When War Becomes Criminal

Photo by justflix, CC BY-SA 4.0 , via Wikimedia Commons

In an usual development, the AP reports that Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant have been named along with three leaders of Hamas as targets of arrest warrants by the ICC. The charges must be approved by a three-judge panel before the warrants are issued.

Even then, Netanyahu won’t be in imminent danger of arrest. Israel is not a member country of the ICC so the warrants would not be enforced there. The United States and five other countries (China, Iraq, Libya, Qatar, and Yemen) are also not parties to the court. Other than those seven countries, the entire world is affiliated with the ICC.

The problem could confine Netanyahu to Israel, however. If the warrants are issued and Netanyahu or the other targets travel through one of the countries in the majority of the world that make up the court, he could be arrested and extradited for trial.

I read a similar scenario in a fiction book a couple of decades ago. John J. Nance’s 2001 book, “Headwind,” describes an international attempt to arrest a former US president who is traveling in Europe. The president in the book seemed to be based on George W. Bush, another political figure who was often accused in the media of war crimes.

I have mixed emotions about the charges. I don’t necessarily disagree with the notion of holding world leaders accountable for crimes against humanity, but I do disagree with the moral equivalence of charging Israeli leaders along with the leaders of Hamas. After all, Hamas not only initiated the war with unprovoked attacks against Iraeli civilians, attacks in which numerous atrocities and sexual crimes were committed, but Hamas has also been responsible for decades of terrorist and rocket attacks against Israel even before the start of the current war. Hamas has raised targeting civilians to an art form.

Israel’s response to Hamas’s attacks has resulted in thousands of dead civilians, but the similarity ends there. Or mostly anyway.

Dead civilians don’t automatically equate to war crimes. Under international law, it is illegal to purposely target civilians, but it can be lawful to kill civilians out of military necessity. An example of military necessity would be when Hamas hides behind civilan residences, schools, and hospitals. By dressing its fighters in civilian clothes trather than uniforms, Hamas also makes it more difficult for Israel to distinguish between combatants and civilians. Making a distinction between civilians and military forces is another key point of international law, along with maintaining a reasonable proportion of civilian to military casualties.

Israel has historically maintained strict rules of engagement, but it may be the requirement for proportionality that causes them legal problems in this war. In December, the Israeli government admitted that more than 65 percent of deaths in Gaza were civilian. That raises questions about whether Israel’s use of force is proportional, not to mention whether it is adequately distinguishing between Hamas fighters and Gaza civilians.

And then there is the recent report from the State Department. Earlier this month, the US government assessed that Israel may have violated international law or best practices in delaying aid to civilians and not taking adequate steps to avoid civilian casualties.

There are reasons to suspect that Israel is being overzealous in its prosecution of the war. But evidence against Hamas is overwhelming and obvious.

I’d be okay with a closer investigation into Netanyahu’s handling of the war, but so far the evidence does not seem to be there for an arrest and prosecution. Unlike for Yehya Sinwar, Mohammed Deif and Ismail Haniyeh, the three leaders of Hamas who are being targeted with arrest warrants.

I’d say that the world should absolutely hold Hamas and the people who pull the strings of the fighters accountable. If the world had held Hamas accountable for the past 10… 20… 50 years, maybe Israel wouldn’t be waging war in Gaza today.

For far too long, the world looked aside as Hamas and Hezbollah and others attacked and killed Israelis. Israel has built a highly trained and well equipped military not because it wants to slaughter Palestinians but because October 7 was only the culmination in a long series of atrocities by Israel’s enemies.

Israel’s conduct in the war is not blameless. There may have been both international and Israeli laws that were broken, but what some in Israel – and in the United States – don’t understand is that the forces of civilization and humanity have to police ourselves. We have to maintain our civilized societies because if we don’t, we become no better than the barbaric hordes. We can’t beat them if we become them.

It remains to be seen how the International Criminal Court proceedings will play out, but I would love to see Sinwar, Deif, and Haniyeh get their day in court. Maybe they’ll be joined in the courtroom by Vladimir Putin. The ICC issued an arrest warrant for Mr. Putin last year for the crime of unlawfully deporting Ukrainian children to Russia. It could add indiscriminate attacks on civilians to the list of charges as well.

I think, however, that Sinwar, Deif, and Haniyeh are much more likely to get their day in court than Putin. Assuming, that is, that they survive the war.