Netanyahu and the ICC

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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. We'll talk now about some of the major developments in the last few days between Israel and its enemies. Multiple reports say negotiators are close to a ceasefire agreement between Israel and Hezbollah in Lebanon. No agreement yet, though. You've probably heard that the International Criminal Court has issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. Getting lost in much of that reporting, I think, is that the court also issued an arrest warrant for the military commander of Hamas, Mohammed Deif.

If they were in the process or they were in the process of obtaining warrants for two other Hamas leaders, Yahya Sinwar and Ismail Haniyeh. Sinwar and Haniyeh have since been confirmed dead, so the court did not complete its warrant process for them. Israel says they killed Mohammed Deif too, but that hasn't been confirmed yet, so the court did issue a warrant for him.

In this segment, we'll explain the charges against both the Israeli and Hamas leaders that the court identified and get analysis and an opinion reaction from Peter Beinart, a contributing opinion writer at the New York Times, an MSNBC political commentator, editor at large at Jewish Currents magazine, and a nonresident fellow at the foundation for Middle East Peace. He writes the Beinart Notebook newsletter on Substack, is professor of journalism and political science at CUNY, and is author of the forthcoming book Being Jewish After the Destruction of Gaza: A Reckoning.

The relevant article on his newsletter posted yesterday is called Why the International Criminal Court's Warrant for Netanyahu Matters. Peter, we always appreciate when you come on with us. Welcome back to WNYC.

Peter Beinart: Thanks for having me.

Brian Lehrer: We'll get your big picture take which goes beyond these current warrants on the importance of the warrants, but first, I want to pursue what I said in the intro and get your take on that. That it's being underreported that the International Criminal Court seems to believe that both Israel and Hamas, not just Israel, are guilty of war crimes. I'll read here from the BBC story on this from last week when the warrants were issued. It says, "Judges at the International Criminal Court ICC have issued arrest warrants for Israeli prime minister and former defense minister of Israel, as well as the military commander of Hamas.

The judges said there were, 'reasonable grounds the three men bore criminal responsibility for alleged war crimes and crimes against humanity during the war between Israel and Hamas. Both Israel and Hamas have rejected the allegations.'" Then it goes on to say, "The prosecutor's case against them stems from the events of October 7th." This is for the Hamas people.

"For Deif, the chamber found reasonable grounds to believe he was, 'responsible for the crimes against humanity of murder, extermination, torture and rape and other forms of sexual violence, as well as the war crimes of murder, cruel treatment, torture, taking hostages, outrages upon personal dignity, and rape and other forms of sexual violence.' That's a quote, from the court." The BBC says that it also said there were reasonable grounds to believe the crimes against humanity were, "part of a widespread and systematic attack directed by Hamas and other armed groups against the civilian population of Israel."

Then finally for Netanyahu and Gallant. Gallant, who was replaced as Defense Minister earlier this month, it says, "The chamber found reasonable grounds to believe that they each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others. The war crimes of starvation as a method of warfare and the crimes against humanity of murder, persecution, and other inhumane acts." Quoting the court by the BBC. Peter, I just wanted to establish all of that for the listeners because it's being so widely discussed, just as the ICC indicted Netanyahu, but they've leveled these very serious war crimes charges against Hamas too.

I think this goes both to the question of the even-handedness of the court, which often gets called into question, and also to remind us that even if we think Israel is a very bad actor here, the official court position is that both sides are very bad actors here. Can I first get your take on the full breadth of the court's charges and what you think they're really saying about this war?

Peter Beinart: You're right. The court is saying that there have been severe war crimes committed by both sides. Why is it that its warrants against the Israeli leaders have gotten so much more attention than its warrants against the Hamas leader, Mohammed Deif? I think it's because we are used to, in American public discussion, the idea that there would be punitive actions towards a group like Hamas. After all, the US has had sanctions against Hamas for a very, very long time. Indeed, the International Criminal Court itself has tended to go after movements and leaders that are in Africa, that are in the global South. It has never gone after an American ally before.

The reason I think, that there's so much more attention to the warrants for Netanyahu and former Defense Minister Gallant is that we are accustomed to there being a level of impunity for Israel, both in terms of its relationship with the United States and its relationship to international institutions like the International Criminal Court. This feels like something new when it comes to Israel. Whereas the idea that there would be penalties on Hamas, again, which I think are very well deserved, doesn't strike people as new and unusual.

Brian Lehrer: Your take in your newsletter is, I might say, even bigger picture than that. You wrote that this is a really crucial moment in the struggle about whether international law means anything. Would you take a step back, first for our listeners or next for our listeners, and explain what the International Criminal Court even is? Where did it come from, and when, and who picks the judges?

Peter Beinart: The International Criminal Court was created a couple of decades ago in a period coming out of the 1990s when there was this ethnic cleansing in the former Yugoslavia and in Rwanda. In a sense that states needed to be held accountable for their behaviors, even internally, even inside, to their own populations, and certainly when it occurred across borders. This has been a kind of effort to update the international law that was created after World War II, after the Holocaust, to suggest that there were certain crimes that states should not be allowed to commit.

It was created in this moment of American unipolar dominance. One of the fundamental questions about the International Criminal Court was always essentially whether it would only act against America's and the West's adversaries, or whether it actually could govern the most powerful states in the system, including the United States and its allies as well. There's always been a certain cynical take that you found from some people in the Global South about the idea that this was just a fig leaf for Western hegemony.

I think what's significant about this moment now is that it's really a test of whether these institutions and these principles about war crimes actually can be applied not only to countries that are adversaries, enemies of the United States, but indeed to one of America's closest allies.

Brian Lehrer: When you cite the famous ICC cases from the 90s involving those accused of genocide from the former Yugoslavia and Rwanda, do you think it was a tool of the US in those cases? I would think they weren't so much US enemies as bad murderous actors in the former Yugoslavia and Rwanda, who were pretty irrelevant to US Interests one way or another or would you disagree?

Peter Beinart: Right. To be clear, these were precursors to the creation of the ICC. Serbia was a US adversary. The US Ultimately ended up going to war against Serbia essentially twice, first in 1995 in Bosnia, and then in 1999 in Kosovo. In Rwanda, it wasn't a major American adversary, but it was certainly not an American ally. There was no cost to the United States to be willing to say that war crimes and indeed even genocide had been committed. What you've seen since then is that the United States has this odd relationship to the ICC where we're fervently opposed to the ICC having any jurisdiction over the United States or indeed holding Israel accountable.

We say that Israel and the United States are not members of the ICC, but the Biden administration actually supported charging Vladimir Putin when the ICC charged Vladimir Putin, even though Russia wasn't a member of the court either. I think what you see is that the United States has been willing to sometimes work with this court when it serves our interest of basically trying to punish our adversaries. The question on the table now is, how do we react when it's applying those same basic principles to an American ally?

Brian Lehrer: The US And Israel are not members of the International Criminal Court system. What does that mean to be a member or not?

Peter Beinart: You have to ratify the treaty that brought it into an existence. The reason that the ICC claims that it has jurisdiction here is that Palestine was admitted as a state by the United Nations General Assembly, and so the claim is that these atrocities are being committed on the soil of the state of Palestine. That's why the ICC claims that it has jurisdiction over what is being done in Gaza.

Brian Lehrer: If the US has refused to even join the ICC system, how can it be being used or how could it be using the court as a tool of US dominance as you argue that many countries in the global south have seen it?

Peter Beinart: Many of America's close European and Canadian allies are very involved in the International Criminal Court. As I said, even though the United States hasn't joined it, and the United States is vigorously opposed to the idea that the ICC could ever investigate the United States, the United States, even very recently in the Biden administration, helped the ICC, worked with the ICC in charging Vladimir Putin for Russia's aggression in Ukraine.

The US has this odd relationship with the ICC, which is not so distinct from America's relationship with international law in general, which is we often don't want to be bound by it ourselves, and yet we like to use it as an instrument, as a tool to try to punish America's adversaries.

Brian Lehrer: Listeners, we can take a few phone calls, questions, or comments on the International Criminal Court, particularly the arrest warrants for Israeli and Hamas leaders and the meaning of international law generally, as Peter Beinart writes about in his latest newsletter post called Why the International Criminal Court's Warrant for Netanyahu Matters. 212-433-WNYC, call or text, 212-433-3692. You assert that the United States doesn't want ICC warrants to apply to Americans or Israel as a US ally.

I think the US and Israel would argue that the international politics of the court leave it likely to be biased against the United States because it is a world power and against Israel because much of the world rejects even Israel's existence. Every country is entitled to its opinion and its interests, but the system, they would argue, leaves the US And Israel open to bias and therefore unworthy prosecution because many countries have political reasons to appear to be vilifying them. Fair concern in your opinion to any degree?

Peter Beinart: I don't think so. Obviously, there are countries that have geopolitical conflicts with Israel, just as there are countries that have geopolitical conflicts with any country whose leaders could be brought before the international court. It's worth remembering that the ICC prosecutor who called for bringing these warrants, Karim Khan, his appointment was favored by both Israel and the United States. They thought he would be softer on Israel than his predecessor and that he has been advised by Theodore Meron, a Holocaust survivor and former legal advisor to the Israeli minister of foreign affairs.

What Khan is saying about Israel's actions on facilitating starvation, for instance, is actually very much in line with a report that came out from Israel's own leading human rights organization, B'Tselem, which put out a report this spring entitled Manufacturing Famine. Cindy McCain, the head of the World Food Program, Samantha Power, the head of United States Agency for International Development, said that there was famine in Gaza. There are lots and lots of people that one can point to who have no record of history of animus towards Israel, who still believe that the crimes that Israel has committed in Gaza are very grave.

Brian Lehrer: Let's take a phone call. Here is Vanita in Chatham, New Jersey. You're on WNYC. Hello, Vanita.

Vanita: Hi there. Thank you so much for taking my call. My question is, I've seen videos of Justin Trudeau and many other government leaders saying that if Netanyahu traveled to Canada or maybe some parts of the US that they would arrest him. Is that something you think is likely to happen if he does come to the US?

Brian Lehrer: Peter?

Peter Beinart: No, not to the United States. I think that leaders of both parties in the United States have made it very clear that they would not enforce these warrants against Netanyahu. Canada, on the other hand, which has said, I think very honorably that it has a tradition of supporting this court and supporting international law, irrespective of who the court is going after, even though Canada has also been an ally of Israel, has taken a different view. Yes, I think you could see a situation in which it would be much more precarious for Benjamin Netanyahu or Yoav Gallant to visit Canada. That is a significant development.

Brian Lehrer: Thank you for your call, Vanita. Let's take another one. Here's David in Irvington in Westchester. You're on WNYC. Hi, David.

David: Thanks so much for taking my phone call. If somebody was making the argument when Netanyahu said that this is anti-semitism, and I thought, "Oh, this is a ridiculous thing to say." It seems to make sense to me at the time that the World Court is not going after other conflicts going on right now that make you think that they might be singling out Israel and calling that anti-Semitism. I also have one other question, but if Mr. Beinart could address that matter, I would appreciate it.

Brian Lehrer: Peter?

Peter Beinart: Sure. The ICC has gone after a whole series of other leaders around the world. Again, many of them, people have noticed, have been in Africa, the former president of Sudan, the former president of Kenya, Muammar Gaddafi in Libya, the former president of Ivory Coast, Democratic Republic of Congo, Uganda as well, indeed have issued arrest warrants for Vladimir Putin in Russia. I don't think it's true that Israel is being singled out. There are obviously other leaders who do very bad things around the world, but if one looks at the scale of destruction in Gaza, there are reports that now there are more child amputees in Gaza than any other place in modern history.

The number of children who've been killed in Gaza dwarfs the number of children that have been killed in Ukraine, which is a country with 20 times the population. What's happening in Gaza is one of the greatest slaughters of the 21st century. It's not surprising that this would be a focus for the International Criminal Court.

Brian Lehrer: David, you had a second question?

David: Yes. The other question has to do with we're focusing a lot on the election and people were looking for change. I'm wondering why that doesn't apply in Israel. I opened up the paper yesterday and they're talking about Hamas or maybe, excuse me, I guess it was in the north that they were reverse engineering the missiles. Whatever they're doing strategically, it's not working. Netanyahu has been in power for 15 years. Why is it that that argument isn't being used, that it's time for a change in Israel, just like it was here?

Brian Lehrer: Thank you. There certainly are people in Israel who do argue that. Peter, I don't know if you want to weigh in on Israeli internal politics, national politics there and why Netanyahu, despite what many Israelis see as failures in the response since October 7th, remains in power.

Peter Beinart: Sure. Yes, there are many Israelis who would like to have a different government, but Israel has a parliamentary system. Israel does not have to go to elections for another two years unless the government falls and the government has held together. One of the ironies of a parliamentary system can be that if a government becomes less popular in the public, its component parts may actually have more of an incentive to hold together and to not have anyone leave the coalition because they know they would do badly if they went to elections.

This government has held together. Netanyahu's popularity has even rebounded to some degree, again partly because of the popularity of Israel's war in Lebanon. Partly, again, we can think back to our own country during George W. Bush, even though the war in Iraq, many people turned against the war in Iraq, he still won reelection in 2004. Wartime presidents in the midst of wars or wartime leaders can often rally nationalist sentiment, and Netanyahu has been able to do that to some degree.

Brian Lehrer: I'm going to get two listeners' views here that are diametrically opposed, I think, with respect to the situation in Gaza and whether it should be prosecuted as a war crime. Patrick and Valhalla first in Westchester. Patrick, you're on WNYC. Hello.

Patrick: Every evening on the news, we're watching the genocide develop and it's genocide. There's no other way to call it what's happening in Gaza. I think there's a long, long history that happened.

Brian Lehrer: People dispute the word. I'm just acknowledging that people dispute-

Patrick: I'm saying yes. I know they do.

Brian Lehrer: -whether that word applies, but that's your opinion. Go ahead.

Patrick: It's my opinion and I think there's a long history in the situation in Gaza long before October 7th of last year, which was awful and I condemn it. I think the other thing that nobody is talking or talking very little about, we need to take a look at our own government, the influence and the impact of AIPAC donations to US senators, House of Representatives, and even the president of the United States. If you look at how much that Joe Biden has received from the AIPAC over the years, that is lobbying in a very sick way. I think we as an American people have to look at that.

Brian Lehrer: Patrick, thank you very much. What's your take on AIPAC? There's the argument that Patrick just made. On the other side, there's an argument that, oh, here comes that old trope about Jewish money and power buying control of the world.

Peter Beinart: Look, if AIPAC is the only group that throws its money around in Washington that you have a problem with, then, yes, I think that's problematic. Then you might be falling into tropes. There are very deep historical tropes about the idea that Jews using their sinister influence and money to basically run things behind the scenes. If you take a more general view, as I do, that American politics is deeply corrupt. That there are a whole range of different organizations and interest groups.

From the pharmaceutical industry to the fossil fuel industry, to the gun lobby that basically use their money to basically influence American policy in ways that are contrary to my values and to what I consider to the American public interest, then there's nothing wrong with noting that AIPAC, the American Israel Public Affairs Committee, does that as well because they do. They have been spending in recent elections extraordinary amounts of money to defeat Democrats who support Palestinian freedom and Palestinian human rights.

When they do that, they intimidate a lot of politicians. I think that is part of the reason, not the only reason. Part of the reason there's a real discrepancy now between public opinion among ordinary Democrats who would generally oppose unconditional support for Israel and support restrictions on US weapons and Democrats in Congress, most of whom don't. I think if you talk about AIPAC in that larger context, there's nothing wrong. In fact, it's a vital conversation for us to have.

Brian Lehrer: Here's the other view, very opposite of that caller that I said we'd refer to. This one's a text, and it refers to what the listener calls the ludicrousness of the claim of genocide in Gaza. Instead, it feeds the flame of Jewish blood libels. Any military expert will say Israel's conduct in Gaza has been the most ethical of all documented urban warfare. I don't know people who are saying the most ethical of all documented urban warfare.

Israel would argue, Peter that it wouldn't be bombing hospitals and schools and apartment buildings if Hamas wasn't embedding its weapons and warriors there, guaranteeing that Israel has to either attack those sites or leave itself open to more October 7s, which Hamas has vowed to carry out if it can. Do you accept that argument as somewhat valid?

Peter Beinart: No, I don't because the way Hamas is fighting, which is embedded within a civilian population, is not unique to Hamas. This is the way that all guerrilla groups fight. No guerrilla group, when fighting a very powerful modern army, puts on brightly colored uniforms and walks out into an open field and says, "Here we are." This is the way the Viet Cong fought when they were fighting the American army. In fact, they also built a massive network of tunnels, the Viet Cong and North Vietnamese, just as Hamas has been doing. Yes, this creates real problems for modern militaries, but it doesn't mean that international law doesn't apply.

International law clearly states that there are rules about proportionality. You can't take down an entire apartment building just because you think there is one or two Hamas fighters or leaders there. It's worth noting that even modern nation-states often have their military installations deeply embedded in civilian populations. The Pentagon is in Northern Virginia, in a very, very heavily populated area where there are lots of businesses and residences. Israel's Kirya, where the Israel Defense Ministry is based. The military headquarters is in downtown Tel Aviv. There are tons of schools nearby there.

We adopt the logic that says that it would be okay to kill large numbers of civilians because you were going after that military target, or to, God forbid, take down an apartment building in Tel Aviv because there were some Israeli generals who lived in that apartment building. No, international law does not permit that. It goes to the larger issue, which is that if you're going to fight against a guerrilla force, you have to deal with the underlying political grievances if you want to fundamentally solve that problem of the threat that you face from it. The fundamental underlying problem with Palestinians is that they lack their freedom.

Brian Lehrer: People in Israel would probably argue back to that, that these wars, the reason for these wars at all is they'd rather not be in Gaza or Lebanon at all. The West Bank is a different story, I think, but that they don't want to be fighting in Gaza or Lebanon or risking Israeli lives there or killing anyone there. They wouldn't have to if Hamas and Hezbollah didn't keep attacking them from across the border. Do you accept that?

Peter Beinart: Gaza is not a border in that Gaza as a separate country. Gaza has remained under Israeli control. It's true that Israel withdrew its soldiers and settlers from Gaza in 2005, but it maintained control over the airspace, over the coast, over all but one of the land crossings. Even at that land crossing with Egypt, it has significant control. It controls the population registry. You can't go in and out of Gaza, nor can you export or import without going through the Israeli database.

This is not like an attack from Mexico into the United States. It's more akin you basically have an area that is under Israeli control, that Human Rights Watch has called an open air prison. Then you have a very, very brutal and immoral attack from within that prison. You have to deal with the underlying conditions of the imprisoned population. It's certainly true that Israelis would rather not be fighting. Certainly no, they don't want to be putting their kids, their soldiers in harm's way, but to solve that problem and give Israelis security that they deserve, Palestinians also have to have security.

The safety and security of Israelis and Palestinians are intertwined. As long as Palestinians live under these conditions of brutal oppression, again, Gaza has been called an open air prison. Even Israel's human rights organizations have termed Israeli control over the West Bank apartheid. That lack of safety for Palestinians means that Israelis will not have the safety that they deserve.

Brian Lehrer: I guess we could go round on this. Israelis would say after they pulled out of Gaza in the mid-aughts, if Hamas, which got elected there, had focused on governing rather than governing a little and trying to continue its permanent war against Israel's existence, then it wouldn't be an open-air prison.

Peter Beinart: Yes, some Jewish Israelis would indeed say that, but it's important to remember what happened. There was an election in 2006, a parliamentary election. It wasn't just held in Gaza, it was held in Gaza, the West Bank, and East Jerusalem. It's true, Hamas won a plurality of the vote and a majority of the seats. The exit polls show that a majority of at that point, Hamas voters said they supported the two-state solution. Their primary reason for voting against the Palestinian authority and Fatah was its corruption and its inability to maintain law and order.

What the United States did was it refused to accept the results of that election and it pushed Mahmoud Abbas to rule by emergency decree and try to take force control on the ground, which ultimately led him to lose a contest of arms in Gaza. My point is that there were different ways of responding to that parliamentary election that happened in 2006. I think the one that Israel chose, which was basically an after-military coup against a democratic election and then a permanent blockade that again made life in Gaza unlivable for human beings, according to the United Nations.

That has not served Israeli security, again, because ultimately it's a fiction to believe that you can enjoy your own security when you are creating radical uncertainty for people who live right next door to you.

Brian Lehrer: Before you go, do you have a take on the status of the ceasefire talks with Hezbollah?

Peter Beinart: I hope that there is a ceasefire, but the irony is that if there is a ceasefire, it probably won't look that different than the last ceasefire, which is to say Hezbollah will temporarily retreat north off of Israel's border, but it will return back to that border. The UN is not going to keep them off that border. The Lebanese army is not going to keep that off that border. Israel has done massive, massive destruction in Lebanon, and for what? It hasn't solved the fundamental problem because fundamentally, you will not have an enduring peace with Hezbollah as long as you hold Palestinians under oppression.

If you start to move to deal with the legitimate rights to freedom and equality of Palestinians, then that is the way to ultimately solve Israel's problem with Hezbollah.

Brian Lehrer: Peter Beinart's latest article on his Substack newsletter, the Beinart Notebook, is called Why the International Criminal Court's Warrant for Netanyahu Matters. He also has a forthcoming book, Being Jewish After the Destruction of Gaza: A Reckoning Thanks for coming on.

Peter Beinart: Thank you.

 

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