The Special Law Reserved for the Jews
When Zohran Mamdani said Benjamin Netanyahu should be arrested if he came to New York, my first reaction wasn’t outrage. It was curiosity.
Not about Netanyahu.
About the law.
Because if there is now a legal principle under which the leader of a democracy becomes a war criminal for fighting a war against an enemy that deliberately hides beneath civilians, then this is rather important. We should all know about it. We should teach it at Sandhurst, at West Point and at every military academy in Europe. Future officers should be instructed that if a terrorist organisation massacres your civilians, kidnaps your children and then embeds itself beneath apartment blocks and hospitals, your obligation is… well, this is the interesting part… what exactly?
That question has become strangely unfashionable.
The modern debate has become remarkably good at describing Israel’s alleged crimes and remarkably reluctant to describe Israel’s alternatives. Every interview, every demonstration, every statement seems to begin from the assumption that there was an obvious course of action available to Israel which only malice prevented it from taking. Oddly, nobody ever quite tells us what it was.
Perhaps because the moment they try, the argument begins to unravel.
The more I thought about Mr Mamdani’s remarks, the stranger they became. Not because I think Benjamin Netanyahu is beyond criticism. Every democratic leader should be criticised. Every military campaign should be scrutinised. Every civilian death should be investigated. But there is a considerable distance between scrutiny and criminality, and it is a distance that we seem determined to preserve for everyone except Israel.
Take Tony Blair.
He led Britain into Iraq on the basis of intelligence that proved to be profoundly mistaken. The Chilcot Inquiry concluded that peaceful options had not been exhausted, that the legal basis for war was far from satisfactory and that Britain was inadequately prepared for what followed. Hundreds of thousands died. Millions were displaced. The consequences are still being felt across the Middle East.
Yet it scarcely occurs to anyone – even Mr Blair’s most determined critics – to describe him as a war criminal, let alone the architect of genocide. Why? Because we instinctively understand something that international debate about Israel increasingly seems to forget: democratic leaders make decisions in war that can be catastrophic without being criminal. A failed strategy is not the same as criminal intent. A tragic outcome is not the same as genocide.
So what is different about Benjamin Netanyahu?
That is not a rhetorical question. It is the central question.
If the principle is genuinely legal, then it should apply equally to Tony Blair, George W. Bush, Harry Truman and every democratic leader who has prosecuted a war in which civilians died in large numbers. If it does not apply to them, then perhaps the issue is not the law after all. Perhaps it is Israel.
Perhaps Mr Mamdani is right. Perhaps Benjamin Netanyahu really does belong before an international court. If that is his argument, then it deserves to be heard. But it also deserves to be applied consistently, because that is what law is. It is not a collection of principles reserved for one’s political opponents. It is a universal standard. If a democratic leader becomes a war criminal whenever he wages a war in which large numbers of civilians are killed, then the twentieth and twenty-first centuries suddenly look rather different. Tony Blair belongs in the dock. George W. Bush belongs in the dock. Harry Truman belongs in the dock. Yet somehow nobody seriously argues that they do. We may condemn their decisions. We may believe they made catastrophic mistakes. We may even conclude that they should never have gone to war. But we instinctively understand that criminal intent is not the same thing as military action that produces terrible consequences. That distinction, which survives every other conflict, seems mysteriously to disappear the moment the country concerned is Israel.
That is why this debate matters. Not because it concerns Benjamin Netanyahu, but because it concerns justice itself. Justice only deserves its name if it applies equally. If there is one legal standard for Britain, another for America and a third for Israel, then we are no longer defending international law.
We are defending an exception.