Going into year two of war, could international criticism — and accusations of war crimes — actually change Israel’s tactics?
The United Nations discussed potential legal consequences for Israel’s actions in the Palestinian territories on Sept. 18. Photo by Bryan R. Smith/AFP via Getty Images
Jessica Wolfendale October 2, 2024
It was an unprecedented development that could have changed the course of the devastating war in Gaza: An independent commission of the United Nations and the International Criminal Court both found evidence that Israel has committed war crimes in its conflict with Hamas.
There was hope that the news would lead to an end to the extraordinary civilian suffering in Gaza. There were broad statements about the importance of nations respecting the findings of international bodies on matters of war. In his statement announcing his request for those warrants, the ICC prosecutor, A.A. Khan, stated that “no one can act with impunity.”
And yet: Nothing changed.
Instead, Israel and its most ardent supporters continue to defend its tactics in Gaza, which are estimated to have killed more than 40,000 people. (The Israel Defense Forces claim that approximately 17,000 of these are combatants.) Israel’s refusal to change its tactics raises an alarming question about the next phase of the conflict, which appears especially ominous following the onset of Israel’s ground campaign in Lebanon and a Wednesday airstrike by Iran on Israel. If the findings of two of the most important international organizations failed to persuade Israel and its supporters to reconsider its tactics, is there any narrative that could?
The myth of false equivalency
When Khan, the ICC prosecutor, announced in May that he was seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, there was some hope that Israel would take the message seriously — because Khan had also requested warrants for three Hamas leaders, on charges of war crimes related to the Oct. 7 attack.
For years, Israel’s allies have charged that the Jewish state is singled out for unfair treatment on the international stage. Perhaps, by simultaneously seeking warrants for the leaders of the terrorist group that had brutally attacked Israel, the ICC could fend off that argument.
Instead, accusations of false equivalency appeared — suggesting that the charges against Netanyahu and Gallant lacked merit precisely because they were issued alongside charges against Hamas.
A spokesman for the German foreign ministry said that the “simultaneous application for arrest warrants against the Hamas leaders on the one hand and the two Israeli officials on the other has given the false impression of equivalence.” President Joe Biden called the ICC’s actions “outrageous,” asserting that “there is no equivalence — none — between Israel and Hamas.” The American Jewish Committee released a statement claiming that the ICC had created “a false equivalence between leaders of a democratic country and leaders of a genocidal terror organization” that is “abhorrent.”
On the surface, those objections seem plausible. There are obvious differences between Israel — a liberal democratic state — and a militant organization like Hamas. But the claim of false equivalency was based on both an inaccurate interpretation of the ICC’s actions and a misleading and morally problematic characterization of Israel’s actions and intentions.
The false equivalency claim rests on the assumption that the ICC was implying that Israel and Hamas are equivalent organizations, when in fact the arrest warrants describe specific actions, committed by Hamas and Israel, that are violations of international law. In international law, a war crime does not cease to be a crime just because it is committed by the military forces of a democratic state, or in a defensive war. Many liberal democracies have committed war crimes: The United States conducted carpet bombing in Cambodia during the Vietnam War, and implemented a torture program after the 9/11 terrorist attacks. So, Israel’s status as a liberal democracy provides no reason to assume that it has not committed, or would not commit, war crimes.
Nor does the belief that Israel’s sole intentions in the war are to protect Israel and recover the hostages. According to this characterization of the conflict, it’s Hamas’s tactics and the existential danger that Hamas represents that force Israel to continue fighting. So the appalling civilian death toll in Gaza isn’t intentional, but rather the result of “poor execution of strategy and tactics.”
This characterization avoids acknowledging the reality that Israel’s tactics may themselves reveal an extreme disregard for Palestinian lives — even if its war aims are just. And there is substantial evidence of that disregard. For one example, a May 2024 report revealed that the IDF uses an AI targeting system known as “Lavender” to produce “kill lists” of potential Hamas operatives, which have often been approved with little oversight — despite selecting targets who have tangential or no connection to militant groups in approximately 10% of cases. Once a target was approved, the IDF would often attack the targets at night, effectively guaranteeing a high rate of civilian casualties. The choice to use a faulty system, at a time of day when warning civilians of impending strikes is all but impossible, clearly violates the requirement in international humanitarian law that military forces choose “means and methods” that minimize risk to civilians, even if it means putting more soldiers in harm’s way. The resulting civilian casualties cannot be excused as unintentional.
But even if the argument of false equivalency was shaky — at best misleading, at worst morally disingenuous — it was effective in giving Israel and its supporters a way of excusing Israel’s actions.
Impunity for war crimes — in Israel, and elsewhere
The false equivalency myth has enabled Israel and its supporters to portray Israel as acting only in self-defense, and to characterize the civilian death toll in Gaza as tragic but unintentional — even necessary, given the threat posed by Hamas.
And it became a new addition in a long line of arguments used to successfully create a sense of impunity for Israeli war crimes. According to one report, “Out of nearly 600 incidents in Gaza from the past 10 years that raised suspicions of law violations and whose outcomes are known, only three investigations — one per military offensive — resulted in indictments.”
But the false equivalency narrative, combined with references to good intentions and the portrayal of the enemy as a ruthless and existential threat, was not invented to defend Israel. It’s been used by many different states, for much of history, to deflect criticism for war crimes — a phenomenon with which I’m very familiar as a scholar of war and political violence, with a particular focus on the moral and political arguments that contribute to the commission of war crimes.
In my research, I have found that, from the early days of European colonization of the New World to today’s conflicts, states have frequently turned to the narrative of good intentions and a savage enemy to excuse and justify atrocities including genocide and torture.
During the turn-of-the-20th century war in the Philippines, the Vietnam War, and the War on Terror, American forces justified and excused the use of torture and murder by citing the need to defeat a “barbaric” enemy. And, just as few Israel soldiers or officials have faced serious repercussions for committing war crimes, so has the United States refused to hold any of those involved in the post-9/11 torture program accountable. Until the morally pernicious arguments and assumptions that underpin this myth are challenged and dismantled, it will continue to enable powerful states to commit war crimes with impunity, all the while claiming to be the most “moral military in the world.”
Is it reasonable to hope this narrative might ever be dismantled? The challenge of persuading Israel to change its tactics is complicated by the prevalence of the false equivalency myth across states. To challenge its use by Israel and its supporters is to challenge its use by other states, like the U.S., who have a vested interest in believing themselves to be justified, and even noble, in their use of military force, even when their tactics cause thousands of civilian deaths.
But the difficulty of this task is all the more reason to attempt it — for the sake of the victims of this war, and those of the wars that will follow. And it must start with the victims: Prioritizing their voices and testimony will help remind the world that it is human beings who suffer and die from war, and that their humanity and dignity transcends state boundaries.
A message from our CEO & publisher Rachel Fishman Feddersen
I hope you appreciated this article. Before you move on, I wanted to ask you to support the Forward’s award-winning journalism during our High Holiday Monthly Donor Drive.
If you’ve turned to the Forward in the past 12 months to better understand the world around you, we hope you will support us with a gift now. Your support has a direct impact, giving us the resources we need to report from Israel and around the U.S., across college campuses, and wherever there is news of importance to American Jews.
Make a monthly or one-time gift and support Jewish journalism throughout 5785. The first six months of your monthly gift will be matched for twice the investment in independent Jewish journalism.
— Rachel Fishman Feddersen, Publisher and CEO
