The Death Squad and the Bomber Pilot

The ICC prosecutor takes the radical step of applying a consistent standard to both Israel and Hamas. No wonder U.S. political elites are horrified: if no one is exempt from following international law, what does that mean for our own war crimes?

The prosecutor for the International Criminal Court, Karim Khan, has announced that he has filed arrest warrants for the leaders of both Israel and Hamas for war crimes. A statement issued Monday accused Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant of using “starvation as a method of warfare together with other attacks and collective punishment against the civilian population” of the Gaza Strip. Khan also named three top Hamas officials for indictment: Yahya Sinwar, the leader of the organization; Mohammed Diab Ibrahim Al-Masri, the commander-in-chief of its military wing the Qassam Brigades, and the head of its political wing, Ismail Haniyeh, accusing them of responsibility for attacks that killed hundreds of Israeli civilians and for capturing hostages and subjecting them to inhumane treatment, including sexual assault.

The evidence that both Israel and Hamas have committed serious war crimes is overwhelming. The attacks on civilians on Oct. 7 were clear violations of the laws of war, which also prohibit the taking of hostages. (The attacks on military facilities on Oct. 7 were more legally ambiguous and arguably constitute justified self-defense against an occupying power.) In the seven months since Oct. 7, Israel’s war has been vastly more destructive than the attacks on Israel were. In addition to the tens of thousands of dead, the endless orphans and child amputees, and those dying of easily preventable illnesses, the entire social and economic life of Gaza has been turned to rubble. As Canadian surgeon Dr. Yasser Khan reported after working there, Gaza is now a “man-made hell on Earth”:  

Every single playground, hangout place, café, restaurant, 500-year-old ancient mosque, 500-year-old ancient church, destroyed. There’s schools destroyed, there’s stadiums, sports facilities destroyed, their hospitals destroyed, their cinemas destroyed, museums destroyed, archives, where they kept their archives, erased, destroyed, burnt, their homes, 80 percent of homes, are all gone now. 

We have plenty of evidence that the destruction of Gaza has been planned, and is not just mere “collateral damage” in a targeted operation. Israel’s own national security minister speaks openly about the intention to drive out the Strip’s population in order to “Judaize Gaza” by moving in Jewish Israeli settlers. (A Haaretz analyst says this talk should be taken very seriously.) The Prime Minister has described the war as one of “mighty vengeance” for Oct. 7. Ex-Shin Bet leader Carmi Gillon has echoed that idea, saying on Israeli TV that “We embarked on a war of revenge and this is absolutely justified in light of what we have been through.” The ICC prosecutor has accused Israel of using starvation as a weapon by obstructing food aid, and human rights organizations (Oxfam, UN, Human Rights Watch, B’Tselem) have extensively documented Israel’s obstruction of aid. (For more on the legal grounds for the case, read this analysis at Just Security.)

The ICC’s arrest warrant was, in fact, fairly restrained. The prosecutor did not accuse Israel of outright genocide, as South Africa has in the International Court of Justice. A panel of distinguished legal experts convened by the prosecutor has explained soberly and carefully why charges are warranted by the evidence. There is no evidence that Khan’s decision is biased. He has issued warrants for Hamas’ leaders, and he was previously lauded in the U.S. for his attempt to prosecute Vladimir Putin over the war in Ukraine. In fact, when he came into office, one of Khan’s first acts, as the New York Times notes, “was to ‘deprioritize’ an investigation into abuse of prisoners by American forces in Afghanistan, instead focusing on the larger-scale alleged crimes by the Taliban and Islamic State.” Khan says that in seeking to prosecute the leadership of those who perpetrated the Oct. 7 attacks and those responsible for the decimation of Gaza, he is applying a simple principle: the law must apply equally to all. If something is a crime when one side does it, it is also a crime when the other side does it. 

This is not how U.S. and Israeli leaders see the arrest warrants. President Joe Biden immediately called the ICC’s actions “outrageous.” Secretary of State Antony Blinken called it “shameful” and said that the United States would try to sanction the ICC. Israel’s former spokesman said the ICC was helping to “finish the Nazis’ job.” Israel’s Minister of Finance called it a display of “hypocrisy and Jew-hatred.” Israeli-American commentator Caroline Glick called the ICC a “neo-Nazi institution.” 

Notably, many of the negative reactions in the U.S. and Israel did not focus on the most important question at issue, namely: did the defendants commit the crimes they are accused of? Secretary of State Antony Blinken said the decision “could jeopardize ongoing efforts to reach a ceasefire agreement,” a criticism that does not address the factual evidence. Democratic Senator Richard Blumenthal said the ICC’s “timing” was “catastrophic” because it would inflame hate and distrust, another criticism that does not address the factual evidence. Veteran diplomat Aaron David Miller said that the ICC “has strengthened Netanyahu; lessened [the] prospect of Biden’s pressure on Israel; ensured Israel won’t cooperate with the [Palestinian Authority], validated Netanyahu’s circle the wagons [strategy], and helped prolong war,” creating “a dangerous and destructive diversion.” 

But the enforcement of international law should not depend on whether it helps or hurts the accused politically; you don’t get a free pass to do crimes just because you’d be able to spin a prosecution against you to drum up more support. Miller, like the others, is not discussing the evidence. In fact, he knows that the evidence is overwhelming that Israel is intentionally denying food assistance to Gaza. Miller himself said in an interview with the New Yorker that Israel would not have provided “an iota of assistance” without strong pressure from the United States and that it could easily massively ramp up the admission of aid to Gaza but chooses not to. In fact, the Biden administration is fully aware, and has been since October, that Israel has been violating international law. Biden himself has said in the past that Israel was committing “indiscriminate bombing.”

One of the main anti-ICC talking points was that the decision to prosecute both sides drew a false “equivalence” between Israel and Hamas. Joe Biden said that there is “no equivalence — none — between Israel and Hamas.” It’s certainly true that in some ways, treating Hamas and Netanyahu as equivalent is misleading. After all, Israel’s destruction of Gaza has been orders of magnitude greater than the carnage on October 7. If Hamas had killed thousands, rather than dozens, of children, there might be some kind of “equivalence.” But Israel’s crimes against Gaza have now been going on for seven months, and have reduced the conditions of an entire population in northern Gaza to what the U.N. calls a “full-blown famine,” wrecked most of the basic infrastructure, and threaten to end the existence of Gaza as a livable place. The horrendous Oct. 7 massacre was not on anything like this kind of scale. (Israel’s defenders certainly mean that while Hamas was acting offensively, Israel is acting defensively, but given that everything that has occurred over the last year is in the context of a century-long war on Palestine, this kind of sharp distinction cannot be made.) 

Karl Nehammer, the chancellor of Austria, argued that Israel should not be “mentioned at the same time’ as Hamas,” because Hamas is a “terrorist organization” trying to destroy the state of Israel, while Netanyahu is a “democratically elected representative” of the state being threatened. But, first, it’s hard to say that Netanyahu is “democratically elected,” given that Palestinian residents of the West Bank are not allowed to vote in Israel, despite Israel claiming the West Bank as its own. Second, Israel is just as committed to the destruction of the State of Palestine as Hamas is to the destruction of Israel. (In fact, Hamas’ position since 2017 has been that while it rejects Israel’s legitimacy and ultimately aims at the “full and complete liberation of Palestine, from the river to the sea,” it accepts the two-state settlement as a “formula of national consensus.”) Even before Oct. 7, Israeli forces had killed 234 Palestinians in the West Bank in 2023. During that same year, a record number of Palestinians—about 4,000—had been forcibly displaced by Israeli settlements while the Israeli government almost uniformly refused to take legal action against settlers who’d committed acts of violence, even in violation of Israeli law.

Finally, once again, what matters for the purposes of evaluating the prosecutor’s decision is whether or not the accused committed the crimes, not whether Israel is democratic, or whether Hamas are terrorists, or anything else that might be relevant to understanding some aspects of the situation but are, ultimately, not relevant to evaluating a criminal legal case. 

One of the most fascinating reactions to the ICC came from the editorial board of the Wall Street Journal, which argued that “the ICC has lost sight of the crucial distinction between the death squad and the bomber pilot.” That captures very well a common U.S.-Israeli moral precept: that there is somehow an important distinction between our powerful militaries killing people by dropping bombs on their houses and a non-state militia killing people by shooting them. Usually the argument that is made is that the people we kill are unintentional “collateral damage,” killed by tragic necessity, whereas our enemies kill people on purpose. But the Journal’s phrasing doesn’t say that, instead drawing a meaningless distinction between our side’s high-tech killings and the death squad’s low-tech ones. (Side note: the U.S. has also supported a lot of death squads.)

The Wall Street Journal cannot possibly mean what it says here. (Would it defend the Russian air force by saying there is a “crucial distinction between the death squad and the bomber pilot”?) Nevertheless, it is giving a voice to an instinct broadly shared among U.S. elites: the rules that apply to others should not apply to us and our allies. Senator Lindsey Graham made this explicit, warning that “if they do this to Israel, we’re next.” (Notably, Graham introduced a Senate resolution just two years ago encouraging states to petition the ICC to investigate Putin for war crimes.)

The ICC prosecutor did indeed do something radical in its implications: he chose to act as if there weren’t an inherent distinction between the “death squad and the bomber pilot” and everyone is equally subject to the rules of war. This is not a principle U.S. leaders have ever accepted. Our most heinous war criminals, such as George W. Bush and Henry Kissinger, have been feted by the establishment rather than indicted. (Interestingly, Netanyahu suggested that prosecuting himself and other Israelis would be like prosecuting Bush after 9/11, a comparison he might want to be cautious about making, considering that Bush is the worst unpunished war criminal of the century.) The U.S. has been so hostile to the ICC that it has threatened to invade The Hague if necessary to keep our own citizens’ crimes from being tried there. While U.S. leaders speak loftily of a “rules-based order,” in practice the approach is that presidents follow the rules they like and defy the ones they don’t. (For instance, the Biden administration is openly violating U.S. law, which restricts weapons aids to human rights-abusing states like Israel. At the same time, Antony Blinken has told Arab leaders that if Palestine were to be recognized as a state, the U.S. could defund the U.N., which could lead to the defunding of programs like the U.N. World Food Programme.)

Karim Khan has said that before he launched the arrest request, he was warned by a Western leader that the ICC was supposed to be “built for Africa and for thugs like Putin.” (Indeed, a common criticism of the court has been that it goes after African warlords but not Western leaders responsible for far worse human suffering. For an intro to the court’s workings, see our podcast about it.) Khan chose to disregard this racist view and to treat “the rule of law” as a meaningful principle. Under that principle, it doesn’t matter how powerful a country is, or how it feels about “timing.” Rules are rules. It’s no wonder U.S. political elites are reacting with horror, because this is indeed a threatening belief. It means that we and our allies might conceivably be held to the same standard we hold enemy states to. And that might shatter the idea that the U.S. is a unique force for good in the world and that it is only the “thugs” and “terrorists” of enemy states who commit crimes. Once we start looking at the bomber pilot with the same scrutiny as we look at the death squad, we might discover that the bomber pilot is not morally superior to the death squad member. In fact, they may turn out to be worse.  

 For more on how the U.S. approach to international law has consistently been entirely opportunistic and hypocritical, see the forthcoming book by Noam Chomsky and Nathan J. Robinson, “The Myth of American Idealism.” 

preorder now!

More In: Israel/Palestine

Cover of latest issue of print magazine

Announcing Our Newest Issue


A superb summer issue containing our "defense of graffiti," a dive into British imperialism, a look at the politics of privacy, the life of Lula, and a review of "the Capitalist Manifesto." Plus: see the Police Cruiser of the Future, read our list of the summer's top songs, and find out what to fill your water balloons with. It's packed with delights!

The Latest From Current Affairs