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ICC Prosecutor Wants to Rob Israel of Its Legitimate Right to Self Dense
On Monday, International Criminal Court (ICC) Prosecutor Karim A.A. Khan KC sought arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant.
Members of Congress from both parties have quickly condemned this action from ICC. Democratic Representative Ritchie Torres (NY) said:
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.
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.
Republican Representative Elise Stefanik (NY) 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.”
As will be discussed below, the ICC prosecutor’s factual allegations have no basis. Indeed, Israel’s enemies have sought to use the ICC against it long before the October 7 war began. The recent actions of the ICC prosecutor merely highlight that Court’s illegitimacy and the way that the Jewish State is persecuted in international forums that are 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: (1) it had to pretend that the Palestine Liberation Organization is actually a “state,” and (2) it had to pretend that a treaty can bind actual states that never signed onto 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 actions by the Prosecutor threaten not only Israel. They amounts to a power grab, in which Prosecutor Karim 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 arguably the most professional and independent system of legal advisors 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 to lawfare waged by bad actors and second guessing by a rogue prosecutor, including, potentially, the US.
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 Eugene 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 October 18 — only 11 days after Hamas’ 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 October 15.
While there may have been isolated cases of individuals with underlying medical problems being malnourished, and certainly Hamas obstructs distribution of food aid, there is no wide-scale starvation occurring.
The Gaza Ministry of Health claims that since the start of the war, 32 individuals have died of malnutrition and dehydration, or .0015 percent of the population. Of course no one wants anyone, in Gaza or elsewhere, to die of starvation, but to put this in perspective, this does not come close to comparing with places in which actual famines have occurred, and rather is at about the same level as France.
A senior Israeli defense official told The Jerusalem Post, “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 ten times more than what it’s worth,’” and a former senior Israeli defense official told the 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.” This tactic serves a dual purpose for Hamas: it enriches the terror group while providing the fodder exactly for ICC allegations 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 had that been necessary, blaming Israel for any difficulty in food distribution simply doesn’t hold up to the facts. If in fact the population was starving, why didn’t they bring in food through those cross-border tunnels?
The ICC Prosecutor has also made allegations of “Willfully 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 with the Modern War Institute at West Point, told CNN, “I can say with very strong confidence that Israel has done everything the US 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’ tactics.”
And Brigadier General (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 about 129 hostages, including a one-year old baby, and its 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 October 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 twist 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 in the Media Response Team at CAMERA, the Committee for Accuracy in Middle East Reporting and Analysis. David Litman is a Research Analyst at CAMERA. A version of this article appeared on the CAMERA website.
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Down and Out in Paris and London
The Oxford Circus station in London’s Underground metro. Photo: Pixabay
JNS.org – In my previous column, I wrote about the rape of a 12-year-old Jewish girl in Paris at the hands of three boys just one year older than her, who showered her with antisemitic abuse as they carried out an act of violation reminiscent of the worst excesses of the Oct. 7 Hamas pogrom in southern Israel. This week, my peg is another act of violence—one less horrifying and less traumatic, but which similarly suggests that the writing may be on the wall for the Jews in much of Europe.
Last week, a group of young Jewish boys who attend London’s well-regarded Hasmonean School was assaulted by a gang of antisemitic thugs. The attack occurred at Belsize Park tube station on the London Underground, in a neighborhood with a similar demographic and sensibility to New York’s Upper West Side, insofar as it is home to a large, long-established Jewish population with shops, cafes and synagogues serving that community. According to the mother of one of the Jewish boys, an 11-year-old, the gang “ran ahead of my son and kicked one of his friends to the ground. They were trying to push another kid onto the tracks. They got him as far the yellow line.” When the woman’s son bravely tried to intervene to protect his friends, he was chased down and elbowed in the face, dislodging a tooth. “Get out of the city, Jew!” the gang told him.
Since the attack, her son has had trouble sleeping. “My son is very shaken. He couldn’t sleep last night. He said ‘It’s not fair. Why do they do this to us?’” she disclosed. “We love this country,” she added, “and we participate and we contribute, but now we’re being singled out in exactly the same way as Jews were singled out in 1936 in Berlin. And for the first time in my life. I am terrified of using the tube. What’s going on?”
The woman and her family may not be in London long enough to find out. According to The Jewish Chronicle, they are thinking of “fleeing” Britain—not a verb we’d hoped to encounter again in a Jewish context after the mass murder we experienced during the previous century. But here we are.
When I was a schoolboy in London, I had a history teacher who always told us that no two situations are exactly alike. “Comparisons are odious, boys,” he would repeatedly tell the class. That was an insight I took to heart, and I still believe it to be true. There are structural reasons that explain why the 2020s are different from the 1930s in significant ways. For one thing, European societies are more affluent and better equipped to deal with social conflicts and economic strife than they were a century ago. Laws, too, are more explicit in the protections they offer to minorities, and more punishing of hate crimes and hate speech. Perhaps most importantly, there is a Jewish state barely 80 years old which all Jews can make their home if they so desire.
Therein lies the rub, however. Since 1948, Israel has allowed Jews inside and outside the Jewish state to hold their heads high and to feel as though they are a partner in the system of international relations, rather than a vulnerable, subjugated group at the mercy of the states where we lived as an often hated minority. Israel’s existence is the jewel in the crown of Jewish emancipation, sealing what we believed to be our new status, in which we are treated as equals, and where the antisemitism that plagued our grandparents and great-grandparents has become taboo.
If Israel represents the greatest achievement of the Jewish people in at least 100 years, small wonder that it has become the main target of today’s reconstituted antisemites. And if one thing has been clear since the atrocities by Hamas on Oct. 7, it’s that Israel’s existence is not something that Jews—with the exception of that small minority of anti-Zionists who do the bidding of the antisemites and who echo their ignorance and bigotry—are willing to compromise on. What’s changed is that it is increasingly difficult for Jews to remain in the countries where they live and express their Zionist sympathies at the same time. We are being attacked because of these sympathies on social media, at demonstrations and increasingly in the streets by people with no moral compass, who regard our children as legitimate targets. Hence, it’s hard to avoid the conclusion that while the 2020s may not be the 1930s, they certainly feel like the 1930s.
And so the age-old question returns: Should Jews, especially those in Europe, where they confront the pincer movement of burgeoning Muslim populations and a resurgent far-left in thrall to the Palestinian cause, stay where they are, or should they up sticks and move to Israel? Should we be thinking, given the surge in antisemitism of the past few months, of giving up on America as well? I used to have a clear view of all this. Aliyah is the noblest of Zionist goals and should be encouraged, but I always resisted the notion that every Jew should live in Israel—firstly, because a strong Israel needs vocal, confident Diaspora communities that can advocate for it in the corridors of power; and secondly, because moving to Israel should ideally be a positive act motivated by love, not a negative act propelled by fear.
My view these days isn’t as clear as it was. I still believe that a strong Israel needs a strong Diaspora, and I think it’s far too early to give up on the United States—a country where Jews have flourished as they never did elsewhere in the Diaspora. Yet the situation in Europe increasingly reminds me of the observation of the Russian Zionist Leo Pinsker in “Autoemancipation,” a doom-laden essay he wrote in 1882, during another dark period of Jewish history: “We should not persuade ourselves that humanity and enlightenment will ever be radical remedies for the malady of our people.” The antisemitism we are dealing with now presents itself as “enlightened,” based on boundless sympathy for an Arab nation allegedly dispossessed by Jewish colonists. When our children are victimized by it, this antisemitism ceases to be a merely intellectual challenge, and becomes a matter of life and death. As Jews and as human beings, we are obliged to choose life—which, in the final analysis, when nuance disappears and terror stalks us, means Israel.
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Hamas Says No Major Changes to Ceasefire Proposal After ‘Vague Wording’ Amendments by US
FILE PHOTO: U.S. President Joe Biden speaks during a campaign rally in Raleigh, North Carolina, U.S., June 28, 2024. Photo: REUTERS/Elizabeth Frantz/File Photo
i24 News – A senior official from the terrorist organization Hamas called the changes made by the US to the ceasefire proposal “vague” on Saturday night, speaking to the Arab World Press.
The official said that the US promises to end the war are without a clear Israeli commitment to withdraw from the Gaza Strip and agree to a permanent ceasefire.
US President Joe Biden made “vague wording” changes to the proposal on the table, although it amounted to an insufficient change in stance, he said.
“The slight amendments revolve around the very nature of the Israeli constellation, and offer nothing new to bridge the chasm between what is proposed and what is acceptable to us,” he said.
“We will not deviate from our three national conditions, the most important of which is the end of the war and the complete withdrawal from the Gaza Strip,” he added.
Another Hamas official said that the amendments were minor and applied to only two clauses.
US President Joe Biden made the amendments to bridge gaps amid an impasse between Israel and Hamas over a hostage deal mediated by Qatar and Egypt.
Hamas’s demands for a permanent ceasefire have been met with Israeli leaders vowing that the war would not end until the 120 hostages still held in Gaza are released and the replacement of Hamas in control of the Palestinian enclave.
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Sacred Spies?
A Torah scroll. Photo: Wikimedia Commons.
JNS.org – How far away is theory from practice? “In theory,” a new system should work. But it doesn’t always, does it? How many job applicants ticked all the boxes “theoretically,” but when it came to the bottom line they didn’t get the job done?
And how many famous people were better theorists than practitioners?
The great Greek philosopher Aristotle taught not only philosophy but virtue and ethics. The story is told that he was once discovered in a rather compromised moral position by his students. When they asked him how he, the great Aristotle, could engage in such an immoral practice, he had a clever answer: “Now I am not Aristotle.”
A similar tale is told of one of the great philosophers of the 20th century, Bertrand Russell. He, too, expounded on ethics and morality. And like Aristotle, he was also discovered in a similarly morally embarrassing situation.
When challenged, his rather brilliant answer was: “So what if I teach ethics? People teach mathematics, and they’re not triangles!”
This idea is relevant to this week’s Torah portion, Shelach, which contains the famous story of Moses sending a dozen spies on a reconnaissance mission to the Land of Israel. The mission goes sour. It was meant to be an intelligence-gathering exercise to see the best way of conquering Canaan. But it resulted in 10 of the 12 spies returning with an utterly negative report of a land teeming with giants and frightening warriors who, they claimed, would eat us alive. “We cannot ascend,” was their hopeless conclusion.
The people wept and had second thoughts about the Promised Land, and God said, indeed, you will not enter the land. In fact, for every day of the spies’ disastrous journey, the Israelites would languish a year in the wilderness. Hence, the 40-year delay in entering Israel. The day of their weeping was Tisha B’Av, which became a day of “weeping for generations” when both our Holy Temples were destroyed on that same day and many other calamities befell our people throughout history.
And the question resounds: How was it possible that these spies, all righteous noblemen, handpicked personally by Moses for the job, should so lose the plot? How did they go so wrong, so off-course from the Divine vision?
Naturally, there are many commentaries with a variety of explanations. To me personally, the most satisfying one I’ve found comes from a more mystical source.
Rabbi Schneur Zalman of Liadi, in his work Likkutei Torah, explains it thus: The error of the spies was less blatant than it seems. Their rationale was, in fact, a “holy” one. They actually meant well. The Israelites had been beneficiaries of the mighty miracles of God during their sojourn in the wilderness thus far. God had been providing for them supernaturally with manna from heaven every day, water that flowed from the “Well of Miriam,” Clouds of Glory that smoothed the roads and even dry cleaned their clothes. In the wilderness, the people were enjoying a taste of heaven itself. All their material needs were taken care of miraculously. With no material distractions, they were able to live a life of spiritual bliss, of refined existence and could devote themselves fully to Torah, prayer and spiritual experiences.
But the spies knew that as soon as the Israelites entered the Promised Land, the manna would cease to fall and they would have to till the land, plow, plant, knead, bake and make a living by the sweat of their brow. No more bread from heaven, but bread from the earth. Furthermore, they would have to battle the Canaanite nations for the land. What chance would they then have to devote themselves to idyllic, spiritual pursuits?
So, the spies preferred to remain in the wilderness rather than enter the land. Why be compelled to resort to natural and material means of surviving and living a wholly physical way of life when they could enjoy spiritual ecstasy and paradise undisturbed? Why get involved in the “rat race”?
But, of course, as “holy” and spiritual as their motivation may have been, the spies were dead wrong.
The journey in the wilderness was meant to be but a stepping stone to the ultimate purpose of the Exodus from Egypt: entering the Promised Land and making it a Holy Land. God has plenty of angels in heaven who exist in a pure, spiritual state. The whole purpose of creation was to have mortal human beings, with all their faults and frailties, to make the physical world a more spiritual place. To bring heaven down to earth.
While their argument was rooted in piety, for the spies to opt out of the very purpose of creation was to miss the whole point. What are we here for? To sit in the lotus position and meditate, or to get out there and change the world? Yes, the spies were “holy,” but theirs was an escapist holiness.
The Torah is not only a book of wisdom; it is also a book of action. Torah means instruction. It teaches us how to live our lives, meaningfully and productively in the pursuit of God’s intended desire to make our world a better, more Godly place. This we do not only by study and prayer, the “theoretical” part of Torah but by acts of goodness and kindness, by mitzvot performed physically in the reality of the material world. Theory alone leaves us looking like Aristotle with his pants down.
Yes, it is a cliché but a well-worn truth: Torah is a “way of life.”
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