May 21: The ICC’s Fraudulent ‘Starvation’ Charge

Lapid to Bibi: Accept Fatahstan or be arrested; The U.S.-Iran backchannel; New bill could mandate race quotas in everything

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The Big Story

In his Monday request for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, International Criminal Court chief prosecutor Karim Khan listed as his first charge “starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of [the ICC’s] Rome Statute.” In lieu of attacking everything in Khan’s statement, we’ll focus on the starvation question, since it neatly illustrates the farcical nature of the indictment. 

Khan cites Article 8(2) of the Rome Statute, which prohibits “grave breaches of the Geneva Conventions of 12 August 1949” (aka the Fourth Geneva Convention), including the deliberate starvation of civilians. The text of the convention calls on all parties to “permit the free passage of all essential foodstuffs” and “the free passage of all consignments of medical and hospital stores” intended for civilians in enemy territory. As Elder of Ziyon notes in a Tuesday blog post, however, the convention also gives considerable leeway to belligerents to restrict or prevent the delivery of food, medicine, and other forms of humanitarian aid when this aid is likely to benefit the enemy. From the text of the relevant convention:

The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:

(a) that the consignments may be diverted from their destination,

(b) that the control may not be effective, or

(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.

Israel, of course, has “serious reasons for fearing”—i.e., it knows—that all three are happening. Control over aid deliveries is not always effective; just witness the fatal disaster during a February aid delivery in Gaza, when an IDF security detail opened fire against Gazans approaching IDF positions in the midst of a stampede on the aid trucks. A definite advantage clearly accrues to the military efforts and economy of Hamas. As we reported yesterday, Israeli analyst Ehud Yaari estimates that Hamas has earned about $500 million from international aid since Oct. 7, and more generally, aid deliveries not only extend Hamas’ ability to survive underground but also effectively subsidize the group’s war effort by relieving it of the financial burden of providing for civilians. Hamas has also openly threatened to kill any Palestinians who cooperate with Israeli aid delivery.

Finally, consignments are regularly diverted from their destinations, as the United States is now learning, despite months of hectoring Israel over its allegedly insufficient efforts to facilitate aid delivery. The United States formally started aid deliveries from its $320 million Gaza “humanitarian pier” on Friday, but on Saturday, 11 of 16 aid trucks leaving from the pier were robbed before reaching their destination, a World Food Program warehouse in Deir el-Balah, according to a Monday Reuters report. No aid trucks were delivered from the pier on Sunday or Monday. 

A glance at the U.S. Department of Defense’s Law of Armed Conflict (LOAC) manual shows just how liberally the United States interprets these restrictions. In its section on starvation, the LOAC manual states only that starvation cannot be “specifically directed against the enemy civilian population” (emphasis ours) and that “incidental harm” to civilians must not be “excessive” in relation to the expected military advantage. The controlling precedent cited in the manual is a 1971 letter from DOD’s then general counsel, Fred Buzhardt, which states that the destruction of crops is lawful if it “cannot be determined” whether the crops are intended for enemy forces or civilians, as long as the destruction is “justified by military necessity” and not disproportionate to the advantage gained. In other words, the United States considers it lawful not merely to refrain from delivering aid if the aid may be diverted by enemy forces, but to proactively destroy enemy food supplies. 

Indeed, as Elder of Ziyon notes in the same blog post, in 2009, President Barack Obama began limiting humanitarian aid to Somalia—during a burgeoning famine in which 1 in 5 Somali children were suffering from malnutrition—over fears that U.S. aid deliveries were being diverted to the Islamist Al-Shabab militia, a designated foreign terrorist organization that the United States was targeting with regular airstrikes. A New York Times report from that period noted that the U.S. State Department was so concerned that aid was falling into Al-Shabab’s hands that it sought legal assurances from the U.S. Treasury that “American aid officials would not be prosecuted for any American aid that slipped into [Al-]Shabab’s hands.” Needless to say, we’ve heard no such grumbling from State about the legal implications of aid falling into the hands of Hamas, which is also a designated foreign terrorist organization. 

Israel, meanwhile, has gone far above and beyond its legal obligations. As the Wall Street Journal editorial board noted in a Monday op-ed, Israel facilitated the delivery of 542,570 tons of aid and 28,255 aid trucks into Gaza since the start of the war, despite knowing that the aid is directly and indirectly subsidizing Hamas’ rule. According to at least one video posted by a Gaza blogger, Israel’s seizure of the Rafah Crossing almost immediately improved the humanitarian situation in southern Gaza: Although fewer trucks entered, the aid deliveries were not coordinated with Hamas, meaning that they could reach their intended destination without Hamas gouging prices to skim off the top (video courtesy of @VerminusM on X):

Fake allegations that Israel is committing war crimes have been a constant since the beginning of the Israeli campaign in Gaza (indeed, we were explaining the basics of siege law here as early as Oct. 16, at which time Human Rights Watch was already accusing Israel of “collective punishment” as a war crime). The ICC’s request for arrest warrants is in some ways a logical outgrowth of this general hysteria, which has been regularly fanned by the Biden administration and by U.S. officials such as Samantha Power. Only two weeks ago, the State Department released a report stating it was “reasonable to assess” that the IDF had violated international law in Gaza, including by inhibiting aid deliveries. As to the false equivalence the ICC asserted between Hamas and Israel, U.S. Secretary of State Antony Blinken himself said in April, following Israel’s mistaken strike on a World Central Kitchen aid convoy, that Israel risked becoming “indistinguishable” from Hamas. 

Biden has publicly condemned the ICC’s move as “outrageous,” and Blinken called it “shameful” in a Monday statement that said the United States “fundamentally rejects” the ICC’s move. U.S. allies France and Belgium, however, spoke out in favor of the ICC, with the French Foreign Ministry stating Monday that “France supports the International Criminal Court, its independence, and its fight against impunity.” Analysts quoted in a Tuesday Wall Street Journal report speculated that Khan and the ICC may be ignoring the United States and playing to a global audience that wants to see the Israelis punished. But Khan has generally been deferential to the United States during his three-year tenure as chief prosecutor, and there’s no doubt that the ICC’s move puts additional pressure on Netanyahu, which has been priority No. 1 for the Biden administration over the past several months. We can’t help but wonder if it’s really the case that Khan has gone rogue, or if some other game is being played here.

IN THE BACK PAGES: Israel doesn’t need better PR, argues Richard Hanania. It needs better friends

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The Rest

→Why all the suspicion regarding the Biden administration and the ICC? Well, take these Tuesday comments from Israeli opposition leader Yair Lapid, the Biden administration’s favorite Israeli not named Benny Gantz. According to reports in the Israeli press, Lapid told Israel’s Army Radio today:

Netanyahu should announce that he has entered into negotiations with the Saudis, including the Palestinian component. … In The Hague, they will not prosecute a prime minister in the middle of a historic peace process. This will solve The Hague [problem] for us and the [issue of] the ‘day after’ in Gaza‚ and it will help us mobilize the Saudis to apply pressure regarding the issue of the hostages. 

It is unclear whether Lapid was referring to the ICC or the International Court of Justice, both of which have ongoing cases against Israel and are based in The Hague. But Lapid’s comments come immediately after U.S. National Security Advisor Jake Sullivan’s visit to Saudi Arabia and Israel over the weekend, during which Sullivan met with Netanyahu and Gallant. In addition to urging Netanyahu to continue stepping up humanitarian aid deliveries, Sullivan reportedly pressed the prime minister on the proposed normalization deal with Saudi Arabia, which the United States has made contingent on Israeli commitment to a Palestinian state. Lapid is not a particularly bright bulb, so color us skeptical that he came up with this idea all on his own. 

→Apropos of Lapid’s comment, and of Benny Gantz’s weekend ultimatum to Netanyahu that Michael Doran dissected in The Back Pages yesterday, here’s a reminder of what New York magazine reported on March 9:

One Israeli expert frequently consulted by American officials says, “I have been asked by a serious administration figure what it is that will force the Netanyahu coalition to collapse. They were interested in the mechanics, what can we demand which will collapse his coalition.”

→Image of the Day:

Circled is U.S. Deputy Ambassador to the United Nations Robert Wood standing to observe a moment of silence for Iranian President Ebrahim Raisi during a Monday meeting of the U.N. Security Council. Although, to be fair to Wood, his former boss Richard Grenell speculated during a Newsmax appearance that Wood was likely ordered to pay his respects by his superiors at the State Department, which on Monday issued an official expression of “condolences” over Raisi’s death. 

Speaking of friendly U.S.-Iranian dialogue, Washington Post columnist David Ignatius reported Monday evening on ongoing U.S. back-channel talks with Iran, which included this nugget:

A sign of the Iranian-U.S. dialogue is that when Raisi’s helicopter crashed on Sunday, Iran requested urgent help from the United States in locating it, and sent a map showing the likely site, according to a knowledgeable official. 

→In the same column, Ignatius reported that the Israelis had agreed to a “limited” operation in Rafah that the United States will not oppose. Here’s Ignatius:

Israeli leaders have reached a consensus about a final assault on Hamas’s four remaining battalions in Rafah. Instead of the heavy attack with two divisions that Israel contemplated several weeks ago, government and military leaders foresee a more limited assault that U.S. officials think will result in fewer civilian casualties and, for that reason, Biden won’t oppose. At least 800,000 of the roughly 1.5 million Palestinians who had gathered in Rafah have left, U.S. officials believe.

The United States also appears to be lining up the Arab states and its Israeli allies for a “day-after” plan to empower the Palestinian Authority in Gaza. Ignatius again:

Israel defense officials have agreed on a strategy for “the day after” that will include a Palestinian security force drawn in part from the Palestinian Authority’s administrative payroll in Gaza. This Palestinian force will be overseen by a governing council of Palestinian notables, backed by moderate Arab states such as Egypt, Jordan, the United Arab Emirates and Saudi Arabia. Some Israeli officials—but not Prime Minister Benjamin Netanyahu—accept that this governing entity would have ties with the PA in Ramallah.

It’s revelations like these that explain why Netanyahu has blocked his security and intelligence officials from meeting with U.S. officials, as Axios reported on Sunday. 

→A bipartisan digital privacy bill could quietly impose race, gender, and other quotas on nearly every business, nonprofit, and university in the country, according to a recent analysis at Reason by Stewart Baker, a lawyer and former Department of Homeland Security official. How? The bill, the American Privacy Rights Act of 2024 (APRA), requires companies and nonprofits to ensure that any “algorithm” used for business or to hire staff must be evaluated for “harm.” But algorithm, in the bill, is defined as “any computational process that helps humans make a decision” (so, for instance, a spreadsheet), and the definition of harm includes causing “disparate impact” on the basis of “race, color, religion, national origin, sex, or disability.” The problem is that all objective hiring or business decisions create some form of disparate impact—physical-strength requirements for becoming a firefighter have a disparate impact on women, while English-language proficiency requirements have a disparate impact on people of non-Anglophone national origin—and APRA contains no exception  for business necessity, which current civil rights law recognizes as a valid defense against disparate impact claims. And while APRA nominally prohibits discrimination based on race or other protected characteristics, it provides an exception if such discrimination is done to “diversify an applicant, participant, or customer pool.” 

Baker explains the real-world impact of these provisions:

To see how APRA would work, let's try it on Harvard. Is the university a covered entity? Sure, it's a nonprofit. Do its decisions affect access to an important opportunity? Yes, education. Is it handling nonpublic personal data about applicants? For sure. Is it using a covered algorithm? Almost certainly, even if all it does is enter all the applicants' data in a computer to make it easier to access and evaluate. Does the algorithm cause harm in the shape of disparate impact? Again, objective criteria will almost certainly result in underrepresentation of various racial, religious, gender, or disabled identity groups. To reduce the harm, Harvard will be forced to adopt admissions standards that boost black and Hispanic applicants past Asian and white students with comparable records. The sound of champagne corks popping in Cambridge will reach all the way to Capitol Hill.

→The Department of Justice has indicted six Chicago individuals for participation in a visa fraud scam in which migrants paid to be robbed in order to gain eligibility for special visas reserved for crime victims. The DOJ charged four would-be migrants and two faux robbers in the scheme. According to the DOJ press release:

PARTH NAYI and KEWON YOUNG allegedly organized and participated in staged armed robberies at restaurants, coffee shops, liquor stores, and gas stations in Chicago and the suburbs of Lombard, Elmwood Park, St. Charles, Hickory Hills, River Grove, Lake Villa, and South Holland, as well as restaurants in Rayne, La., and Belvidere, Tenn. The indictment alleges that BHIKHABHAI PATEL, NILESH PATEL, RAVINABEN PATEL, and RAJNIKUMAR PATEL arranged with Nayi to be “victims” of the staged robberies so that they could submit applications for U nonimmigrant status (“U-visa”), which is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in an investigation or prosecution.

In Houston in January, an alleged “robber” was killed at a gas station by a bystander who believed he was intervening to stop a violent crime. Subsequent investigation from law enforcement revealed that the alleged victims had paid the “robber” to stage the crime so that they could apply for U visas. 

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Israel Doesn’t Need Better ‘Hasbara’

It needs better friends

by Richard Hanania

Among supporters of Israel, a narrative has developed around the narrative of the war. Last month, an article for Jewish Insider argued that the government needed to do a better job of making its case in the international media. Even Prime Minister Netanyahu himself seems to believe this, admitting that his government has dropped the ball in terms of public diplomacy—or what Israelis call hasbara. The article rings with clichés about the need to stick to talking points, exercise message discipline, and have government officials reading off the same page. The tone is about what one would expect if you were giving advice to the owner of a hardware store, not the government of a nation involved in a conflict that has grabbed the attention of the world for three-quarters of a century.

Sniping about shortcomings in messaging can be constructive, but more often it distracts from the underlying forces that have made the conflict in Gaza the focus of international politics and created so much pressure on Israel to not fight the war in the way that would be necessary to win. To see global hostility toward Israel as primarily a problem of optics rather than something deeper is to miss the entire essence of the conflict, and why the world cares so much about it in the first place.

On Monday, the chief prosecutor of the International Criminal Court sought arrest warrants for Netanyahu and Israeli Defense Minister Yoav Gallant. These two leaders are now in the same club as figures like Vladimir Putin and Omar al-Bashir, but interestingly not Kim Jung Un, Bashar al-Assad, or Xi Jinping. With the international community turning more and more against Israel and the war effort, answering the question of what is at the root of this hostility is more urgent than ever.

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If one believes that Israel’s optics problems in the current war are the result of flawed public relations, consider how the nation was treated before it began. The U.N. General Assembly adopted 140 resolutions on Israel between 2015 and 2022, about twice as many as on the rest of the world combined. Since 2006, the U.N. Human Rights Council has likewise adopted more resolutions on Israel than on Syria, Iran, Russia, and Venezuela put together. Media coverage shows the same disproportionate focus as the activities of international institutions. A 2014 article in Tablet by a former AP reporter describes its obsessive coverage of the Israeli-Palestinian conflict relative to every other geopolitical issue.

This obsession creates an impossible situation. In presidential politics, there is a general consensus that campaign and third-party spending doesn’t matter all that much, because people already have strongly formed opinions about the candidates and their issues and are paying a great deal of attention to the news anyway. When it comes to primaries and other lower profile races, however, money can make more of a difference.

Similarly, if you want to win the global media or the international community over to one side of the civil war in the Democratic Republic of the Congo, it makes sense to get a public relations firm and buy some ads, as most of the world shrugs when Africans kill each other, and any propaganda that reaches individuals can have a large impact because they otherwise get so little information on the topic. But this won’t work on Israel-Gaza, since wall-to-wall media coverage is both a symptom and a cause of activist and bureaucratic elites across the world already having strong opinions on the subject.

Information is filtered, moreover, through various ideologies, assumptions about the way international politics works, and in many cases a worldview that centers Jews, or white people with Jews as proxies, as a fundamental cause of many of the problems humanity is facing.

To most governments and activists that focus on the issue, the Israeli-Palestinian conflict is there to be fit into a preexisting narrative. Middle East experts in the United States believe, absurdly, that the Palestinian issue is the key to solving the problems of the region. They still stick to this view, despite Donald Trump being perhaps the most pro-Israel president in American history and nonetheless achieving multiple peace deals across the Middle East, uniting Israel and the moderate Sunni states against Iran.

Left-wing academics, of course, consider Israel a settler-colonial outpost, as part of a larger narrative that centers an oppressed-oppressor framework for understanding practically all social and political issues. Religious conservatives in the Muslim world see Jews as their ancient enemies, while even secular ideologies like Nasserism and Baathism have found it psychologically and politically convenient to blame Israel for the backwardness of the Arab world and its inability to adapt to modernity. Similarly, demagogues across poor nations have always found it useful to scapegoat the West for their problems, and the history of antisemitism gives them a prepackaged narrative about one particular group having a uniquely pernicious influence on world history.

Those who think that the problems Israel is facing result from a flawed diplomatic approach should spend some time thinking about how Hamas presents itself and its ultimate aims. One reason that the atrocities of Oct. 7 are undeniable is that Hamas fighters wore GoPros as they slaughtered innocent women and children. Spokesmen for the organization have justified the entirety of its rule by pointing to the “success” of that day and admit that its ultimate goal remains the elimination of Israel. There is a great deal of evidence suggesting that Hamas’ hatred for Israel is intractable, and in this posture it has the support of most Palestinians. This means that Israel finds itself picking from a menu of tragic choices, yet all this is ignored because it does not fit into the anti-Western, Third Worldist, or antisemitic narratives most of the international community is committed to for one reason or another.

These are forces beyond the ability of any spokesman of the IDF to control or, I’d argue, significantly influence. The idea that Israel just needs better PR is adjacent to the argument that what matters is not so much spin but objective Israeli behavior. Here again, one must consider international opinion over the last several decades. Before this current war, Israel had killed fewer Palestinians in a half century of periodic hostilities than the number of civilians the United States and its allies killed during the war on ISIS alone. The number of deaths in the Syrian civil war has of course been several orders of magnitude higher than that. It would be superfluous to continue providing examples of a double standard at work, as anyone with the most basic historical understanding could go on for a very long time listing post-World War II atrocities the U.N. and the global community have all but ignored as they have sanctioned and lectured Israel.

***

All this leads to the question of what allies of Israel should be doing instead of demanding better public relations. The bad news is that most of the world is going to hate Israel no matter what. At the same time, the fact that opposition to Israel is so clearly a corollary of wokeness, cultural Marxism, or whatever we want to call the dominant leftist narrative should make it relatively easy to sell the pro-Israel position to conservatives in the West, particularly the United States. And as we’ve discovered during this conflict, the United States is really the only country outside the region that matters. The Europeans, almost universally hostile to Israel and not all that powerful anyway, have completely disappeared as factors in the Middle East.

Ideally, the U.S.-Israel relationship would be bipartisan and remain strong no matter the results of any particular election. In reality, we are likely witnessing the beginnings of a tidal wave of anti-Israel sentiment that is going to sweep over the Democratic Party in the coming decades. It is not a coincidence that across the West, it is university campuses that are most supportive of the Palestinian cause. In places where individuals are most likely to endorse the oppressor-oppressed framework for understanding the world more generally, Hamas finds its most dedicated supporters. And as we have seen on issue after issue, fringe movements that start out on college campuses have a way of becoming mainstream within the Democratic Party. On Israel, the process is well under way. When asked whether they sympathize more with the Israelis or Palestinians, a recent Pew poll showed that Democrats and Democrat-leaners over 65 favor Israelis by 8 percentage points, while those 18-29 favor Palestinians by 40 points. While Hillary Clinton may denounce young people who know nothing about the region and President Biden took more than half a year to begin publicly threatening to cut off aid, even the latter’s moderately pro-Israel position belongs to a dying breed of Democrat.

On the Republican side, although sympathy slips as voters get younger, even 18- to 29-year-olds support Israel by over a 2-1 margin. A slew of expensive pro-Israel PR campaigns have been underway since Oct. 7, all targeting progressive-aligned voters, influencers, and politicians, but we should expect at most a limited effect. One is likely to have more of an impact appealing to those already receptive to the underlying message. Practically nothing unifies the American right like opposition to wokeness and political correctness, and the job of allies of Israel in the coming years will be to make clear to conservatives that support for the Palestinians is simply the foreign policy version of everything they hate and want to stand against at home. The eruption of protests this spring, which have been dominated by images of signifiers of the enemy—face masks, blue hair, hypochondria—has helped in this regard. Antisemitism has been increasing on the online right in recent years, and few things are more important for friends of Israel than making sure this faction continues to have no political power.

None of this is to suggest that pro-Israel Democrats should all jump ship and become Republicans. If an individual finds himself on the political left for whatever reason, he can be a good ally by pushing the Israeli cause within the Democratic Party. Figures like John Fetterman, Ritchie Torres, and Eric Adams have been important allies throughout this conflict. Democrats like these will always be facing somewhat of an uphill battle going forward given the basic moral and intellectual commitments of the modern left. But political parties generally aren’t known for always being logically consistent across all issue areas, so to the extent that a pro-Israel left can still exist, we should hope that it does.

All of this is to say that the best thing individuals can do to shape public opinion in Israel’s favor is to be more confident and assertive allies.

This involves not granting the premise of moral equivalency between Israelis and the Palestinians. A nation defending itself and inflicting collateral damage is not the same as a movement with exterminationist goals, which seeks to slaughter innocent people as an end in itself. And it is fine to say, based on everything else we know, that the Israeli government is more credible than Hamas when the truth about an incident or aspect of the war, like whether Israel is targeting innocent journalists, is in dispute.

From a broader perspective, friends of Israel must push back on any ideology that emphasizes Western wickedness and identity politics, of which hostility to the world’s only Jewish state must be a byproduct, made all the more powerful in international forums due to the way it resonates with the Third World. Join the struggles against DEI bureaucracies, fake academic fields based on an oppression-centered view of the world, and a far-left takeover of the Democratic Party. These larger battles will, more than any hasbara operation narrowly focused on Gaza, ultimately determine whether Israel can in the coming years continue to count on the United States as an ally.

The war in Gaza has captured the attention of the world because Israel, due to the kinds of tragic choices it must make, has emerged as the main avatar of Western civilization. This is one thing that the campus left gets correct. Throughout human history, most peoples have accomplished nothing most of the time, sulking in poverty, stagnation, tyranny, and sloth. Just as the United States forged a new civilization out of a wilderness, 75 years ago a people that had been stateless for over two millennia took over a small strip of land that had practically no natural resources, all the while being surrounded and outnumbered by hostile neighbors. Yes, in both stories, atrocities and injustices were committed along the way. But this is fundamentally less important than what these nations have accomplished and the necessity of making sure they continue to survive and prosper. As recent campus protests have made clear, the left sees these connections and knows what the stakes are. Israel and its allies must similarly understand that the real public relations battle is a struggle over the metanarrative of Western civilization.