastating conduct in Gaza. The American, British and German governments were little better.
On Monday, the court’s chief prosecutor, Karim Khan, announced that he would seek arrest warrants for Netanyahu and Gallant as well as three senior Hamas officials. He proposed charges against the Hamas leadership for atrocities on 7 October as well as the mistreatment of the hostages since then. He proposed charges against the Israeli officials primarily for their efforts to starve the Palestinian civilian population of Gaza. These important proposed charges offer the possibility of breaking through the “wall of impunity” that victims of Israeli and Palestinian abuses have long suffered, as Human Rights Watch put it.
Khan is the ICC’s most experienced chief prosecutor of the three to date. My conversations with him from early in his tenure suggest his approach to his job is conservative. He is unlikely to have pursued charges without solid evidence behind them, as found by a panel of independent experts whom he assembled. The court’s pre-trial chamber is likely to affirm the charges and issue the requested arrest warrants, meaning that the accused could not travel to any of the ICC’s 124 member states, including all of Europe, without facing probable arrest.
The demand for solid evidence is probably why Khan began with Israel’s starvation strategy, because the evidence was more readily available. Israel has barred his investigators from Gaza, where he would ordinarily want to investigate Israel’s indiscriminate and disproportionate bombing. Khan made clear that his investigation “continues”. More charges could come.
Netanyahu’s response was filled with evasions. He called the proposed charges “an attempt to deny Israel the basic right of self-defense”, which is preposterous. The proposed charges are not about whether Israel can defend itself but how – that is, not by committing war crimes. He said Israel had taken “unprecedented measures … to ensure that humanitarian assistance reaches those in need in Gaza” – a claim belied by extensive evidence of Israel’s arbitrary obstruction of food, medicine and other necessities to the civilian population of Gaza, to the point that famine has arrived in parts of the territory. Indeed, the US government has been outspoken in criticizing the Netanyahu government for its arbitrary obstruction of humanitarian aid.
Using the common last resort for defenders of Israel, Netanyahu accused Khan of “callously pouring gasoline on the fires of antisemitism that are raging across the world”, claiming that “Khan takes his place among the great antisemites in modern times”. This is rich from an Israeli leader who has had no trouble embracing an antisemite – the Hungarian prime minister, Viktor Orbán – when it serves him. It also endangers Jews around the world, because if people see the charge of antisemitism as a thin cover for Israeli war crimes, it will cheapen the concept at a time when a strong defense is needed.
Recognizing the independence and the importance of the international criminal court, some governments – notably, France and Belgium – issued statements supporting it. But others followed in Netanyahu’s footsteps.
In a terse statement, Joe Biden called the charges “outrageous”, stating that “there is no equivalence – none – between Israel and Hamas”. The German government, while saying it “respects the independence” of the court, echoed this “false equivalence” charge. But Khan made no claim of equivalence. He simply charged both Israeli and Hamas officials for their own separate war crimes. Indeed, given the severity of the offenses, it would have been outrageous had Khan ignored one side’s crimes. The dual charges underscore a fundamental principle of international humanitarian law: war crimes by one side never justify war crimes by another.
Ironically, Hamas responded to the proposed charges with a variation of this theme, saying that Khan’s action “equates the victim with the executioner”. But regardless of the perceived justness of one’s cause, it never justifies war crimes.
The US secretary of state, Antony Blinken, claimed, without elaborating, that the ICC “has no jurisdiction”. The US government had long opposed the power granted to the court by its founding treaty to prosecute crimes committed in the territory of member states by nationals of non-member states, but Biden abandoned that position when he called the ICC charges against the Russian president, Vladimir Putin, for war crimes in Ukraine, using the same territorial jurisdiction, “justified”.
More likely, Blinken was referring to the argument, repeated by the British government, that Palestine could not join the court because it is not a state. But the ICC’s pre-trial chamber has already rejected that argument, citing the UN general assembly’s recognition of Palestine as a “non-member observer state”. Palestine has used that status to ratify a host of human rights treaties, which should be welcomed as a statement of commitment, even if actual practice has often fallen short.
Blinken noted that the ICC, under the principle of complementarity, is supposed to defer to good-faith national prosecutorial efforts. But the Israeli government has never pursued war crime charges against senior officials. Nor, despite Khan’s repeated warnings that he was considering charges regarding Israel’s starvation strategy, have Israeli authorities announced an investigation. Khan said he would reconsider his proposed charges should that change.
Finally, Blinken said that the ICC’s request “could jeopardize” efforts to reach a ceasefire. Similarly, a spokesperson for Rishi Sunak said the charges were “unhelpful”. But there is a long history of war crime charges facilitating peace by marginalizing hardliners. That, for example, was how the Dayton peace accord for the Bosnia conflict was concluded. Similar charges contributed to the emergence of democracy in Liberia and the effective demise of Uganda’s rebel Lord’s Resistance Army.
Any marginalization of extremist Israeli or Hamas officials might advance the frustratingly stalled ceasefire negotiations. Within Israel, whose officials’ conduct in Gaza has increasingly made it a pariah state in the minds of many worldwide, the proposed charges will strengthen the movement for a leadership change. Far from an impediment to a ceasefire, Khan’s actions could be a spur.
It is disappointing, if not surprising, that the reflexive response to the court’s proposed charges in Washington, London and Berlin was to defend Israel despite its war crimes. But the rule of law does not apply only to one’s adversaries. Nor, as the German government seems to have forgotten, is an appropriate response to the Holocaust defending the Israeli government regardless of what it does rather than affirming human rights standards regardless of who violates them. It is time for these key western governments to reconsider.
Kenneth Roth, former executive director of Human Rights Watch (1993-2022), is visiting professor at Princeton’s School of Public and International Affairs
