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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