It was expected that the issuance of arrest warrants by the International Criminal Court (ICC) against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant for their roles in crimes committed against Palestinian civilians in Gaza would cause a flood of furious responses from Israel and its allies.
The chorus is as colourful as its arguments are flimsy and dehumanising: from French writer Bernard-Henri Levy, who claims the ICC can only prosecute in countries without a “proper judicial system” to Republican Senator Lindsey Graham declaring war on the ICC and any nation that dares to implement its warrants.
However, the more sinister attacks, illustrated by statements of Democratic Congressman Ritchie Torres and Israeli politician Naftali Bennett, which argue that Israel’s actions were justifiable as self-defence or reprisals against Hamas’s brutal October 7 attack, constitute a dangerous form of gaslighting and need to be debunked.
These arguments fail not only on moral but also on legal grounds, when taking into account international humanitarian law and legal precedents set by special courts like the International Criminal Tribunal for the former Yugoslavia (ICTY). The protections afforded to civilians in armed conflict are absolute and non-derogable, and the ICC is right to enforce them.
The argument that Israel is exercising its “right to self-defence” has been made throughout this war and not just in response to legal rulings. However, self-defence under international law is not a justification for violating fundamental legal principles. The targeting of civilians, indiscriminate attacks and disproportionate use of force are explicitly prohibited under the Geneva Conventions and customary international law.
During the ICTY’s prosecution of Milan Martic, leader of Serb rebels in Croatia, for the shelling of Zagreb, the Appeals Chamber unequivocally held that attacks against civilians cannot be justified by self-defence. It stated that “whether an attack was ordered as pre-emptive, defensive or offensive is from a legal point of view irrelevant” if the conduct of the attack violates principles of international law.
In Gaza, evidence indicates that Israeli military operations have resulted in widespread and systematic attacks against civilians. Residential areas, hospitals and schools – protected spaces under international humanitarian law – have been subjected to intense bombardment. Even in cases where military targets may exist, attacks that fail to distinguish between civilians and combatants or cause disproportionate harm to civilian populations violate Articles 51 and 52 of Additional Protocol I to the Geneva Conventions.
Therefore, Torres’s argument that the ICC is “criminalising” self-defence does not hold.
Bennett, who himself has made statements of intent to commit crimes against Palestinian civilians, asserts that Israel is “fighting back” Hamas’s attacks. However, international law unequivocally prohibits reprisals against civilian populations. Article 51(6) of Additional Protocol I states: “Attacks against the civilian population or civilians by way of reprisals are prohibited in all circumstances.” This prohibition applies irrespective of the conduct of the opposing party.
The ICTY precedents further reinforced this, including in the case of Martic, holding that reprisals must meet strict conditions, including necessity, proportionality, and adherence to humanitarian principles. Even when responding to serious violations by the adversary, acts of reprisal must respect international law. The indiscriminate and disproportionate nature of attacks in Gaza, including the use of heavy explosives in densely populated areas, renders the argument of reprisal legally untenable.
Voices parroting the points made by Torres and Bennett argue that Hamas’s alleged use of human shields absolves Israel of responsibility for civilian casualties. This is a dangerous misrepresentation of international law.
While the use of human shields by Hamas would itself be a violation of international law, it does not diminish Israel’s obligation to avoid harm to civilians. Additional Protocol I clarifies that violations by one party do not permit the opposing party to disregard its own legal obligations.
The Appeals Chamber of the ICTY addressed this issue directly, emphasising that the failure of one party to adhere to its obligations does not absolve the other from its responsibilities. In the case of Gaza, indiscriminate aerial bombardments have resulted in tens of thousands of civilian deaths, raising serious concerns about whether adequate precautions were taken to minimise harm, as required by Articles 57 and 58 of Additional Protocol I.
A core tenet of international humanitarian law is the principle of proportionality, which prohibits attacks where the expected civilian harm would be excessive in relation to the anticipated military advantage. The ICC’s charges against Israeli leaders focus precisely on this issue. Reports from Gaza have highlighted the devastating impact of military operations on civilians, with entire neighbourhoods razed, residential buildings purposefully demolished and vital infrastructure destroyed.
Moreover, the principle of distinction, enshrined in Article 48 of Additional Protocol I, mandates that parties to a conflict must at all times distinguish between civilian populations and combatants. Weapons and tactics that cannot discriminate between the two, such as large-scale aerial bombardments of urban areas, are considered inherently unlawful.
The case of Martic illustrates this point: the ICTY found that the use of indiscriminate weapons, such as cluster munitions, in civilian areas constitutes a direct attack on civilians and a grave breach of international law. The parallels with the weaponry and tactics employed in Gaza are evident.
Israel’s actions in Gaza have clearly provided the ICC with enough ground to pursue a case against Netanyahu and Gallant.
In this context, Torres’s assertion that the court is engaging in an “ideological crusade against the Jewish State” is simply false. The ICC does not single out specific nations; it prosecutes individuals where there is credible evidence of war crimes, crimes against humanity, or genocide.
The ICC’s intervention serves a critical purpose: to uphold the universal principles of humanity enshrined in international law. Accountability is essential to deterring future violations and ensuring justice for victims.
To dismiss the ICC’s actions as a “kangaroo court”, as Torres did, disregards the court’s mandate and the legal precedents it draws upon, including those established by tribunals for the former Yugoslavia, Rwanda and Sierra Leone.
While the October 7 attack by Hamas constitutes a heinous crime that demands accountability, it does not give carte blanche for the commission of war crimes in response. International law is designed to regulate conduct in war precisely to prevent the escalation of violence and protect those most vulnerable – civilians.
All states, but especially those most powerful like the United States, now have a choice – to engage in gaslighting and the defence of indefensible crimes committed by Israel and erode the very foundations of a rules-based international order, or to uphold the legitimate effort by the ICC to ensure accountability for crimes committed against Palestinians in Gaza.
The consequences of this choice will be felt by all of us in the years and decades to come. Whatever happens next, one thing is crystal clear – the law cannot be gaslighted.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.
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