WaPo: When Israeli Leaders Commit War Crimes, They Can Prosecute Themselves

Ari Paul

Predictably, Israel and its allies condemned the International Criminal Court for issuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant (Washington Post, 11/21/24). A press release from the court (11/21/24) accused the Israeli leaders of “crimes against humanity and war crimes committed from at least 8 October 2023 until at least 20 May 2024.” These consisted of “the war crime of starvation as a method of warfare,” “the crimes against humanity of murder, persecution, and other inhumane acts” and “the war crime of intentionally directing an attack against the civilian population.”

In addition to the US, Israel’s primary source of military and diplomatic support, Israel also received backing from Hungary and Argentina, two nations run by far-right leaders who seek to undo democratic liberalism (Al Jazeera, 11/21/24).

'International Kangaroo Court'

New York Post (11/21/24): "This latest effort is simply another part of the international push spearheaded by Jew-hating high officials around the world to delegitimize Israel."

There were also the expected cries of foul play in right-wing US media. The Wall Street Journal editorial board (11/21/24) said Israel was merely acting in self-defense because “Hamas started the war on October 7 by sending death squads into Israel.”

“The charge of deliberate starvation is absurd,” the Journal snarled, noting that "Israel has facilitated the transfer of more than 57,000 aid trucks"—in other words, about one-fourth of what Gaza's 2 million people would have needed to meet their basic needs (NPR, 2/21/24).

Trump lawyer Alan Dershowitz wrote in the Journal (11/24/24) that he was “putting together a legal dream team” to defend Israel’s leaders, as if to present Netanyahu as a sort of global stage version of O.J. Simpson. If you want to gauge the seriousness of Dershowitz’s announcement, consider that the "dream team" will reportedly include Andrew Cuomo, the disgraced ex-governor of New York (New York Post, 11/25/24).

Fellow Murdoch paper the New York Post (11/21/24) called the ICC charges “false.” “International Kangaroo Court is more like it," its editorial board mocked, "and one more reminder why the United States should never recognize the ICC.”

“ICC Unleashes Chaos, Antisemitism” read a headline from an op-ed in the Unification Church–owned Washington Times (11/22/24).

'Authoritarians who kill with impunity'

What is the right venue, according to the Washington Post (11/24/24)? Israel will bring itself to justice if it's committed any war crimes.

While it's not surprising to see right-wing outlets waving away the atrocities in Gaza, it is striking to see the Washington Post—a vehicle for the establishment center whose slogan is "democracy dies in darkness"—not only condemning the warrants, but arguing that the court should stick to prosecuting enemy states of the United States.

In a brutally honest way, the paper's editorial board (11/24/24) declared that Israel must be held apart from other regimes who do terrible things, arguing that rules needn't apply to the West and its allies, since they have the "means [and] mechanisms to investigate themselves."

The board complained that the international justice system singled out Israel for "selective prosecution" while ignoring rogue regimes:

Syrian President Bashar al-Assad has used chemical weapons and waged a bloody campaign of ethnic cleansing in his brutal suppression of an uprising that has killed half a million people, many of them civilians. In Myanmar, military dictator Gen. Min Aung Hlaing and his army have been responsible for bombing civilian villages in its war against the long-persecuted Rohingya minority. And in Sudan, a new potential genocide threatens the Darfur region’s Black Masalit people at the hands of Gen. Mohamed Hamdan Dagalo, who is known as Hemedti, and his Rapid Support Forces.

This is a gross oversimplification to the point of deception. In each of the cases the Post names, neither perpetrator nor victim are from countries that are signatories to the Rome Statute, which established the ICC, which means that it is extremely difficult for the ICC to claim jurisdiction over them. (Palestine, in contrast, is a signatory to the treaty that established the ICC, which is why the court has jurisdiction over that case.)

In the case of Sudan, the court did manage to prosecute pro-Sudanese government militia commander Ali Kushayb (ICC, 4/5/22) and indict former Sudanese President Omar al-Bashir (Guardian, 2/11/20) for atrocities committed in Darfur. This was possible because the ICC may also claim jurisdiction when a case is referred to it by the UN Security Council. (The court’s prosecutor has spoken to the legal complexities of confronting the current crisis—ICC, 8/6/24.)

An innovative legal approach involving cross-border claims from Bangladesh has allowed an ICC investigation of Myanmar's genocide against the Rohingya to proceed, albeit very slowly (CNN, 7/7/23). A similar approach might work with the Syria case (Guardian, 2/16/22), but no member state has referred the case to the court (Atlantic Council, 9/26/24), in contrast to the Israel case.

A more apt comparison would be Russia's war crimes in Ukraine: Russia, like Israel, is not a party to the ICC, while Ukraine, like Palestine, is. And the ICC has indeed, as the Post quietly acknowledges later in the piece, issued an arrest warrant for Russian President Vladimir Putin. The legal complexities here are manifold, but the Post doesn’t bother to grapple with them, suggesting that it's the Post more than the ICC that's guilty of selective prosecution.

The Post went on:

The ICC is putting the elected leaders of a democratic country with its own independent judiciary in the same category as dictators and authoritarians who kill with impunity. Israel went to war in response to the Hamas attack of October 7, 2023, which left 1,200 Israelis dead and another 250 taken hostage, around 100 of whom still remain captive. The ICC’s arrest warrant for one of the authors of that massacre, Hamas leader Mohammed Deif, who was probably killed in an Israeli airstrike months ago, looks more like false equivalence than genuine balance.

In fact, the court had sought a warrant for Hamas leader and October 7 attack planner Yahya Sinwar (CNN, 5/20/24), but the Israeli military killed him before the justice system could catch up with him (AP, 10/18/24). If the court had not prosecuted Hamas officials, then the Post and others would accuse it of singling out Israel. When the court does go after Hamas officials, the Post claims it's political theater. The court can’t win.

'Vibrant, independent media'

Israel's "vibrant, independent media" reports that it is under heavy censorship, with 2,703 articles redacted by the military in 2023, and 613 banned entirely (972, 5/20/24).

The Post then offered some “to be sures.” Yes, "far too many innocent Palestinians have been killed and maimed"; yes, Israel "has fallen short" on allowing in humanitarian aid. But it is the next part where one wonders if the Post board has left the earthly realm for another reality, in which Israel will be held accountable by—wait for it—itself:

Israel needs to be held accountable for its military conduct in Gaza. After the conflict’s end—which is long overdue—there will no doubt be Israeli judicial, parliamentary and military commissions of inquiry. Israel’s vibrant, independent media will do its own investigations. Some Israeli reserve soldiers have already been arrested over accusations of abuse against Palestinian detainees. More investigations will follow. The ICC is supposed to become involved when countries have no means or mechanisms to investigate themselves. That is not the case in Israel.

Has the Post been living under a rock? The biggest story in Israel before last year’s Hamas attack that instigated the attack on Gaza was Netanyahu’s attack on the independence of the judiciary (AP, 9/11/23), and Israel’s right-wing government is continuing this effort (Economist, 9/19/24).

As for the so-called free press, the government has moved to boycott the country’s main liberal newspaper, Haaretz (11/24/24), pulling government advertising and advising ministries to end communication with reporters. Israel has also banned Qatari broadcaster Al Jazeera (5/6/24), and at least 130 journalists have been killed during Israel’s military campaigns against Gaza and Lebanon (FAIR.org, 5/1/24; Committee to Protect Journalists, 11/25/24). Military censorship of the media has also increased, the Israeli magazine 972 (5/20/24) found.

'To ensure impunity'

In the tiny fraction of cases where soldiers were indicted for killing Palestinians, AP (12/22/22) reported, "Israel’s military prosecutors acted with leniency toward convicted soldiers...with those sentenced for killing Palestinians serving only short-term military community service."

Meanwhile, there are isolated examples of the Israeli government prosecuting soldiers, but experts believe that most military crimes have gone and will go unpunished (ProPublica, 5/8/24; Al Jazeera, 7/6/24). "Israeli soldiers accused of harming Palestinians in the West Bank and Gaza Strip over the last five years have been indicted in less than 1% of the hundreds of complaints against them,” AP (12/22/22) reported.

When an Israeli court acquitted a border police officer who killed an autistic Palestinian man (BBC, 7/6/23), the Israeli human rights group B’Tselem (6/25/20) said that even the original investigation into the killing was “merely a fig leaf to silence criticism until the public outrage and media attention die down.” It added that, on the whole, “the investigation system works behind the scenes to whitewash the violence and ensure impunity for those responsible.”

Moreover, these investigations are largely of the "bad apple" variety, singling out extreme behavior of lower-ranking members of the military. Does the Post seriously expect Israel to hold accountable those at the top who are prosecuting the war?

Right-wing lawmakers are working to further block investigations, Human Rights Watch (7/31/24) said, a situation that builds an increased sense of impunity, as 972 (8/1/24) noted.

This doesn’t sound like a healthy parliamentary system with democratic guardrails, but a warrior state spiraling into authoritarianism. The Washington Post, too, seems to be moving away from liberalism and a rules-based system, and more toward defending Israel at all costs.

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