Attacks on ICC Show 'Condemning Hamas' Is Really About Absolving Israel

Ari Paul

“Do you condemn Hamas?” This question is a familiar response from corporate journalists and pro-Israel advocates whenever anyone urges the Israeli military to stop its offensive in Gaza (Declassified UK, 11/4/23; Forward, 11/10/23; Jewish Journal, 11/29/23). If you denounce Israel’s response to the attacks without condemning Hamas, the insinuation goes, you are defending the militant group and the killing of Israeli civilians.

If you don’t start off by condemning Hamas’ attack, the British pundit Piers Morgan (Twitter, 11/23/23) said, “why should anyone listen to you when you condemn Israel for its response?”

The International Criminal Court surely condemned Hamas when an ICC prosecutor,  Karim Khan, sought arrest warrants for Hamas’ three principal leaders along with Israeli Prime Minister Benjamin Netanyahu and his defense minister (Reuters, 5/21/24). That hasn’t helped the ICC in the press. By condemning both Hamas and Israel leaders for illegal acts of violence, the ICC is delegitimizing Israel, editorialists say.

'A slander for the history books'

The New York Post (5/20/24) was outraged by "the ICC’s morally perverse bid to seem 'fair' by also seeking warrants for some leaders of Hamas."

“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 Wall Street Journal editorial board (5/20/24) said. It added that "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."

For the record, the UN has estimated that Gaza needs 500 truckloads of humanitarian aid a day—so nearly four times as many as Israel has allowed in. Israeli soldiers have reportedly helped protesters block aid trucks (Guardian, 5/21/24), while the IDF has relentlessly targeted medical facilities (Al Jazeera, 12/18/23). And Israeli “forces have carried out at least eight strikes on aid workers’ convoys and premises in Gaza since October 2023,” according to Human Rights Watch (5/14/24).

The New York Post editorial board (5/20/24) engages in the same logic, saying Hamas leaders are "cold-blooded savages—who target innocent civilians for murder, rape and kidnapping,” while Israel is pure at heart: “law-abiding, democratic victims, who merely seek to eradicate the terror gang.”

Back on Planet Earth, Israel has targeted hospitals, journalists, schools and aid workers. The United Nations has declared a famine is underway (AP, 5/6/24), and its data show the death toll for Palestinians since October 7 is nearly 30 times larger than for Israelis, a testament to the conflict’s imbalance of might and ferocity. The UN estimates nearly 8,000 Gazan children have been killed (NPR, 5/15/24).

'Digging its own grave'

For the New York Times' Bret Stephens (5/21/24), the "decision to seek the arrest of three Hamas leaders along with Netanyahu" was part of a strategy to destroy Israel, "as it places Israel’s leaders on a moral par with a trio of terrorists."

New York Times columnist Bret Stephens (5/21/24), who is loved by the right-wing fanatics at the New York Post (4/28/17, 8/27/19, 12/29/19, 2/11/21) for his backward views on social issues and his desire to rob his critics of free speech rights, said that by going after both Israeli and Hamas leaders, the court was part of an “overall strategy” to bring about Israel’s downfall through alienation, as the equivalency “places Israel’s leaders on a moral par with a trio of terrorists.” In other words, it treats Israel as being morally equivalent to a group that has killed less than 1% as many children.

The Washington Post's opinion page (5/21/24) featured multiple sides in response to the news, including human rights scholar Noura Erakat, who said, if anything, Khan was too easy on Israel. But the Post’s roundtable also featured former Jerusalem Post editor-in-chief Avi Mayer, a pro-Israel public relations professional who left that paper amid turmoil (Forward, 12/15/23). He said comparing Israel to its “cruel and implacable foe against which it is defending itself will be met with wall-to-wall resistance and steely determination.”

The Post also featured Bush II and Trump administration hawk John Bolton, who ignored the accusations against Hamas altogether, saying the “ICC has finally and irreversibly begun digging its own grave”—not just because of the charge against Israel, but because the court is “untethered to any constitutional structure, unchecked by distinct legislative or executive authorities, and utterly unable to enforce its decisions.”

The Post could have found much more nuanced voices to critique Khan. Mayer is hardly a scholar looking at the situation with cold eyes; he’s a dedicated promoter of Israeli policy who only briefly worked as a newspaper editor (Jewish Telegraphic Agency, 3/21/23). Bolton’s entire persona revolves around opposing the notion of international justice (Politico, 9/23/18; Washington Post, 10/10/18); the ICC could have opened a cat shelter and he would have found a way to argue that this harmed US interests. Meanwhile, one of the legal advisors who had recommended seeking arrest warrants for both Israeli and Hamas leaders was a former Israeli diplomat and Holocaust survivor (Forward, 5/23/24).

Across the pond, the editorial board of the Telegraph (5/21/24), the main print voice of British conservatism, said that the “moral equivalence” of Hamas and Israeli leaders was “absurd.” The London Times (5/21/24) simply said the ICC’s action wouldn’t help the situation in Gaza.

These views reflect the official line of the White House (CNN, 5/20/24), 10 Downing Street (Politico, 5/21/24) and Netanyahu (Reuters, 5/20/24).

An unsurprising outcome

Chief ICC prosecutor Karim Khan, a British lawyer, compared Israeli actions to the British government saying "let’s drop a 2,000-pound bomb on the Falls Road" in response to IRA attacks (Jewish Chronicle, 5/26/24).

You just can’t win, can you? Had the ICC prosecutor sought arrest warrants only for Israeli leaders, we can only imagine that these same outlets would condemn it as a one-sided interpretation of the war. In other words, there is simply no scenario in which criticism or scrutiny of Israel can take place.

For those who have actually studied conflict and human rights, it is just not surprising that an international body would recognize war crimes by both the military of a recognized government and an armed faction dubbed a “terrorist” group. A United Nations panel found that while the separatist Tamil Tigers committed atrocities in the last days of the Sri Lankan civil war, the final government offensive caused the “deaths of as many as 40,000 civilians, most of them victims of indiscriminate shelling by Sri Lankan forces” (Washington Post, 4/21/11).

A 2020 Human Rights Watch report noted that Syrian and Russian government forces in the Syrian Civil War used “indiscriminate attacks and prohibited weapons,” while opposition groups carried out “serious abuses, leading arbitrary arrest campaigns in areas they control and launching indiscriminate ground attacks on populated residential areas.”

The news that the ICC was indicting members of a militant anti-government group along with leaders of the government that group opposes falls into that same unsurprising category.

In fact, Khan told the London Times (5/25/24) that he believed Israel had a right to defend itself and seek the return of the October 7 hostages, but not to enact collective punishment on the Palestinians. And “he did not understand, given his warnings to comply with international law over the past months, why anyone was surprised” at his announcement (Jewish Chronicle, 5/26/24).

Some editorial boards have been calling for an end to the butchery in Gaza (LA Times, 11/16/23; Boston Globe, 2/23/24). But there is still a loud, booming editorial voice that is in line with official thinking in Washington: There is no red line for Israel. Anything goes. No matter what atrocity it commits, editorialists will ignore it and proclaim Israel the victim.