International Criminal Court (ICC) may issue arrest warrants against top Israeli and Hamas officials this week
Accountability for alleged war crimes
The IDF, said Defense Minister Avigdor Liberman recently, is the most moral army in the world1
The Israel newspaper Haaretz reports that Israeli officials believe the International Criminal Court (ICC) is considering issuing international arrest warrants against top Israeli officials, including Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and army chief Herzl Halevi, as well as Hamas leaders.2 Reporters from the New York Times, who have spoken with Israeli and other foreign officials, also report that Israeli officials believe ICC arrest warrants may be issued soon.3
The Haaretz report, which is far more detailed than that in the New York Times, explains that
If warrants are served, each ICC member state – there are 123 – is obligated to arrest and hand over the defendants to The Hague if they enter its territory. While there is no way to appeal an international arrest warrant, any country can theoretically tell the court that it is handling the case itself.
Israel and some of its allies including the United States are reported to be pressuring the ICC prosecutor not to issue the arrest warrants.4
For the broader context, see
James Rowles,”International Humanitarian Law, Proportionality, and the Killing of Children,” Trenchant Observations, December 31, 2023.
Israel has long asserted that it complies with International Humanitarian Law (the Law of War) in Gaza, and its spokesmen have frequently even asserted that Israeli soldiers are the most moral soldiers in the world.
As we observed in the article cited above,
Only a monster could kill children, whether intentionally or as a result of reckless disregard of human life in pursuit of crazed military objectives with foreseeable “collateral damage”—a euphemism to end all euphemisms—that would result in the deaths of many children.
Military leaders hell-bent on destroying the enemy often produce such collateral damage maintaining they are complying with the laws of war. Yet their assertions may not withstand scrutiny.
Such assertions are frequently based on a self-judging and ultimately greatly distorted sense of proportionality. Civilian losses are permissible under international humanitarian law, but only so long as the the attacks meet the requirement of proportionality. Moreover, a mere claim of proportionality does not make an attack legitimate.
Proportionality is a concept which is fairly subjective on the battlefield, even if the military has lawyers telling them that their proposed actions are proportionate to military objectives and therefore in compliance with international humanitarian law.
These “international lawyers”, however are not so independent as they may appear to be. They are typically under the same ultimate authority as the military officers they advise, and offer legal advice based on what may be their country’s highly idiosyncratic interpretations of international humanitarian law.
Ultimately, however, the question of proportionality may be decided when the responsible civilian officials or military officers, or simply soldiers, stand trial for alleged war crimes. Such trials, before national or international tribunals, may occur in 5, 10, or 40 years, or possibly even sooner.
Accountability under international law and international humanitarian law in particular is of the greatest importance.
It is wrong for the United States and Israel and its allies to attack the International Criminal Court for trying to apply the law to the facts, just as it was wrong to attack the International Court of Justice for hearing the genocide case brought by South Africa.
Similarly, it is wrong to attack critics of the policies of the government of Israel as anti-semitic or anti-Jewish.
Many critics are not only not anti-Jewish, but are pro-Israel and pro-Palestine in the sense that they wish their residents to be protected from war crimes and human rights abuses.
Many critics of Israel and Hamas are pro-International Law, pro-International Humanitarian Law, and pro-International Human Rights Law.
Being pro-International Law is not anti- any nation or people. It is pro- protecting individual human beings, whatever their nationality, whatever their ethnicity.
Insisting on compliance with international law and on respect for international institutions charged with applying international law is not pro-Palestinian. It is not pro-Israeli. It is pro-humanity.
It is certainly not anti-semitic.
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
See, e.g.,mJeff Barak, “Reality Check: The most moral army in the world. Really? After 70 years of independence, we should be mature enough to honestly examine ourselves,” Jerusalem Post, April 15, 2024 (21:20).
Chen Maanit and Jonathan Lis, "Israel Scrambles as Netanyahu, Gallant and IDF Chief Face ICC Arrest Warrants for War Crimes in Gaza; Warrants could be issued this week against Netanyahu, Defense Minister Yoav Gallant and army chief Herzl Halevi. Some legal experts say the attorney general and army lawyers are partly to blame for not doing enough to prevent Israeli violations of international law," Haaretz, April 28, 2024 (11:04 pm EDT).
Ronen Bergman and Patrick Kingsley, "Israeli Officials Believe I.C.C. Is Preparing Arrest Warrants Over War," New York Times,New York Times, April 28, 2024 (updated at 8:08 pm ET).
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Patrick Wintour, “ICC urged to delay possible war crimes charges against Israel and Hamas; G7 diplomats argue any move now in investigation launched in 2021 could disrupt current ceasefire talks,” The Guardian, April29, 2024 (19:48 BST).