By James A. Goldston and Aryeh Neier
On November 21, when three International Criminal Court judges issued arrest warrants for leaders of Israel and Hamas, the decision drew a frenzy of hostile and often ill-informed reactions from many American lawmakers and defenders of Israel. The incoming senate majority leader, John Thune, had already called the charges against Prime Minister Netanyahu and former Defense Minister Yoav Gallant “outrageous and unlawful” and promised that imposing sanctions against the ICC would be a “top priority in the next Congress.” Now Senator Lindsey Graham threatened to “sanction any country that aids and abets the arrest of any politician in Israel,” including Britain, Canada, France, and Germany.
Meanwhile, writing in The Wall Street Journal, the Harvard Law School professor Alan Dershowitz announced that he is “assembling a team of world class lawyers from around the globe to help defend Israeli leaders.” Dershowitz’s claims command particular attention, not only because he is a prominent legal scholar but also because they crystallize three principal arguments against the warrants that, however appealing they might be to the ICC’s critics, are in fact without merit.
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Earlier this year the International Court of Justice concluded that “the right of the Palestinians in Gaza to be protected from acts of genocide” was plausibly in jeopardy. Amnesty International has just issued a meticulously documented report arguing that Israeli officials have manifested the intent required to justify the accusation of genocide.
But the ICC arrest warrants do not charge genocide. Rather, they accuse both Netanyahu and Gallant of responsibility for the war crimes of starvation as a method of warfare and intentionally directing attacks against the civilian population of Gaza, as well as the crimes against humanity of murder, inhumane acts, and persecution. The crime of forced starvation requires the prosecution to show that the defendants “intentionally us[ed] starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions.”
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