The ICC’s warrant for Netanyahu is about one thing only

False equivalence is rapidly becoming like “wokeness” or “fake news”: a concept that once captured something useful, but whose copious misuse means it should probably be retired.

Each is invoked to dismiss something serious without argument. Don’t like a headline about you? Fake news. Want to delegitimise a case for even modest reform? Wokeness. Want to reject an accusation against you or your allies in some adversarial context? False equivalence.

Illustration by Simon Letch

To wit, US President Joe Biden savaging the International Criminal Court’s decision to issue arrest warrants for two senior Israeli officials – Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant – and Hamas commander Mohammed Deif, for war crimes.

“The ICC issuance of arrest warrants against Israeli leaders is outrageous,” began Biden’s statement. “Let me be clear once again: whatever the ICC might imply, there is no equivalence – none – between Israel and Hamas.”

Who said anything about equivalence? Not the ICC, whose warrant has nothing whatsoever to do with the concept. The meaning of the warrant is dead simple: that the court, having considered the evidence before it, has found reasonable grounds to believe these people committed specified war crimes and should face trial for them.

To object to this on some ground of false equivalence is to miss the whole point of international law, indeed of law itself.

Law does not exist to provide rankings of moral badness. It exists to establish a common standard to which all are held accountable. It has never been a defence to argue that someone else is worse. A police officer cannot simply shoot a criminal in the head without due cause. That is a crime. If he believes there was due cause, he is welcome to appear before a court and prove it. But he cannot defend the charge by saying “it is outrageous to say there is any equivalence between me and a criminal. Police have a right to confront criminals with force.”

The laws of war are no different. They exist because atrocity – and October 7, 2023 was that – does not license reciprocal atrocity. It licenses response, sure. But that war, if it is to be legal, has limits. To breach those limits is a war crime. That’s true, even if a war crime has been committed against you in the first instance.

To say otherwise could only mean that something like October 7 permits a response without limits. That a nation in Israel’s position, invoking its right – anchored in international law, by the way – to self-defence, may do whatever it pleases.

Almost no one believes that. International law doesn’t. I assume Joe Biden doesn’t. In which case, objections of false equivalence should form no part of his response. It’s simply misdirection.

To put this in the concrete terms of the ICC’s decision, October 7 does not permit Israel to starve a civilian population as a weapon of war. It does not allow it to impede aid being delivered, or to disrupt humanitarian organisations delivering food, water and medicine. It does not license allowing this situation to create “conditions of life calculated to bring about the destruction” of civilian life, so children die “due to malnutrition and dehydration”. And this is what the ICC, having taken six months to work its way through the evidence, says there are “reasonable grounds to believe” has happened, apparently with “no clear military need or other justification under humanitarian law”.

Israel is, of course, perfectly entitled to defend itself against this. It is important to note the ICC has not found guilt here, only that the evidence means there is a case to answer. And naturally, Netanyahu has made his objections plain, arguing that Israel has “supplied Gaza with 700,000 tonnes of food to feed the people”, alleging Hamas steals some of the aid provided, pointing to Hamas’s use of human shields. None of that would be news to the Court, which received submissions to that effect. All of it might still form the basis of a legal defence. But a legal defence isn’t something you make to a television camera or at a press conference. It’s something you allow to be tested in a court.

This assuredly will not happen. We know that because perhaps the most telling objection both Israel and the US are raising is that the ICC has no right to hear this case because it has no authority over the conduct of Israel (or for that matter, the US) in Palestine.

The arguments here are technical – and the Court ultimately dismissed them in this case – but even if they were correct, note what they imply: that Israel and the US exist in a place beyond international law in this conflict; that they are not to be held legally accountable for any war crimes they commit. Or more specifically, that only they may hold themselves accountable. And there’s very little sign of that happening in this case as long as Netanyahu remains in power given his sustained attempts to weaken the Israeli judicial system, and Israeli ministers’ relentless attacks on the country’s attorney-general. Even so, if Israel did begin investigating this case seriously itself, the ICC has made it clear it would give way.

When the ICC issued an arrest warrant for Vladimir Putin last year for war crimes in Ukraine, American politicians including Republican senator Lindsey Graham hailed the court as an “international evidence-based body”. Now Graham is posting on X that “the Court is a dangerous joke”, and wants to put sanctions on it. He’s decried the prosecutor who applied for the warrants as “corrupt”, even though the very same prosecutor sought the warrant against Putin. We’re left then with a familiar tale: international law existing as merely another device in the political kitbag of major powers, but not something that binds them or their allies.

It would be one thing if everyone simply acknowledged that fact. But the US, by and large, doesn’t. It routinely claims to uphold the “rules-based order”, chiding rogue states for violating it. But doesn’t that oblige you to accept the decisions of its umpires rather than responding with threats of sanctions? Because if you actually believe a rules-based order is a good thing, at some point, you have to submit to it yourself.

Waleed Aly is a regular columnist.

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