Word Association (2024)

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The sanctity of international law has become increasingly compromised in recent years, as many have begun to demonize Israel, drawing false equivalencies between Israel and Hamas. Carl von Clausewitz, the 19th-century military strategist, famously said that war is the continuation of politics by other means. If he lived today, he might say that law, not war, has become the new battleground. In this modern era, armed conflicts are fought not only on the battlefield and on screens, but also in the courtroom, where legal principles are increasingly bent to serve political ends.

 

Hamas learned early on how to manipulate the media, understanding that modern warfare is as much about narrative as it is about force. When Hamas carried out the brutal attacks on Israel on October 7, it wasn’t just a medieval-style atrocity brought into the digital age; it was a carefully staged media event. Alongside this, Israel has had to defend itself in the International Criminal Court (ICC), where legal proceedings are shaping international perceptions.

 

In May, the ICC prosecutor, Karim Khan KC, requested arrest warrants not just for Hamas leaders Yahya Sinwar and Ismail Haniyeh but also for Israel’s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. The decision was both legally flawed and morally outrageous. Israel, under international law, had the right to take action to ensure the protection of its citizens from further atrocities. Hamas, by embedding its military operations within Gaza's civilian population, bears responsibility for the tragic loss of life that ensued. Every civilian death is a tragedy, but the responsibility lies with Hamas for using civilians as shields.

 

What remains puzzling is the delayed issuance of these arrest warrants. Given the immediate and public nature of Hamas’s crimes on October 7, the fact that warrants for Hamas leaders weren’t promptly issued raises concerns. The timing makes it appear that Israel, not Hamas, was the real target. The eventual inclusion of Hamas in the warrants feels like an afterthought, merely to maintain an illusion of balance.

 

Another critical aspect of this legal struggle is the principle of complementarity, which dictates that the ICC should only intervene when a country lacks an independent judiciary capable of addressing legal matters. Israel has one of the world’s most robust legal systems, as evidenced by the fact that former high-ranking officials, including a Prime Minister, President, and Chief Rabbi, have all served prison time. Yet this fact was ignored by the ICC prosecutor in pursuing charges against Israeli leaders.

 

The United Kingdom initially challenged the ICC’s jurisdiction over this case, but following the election of Keir Starmer’s government, the UK reversed course, claiming that it was a matter for the court to decide. This decision was not based on sound legal reasoning but rather on political calculus, likely influenced by the loss of seats to pro-Gaza independent candidates. The move to leave Germany and other nations to lead the legal challenge against the ICC’s jurisdiction shows the extent to which international law has become politicized.

 

In a parallel legal battle, Israel is defending itself at the International Court of Justice (ICJ) in a case brought by South Africa. The ICJ’s provisional ruling in January led to accusations of genocide against Israel, a charge that has since been widely repeated. However, the ICJ did not determine that genocide was occurring; it merely stated that the Palestinians had a plausible right to protection from genocide. This legal distinction, though critical, was overlooked by much of the media and even by prominent legal experts. Misinterpretations, such as a letter from four retired UK Supreme Court justices claiming there was a plausible risk of genocide, have only fueled the misinformed rhetoric.

 

The international legal system is facing significant challenges, particularly in its ability to address non-state actors like Hamas, which operate with the backing of state sponsors. But there also seems to be a reflexive tendency to view Israel’s actions as unlawful, even before fully understanding the specifics. From targeted assassinations and missile strikes to cyber warfare and security measures, Israel's efforts to defend itself are often met with condemnation without realistic alternatives being offered. In one conversation, when asked how Israel should protect itself under international law, the suggestion of compromise was raised. Yet, as Hamas and other groups openly call for the destruction of Israel, the idea of a “middle ground” seems both absurd and dangerous.

 

As legal experts continue to critique Israel’s actions, what remains absent is a clear solution to prevent future attacks like those on October 7. International law, increasingly used as a political tool, risks losing its credibility if it continues to be manipulated to target Israel disproportionately while ignoring the reality of terrorism. The world must navigate these legal challenges carefully, ensuring that justice is upheld without eroding the foundational principles of the international legal order.

 

Based on a report from The Daily Telegraph 2024-10-15