Tuesday, May 21, 2024

The Fantasy World of the International Criminal Court

By Noah Rothman

Monday, May 20, 2024

 

We should be grateful to the International Criminal Court. Its functionaries have done their utmost to convince those who still believe in its legitimacy that their faith is unfounded. For those with some attachment to reality, the ICC’s most recent missives read like dispatches from an alternate universe.

 

On Monday, ICC prosecutor Karim Khan announced his office’s intention to seek warrants for the arrest of both Hamas’s leadership and members of Israel’s governing coalition. The — we might call it aspirational — document begins fancifully enough with the claim that it is a response to “the Situation in the State of Palestine.” That language is good news for critics of the ICC insofar as there is no legal entity that goes by that name. Nor is there such a thing as the “territory of Israel,” which is how the ICC refers to the Jewish state (though some in the ICC’s ranks surely believe granting Israel its name represents a gracious dispensation to “the Zionist entity”). Those who understand that the ICC’s jurisdiction is an imaginary construct likely find it unsurprising to see the institution steadfastly refusing to commit to our shared experience in the real world.

 

The statement the ICC produced is not wholly valueless. The organization found enough evidence to indict Hamas for orchestrating vicious crimes against Israelis, “including rape,” which are allegations organs elsewhere under the United Nations’ umbrella did their utmost to dismiss. But the ICC frames Israel’s war against Hamas not as a response to the 10/7 massacre but as a continuation of the “international armed conflict between Israel and Palestine.” And if Hamas’s crimes are egregious, Israel’s are worse.

 

The ICC calls for the arrest not just of Israeli prime minister Benjamin Netanyahu but also Defense Minister Yoav Gallant, a Netanyahu critic whose membership in the post-10/7 wartime coalition government is increasingly tenuous. The inclusion of Gallant on the list of offenders establishes the veracity of an assumption long held by Israel’s defenders: that foreign officials who are hostile toward the exercise of Israel’s right to self-defense object not to the Netanyahu government but to the Israeli political consensus around the need to neutralize Hamas as the governing entity in Gaza.

 

The charges the ICC brings are ghastly. It alleges that Israel is responsible for the “starvation of civilians,” the imposition of “great suffering” on the Palestinian people, “intentionally directing attacks against a civilian population,” “persecution,” “extermination,” and other “crimes against humanity.” These claims rest on the notion that, when the crossings from Gaza into Israel were closed after the massacre and Jerusalem throttled the transfer of water, electricity, and humanitarian assistance into the territory that had made war on its civilians, those constituted crimes of war.

 

These are debatable assertions. As German legal scholar Michael Boothe, one of the world’s foremost experts on international humanitarian law, observed, cutting off electricity — a commodity with as much use to a hostile armed force as to civilians — to a wartime adversary is accepted practice according to the International Committee of the Red Cross. “Indeed, it would be paradoxical to say that a state is permitted to destroy the enemy’s electric plants, but is required to supply its own electricity to the enemy,” he wrote.

 

Moreover, the ICC does not allege that Israel cut off all humanitarian assistance to Gaza, because it did no such thing. Jerusalem did cut off the water it provides to the Strip — accounting for less than 10 percent of the Strip’s peacetime water supply — on October 9, 2023, but resumed regular pre-war transfers before the end of October. Food and medicine, too, have made their way regularly into the Strip despite the risks to Israeli forces overseeing their distribution and the regularity with which Hamas fighters commandeer those transfers. To date, the Israeli government maintains that nearly 550,000 tons of aid have been introduced into Gaza since the onset of the war. If this is evidence of genocidal intentions, Israel’s commitment to that course is half-hearted.

 

This is what the Israeli government gets for playing the U.N.’s game on its terms. Despite its opposition to the ICC and the International Court of Justice, Israel dispatched representatives to the Hague earlier this year to defend itself against allegations of genocide. A lot of good that concession did the Israelis. Earlier this year, following “a series of near-unanimous votes,” the ICJ determined that Israel was acting “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The allegations are not credible, not only because the evidence before our own eyes conveys the impression that Israel has not only opened and maintained humanitarian corridors but preserved, for example, the ongoing medical services practiced in the hospitals it seeks to liberate from Hamas control.

 

The U.N.’s judicial bodies are deaf to all this. Ensconced in their own echo chamber, they exist in a parallel dimension in which they enjoy legitimate jurisdiction over the conduct of Israel’s defensive war. In reality, however, the righteousness of the conduct of Israel’s war will be adjudicated by Israelis alone. The consequences its leaders face for their preservation of Israeli security both before and after the 10/7 attack are the province of Israelis alone. And the justice Hamas’s leaders deserve will be meted out by Israel alone.

 

We are under no special obligation to observe the contours of the alternate reality in which the United Nations’ bureaucrats choose to reside. Indeed, their solipsism only makes them easier to ignore.

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