June 11, 2024
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ICC Prosecutor Seeks to Rob Israel of Its Right to Self-Defense

Karim Khan has decided his judgment supersedes that of democratic governments.

On Monday, May 20, International Criminal Court Prosecutor Karim Khan announced that he is seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Members of Congress from both parties quickly condemned the move.

“The decision to seek arrest warrants is not law but politics. It is not justice but rather retribution against Israel for the original sin of existing as a Jewish state and the subsequent sin of defending itself amid the deadliest day for Jews since the Holocaust,” said Rep. Ritchie Torres (D-N.Y.) on Monday.

“Today’s decision in effect makes it criminal for a state like Israel to defend itself against an enemy shrewd enough to embed itself in a civilian population, as Hamas has done to an extent never seen before in the history of warfare,” he added.

Rep. Elise Stefanik (R-N.Y.) said, “The ICC is an illegitimate court that [equates] a peaceful nation protecting its right to exist with radical terror groups that commit genocide.”

International legal expert Eugene Kontorovich explained that, “Diplomatically, it is an attempt to create moral equivalence between Hamas and Israel.”

Legally, Khan’s factual allegations have no basis. Indeed, Israel’s enemies have sought to use the ICC against it long before the Oct. 7 war began. The actions of the ICC prosecutor on Monday merely highlight the court’s illegitimacy and the way that the Jewish state is persecuted in international fora functionally controlled by Israel’s enemies.

Like most intergovernmental institutions, the ICC is the subject of the political whims of the undemocratic majority of states. Its very founding document, the Rome Statute, was even altered at the demand of Arab and Islamic states in order to invent a new “war crime” aimed at criminalizing Israeli settlements.

This weaponization of the ICC against the Jewish state is now on full display. Just in order to claim jurisdiction over Israel—which is not a party to the Rome Statute—the ICC had to invent two legal fantasies. First, it had to pretend that the Palestine Liberation Organization is actually a “state,” and second, it had to pretend that a treaty can bind actual states that never signed the treaty.

To justify these fictions, the ICC relied in large part on the meaningless, non-binding and political recommendations of the same body that once declared “Zionism is a form of racism.” It did so all while ignoring actual international law that clearly articulates the criteria for statehood, of which the PLO undeniably falls short.

Monday’s action by the prosecutor threatens not only Israel. It amounts to a power grab, in which Khan has decided his judgment supersedes that of democratic governments. The ICC, according to its own rules, is meant to act only as a court of last resort; that is, the ICC is only supposed to get involved when a state is unable or unwilling to investigate allegations itself. This is a high bar for a prosecutor. Israel has one of the most robust and independent judicial systems in the world, including its highly respected Supreme Court. The IDF itself maintains a professional and independent system of legal advisers and reviewers, who regularly take on incidents for investigation and prosecution.

If Israel’s independent and professional legal system isn’t sufficient for Khan, then no legal system is. This would open all democracies engaged in self-defense, including the United States, to lawfare waged by bad actors and second guessing by a rogue prosecutor.

The allegations against Netanyahu and Gallant are factually baseless. The first is “Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the [Rome] Statute.”

As international law expert Kontorovich explained early in the war, “siege is a ‘legitimate’ and ordinary part of lawful war…An army need not help its enemy obtain provisions during a conflict. When military objectives and civilians are intermingled, siege aimed at the former also will affect the latter. As with other situations of collateral damage to civilians, international law permits a siege as long as it isn’t ‘for the purpose of denying sustenance to the civilian population.’ There is no indication that Israel has any strategy of starving out civilians.”

Despite the legality of such a siege, beginning on Oct. 18—only 11 days after Hamas’s barbaric attack, as the full reality of how many people had been killed and how many taken hostage was still being absorbed—Israel agreed to allow aid into Gaza, and has allowed sufficient aid in ever since. Israel also restarted supplying Gaza with water on Oct. 15.

While there may have been isolated cases of individuals with underlying medical problems being malnourished, and certainly Hamas obstructs the distribution of food aid, there is no wide-scale starvation occurring. The Hamas-run Gaza Health Ministry claims that since the start of the war, 32 individuals have died of malnutrition and dehydration, or.0015 % of the population. Of course, no one wants anyone, in Gaza or elsewhere, to die of starvation, but to put this in perspective, this doesn’t come close to comparing with places in which actual famines have occurred, and rather is at about the same level as France.

“Most of the food that Israel has been sending into the Strip has ‘immediately been taken by Hamas terrorists, who then sell some of the supplies for 10 times more than what it’s worth,’” a senior Israeli defense official told The Jerusalem Post.

“There is no food shortage in Gaza; there are those who are hungry since Hamas has taken all of the food and they don’t have enough money to pay Hamas on the black market,” a former senior official told the Post.

This tactic serves a dual purpose for Hamas: it enriches the terror group while providing the fodder for ICC allegations exactly like this one.

In particular, in light of last week’s discovery of 50 cross-border tunnels from Rafah into Egypt, which certainly could have been used to bring in food as easily as any other materials, blaming Israel for any difficulty in food distribution simply doesn’t make sense.

The ICC prosecutor also accused the Israeli leaders of “Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i); Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i); Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i); Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity.”

Multiple legal experts have attested to the fact that Israel uses all means possible to avoid harm to civilians. Just last week, John Spencer, the chair of urban warfare studies at the Modern War Institute at West Point, told CNN, “I can say with very strong confidence that Israel has done everything the U.S. military has ever done in the history of urban combat and things that we’ve never done, implementing every civilian harm mitigation technique that has been developed in the last 30 years despite Hamas’s tactics.”

And Brig. Gen. (Ret.) Mark Kimmitt, former assistant secretary of state for political-military affairs and deputy assistant secretary of defense for the Middle East, has detailed the “extensive procedures the IDF uses to enforce tough standards aimed at minimizing civilian deaths and protecting infrastructure.”

The remaining allegations, “Persecution as a crime against humanity contrary to article 7(1)(h); Other inhumane acts as crimes against humanity contrary to article 7(1)(k),” are too vague to be meaningful.

Hamas is still holding 128 hostages, including a 1-year-old baby, and it’s unknown how many are dead and how many are living. Yet, the ICC prosecutor seeks to tie Israel’s hands to prevent it from taking the necessary actions to recover them.

On Oct. 7, Israel was attacked with a barbarity not seen since medieval times. It is fighting this war not by choice, but out of necessity, for its survival. To have its defensive war characterized in this manner, as “extermination” or “murder,” and used to justify international legal action against its leaders, is to turn morality on its head in the cruelest possible way.

In any war, there will be civilian casualties. But extrapolating from the existence of civilian casualties that Israel has “willfully” caused more suffering or death than necessary to achieve its lawful military aims, or that it has intentionally directed attacks against civilians, is to characterize any war that Israel fights as a genocide or a war crime and to effectively rob it of its legitimate right to self-defense.

Karen Bekker is the assistant director of the Media Response Team at CAMERA.

David M. Litman is a media and education research analyst at CAMERA.

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