International Courts Take Aim at Israel
From the The Morning Dispatch on The Dispatch
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Quick Hits: Today’s Top Stories
The Israel Defense Forces (IDF) declared on Wednesday that it had “tactical control” of the portion of the Philadelphi Corridor—a strip of land between the Egyptian and Gazan border—south of Rafah, the southernmost city in Gaza. Rear Admiral Daniel Hagari, an IDF spokesman, called the area “Hamas’ oxygen tube,” with an unnamed Israel official telling reporters Wednesday the terrorist group had used tunnels there to smuggle weapons from Egypt into the strip. Egyptian state media quoted a government source Wednesday denying that there were tunnels under the border.
Hong Kong’s High Court convicted 14 pro-democracy activists Thursday of taking part in a “conspiracy to subvert state power” in the largest national security case to date to take place on the China-controlled island. The three-judge panel directly appointed by the government—which has close ties with Beijing—also found two activists not guilty of the charges. The defendants had taken part in an unauthorized primary election in violation of the national security law the Chinese government imposed in 2019.
South Africa held parliamentary elections on Wednesday in what polling suggested may be the most competitive election in the country since the Apartheid era. The African National Congress, which has held power for the last 30 years, could lose its parliamentary majority, forcing it into coalition government for the first time as voters express concerns over high crime, unemployment, and frequent electricity blackouts. Officials will announce the results of the election this weekend.
Presidential candidate Robert F. Kennedy Jr. on Wednesday filed a complaint with the Federal Election Commission against CNN and the campaigns of former President Donald Trump and President Joe Biden alleging CNN “colluded” with the Trump and Biden teams to keep him off the debate stage and that he is being held to a different standard than the other two candidates in violation of federal election law. To participate in the June 27 debate, CNN requires candidates to garner at least 15 percent nationally in four separate polls and have their names on enough state ballots to reach 270 electoral college votes by June 20. “As the presumptive nominees of their parties both Biden and Trump will satisfy this [ballot] requirement,” a spokesperson for CNN said Wednesday. “As an independent candidate, under applicable laws RFK Jr. does not. The mere application for ballot access does not guarantee that he will appear on the ballot in any state.”
In a letter to lawmakers on Wednesday, Supreme Court Justice Samuel Alito said he would not recuse himself from cases related to January 6 after several Democratic lawmakers called on him to do so in response to allegations that flags that had been coopted by those attempting to overturn the results of the 2020 election were flown at his homes. Alito said the incidents did not rise to the level of requiring recusal, and that his wife had flown the flags—including an upside-down American flag which she refused to pull down when he asked.
The House Ethics Committee voted unanimously on Wednesday to open an ethics investigation into Democratic Rep. Henry Cuellar of Texas, who is under indictment for allegedly taking bribes from a company controlled by the Azerbaijani government and a Mexican bank. Such votes are required within 30 days of a House member being indicted.
Sorting Through International Court Chaos
The Israel Defense Forces (IDF) executed an airstrike early Monday targeting two senior Hamas commanders near a tent camp in Rafah. A strike ignited a fire in nearby tents that spread and killed 45 people, according to the Hamas-run Gazan Health Ministry, which also claimed half of those victims were women and children. Witnesses described terrible scenes of people burning to death as the fire raged. “The fire that broke out was unexpected and unintended,” IDF spokesperson Daniel Hagari said on Tuesday. “This is a devastating incident which we did not expect.” The small munitions used in the strike couldn’t have caused such a large fire, Hagari added, and the IDF is investigating the incident.
The strike—which came a month and a half after the strike that killed seven World Central Kitchen aid workers—follows heightened criticism from international judicial bodies over Israel’s conduct in the war against Hamas. The International Criminal Court (ICC) and the International Court of Justice (ICJ) have both taken actions in the last two weeks targeting Israel’s leadership and the war effort while the IDF has continued its operations in Rafah with the backing of the Biden administration.
The ICJ—a U.N. body established to settle legal disputes between member states—issued an order on Friday insisting Israel curtail its offensive in Rafah. South Africa brought a case to the ICJ in December alleging Israel is committing genocide against Palestinians in Gaza. The ICJ has granted several provisional measures in the case, the latest being Friday’s order that instructed Israel to “immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”
But—in an object lesson on the value of precise prose—the question is whether the “which” modifier clause in the order applies to just “any other action” or the entire “military offensive.” Israeli officials read the qualifier as also applying to the offensive, meaning, under their interpretation, they can continue military operations so long as those operations do not “bring about [the] physical destruction” of the Palestinian people in Gaza. “What they are asking us, is not to commit genocide in Rafah,” Tzachi Hanegbi, national security adviser to Israeli Prime Minister Benjamin Netanyahu, said on Saturday. “We did not commit genocide, and we will not commit genocide.”
The court approved the measure on a 13-2 decision, but several of the judges in the majority agreed with Israel’s narrower interpretation. “The measure obliging Israel to halt the current military offensive in Rafah is conditioned by the need to prevent ‘conditions of life that could bring about [the] physical destruction in whole or in part’ of the Palestinian group in Gaza,” wrote Judge Georg Nolte. “Thus, this measure does not concern other actions of Israel which do not give rise to such a risk.”
ICJ judgments can only be enforced by the U.N. Security Council, where any of the permanent five members can veto measures. “As long as the United States believes that ongoing operations are consistent with the obligation imposed by the preliminary measure, we are almost certainly going to vote against any resolution that seeks to compel Israel to terminate military action,” said Geoffrey Corn, director of the Center for Military Law and Policy at the Texas Tech University School of Law and a fellow at the Jewish Institute for National Security of America.
The Biden administration appears satisfied with the Israeli interpretation for now and is also at least tacitly supportive of the Rafah operation after previously opposing it. “We want them to fully comply with their international humanitarian law obligations,” State Department spokesperson Matthew Miller told reporters on Tuesday when asked about the order. “Israel has said that they are complying with the court’s order.”
But Israel’s international headaches don’t stop with the ICJ. The ICC—an intergovernmental body independent of the U.N. that prosecutes individuals rather than nation-states—took initial steps earlier this month to prosecute Israeli leadership for the country’s supposed lawlessness in its war against Hamas. On May 20, ICC prosecutor Karim Khan announced that he had applied for arrest warrants for Netanyahu and Defense Minister Yoav Gallant—and, simultaneously, three senior Hamas officials in Gaza and Qatar—on charges of war crimes. The charges against Hamas include war crimes such as taking hostages, crimes against humanity including sexual violence, and torture.
The charges against Netanyahu and Gallant appear to center around using “starvation of civilians” as a method of warfare. “We have a variety of evidence to support, not polemics, but evidence that’s been forensically analyzed to sustain the charge,” Khan told CNN in an interview last week.
The court, however, has yet to approve Khan’s application. “Essentially, this is a decision of one person,” Jeremy Rabkin, a law professor at George Mason University who specializes in international law and armed conflict, told TMD. “Three judges have to hear his reasons and then affirm, ‘Yes, we should issue an arrest warrant.’”
Israel has had a frosty relationship with the ICC for years. The Guardian published an investigation on Tuesday claiming that Israeli intelligence has spied on and tried to influence the ICC for years. Israeli officials categorically denied the report; the ICC said it knew of “proactive intelligence-gathering activities being undertaken by a number of national agencies hostile towards the court.” Even so, Israel was cooperating with Khan’s investigation—until his announcement. “I reject with disgust the comparison of the prosecutor in the Hague between democratic Israel and the mass murderers of Hamas,” Netanyahu said last week.
President Joe Biden concurred, describing Khan’s actions as “outrageous” and adding that, “whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas.”
Corn, the director of the Center for Military Law and Policy at the Texas Tech, argued the ICC could have taken steps to avoid such responses. “Even if you have a brewing case against Netanyahu and Gallant, announce that later,” he told TMD. “Most prosecutors instinctively will prioritize the most culpable defendants first. Is there really an argument that Israeli leaders are equally culpable to Hamas leaders?”
The move against Netanyahu and Gallant represents an unprecedented action by the ICC that some argue validates the concerns of the court’s critics—namely that the ICC, structurally a court of last resort, would overstep its authority and be used to supersede legitimate national legal systems. As Danielle Pletka, a senior fellow in foreign and defense policy at the American Enterprise Institute, explained in a piece on the site this week, the court’s notion of complementarity—the idea that “the ICC is bound to defer to the judicial processes of nations with robust and democratic systems of law, and rely on those nations to prosecute their own misdeeds”—is now more myth than reality when it comes to the court’s actual operations.
Secretary of State Antony Blinken took the view that the ICC was out over its skis, both as a matter of law and of geographical jurisdiction, since Israel—which, like the United States, has not signed the ICC’s founding document—is not in the court’s purview. “The United States has been clear since well before the current conflict that ICC has no jurisdiction over this matter,” he said in a statement. The ICC claims jurisdiction because the alleged crimes took place in Gaza, and the court admitted the State of Palestine as a member in 2015—though both Israel and the U.S. argue that the Palestinian people do not constitute a sovereign state and therefore do not qualify for ICC membership.
Plus, Blinken argued, “the principles of complementarity … do not appear to have been applied here amid the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.”
The “circumstances call into question the legitimacy and credibility of this investigation,” he concluded.
But aside from jurisdictional issues, Khan’s claims could be on shaky legal ground on the merits. Khan argues that “Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival,” citing the closure of border crossings that prevented food and medicine from entering Gaza, the interruption of electricity, and the cutting-off of water pipelines flowing from Israel to Gaza. While Khan did not publicly release the evidence supporting his accusations, he cited “statements from the alleged perpetrator group,” likely referring to controversial statements from Israeli officials at the beginning of the war.
“We are imposing a complete siege on the city of Gaza,” Gallant said on October 9, just two days after Hamas’ October 7 attack. “There will be no electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals, and we are acting accordingly.” Israel resumed the flow of water into Gaza on October 15 and a limited flow of aid on October 21. Although some ministers continue to call for blocking aid, Israel’s current stated policy is to “flood” Gaza with aid.
World Food Program Director Cindy McCain said earlier this month that there’s “full-blown famine” in northern Gaza, but as Corn notes, the applicable legal question is Israel’s intent. “What you have to prove is that the method of warfare was calculated and intended to inflict starvation on the civilian population—not as a collateral consequence, but as the objective of the plan, so to speak,” he told TMD. “If depriving Hamas of resources is an alternate rational hypothesis, and the deprivation of resources to the civilian population is a collateral consequence, even if it’s anticipated, that’s not intent to starve the civilian population.”
Yuval Shany, a law professor at the Hebrew University of Jerusalem and former member of the U.N. Human Rights Council, and Amichai Cohen, a law professor at Ono Academic College, believe Israel’s humanitarian aid policies, particularly the closing of the Kerem Shalom crossing which prevented more aid from reaching Gaza, were wrong and potentially illegal. (Hamas strikes on the crossing killed several IDF soldiers earlier this month.) But that doesn’t mean Israel’s actions constituted war crimes.
“Not all failures to meet legal, moral and sound policy expectations translate into war crimes and international criminal law,” they recently wrote. “In practice, even if there were initially plans to institute throughout the Gaza Strip a policy of ‘complete siege,’ such plans were quickly abandoned. … The pattern of changes in policy in response to new information about growing needs in the Gaza Strip (as well as a result of international pressures and representations by international actors about conditions on the ground) does not sit particularly well with a special intent to starve civilians.”
If the court approves Khan’s request for warrants, the case likely won’t go further. Individuals can’t be tried in absentia by the court, and the ICC lacks any power to execute arrests. ICC members are technically supposed to arrest individuals with outstanding warrants if they travel to their countries, but the court has struggled to enforce compliance from member states. Still, the warrants would represent a symbolic rebuke of Israel, placing Netanyahu and Gallant in the same company as other accused war criminals like Russian President Vladimir Putin.
The U.S. will likely continue to support Israel in the face of scrutiny from both the ICC and the ICJ, but the actions of the courts have also prompted a backlash against the institutions themselves. “It’s the first time they’ve gone after a Western democracy,” Rabkin said. “If that’s what the ICC is, it’s something different than was expected. This will heighten questions about whether this is an institution we want to have in the world. And you can say something similar about the ICJ.”
Worth Your Time
In a piece for Foreign Affairs, Keith L. Carter, Jennifer Spindel, and Matthew McClary suggested a new strategy for Ukrainian warfighting. “Ukraine must now find a way to do more with less,” they wrote. “It must avoid attritional battles, conserving manpower and material to be able to respond to changing conditions. Defeating Russia will require organizing Ukrainian forces to fight a longer war of exhaustion using asymmetric guerrilla tactics. This may not be the war Ukraine wants to fight: a war of exhaustion, by design, sacrifices territory to preserve forces and to extend the time horizon of the conflict. It lacks the assuredness and speed of a direct confrontation that would destroy Russian positions. When it looked like a decisive counterattack was possible in the spring and summer of 2023, it would have been foolish for Kyiv to adopt an asymmetric strategy and prolong the war. Now, facing manpower shortages and material uncertainty, it is foolish not to. A war of exhaustion allows Ukraine to play to its advantages.”
Please enjoy this delightful photo essay compiled by Alan Taylor at The Atlantic that captures a large group of people tumbling down a muddy hill to retrieve a wheel of cheese—an event otherwise known as the Cooper’s Hill Cheese-Rolling and Wake, a 200-year tradition in Gloucester, England. We’re particularly proud of one winner, Abby Lampe, an American who secured her second title in the bizarre and likely very painful race.
Presented Without Comment
Iranian Supreme Leader Ayatollah Ali Khamenei on X:
Dear university students in the United States of America, you are standing on the right side of history. You have now formed a branch of the Resistance Front and have begun an honorable struggle in the face of your government’s ruthless pressure – which openly supports Zionists. ??”
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The Hill: Trump as Hush Money Jury Deliberates: ‘Mother Teresa Could Not Beat These Charges’
Also Also Presented Without Comment
Wall Street Journal: Scottie Scheffler Charges Dismissed After Arrest at PGA Championship
In the Zeitgeist
The Bear is back, and just in time for the first presidential debate. A spoonful of sugar, as they say.
Toeing the Company Line
In the newsletters: The Dispatch Politics crew reported on Trump’s reception at the Libertarian Party convention, Scott explained (??) why politicians seem to always fall for price controls, Jonah argued (??) that mainstream liberals aren’t good at seeing the rot in their own institutions, and Nick unpacked all the ways Biden weaponizing the indictments against Trump is bad for norms and dumb politics, to boot.
On the podcasts: Jonah is joined by The Atlantic’s Caitlin Flanagan for a grab-bag episode of The Remnant—from culture wars to culture.
On the site: Matthew Franck argues that voting for “none of the above” is an acceptable option this November and Philip Bunn laments that Boy Scouts of America—soon just Scouting America—has lost its way.
Let Us Know
Are the ICC and ICJ institutions that the United States and other Western democracies should take seriously?
