There’s a real outrage involving the International Criminal Court, Israel and Hamas. It isn’t what you think
There’s been plenty of outrage over the ICC seeking warrants for Israeli leaders — but it’s all misguided. Photo by Pierre Crom/Getty Images
Contributing Columnist Emily Tamkin May 21, 2024
Those objecting to the idea that the International Criminal Court has drawn some type of equivalency between Hamas and Israel by seeking arrest warrants for leaders of each would do well to remember: The point of the International Criminal Court is not that everyone who is brought before it is equally bad, or has done the same thing.
In the wake of ICC prosecutor Karim Khan’s Monday announcement that he is seeking arrest warrants against Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh of Hamas, and against Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant, it has been appalling to watch world leaders express more outrage at the way Khan made his announcement than with the content of what he was saying.
President Joe Biden said in a statement that “whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas.” A spokesperson for the German foreign ministry said in a statement that “The simultaneous application for arrest warrants against the Hamas leaders on the one hand and the two Israeli officials on the other has given the false impression of equivalence.”
There were also those who suggested that the two weren’t equivalent because Israel has killed more civilians than Hamas.
But the point of Khan’s announcement was not that Israel and Hamas are the same, and those questioning whether it was right to mention them in the same breath were missing the point of the International Criminal Court, which is to provide accountability for war crimes.
Equivalence between war crimes isn’t the point; the war crimes themselves are. Not everyone who comes before the court is equal or equivalent, but their alleged victims are equally deserving of justice.
The court “aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.” That is the standard. The point is not that those crimes are all considered the same, or that those being persecuted are all considered the same, but rather that it is important that those who have been wronged have some hope that those who have hurt them will face accountability.
In this case, Khan has been clear about the diverse meanings behind his requests. He explicitly told CNN’s Christiane Amanpour that he was seeking arrest warrants for different crimes for the two sets of individuals. Khan said he was requesting warrants for both Israeli and Hamas leaders for mass murder (“extermination”); Hamas leaders also face charges for the taking of hostages and for sexual assault, and Israeli leaders are accused of starving a population and targeting civilians.
This is not the first time — and is unlikely to be the last time — that equivalence is brought up as an issue with the ICC.
In 2021, Congresswoman Ilhan Omar pressed Secretary of State Antony Blinken on his opposition to ICC investigations in Palestine and Afghanistan, saying “we have seen unthinkable atrocities committed by the U.S., Hamas, Israel, Afghanistan, and the Taliban.” After a group of Jewish House legislators pushed back in a statement, writing that “equating the United States and Israel to Hamas and the Taliban is as offensive as it is misguided,” Omar clarified, “the conversation was about accountability for specific incidents regarding those ICC cases, not a moral comparison between Hamas and the Taliban and the U.S. and Israel.”
But there, too, the question should not have been, “Do we consider the United States and Israel to be the same as Hamas and the Taliban?” but rather, “Is the United States serving or hindering international law by opposing the court’s investigations?”
To put it bluntly: Arguing that Khan called Israel and Hamas equivalent — which he didn’t — is a distraction. The thing to focus on is: Have war crimes been carried out? That is what is at issue here. That is what the president of the United States and his secretary of state and the German foreign ministry should be concerned with: whether war crimes were committed.
At present, these leaders appear more upset by what they believe to be inaccurate moral equivalence than with the fact that, according to the ICC prosecutor and his panel of advisers, Israeli leaders withheld food as a weapon of war. If there’s an outrage here, it’s that.
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