My Word: Lawfare goes global - opinion

As attacks on Israel go, it was more elegant than the pogrom in Amsterdam earlier in the month. In the Dutch capital, violent gangs chased visiting Israeli football fans through the narrow streets. In The Hague, some 65 km. away, last week’s attack on Israel had an international, legal facade. But it was an attack, nonetheless – the roaring cannons of lawfare aimed at the Jewish state.

On November 8, Israel arranged an emergency evacuation from Amsterdam for some 3,000 fans of Maccabi Tel Aviv. Just two weeks later, on November 21, at the International Criminal Court in The Hague, Chief Justice Karim Khan announced the issuing of warrants against Israeli Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, thus making them subject to arrest should they try to set foot in any of the more than 100 countries that abide by the ICC ruling. Holland was the first country to announce it would comply with the arrest warrants.

The decision did not come out of the blue, although the timing was a surprise. Khan had warned of his intention in May, but since he is under investigation for charges of sexual assault, it’s likely he wanted to issue the arrest warrants against the Israeli leaders while he still had the chance. Khan, of course, should be presumed innocent until proven guilty – that’s how it’s meant to work in the justice system, unless the accused is the State of Israel.

I’m wondering how justice works in The Hague. When a Romanian judge resigned from the ICC panel citing medical reasons, she was replaced by Beti Hohler, who had until then been an ICC prosecutor. The prosecutor-turned-judge represents Slovenia, which has taken a strong pro-Palestinian, anti-Israel line.

The ICC decision should not be confused with the trial taking place concurrently at the International Court of Justice, also in The Hague. The ICJ president, Nawaf Salam, is a Lebanese former diplomat who did not see fit to recuse himself from ruling on a case against Israel. 

Regardless of any ceasefire agreement being drawn up as I write these lines, there is not going to be peace with Lebanon while it is under the control of the terrorist organization Hezbollah and its Iranian operator. And there’s not going to be an end to the lawfare aimed against Israel or the inbuilt bias against Israel found in UN bodies, including the ICJ, without a complete overhaul.

Don’t hold your breath. A Wall Street Journal editorial this week noted that the UN was refusing to renew the contract of Special Advisor on the Prevention of Genocide Alice Wairimu Nderitu, who would not define Israel’s actions in Gaza as “genocide.”

Khan initially called for arrest warrants against Netanyahu and Gallant, along with warrants for Hamas leaders Yahya Sinwar, Ismail Haniyeh, and Mohammed Deif – the arch-terrorists behind the October 7 invasion and mega-atrocity. Khan kept the charges against Deif, as Hamas has not admitted he has been killed, and dropped the charges against the other two Hamas leaders who were eliminated by Israel during the war. The phrase “The law’s an ass” comes to mind.

The spirit of Sinwar lives on in Gaza’s terror tunnels and The Hague’s corridors. In the Palestinian narrative, they are the victims, not the perpetrators, of October 7. The more than 1,200 Israeli victims – those of all ages burned to death, beheaded, mutilated, raped, or abducted – count for nothing.

The focus is on the Gazans killed in the war of defense by Israel. And for all those praising the ceasefire efforts, it’s sobering to remember that there was a ceasefire in force on October 7, 2023. Hamas and Palestinian Islamic Jihad broke it during their invasion of the South, while Hezbollah joined in the next day with hundreds of rockets targeting the North.

Even as Khan’s announcement was broadcast on Israeli TV, it was against the background of rocket and drone warnings. Outgoing European Union foreign policy chief Josep Borrell welcomed the ICC decision. Speaking on Sunday during a visit to Lebanon, thus showing where he truly stands, he called for all EU members to implement it. He spoke on a day when more than 250 rockets and drones were indiscriminately launched at Israel from Lebanese territory, each one an uninvestigated war crime.

KHAN CAN chalk up one success: Israel’s opposition and coalition parliamentarians united in their condemnation of the ICC ruling, with opposition leader Yair Lapid describing the warrants as “a reward for terrorism.”

In the US, President Joe Biden and likely members of incoming president Donald Trump’s administration condemned the ICC ruling. The US, like Israel, is not a party to the Rome Statute – the ICC’s founding backbone. Leaders of democratic states everywhere should be wary of the court’s reaching beyond its jurisdiction and taking actions that could impede the fight against global terrorism.

The charges are absurd. Khan ruled that the court had found “reasonable grounds” that Netanyahu and Gallant had committed the war crime “of using starvation as a method of warfare and crimes against humanity.” Similarly, it found reasonable grounds to believe they intentionally directed attacks against civilians.

The starvation charge is a particularly obnoxious blood libel. Israel has provided huge amounts of humanitarian aid to Gaza throughout the war. As the HonestReporting media watchdog noted: “Since October 7, Israel has delivered over 2.2 billion pounds of humanitarian aid to Gaza, including 872K tons of food... in March and April of 2024, the International Famine Classification System (IPC) confirmed that Israel was supplying Gaza with 109% to 157% of its daily caloric needs. There is no famine. There is no intentional starvation.”

When the bodies of six newly executed Israeli hostages were found in a terror tunnel in Gaza in September, 24-year-old Eden Yerushalmi weighed just 36 kg. (79 pounds). That’s starvation. When Sinwar’s body was retrieved, it showed no sign that he hadn’t been eating. If the “ordinary Gazans” are suffering, it has more to do with Hamas stealing the aid and selling it at inflated prices to fund its terrorist war.

Under the “principle of complementarity,” the ICC is only meant to prosecute cases where the countries have not carried out their own investigations against individuals suspected of war crimes. No one can accuse Israeli prosecutors of being unwilling to put the prime minister on trial – the country has been racked for years over Netanyahu’s legal woes.

But they are not going to put the prime minister in the dock for deliberately setting out to starve Gaza – something that clearly didn’t happen. And international military experts have acknowledged the lengths to which Israel has gone to avoid civilian casualties – unlike Hamas, which deliberately uses its citizens as human shields.

[British political writer] Brendan O’Neill, as usual, hit the nail on the head in his commentary on the online magazine Spiked. Calling the decision “a moral inversion,” he wrote: “Fundamentally, the ICC’s actions speak to the profound moral disarray of the West. Let it be recorded that when something very like fascism returned to our world, the institutions of the ‘rules-based order’ went after the nation that was its victim. 

“When the Jews were once again targeted for racist murder, they went after the Jews. When the very values of the civilized world were upended by the rapists and racists of Hamas, they essentially rewarded Hamas by agreeing with it that the state it hates is indeed the worst state.”

'A travesty'

Writing in The Telegraph, Lord Ian Austin, a former Labour MP, called the arrest warrants “a travesty,” “a scandalous betrayal of the ideals that led to the creation of the court in 2002,” and found the ICC guilty of “a horrifically misconceived moral equivalence that would seek to put the butchers of Hamas in the same bracket as Israel’s elected leaders.

“The terror group’s paymasters Iran must be gleeful as a once-respected international institution does their bidding,” he wrote. “Israel is at the front line of a war against Tehran and its proxy forces, but this is a conflict that threatens the UK and the entire West.”

These are the first-ever warrants of arrest for a leader of a Western, democratic state, but they are unlikely to be the last. Terrorists for whom kidnapping and murder are a way of life have hijacked international bodies.

When the ICC turns into a kangaroo court, the democratic world should look at whom it is carrying and protecting in its pocket – Hamas jihadists. It not only makes a farce out of justice, it’s criminal.