The ICC prosecutor’s decision to seek arrest warrants against Israeli leaders puts it beyond doubt: It’s time to cut off the weapons.
Israeli Prime Minister Benjamin Netanyahu (C) arrives for a party meeting at the Israeli parliament, the Knesset, in Jerusalem on May 20, 2024.(Oren Ben Hakoon / AFP via Getty Images)
When US Senator Bernie Sanders argued two months ago that it was time for the United States to halt new military aid to Israel, the Biden administration and most members of Congress refused to take him seriously. They didn’t listen when the Vermont independent urged them to “block unfettered offensive military aid to the extremist Israeli government—a government led by Prime Minister Netanyahu, who is continuing his unprecedented assault against the Palestinian people.” They dismissed Sanders’s warning that “Netanyahu and his extremist government are clearly in violation of US and international law and, because of that, should no longer receive US military aid.”
They cannot ignore the compelling case for a suspension of aid—based on both international standards and US law—any longer.
With the decision of the International Criminal Court’s prosecution team to seek arrest warrants for Netanyahu and Israeli Defense Minister Yoav Gallant—along with Yahya Sinwar, the Hamas leader in Gaza; Mohammed Diab Ibrahim al-Masri, who is better known as Mohammed Deif, the leader of the Al Qassem Brigades; and Ismail Haniyeh, Hamas’s political leader—it is time, once and for all, to stop making excuses. The five named individuals face charges that they have engaged in war crimes and crimes against humanity: the Hamas leaders for the role in plotting and implementing the October 7 attack that left at least 1,200 dead, and the Israeli leaders for launching an assault on Gaza that has left more than 35,500 Palestinians dead, a substantial portion of them women and children, and wounded almost 80,000.
The prosecutor’s decision to apply for the warrants should tip the balance, even for those who have been cautious about pressuring Israel, against the allocation and distribution of any additional US military aid.
It is true that the legal process is just beginning. ICC judges must decide which warrants, if any, will be issued. But the seriousness of the charges against the Israelis ought to cause the president and Congress to press the pause button—for practical, political, and moral reasons.
According to Karim Khan, the ICC’s chief prosecutor, the charges against Netanyahu and Gallant include “causing extermination, causing starvation as a method of war, including the denial of humanitarian relief supplies, deliberately targeting civilians in conflict.” The charges against the Hamas leaders are equally grave. But as Khan explains, the Israeli response to the October 7 attack has had a disproportionately deadly impact on civilians in Gaza. “The fact that Hamas fighters need water doesn’t justify denying water from all the civilian population of Gaza,” said the prosecutor.
Kahn—who, far from being some pro-Palestinian partisan, has been accused of treating Israel too leniently in the past—asked a group of international lawyers with expertise regarding human rights violations to advise him regarding prosecutions. Four of them—Amal Clooney, an adjunct professor at Columbia Law School and cofounder of the Clooney Foundation for Justice; Danny Friedman, an expert in criminal law, international law, and human rights; Baroness Helena Kennedy, a member of the British House of Lords and director of the International Bar Association Human Rights Institute; and Elizabeth Wilmshurst, the former deputy legal adviser at the United Kingdom Foreign and Commonwealth Office and distinguished fellow of international law at Chatham House—wrote in the Financial Times:
The Panel unanimously agrees with the prosecutor’s conclusion that there are reasonable grounds to believe that three of Hamas’s most senior leaders—Yahya Sinwar, Mohammed Deif and Ismail Haniyeh—have committed war crimes and crimes against humanity for the killing of hundreds of civilians, the taking of at least 245 hostages and acts of sexual violence committed against Israeli hostages. The Panel also unanimously agrees that the evidence presented by the prosecutor provides reasonable grounds to believe that Netanyahu and Israel’s minister of defense Yoav Gallant have committed war crimes and crimes against humanity. This includes the war crime of intentionally using starvation of civilians as a method of warfare and the murder and persecution of Palestinians as crimes against humanity. Our reasons for reaching these conclusions are set out in our legal report.
As the experts explained,
There is no doubt that the step taken today by the prosecutor is a milestone in the history of international criminal law. There is no conflict that should be excluded from the reach of the law; no child’s life valued less than another’s. The law we apply is humanity’s law, not the law of any given side. It must protect all the victims of this conflict; and all civilians in conflicts to come.
The next steps for the White House are obvious. The Biden administration should adopt the standard that “no conflict…should be excluded from the reach of the law” and apply it to allies, as well as foes. That won’t win the president any praise from Republicans in Congress, or from many Democrats. Just last week, the US House voted 224-187 to rebuke Biden for pausing some shipments of heavy bombs to Israel. A complete pause in military aid shipments and support would surely stir an outcry from the president’s most ardent critics, as well as some of his usual allies.
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But Biden needs to stand on the right side of history. And on the right side of the law.
As Sanders said in April:
US law on this subject is extremely clear. There is no ambiguity. The Foreign Assistance Act says that no US security assistance may be provided to any country that “prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.” That is the law.
Israel is clearly in violation of this law. For six months, it has severely limited the amount of humanitarian aid entering Gaza. The result has been a catastrophic humanitarian disaster with hundreds of thousands of children facing malnutrition and starvation.
Israel’s violation of this law is not in debate. It is a reality repeatedly confirmed, every day, by numerous humanitarian organizations. Israeli leaders themselves admit it.
Now, with the decision taken by the ICC prosecution team, the case for halting military aid is simply too strong to ignore.
John NicholsTwitterJohn Nichols is the executive editor of The Nation. He previously served as the magazine’s national affairs correspondent and Washington correspondent. Nichols has written, cowritten, or edited over a dozen books on topics ranging from histories of American socialism and the Democratic Party to analyses of US and global media systems. His latest, cowritten with Senator Bernie Sanders, is the New York Times bestseller It's OK to Be Angry About Capitalism.