Should we take the ICC seriously?

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The International Criminal Court (ICC) has issued arrest warrants for our Prime Minister Netanyahu and former Defense Minister Gallant.

“If there were war crimes…” I say with a shrug. I firmly believe that if there were war crimes (which I’m pretty sure there were), someone has to investigate and prosecute if necessary.

“My only fear,” says my husband, “is that Bibi will use this to unite the country behind him. It will be ‘proof’ they are all antisemitic.”

Sure enough, the evening news pundits, from right to left, condemned the ICC and called the warrants “ridiculous, insulting, an act against the entire Israeli people.” “First they kill us and then they arrest us for defending ourselves,” one spluttered with incensed righteous indignation.

They: It’s the classic response to anything that smacks of antisemitism. They – the entire non-Jewish world – are out to get us. Hamas and the ICC are thus one and the same.

“And what about ‘them’? (meaning in this case, Hamas) they asked, forgetting we have executed our own summary justice on the Hamas leaders who would have been indicted alongside ours.

One analyst even listed the numbers of trucks getting into Gaza, claiming that number is higher than before the war. Forgetting that Gazans were not nearly as reliant on trucks coming through border crossings with Israel before the war. We are desperate to prove that we allowed through as much humanitarian aid as required and even more.

Can we take a step back from our fear and outrage, from the knee-jerk response to the symbolic yellow star?

That is, we need to admit that even if some members of the ICC are not partial to Israel or even to Jews, there may still be good legal reasons to believe the said war crimes were committed. One does not negate the other. Can we admit that even if we are fighting a just war for our very existence, we may have run roughshod over the human rights of civilians? That there could be evidence that some of this was intentional? Can we recognize that it is the purview of the courts to decide whether crimes were committed, based on testimony, evidence and knowledge of international humanitarian law?

I want to put it another way with a story: In the beginning of the month, I met an old friend for the first time. She is originally from Gaza; I met her in London. She tearfully, angrily described an incident in which some members of her family were killed in northern Gaza: “They were told there was food. When they got there, it was a trap. There was no food, and they were fired upon.”

I have no reason to doubt her word. It might have been an incident that was reported in the media, in which the IDF tried to control food distribution and a tank ended up firing on a hungry mob; or it could have been one that went unreported. The first was hastily investigated and closed. A tragic mistake. Not even a “sorry.” The same went for the bomb that killed seven aid workers.

How to explain the fact that he has steadfastly refused to allow the formation of an independent national commission?

How are we to sift the truth from the truncated reports we ingest from our own media? From those in the foreign media? How can a court of law sift intent from mismanagement, crossing the boundary into illegal acts from skirting it with full knowledge?

We went into this war with revenge in our hearts, willing and even eager for the vilification and dehumanization of people living right across our borders. We turned people into pawns and food distribution into a weapon to use in the face of a different war crime – the taking of civilian hostages. As heinous as the second crime is, it does not, in court of law, justify the first. The fact of this war means we do not have to look ordinary Gazan citizens in the eye and feel the pain of people who have lost everything, who are sitting ducks in the crossfire. Our pain does not negate theirs; does not justify unnecessary suffering on their side. If we can bear to hear it, we can feel the need for an independent investigation that can rise above the politics and prejudices and try for facts – even something possibly approaching actual truth.

I am not oblivious to the implications of the ICC actions for the rest of the county, including for military personnel who have been carrying out their duties as best they can. But I also believe, with my husband, that Bibi is just fine with the ICC decision. The country, for now, is united behind him. With Trump as president of the US, he’ll be able to thumb his nose at Europe. For now, he and Gallant are perfectly safe. And with his Israeli criminal trial set to start up again, what’s another trial off in the Hague? How else to explain the fact that he has steadfastly refused to allow the formation of an independent national commission to investigate the war? He had been warned repeatedly, publicly, by Attorney General Gali Baharav-Miara, that failure to do so would bring the ICC down upon our heads.

We need to separate the rotten tomatoes from the rest of the salad: Yes, the decision is bad for the Jews. Coming after anti-Israeli riots in the Netherlands, we are right to fear it will grant legitimacy to antisemitic, rabid “river-to-the-sea” supporters of greater Palestine. It will boost the polarization we are seeing all over the Western world.

But – and there is aways a but – if war crimes were committed, they must be investigated. I, for one am not willing to trivialize them or brush them under the threadbare carpet of broad antisemitism. By listening to different narratives, I have come to believe there are no simple answers. A mistake on one side may be a trap for another. Our soldiers are fighting a cruel enemy – one that sets booby-traps in abandoned buildings and the entrances to tunnels, that stores ammunition in kindergartens and hospitals. And yet, when we destroyed those hospitals, we did not do much to provide alternative health care for legitimate patients. We moved people around, letting others worry about the humanitarian logistics. There are rules about these things, and if we ignored them in pursuit of our own version of justice, we need to accept the consequences.

The Israeli public says they want that independent commission by a poll count of more than two-to-one. We want if because we need to assign blame to those who feel asleep at the wheel as Hamas was planning its incursion, and we need to know why soldiers are still dying even as we have, for months, fought to a standstill in Gaza. An Israeli commission may nor may not have been able to forestall the ICC decision. But it is clear that in the absence of one, those sitting in the Hague felt they had the right to step in and issue warrants.

The ICC did not stop the war when asked to. But it did issue advisory statements. We can’t say we weren’t warned. We can’t say it was a surprise. I hope we will get past saying “We told you so! (because they are all antisemites!) and move on to a real attempt to question the actions and decisions of our leaders in this war.