The International Criminal Court is seeking arrest warrants for high-ranking members of Hamas and the Israeli government, charging that both have committed war crimes and crimes against humanity. Those offenses, as detailed in a statement by prosecutor Karim Khan, include the taking of hostages, sexual violence and torture, all instigated by three named members of Hamas during the Oct. 7 attack on Israel. The alleged crimes committed by Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant include using the starvation of civilians as a form of warfare and intentionally directing attacks against a civilian population.
These are serious and ghastly accusations but the responses to them mostly have been grounded in vehement outrage that these two entities have been accused of committing atrocities, not singularly and uniquely, but in concert. The horror is that they have been compared to each other.
Hamas responded to the announcement by characterizing its mission as resisting an occupation “by all legitimate means” and that the application for an arrest warrant equated the “victim with the executioner.” But Hamas has long been designated a terrorist organization by the United States, the European Union and a host of other countries. It has a murderous history of suicide bombings and attacks on Israeli civilians. On Oct. 7, Hamas fighters crossed into Israel from Gaza and killed about 1,200 people, mostly civilians, and took 250 hostages. And the Palestinian people have continued to suffer mightily under Hamas control with dissenters jailed and beaten, corruption and enduring violence.
The Israeli government has responded with indignation that the ICC would have the temerity to compare it to Hamas. Israel has called the court “antisemitic.” President Biden declared the quest for arrest warrants “outrageous.”
“Let me be clear: Whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” Biden said in a statement.
Benny Gantz, a member of the Israeli war cabinet, who has threatened to resign over the country’s handling of the conflict in Gaza, said, “Drawing parallels between the leaders of a democratic country determined to defend itself from despicable terror to leaders of a bloodthirsty terror organization is a deep distortion of justice.”
The comparison is stunning: a democracy compared to a terrorist group. Even if arrest warrants ultimately are not issued, the ICC actions, which were unanimously supported by a panel of human rights academics and lawyers, have made it plain that the ways in which countries define themselves are not immutable. The tenets that democracies hold dear are only as sturdy and moral as their leaders and its people. Democracies can lose their way in the pursuit of vengeance. They can become what they have long despised. Without careful consideration, each of us can suddenly find that we are no longer who we’ve always been.
The notion of a humane war is a lie combatants tell themselves. The rules of engagement, the laws of war, don’t negate the reality that people die even if those people are uniformed young men and women who are loyal to a cause or who have been drafted or indoctrinated into it. Even morally defensible wars have civilian casualties, deaths that are neither heroic nor acceptable. They are simply devastating.
Democracies are glorious and admirable — the most high-minded form of government — but there is nothing that makes those who lead them inherently immune to revenge, retribution and acts of barbarity. The United States outlaws torturing its enemies until leaders find a way to justify it, rename it or alter the definition to absolve themselves from an unbearable guilt and an unfathomable crime.
Democracies believe that they are always going high and never low, not because of the limited collateral damage of their actions but simply by virtue of reiterating their defining values and wrapping their tribal actions in the comforting embrace of righteous infallibility.
According to the Gaza Health Ministry, more than 35,000 Palestinians have been killed, the majority of them women and children. Of 36 hospitals in Gaza, only four remain unscathed by munitions, raids or permanent closure. Families are living in unsanitary conditions and breathing polluted air. According to the ICC, famine is present and spreading. But leaders of America’s democracy from the White House to the State Department concern themselves with whether the ICC has jurisdiction in this conflict. (It argues that it does.) France and Germany are among the countries that have stated their support of the ICC’s independence. But for the Biden administration, the technicalities and the platitudes get nudged into the foreground. Perhaps that’s because the substance of the alleged crimes seem almost unimaginable within the scope of democratic mores.
In announcing the request for arrest warrants, Khan said, “International law and the laws of armed conflict apply to everyone. … No one can act with impunity. Nothing on earth can justify willfully depriving human beings, including women and children, babies, the old and the young of the basic necessities required for life. Nothing, nothing on earth can justify hostage-taking or the targeting and killing of civilians.”
It may be that Khan’s request is denied. It may be that the advisory panel’s assessment of Netanyahu’s and Gallant’s actions do not rise to the level of criminal. But the pressing question is not one of jurisdiction or outrage over who else was mentioned in the same breath, but of how a democracy — any democracy — can reach such a dire place on the world stage. How does the defense of its people and protections of its rights lead a democracy to a place where the ICC had “reasonable grounds” to question its moral compass?
Countries are made of individuals and democracies are governed by voters. And they have to be vigilant against all sorts of deadly menaces: from those that breach their borders to those that fester within them. The most lethal enemies are the ones attacking with munitions. The most devastating enemies are the ones who darken their victims’ soul, who make them deaf to despair.
It’s easy to overlook the failings of our friends. To explain them away with technicalities, exceptionalism or pure empathy and understanding. But the most valuable friend is the one who can shed light, who can make the sounds of suffering more audible. Not because civilized democracies don’t have the right to fight back, they do. Not because they are inherently moral, they are not. But because sometimes, the only way to reach higher ground is be reminded, with clarity and care, that that’s once where democracies aspired to be.
