The International Criminal Court has lost more than the plot. In requesting arrest warrants on Monday for Israeli Prime Minister Benjamin Netanyahu and his defense chief, alongside a trio of Hamas leaders responsible for Oct. 7, the ICC has lost sight of the crucial distinction between the death squad and the bomber pilot, on which the possibility of just war depends. President Biden is right to call the court’s action “outrageous,” but the grotesque false equivalence demands more than tough words.
On one side are Israel’s democratic leaders, waging a war to reclaim hostages and root out terrorists in Gaza. On the other side is Hamas, which precipitated the war with its mass murder, rape and kidnapping on Oct. 7, and whose officials pledge to do it “again and again.” Lumping them together is a slander for the history books. Imagine some international body prosecuting Tojo and Roosevelt, or Hitler and Churchill, amid World War II.
The defects in the ICC’s allegations against Israel are many. Prosecutor Karim Ahmad Khan alleges “starvation of civilians as a method of warfare.” Hamas lists 31 Gazans whom it claims died of malnutrition and dehydration in seven months of war. That’s out of 2.3 million whom Egypt won’t let out over its border.
Israel has facilitated the entry of 542,570 tons of aid, and 28,255 aid trucks, in an unprecedented effort to supply an enemy’s civilians, even while Hamas steals the aid and tries to frustrate delivery. Israel has begged Egypt for two weeks to let in aid at Rafah, while Egypt refuses. Is this the behavior of an Israeli government bent on starving Gazans?
The ICC claims Israel is “intentionally directing attacks against a civilian population,” another allegation that’s upside-down. “Israel has done more to prevent civilian casualties in war than any military in history,” John Spencer, chair of urban warfare at West Point, has said, “setting a standard that will be both hard and potentially problematic to repeat.” If nations can’t wage just wars, evil prevails, meaning the ICC isn’t giving a win only to Hamas.
While Gaza is a war zone and ICC staff are busy in Ukraine, the prosecutor has had no way to conduct a serious investigation. Mr. Khan had assured U.S. Senators that an inquiry would take months, and it would hear from the Israelis. ICC staff were supposed to land in Israel for preliminary discussions on Monday. Instead, Mr. Khan announced his move on CNN.
The ICC also lacks jurisdiction. Israel, like the U.S., never signed the treaty that created it. To permit prosecutions of Israel, the court twisted its rules to summon a State of Palestine, with borders defined by fiat, which it could call a member state.
The ICC is supposed to intervene as a “court of last resort,” in the absence of national judiciaries able to hold leaders to account. Think of Hamas, whose courts are rubber stamps. Israel has an independent court that is renowned for its activist, antigovernment tilt.
The ICC’s disregard for procedure exposes its bias, and if the warrant request is an effort to undermine Mr. Netanyahu’s government, it won’t work. The opposition leader has already rallied to condemn the ICC’s “complete moral failure.”
Mr. Biden denounced the ICC’s move Monday, but will he back it up? In 2021 he rescinded President Trump’s executive order threatening sanctions against anyone involved in ICC actions against an American, Israeli or other nonconsenting ally. Congress has long authorized a President “to use all means necessary and appropriate” to resist such ICC actions.
The ICC’s budget, coming largely from Japan, Germany, France, the U.K., Italy and South Korea, should be in jeopardy. How can these countries host or train with U.S. troops while funding a body that threatens to prosecute them without jurisdiction?
Mr. Khan was warned of the consequences of subordinating the law in pursuit of Israel. The judges who will consider his arrest warrants are being asked to sign the ICC’s epitaph.
The Wall Street Journal
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