The issuance of arrest warrants by the International Criminal Court (ICC) against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for their role in crimes committed against Palestinian civilians in Gaza would provoke a flood of furious reactions from Israel and its allies.
The refrain is as colorful as its arguments are fragile and dehumanizing: from French writer Bernard-Henri Lévy, who asserts that the ICC can only prosecute in countries lacking an “adequate judicial system,” to Republican senator Lindsey Graham declaring war on the ICC and every nation. who dares to implement its mandates.
However, the most sinister attacks, exemplified by statements by Democratic Rep. Ritchie Torres and Israeli politician Naftali Bennett, who assert that Israel’s actions were justifiable as self-defense or retaliation against the brutal Hamas attack on the 7 October, constitute a dangerous form of tweeting and in need of debunking.
These arguments fail not only morally, but also legally, when taking into account international humanitarian law and legal precedents set by special tribunals like the International Criminal Tribunal for the Former Yugoslavia (ICTY). . The protections afforded to civilians in armed conflict are absolute and inviolable, and the ICC is right to uphold them.
The argument that Israel is exercising its “right of self-defense” has been made throughout this war and not just in response to court decisions. However, self-defense under international law does not constitute justification for violating fundamental legal principles. Targeting civilians, indiscriminate attacks and disproportionate use of force are explicitly prohibited by the Geneva Conventions and customary international law.
In the ICTY’s prosecution of Milan Martic, leader of Serbian rebels in Croatia, for the bombing of Zagreb, the Appeals Chamber unequivocally declared that attacks on civilians could not be justified as self-defense. He said that “whether an attack was ordered as preventive, defensive or offensive is of no legal significance” if the conduct of the attack violates principles of international law.
In Gaza, evidence indicates that Israeli military operations have resulted in widespread and systematic attacks against civilians. Residential areas, hospitals and schools – spaces protected by international humanitarian law – were subjected to intense bombardment. Even in cases where military targets may exist, attacks that fail to distinguish civilians from combatants or cause disproportionate harm to civilian populations violate Articles 51 and 52 of Additional Protocol I to the Geneva Conventions.
Therefore, Torres’ argument that the ICC “criminalizes” self-defense does not hold water.
Bennett, who himself has declared his intention to commit crimes against Palestinian civilians, claims that Israel is “retaliating” against Hamas attacks. However, international law unequivocally prohibits reprisals against civilian populations. Article 51(6) of Additional Protocol I states: “Attacks against the civilian population or civilians by way of reprisal are prohibited in all circumstances. » This prohibition applies regardless of the behavior of the opposing party.
ICTY precedents have further reinforced this point, including in the case of Martic, holding that reprisals must meet strict conditions, including necessity, proportionality and respect for humanitarian principles. Even when responding to serious violations committed by the adversary, acts of reprisal must respect international law. The indiscriminate and disproportionate nature of attacks in Gaza, including the use of heavy explosives in densely populated areas, makes the retaliation argument legally untenable.
Voices echoing the arguments made by Torres and Bennett claim that Hamas’ alleged use of human shields absolves Israel of any responsibility for civilian casualties. This is a dangerous misrepresentation of international law.
Although Hamas’s use of human shields would itself constitute a violation of international law, it does not diminish Israel’s obligation to avoid harm to civilians. Additional Protocol I specifies that violations committed by one party do not allow the opposing party to disregard its own legal obligations.
The ICTY Appeals Chamber addressed this issue directly, emphasizing that the failure of one party to fulfill its obligations does not absolve the other of its responsibilities. In the case of Gaza, indiscriminate aerial bombardment resulted in the deaths of tens of thousands of civilians, raising serious concerns about whether adequate precautions were taken to minimize damage, as required by Articles 57 and 58 of the Additional Protocol I.
A fundamental principle of international humanitarian law is the principle of proportionality, which prohibits attacks when the expected civilian harm would be excessive in relation to the expected military advantage. The ICC’s charges against Israeli leaders focus precisely on this issue. Reports from Gaza have highlighted the devastating impact of military operations on civilians, with entire neighborhoods razed, residential buildings deliberately demolished and vital infrastructure destroyed.
Furthermore, the principle of distinction, enshrined in Article 48 of Additional Protocol I, requires that parties to a conflict must at all times distinguish between civilian populations and combatants. Weapons and tactics that cannot distinguish between the two, such as large-scale aerial bombardments of urban areas, are considered inherently illegal.
Martic’s case illustrates this point: the ICTY found that the use of indiscriminate weapons, such as cluster munitions, in civilian areas constitutes a direct attack against civilians and a serious violation of international law. The parallels with the weapons and tactics used in Gaza are obvious.
Israel’s actions in Gaza have clearly provided the ICC with sufficient grounds to pursue charges against Netanyahu and Gallant.
In this context, Torres’ assertion that the Court is engaged in an “ideological crusade against the Jewish State” is simply false. The ICC does not distinguish between specific nations; it prosecutes individuals when there is credible evidence of war crimes, crimes against humanity or genocide.
The ICC’s intervention meets an essential objective: to ensure respect for the universal principles of humanity enshrined in international law. Accountability is essential to deter future violations and ensure justice for victims.
Dismissing the ICC’s actions as a “kangaroo court,” as Torres did, ignores the Court’s mandate and the legal precedents it relies on, including those established by the courts of the former Yugoslavia, Rwanda and Sierra Leone.
Although the October 7 Hamas attack constitutes a heinous crime that demands accountability, it does not provide carte blanche to commit war crimes in response. International law is designed to regulate conduct in war, precisely to prevent the escalation of violence and protect those most vulnerable: civilians.
All states, but especially the most powerful ones like the United States, now have a choice: either engage in defending the indefensible crimes committed by Israel and erode the very foundations of a rules-based international order, or maintain legitimate effort. by the ICC to ensure that those responsible for crimes committed against Palestinians in Gaza are held accountable.
The consequences of this choice will be felt by all of us for years and decades to come. Whatever happens next, one thing is abundantly clear: the law cannot be circumvented.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Tel Aviv Tribune.
