The application for arrest warrants by the Prosecutor of the International Criminal Court (ICC), Karim AA Khan in the Israel-Hamas war is a chance to revisit a recurring theme in the commission of crimes in international humanitarian law.
Certain states, this logic goes, either commit no crimes or, if they do, have good reasons for doing so — self-defence or as part of a broader civilisational mission.
In this context, the application for warrants regarding Israeli Prime Minister Benjamin Netanyahu and his Defence Minister, Yoav Gallant, merits particular interest.
Those regarding Hamas leader Yahya Sinwar, Mohammed Al-Masri, commander-in-chief of Al-Qassam Brigades, and the organisation’s political bureau head Ismail Haniyeh, have left most Western governments untroubled.
For the ICC, the warrants for Netanyahu and Gallant will focus on policies of starvation, the intentional causing of “great suffering, or serious injury to body or health”, including cruel treatment, wilful killing or murder, intentional attacks on the Palestinian population, including extermination, persecution and other inhumane acts falling within the Rome Statute “as crimes against humanity”.
The ICC prosecutor’s assessment follows the now increasingly common claim that Israel’s military effort, prosecuted in the cause of self-defence in the aftermath of the October 7 attacks by Hamas, is not what it claims to be.
Far from being paragons of proportionate warfare and humanitarian grace in war, Israel’s army and security forces are part of a program that has unleashed needless killing and suffering.
The crimes against humanity alleged “were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy”.
The Israeli reaction was expected.
Netanyahu accused the prosecutor of “creating a false symmetry between the democratically elected leaders of Israel and the terrorist chieftains”. He rejected “with disgust the comparison of the prosecutor in The Hague between democratic Israel and the mass murderers of Hamas”.
Israeli President Isaac Herzog also found “any attempt to draw parallels between these atrocious terrorists and a democratically elected government of Israel – working to fulfil its duty to defend and protect its citizens in adherence to the principles of international law […] outrageous and cannot be accepted by anyone.”
The United States — Israel’s staunchest ally, sponsor and likewise self-declared democracy — was also there to hold the fort against such legal efforts.
US President Joe Biden’s statement was short and brusque: “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas.”
The democracy-as-purity theme, used as a seeming exculpation of all conduct in war, surfaced in a May 21 exchange between Senator James Risch, the top Republican on the Senate Foreign Relations Committee, and US Secretary of State Antony Blinken.
Was the secretary, Risch inquired, amenable to supporting legislation to combat the ICC “sticking its nose in the business of countries that have an independent, legitimate, democratic judicial system”?
(No consideration was given to the sustained efforts by the Netanyahu government to erode judicial independence in passing legislation to curb the discretion of courts to strike down government decisions.)
Blinken was agreeable to such an aim. There was “no question we have to look at the appropriate steps to take to deal with, again, what is a profoundly wrong-headed decision”.
A bill is also being prepared with a clear target. Sponsored by Arkansas Republican Senator Tom Cotton, the Illegitimate Court Counteraction Act would obligate the President to block the entry of ICC officials to the US, revoke any current US visas such officials hold and prohibit any property transactions taking place in the US.
To avoid such measures, the court must cease all cases against “protected persons of the United States and its allies”.
The Austrian Chancellor Karl Nehammer similarly viewed the ICC prosecutor’s efforts as a pairing of incongruous parties. “The fact however that the leader of the terrorist organisation Hamas whose declared goal is the extinction of the State of Israel is being mentioned at the same time as the democratically elected representatives of that very State is non-comprehensible.”
From the outset, such statements do two things.
The first is to conjure up a false distinction — that of equivalence — something absent in the prosecutor’s application.
The acts alleged are relevant to each party and are specific to them.
The second is a corollary: that democracies do not break international law and certainly not when it comes to war crimes and crimes against humanity, most notably when committed against a certain type of foe.
The more savage the enemy, the greater the latitude in excusing vengeful violence.
That remains, essentially, the cornerstone of Israel’s defence argument at the International Court of Justice.
Such arguments echo an old trope. The two administrations of George W Bush spilled much ink in justifying the torture, enforced disappearance and renditions of terror suspects to third countries during its declared global War on Terror.
Lawyers in both the White House and US Justice Department gave their professional blessing, adopting an expansive definition of executive power in defiance of international laws and protections. Such sacred documents as the Geneva Conventions could be defied when facing Islamist terrorism.
Lurking beneath such justifications is exceptionalism and the conceit of power. Liberal democracies, when battling named barbaric forces, are to be treated as special cases in the world of international humanitarian law.
The ICC prosecutor begs to differ.
[Binoy Kampmark currently lectures at RMIT University.]