The examination reveals that approximately 60,000 deaths reported by Gaza's Hamas-controlled Health Ministry over nearly two years represents a fraction of what genuine genocidal intent would produce. "If the Israeli government's intentions and actions are truly genocidal – if it is so malevolent that it is committed to the annihilation of Gazans – why hasn't it been more methodical and vastly more deadly?" Stephens writes. "Why not, say, hundreds of thousands of deaths, as opposed to the nearly 60,000 that Gaza's Hamas-run Health Ministry, which does not distinguish between combatant and civilian deaths, has cited so far in nearly two years of war?"

The analysis demonstrates Israel's capacity for exponentially greater destruction than what has occurred, noting the country's position as the region's dominant military power following successful operations against Hezbollah and Iran. The New York Times piece emphasizes that Israeli forces routinely warned civilians before strikes rather than bombing without notice, and chose ground operations that exposed hundreds of Israeli soldiers to fatal risks instead of relying solely on airpower.

External constraints haven't limited Israeli military options significantly, according to the columnist's assessment. President Donald Trump has publicly endorsed relocating Gaza's entire population and threatened severe consequences if Hamas fails to return hostages. Economic pressure through boycotts has proven ineffective, with Tel Aviv's stock exchange performing as the world's best major index since October 7, 2023.

Legal definitions of genocide require demonstrable intent to destroy specific groups "as such," based on ethnic, racial, religious or national identity, according to UN conventions cited in the analysis. "Genocide does not mean simply 'too many civilian deaths' – a heartbreaking fact of nearly every war, including the one in Gaza," Stephens explains in The New York Times. "It means seeking to exterminate a category of people for no other reason than that they belong to that category: the Nazis and their partners killing Jews in the Holocaust because they were Jews or the Hutus slaughtering the Tutsis in the Rwandan genocide because they were Tutsi."

The piece contrasts Hamas' October 7 massacre with Israeli military objectives, arguing that terrorists deliberately murdered Israeli civilians based purely on their identity while Israeli operations target Hamas infrastructure and seek hostage recovery. Historical precedent supports this distinction, with massive Allied bombing campaigns killing over one million German civilians during World War II without constituting genocide because the intent focused on defeating Nazi forces rather than exterminating Germans for their ethnicity, Stephens argues.

Gaza's destruction levels and inflammatory statements by some Israeli politicians fail to establish genocidal intent, the columnist argues. "Furious comments in the wake of Hamas's Oct. 7 atrocities hardly amount to a Wannsee conference, and I am aware of no evidence of an Israeli plan to deliberately target and kill Gazan civilians," Stephens writes in The New York Times.

The analysis acknowledges significant destruction while recognizing that bungled humanitarian operations, undisciplined soldiers, misdirected strikes and vengeful political rhetoric represent typical warfare realities rather than systematic extermination campaigns. Military forces throughout history have committed individual war crimes without their conflicts constituting genocide, according to Stephens.

Hamas' tactical approach creates unprecedented combat challenges by inverting established civilian protection protocols, the piece explains. Ukrainian civilians shelter underground while military forces operate above ground during Russian attacks, but Hamas fighters hide in tunnel networks while keeping civilians exposed on the surface. "In Ukraine, when Russia attacks with missiles, drones or artillery, civilians go underground while the Ukrainian military stays aboveground to fight. In Gaza, it's the reverse: Hamas hides and feeds and preserves itself in its vast warren of tunnels rather than open them to civilians for protection. These tactics, which are war crimes in themselves, make it difficult for Israel to achieve its war aims: the return of its hostages and the elimination of Hamas as a military and political force so that Israel may never again be threatened with another Oct. 7," Stephens argues in The New York Times.

The columnist draws direct parallels between Gaza operations and US-supported Iraqi campaigns against ISIS in Mosul during 2016-2017 under Barack Obama and Trump administrations. American airstrikes leveled entire city blocks during the nine-month operation, with one March incident reportedly killing 200 civilians in a single strike. "This fight, carried out over nine months, had broad bipartisan and international support. By some estimates, it left as many as 11,000 civilians dead. I don't recall any campus protests," Stephens observes.

The genocide allegation serves dual political purposes beyond legitimate legal concerns, according to the analysis published in The New York Times. Anti-Zionist activists exploit the charge to equate modern Israel with Nazi Germany, legitimizing renewed antisemitic attacks against Jewish supporters of Israel. Simultaneously, promiscuous application of genocide terminology threatens to dilute the term's significance for identifying actual systematic extermination campaigns.

"If genocide – a word that was coined only in the 1940s – is to retain its status as a uniquely horrific crime, then the term can't be promiscuously applied to any military situation we don't like," Stephens concludes in The New York Times. "Wars are awful enough. But the abuse of the term 'genocide' runs the risk of ultimately blinding us to real ones when they unfold."

The analysis suggests that while most Israelis support ending the Gaza conflict, misapplying genocide charges undermines rather than advances peaceful resolution. "The war in Gaza should be brought to an end in a way that ensures it is never repeated. To call it a genocide does nothing to advance that aim, except to dilute the meaning of a word we cannot afford to cheapen," the columnist writes.

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Some are claiming that in recent years, the IDF has become "overly legalistic," in other words, that the specter of prosecution and trial hampers the freedom of action of the military's top brass, the commanders in the field, and the soldiers themselves, as well as their ability to function when they face complex operational challenges. This claim is mainly voiced in the context of the IDF's war on terrorist organizations, who themselves flagrantly violate the rules of war, intentionally attacking civilians and hiding behind human shields.

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The truth is that fighting armed terrorist organizations is much more complicated – legally, as well – than fighting other armies, and that applying international law's rules of war to this kind of battle demands some creative thinking. This is mostly because the other side does not see itself as obligated to international law and tries to leverage the asymmetry of the two sides' commitment to it to improve its ability of achieving its goals.

However the reasoning behind laws of war applies to clashes with terrorist entities, as well. Therefore, the IDF uses their four main principle in its operations: the principle of necessity, which means that military force is exercised only when there is a military purpose in doing so whose focus is protecting the security of the country and its citizens and defeating the enemy; the principle of humanity, which requires that unnecessary suffering be avoided; the principle of distinction, under which an assault distinguishes between military targets and soldiers and civilians and civilian objects; and the principle of proportionality, which acknowledges that assaults on military targets could cause collateral damage to civilians and civilian objects but seeks to ensure that the collateral damage is not excessive in relation to the military advantage resulting from the action.

Unlike the incorrect way in which some critics of international law perceive it, the laws of war acknowledge the needs of countries to fight and defend themselves – against terrorist organizations, too – and seek to prevent or reduce damage that is unnecessary from a military standpoint.

Moral advantage is also a weapon

The IDF is careful to uphold the principles laid out above, not only because doing so anchors its ability to defend itself against lawsuits in the International Criminal Court and other foreign courts, but not only because of the need for international legitimacy to use force, which directly affects the country's ability to import appropriate weapons. The IDF upholds them, first and foremost, because the laws of war align with our own moral codes, which obligate the IDF, as an army in a democratic state, to the rule of law.

It could be argued that in a specific situation, not adhering to the laws of war could lead to greater success in the war on terrorism and in securing deterrence, and reduce the danger to Israel in the short term, but the cost of doing so would be insufferably high. It would harm uninvolved persons, as well as our ability as a people to face ourselves. The moral advantage actually increases Israel's power in the long run.

Mistakes happen, and will continue to happen

In fighting Palestinian terrorism, especially in the rounds of violence with the Gaza Strip, the IDF is shown to implement moral principles and the rules of law in an impressive manner, certainly to no lesser degree than other western armies. Relatively few uninvolved civilians are harmed, and the vast majority who are functioned, knowingly or unknowingly, as human shields.

The head of UNRWA in the Gaza Strip infuriated Hamas and was forced to resign after remarking at the IDF's precision during Operation Guardian of the Walls in May. In fighting Hezbollah in Lebanon, after the group turned countless civilian buildings into military targets (using them as missile warehouses, outlooks, or headquarters), the law allows the IDF to treat them as military targets, accordingly. The number of civilian casualties could be a lot bigger here, but that's because the fighting can be expected to be on an unprecedented scale. The ways of reducing collateral damage that work in Gaza are unfeasible in Lebanon. And that in and of itself is not a violation of international law.

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Upholding the laws of war in each and every case is a humane action that needs to be carried out anew each time, depending on the context. If there is any suspicion that the law was intentionally ignored, the instance must be investigated honestly. However, during war there can be mistakes and errors, some of which might cause unintentional harm to civilians on the other side. Sometimes mistakes are the result of combat requirements being underestimated and too much caution. For example, in the incident in which Border Police Staff Sgt. Barel Hadaria Shmueli was killed, it's possible that the orders did not correctly assess the demands of the situation.

In any case, there is nothing new in applying the laws of war to the war on terrorist organizations. Legal advisors have been taking part in Israel's war on terrorism for decades, and even if the nature of their involvement changes over time, ultimately they were and still should be part of the process, and advise. That is accepted practice in all western armies, and it should be. The final decision lies with the commanders, and it should take into account the legal counsel they receive.

Too easy

In this context, in recent years we have faced two massive challenges. One is the enemy's increasingly sophisticated methods. Among other things, this includes activating groups that portray themselves as human rights organizations, but actually are branches of terrorist organizations (for example, some of the groups Israel recently declared to be terrorist entities with links to the Popular Front for the Liberation of Palestine). Others operate with blatantly anti-Israel motives.

The second goal is the ease with which the enemy is able to enlist new media and some of the media establishment to promote its goals – primarily, slandering Israel and chipping away at its legitimacy. For years, radical left-wing entities throughout the world have been investing considerable means in slandering Israel, able to do so in part by taking advantage of the new reality in which areas of conflict are replete with tools of documentation that can be used to manipulate.

The international system, motivated by political considerations, mostly accepts the double standard of morality that this asymmetry expresses. While Israel is required to meet stringent standards and the former chief prosecutor of the ICC decided to open an investigation against it, no one truly expects the Palestinians to follow their laws of war, even though the ICC investigation is supposedly looking to Hamas' war crimes, as well. Moreover, according to the Palestinian narrative, the battle against Zionism justifies any form of war, including terrorism. And although the Palestinian Authority pays fat salaries to terrorists, it is seen as a legitimate partner in negotiations.

The IDF should continue to operate according to the law, but Israel must also recognize how vital it is for its to improve its abilities in the fights for western public opinion through an emphasis on our morality and our strong commitment to the law. The goal should be to increase the IDF's freedom of operation and restrict our enemies' freedom to operate.

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Prime Minister Benjamin Netanyahu is slated to meet with the top brass of Israel's political, military, and legal apparatuses on Tuesday to decide how Israel should respond to the International Criminal Court at The Hague's decision to launch an investigation into Israel for alleged "war crimes" committed in the Gaza Strip and West Bank.

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Specifically, the meeting is expected to decide how Israel should reply to ICC Chief Prosecutor Fatou Bensouda's query about whether Israel intends to investigate itself for the allegations the ICC is probing, or not.

Defense Minister Benny Gantz, Foreign Minister Gabi Ashkenazi, Attorney General Avichai Mendelblit, Deputy Attorney General for International Law Roy Schöndorf, legal counsel for the Foreign Ministry Tal Becker, and other officials are slated to participate in the meeting.

Israel is deliberating between the option of entirely ignoring Bensouda's query, on the grounds that Israel is not a member of the ICC and therefore does not recognize its authority and sees the probe itself as a biased political move.

The second option would be to respond to Bensouda with a terse letter, saying that the prosecutor has no authority to handle the matter.

Lower-level meetings over the past few weeks failed to reach agreement on the appropriate tack to take, and therefore the matter was placed before Netanyahu.

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Israel on Sunday revoked the VIP permit of Palestinian Authority Foreign Minister Riyad al-Maliki after he returned to the West Bank from a trip to the International Criminal Court in The Hague, Israeli and Palestinian officials confirmed.

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A PA official said Maliki was stopped Sunday as he entered the West Bank from Jordan through the Allenby Bridge crossing. Maliki's VIP card was seized, the official said. Losing VIP status makes it harder for him to move through IDF checkpoints in Judea and Samaria, and means he will need Israeli permission to travel abroad.

The revocation of a PA official's VIP status is a step Israel has not taken for years. Israeli officials said that the decision to revoke his status was a response to the PA's ICC lawsuit, as well as its ongoing attempts to smear Israel in other international organizations.

Since the Palestinian ICC case hopes, among other things, to hamper freedom of movement for Israeli officials, Israel has decided that Maliki – who is spearheading the legal proceedings – should no longer enjoy extra privileges at the border. He retains the same rights as any other Palestinian citizen, officials said.

Prime Minister Benjamin Netanyahu's office also declined comment.

Ahmed al-Deek, an official at Maliki's office, told Reuters the Israeli move was linked to Maliki's meeting with ICC lead prosecutor Fatou Bensouda.

"This is the Foreign Minister of the State of Palestine. He doesn't represent himself. He represents the State of Palestine, and we regard this as an attack against the State of Palestine," said Deek.

He added that Israeli officers detained and questioned Maliki's aides for 90 minutes.

Deek said that the minister left the crossing without the card. It was not clear when it would be returned to him.

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What will Israel's relationship with the International Criminal Court in The Hague look like now that British human rights attorney Karim Khan has been elected the court's new chief prosecutor?

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As previously reported by Israel Hayom, the choice of Khan could lead officials in Jerusalem to reconsider boycotting the ICC, but the legal advocacy organization Shurat Hadin-Israel Law Center holds the opinion that Israel should stop cooperating with the international agency, and even enforce that position through legislation and has already prepared a bill to that effect.

Shurat Hadin believes that whoever serves as ICC chief prosecutor, it is still vital that Israel stop cooperating with the court, of which Israel is not a member. Therefore, a bill has been prepared that would block the ICC from carrying out investigations in Israel or investigating Israelis. For years, the US has had a similar law. Kenya, which has been the subject of an ICC investigation, also took similar action.

The bill includes a series of steps to prevent investigations against Israel, including five-year prison sentences and financial penalties for any civilian group, such as an NGO, that hands information of any kind over to the ICC, either directly or indirectly; a five-year sentence for anyone who provides services to the ICC; a prohibition on any financial ties, direct or indirect, with the ICC, including the possibility that the ICC might hire investigators to operate in Israel; a ban on any governmental agency handing any type of information over to the ICC or its representatives without explicit approval from the justice minister; a ban on handing over anyone the ICC wants to investigate or arrest to the ICC or any third party; and a ban on ICC representatives entering Israel or conducting any activity within Israel's borders.

In addition, the bill proposes defining any assets the ICC holds in Israel as assets owned by a terrorist organization; "meaningful" government statements about any foreign officials helping the ICC from within Israel; and a governmental obligation to provide legal and financial assistance to any Israeli who becomes the subject of an ICC investigation.

Shurat Hadin said that the bill has been authored and is ready to be presented to the 24th Knesset as soon as it begins its work.

"Israel has to do today what the US did 20 years ago as soon as the ICC was founded," Shurat Hadin President Nitsana Darshan-Leitner told Israel Hayom.

"We have waited with this bill for a long time, but we now see the hangman's noose tightening around Israel's neck in The Hague," Darshan-Leitner added.

"Israel must to everything in its power to prevent the ICC taking action against Israelis. While the court takes an anti-Semitic position against the state of Israel and IDF soldiers, we need to anchor in law that no Israeli official or entity will submit information against Israelis to the ICC. Israel has an independent, strong law enforcement system, and when a suspicion of 'war crimes' arises, the matter is investigated with the utmost seriousness," Darshan-Leitner said.

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Last Saturday, the justices of the International Criminal Court (ICC) took a major swipe at the Jewish state. They ruled that the ICC prosecutor is permitted to open a formal investigation of Israel for fake war crimes. Prime Minister Benjamin Netanyahu blasted the decision referring to it as "pure anti-Semitism."

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Netanyahu added, "This court was founded to prevent atrocities like the Nazi Holocaust against the Jewish people, and now it is attacking the Jewish people's only state."

Netanyahu is absolutely right. The court's decision is bigoted at its core. To reach its decision, the judges had to ignore the 1998 Rome Statute on which it is founded. The Rome Statute makes clear that only states or the UN Security Council can petition the court for redress. And having ignored its own legal writ, the judges proceeded to take a knife to the very concept of international law. They applied a standard of behavior to Israel that is applied to no other state in order to single out Israel for legal proceedings that have no basis either in the court's specific mandate or in the law of nations.

The fact that Hamas – a terrorist group formally committed to the genocide of the Jewish people – published a statement applauding the court's ruling shows just how prejudicial the court's decision was. It is worth noting that every missile attack and suicide bombing Hamas terrorists carry out against Israel is a separate war crime under actual international law.

Hamas terrorists understand the racket the ICC is running against the Jews. The phony war crimes investigation is a practical application of UN General Assembly Resolution 3379 from 1975 which defined Zionism – the Jewish national liberation movement – as a form of racism and so rejected Israel's moral right to exist.

Although Resolution 3379 was rescinded in 1991, it is alive today in every UN agency where Israel is condemned on a daily basis for absolutely nothing. It is alive in the European Union which subjects Israel to systematic discrimination. And it is alive on the international left, whose members throughout the Western world vilify Israel at every turn – again, for absolutely nothing.

All of these forces understand that the point of putting IDF soldiers, commanders and Israeli civilians in the ICC dock for war crimes that never happened is to advance their goal of rescinding international recognition of the Jewish state's right to exist as a normal, sovereign state. They also know full well that simply by holding show trials of Israeli Jews, they will legitimize and expand support for Hamas' goal – Israel's physical destruction.

Around the time that Resolution 3379 passed, Henry Kissinger claimed there was nothing to worry about, really. Neither the United States, nor "in the last analysis Europe," would ever "negotiate over the survival of Israel," he said.

But an examination of the forces that are producing the ICC Inquisition makes it clear that Kissinger was naïve – at least as far as Europe is concerned.

To be sure, the primary party responsible for the Jew hating charade at The Hague is the ICC itself. The political Star Chamber has an institutional interest in pursuing fake charges against Israel. In 2017, the African Union passed a resolution calling for its member states to withdraw from the ICC. The AU resolution stemmed from what African leaders viewed reasonably as the ICC's prejudicial focus on their governments. When the resolution passed, nine out of ten cases before the court dealt with African states. The governments of Africa were fed up with the court's discrimination.

Shortly thereafter, ICC Chief Prosecutor Fatou Bensouda completed her preliminary examination of Israel and submitted her request to the judges to open a formal war crimes investigation. The chain of events gives up the game. The ICC needs a non-African scalp. And Israel fits the bill. The Africans are satisfied that a nearly-Western state is being pursued. And Western states are happy because they don't consider Israel a member of their club.

In other words, Israel is the ICC's scapegoat that it can sacrifice to secure its organizational interests.

But as corrupt and depraved as the ICC's motivations for building a phony war crimes case against Israel are, the ICC couldn't act on its own. It needed three things to be done by others to enable its actions.

The first thing that had to be done to pursue fake charges against Israel was for the Palestinian Authority, which is not a state, to join the ICC as a state signatory of the Rome Statute. Since the PA is not a state, to pretend it is a state, the ICC needed UN cover. So in 2012, the PA applied for non-state observer status at the UN.

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Votes at the ICC and the UN General Assembly passed overwhelmingly. The Czech Republic was the only EU member state that opposed the legally baseless moves.

To be clear, the PA's purpose in signing the Rome Statute and requesting the upgrade of its UN status was known to all involved. All the states that approved these moves – or failed to oppose them – knew that their actions were setting the conditions for the ICC to try innocent Israeli soldiers, commanders and civilians for war crimes that were never committed.

The State of Israel itself cannot be formally placed on trial. The ICC, as a supposedly legal body, needed complaints against actual named Israelis. And it needed "evidence," and "testimonies" to give weight to the allegations. Over the past several years, NGO Monitor has documented copiously how two different sets of non-governmental organizations have run this part of the show. First, international groups including Human Rights Watch and Amnesty International have run a major lobbying effort against Israel for decades. Its purpose is to deny Israel the right to self-defense. In recent years, those efforts have focused specifically on pushing the PA to join the ICC even though the act was a material breach of the PA's signed agreements with Israel. They have published spurious allegations of Israeli "war crimes," lobbied for an upgrade in the PLO's status at the UN, and for the ICC to charge Israel with war crimes.

The second type of organization behind the ICC effort are local Israeli and Palestinian NGOs. Israeli groups including B'stelem, Yesh Din and Breaking the Silence and Palestinian groups including the Palestinian Center for Human Rights, Al-Haq, Al Dameer and Al-Mezan delivered the goods. European governments including Germany, France, Holland, Switzerland, Norway, Sweden, and Britain contribute millions of euros annually both separately and under the European Union aegis to these and other groups.  As NGO Monitor has documented, in recent years, a portion of those contributions has been specifically directed towards actions to facilitate the ICC actions against Israel. Without the support of European states and the EU, these groups would lack the financial wherewithal to run campaigns to demonize Israel and to promote ICC witch hunts against its soldiers, officers and civilians.

Finally, the ICC would not have opted to discredit the entire concept of international law by going after Israel for non-existent crimes if it believed that it would be penalized for doing so. In 2015, when Bensouda initiated her preliminary examination, Israel asked ICC funders to retaliate against the move by defunding the institution. Israel's request was rejected.

More than 60% of the ICC's budget is funded by European governments. Germany is generally the ICC's largest or second largest funder. A German government representative quoted in a Reuters' report of Israel's request said that Germany "couldn't imagine" scaling back, much less defunding of the political court.

So without the actions of European governments like Germany, Holland, Switzerland, France, Norway, Britain and Sweden, and without the EU as a whole – the ICC would never have opened its bigoted proceedings against Israel, the purpose of which is to reject Israel's right to exist. At every point, the Europeans had the power to prevent or end the ICC's bigoted treatment of the Jewish state. And at every point, the Europeans took active steps to ensure that the targeting would continue. Indeed, by funding and directing the efforts of the likes of NGOs Breaking the Silence and Al-Dameer, (which is affiliated with the Popular Front for the Liberation of Palestine terror group), the Europeans were the puppet masters directing the passion play.

German Foreign Minister Heiko Maas criticized the ICC's ruling move in a statement he put out shortly after it was announced. Maas didn't condemn the immorality of pursuing fake war crimes allegations against an innocent nation. Rather, Maas's criticism focused on the fact that despite the efforts of the ICC and the UN, the fact remains that "Palestine" is not a state. "The court has no jurisdiction," he tweeted, "because of the absence of the element of Palestinian statehood required by international law."

This is, to be sure, the key legal problem with the ICC's ruling. But the much larger problem with the judges' decision is that the investigation is a politically motivated effort to cause material harm to Israel, as the Jewish state. Israel abides scrupulously by the rules of war, and everyone knows that. The reason German politicians like Maas should oppose the ruling is because the court's behavior is part of a larger effort to undermine international acceptance of the Jewish people's right to their state. But then, as a major funder of both the ICC and the NGOs behind the fictitious, libelous allegations, and as a state that failed to oppose the Palestinians' legally groundless bids for the status of state at the ICC and the UN, Maas clearly doesn't have a problem with the immorality of the enterprise. To the contrary, he is playing a key role in moving it forward.

In a way, the ICC's efforts to harm the Jewish state is a modern-day version of the Dreyfus trial. The Dreyfus trial was an anti-Semitic reaction against France's decision to grant the full rights of citizenship to French Jews in the framework of the Emancipation. Anti-Semitic officers in the French General Staff needed a scapegoat to blame for acts of treason they had committed. By choosing Capt. Alfred Dreyfus, an Alsatian Jew, for the role, the officers enjoyed the cover and support of powerful anti-Semitic clerics, anti-Semitic intellectuals and newspaper publishers, and anti-Semitic politicians. All of the figures involved realized that by framing Dreyfus "the Jew," they advanced their efforts to discredit the idea that Jews could be full partners in French public life.

The big difference between the people that produced and directed the blood libel against Dreyfus 125 years ago and the people that are producing and directing the blood libel against Israel today is that in France at the turn of the 20th century, people were proud to attack Jews openly. Today, their contemporary successors prefer a passive aggressive approach. They pretend to oppose the efforts to delegitimize and criminalize the Jewish state while they pay for and direct them.

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A week ago, the hypocrisy of the international system reached a new height with the announcement that Chief Prosecutor of the International Criminal Court Fatou Bensouda had decided there were sufficient grounds to open an investigation against Israel for alleged "war crimes."

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Neuer says that there is no alternative but for Israel to take on the ICC head-on. He thinks that ICC judges cannot adopt a position that contradicts that of the UN, which has recognized the "state of Palestine," and will therefore decide on an official investigation against Israel that centers on the accusation of war crimes and is expected to address Israeli settlements over the Green Line – which is why Israel declined to join the ICC in the first place.

"Over a course of a few years, the prosecutor was conducting a preliminary investigation, in which the court started to probe accusations that Israel was committing war crimes," Neuer said. "Now the main question is whether the judges will decide that the ICC has the authority to launch a full-scale investigation. Israel's position is that the Palestinian Authority is not a state, and therefore cannot be a plaintiff in the court or give it judicial prerogative. According to Israel, the PA does not meet the criteria of international law to be considered a state and therefore has no control over territory. So there is a basic debate here about the kind of judicial authority the court has," he says.

There have already been two attempts to try Israel, or rather senior Israeli officials, in The Hague. In 2012, the court rejected a suit against Israel for alleged war crimes supposedly committed during Operation Cast Lead, on the basis that "Palestine" was not a state and therefore it had no authority to discuss petitions on the issue. Since then, Israel's enemies have been working to create a situation that would allow Israel to be attacked in The Hague: at the end of 2012, the UN General Assembly recognized "Palestine" as an observer nation. Given that, despite an outcry from Israel, the PA was able to join the ICC in April 2015, and then rushed to file a suit against Israel.

A few weeks ago, the ICC rejected a petition from the Comoro Islands to discuss alleged Israeli war crimes committed during the raid on the Mavi Marmara vessel in May 2010. Turkey, which has committed plenty of war crimes itself, is not a member of the ICC and couldn't sue Israel itself, but the regime of Turkish President Recep Tayyip Erdoğan took care that the flotilla of which the Mavi Marmara was part sailed under the flag of another Muslim state, which was a member of the ICC and could therefore sue Israel. But the attempt failed.

Positions that became law

Neuer explains that this week's decision by the ICC presents a more complicated challenge for Israel.

"On one hand, we have the military conflict between Israel and the Palestinians, especially the recent clashes in the Gaza Strip and the accusations about war crimes being committed there. In this matter, Israel can say that it has a trusted military justice system that can and is authorized to handle these accusations itself, as other democracies do. The court can only take action as a last resort in instances where there is no credible justice system that can handle accusations of war crimes. It's clear that Israel is a democracy that is willing to put its highest-ranking officials on trials when necessary, and there are very few countries in the world that do that. So Israel can easily claim that the ICC has no authority to handle these issues," he says.

When it comes to the settlements, the picture is different.

"It was decided when the founding charter of the ICC was written, under pressure from Arab and Muslim states, that the transfer of a population to occupied areas would be considered a war crime," Neuer says.

"For Israel, building settlements is not, of course, a war crime. If a Jew builds a house in the Old City of Jerusalem, that is a Jew who is returning to the homeland of his forefathers in accordance with the principles of the Balfour Declaration."

"On the other hand, the UN now sees any Jew living beyond the Green Line, even in the Jewish Quarter of Jerusalem, as committing a war crime. There is no differentiation between Gush Etzion, Psagot, or Hebron. According to the UN, the settlements are a war crime. Israel and its courts do not see them as a war crime. Therefore, it will be difficult for Israel to argue that its legal system can investigate this matter. Here, the ICC can say, 'If you don't intend to investigate, we will.'"

In effect, the ICC judges are being asked to make a political ruling about the status of Judea and Samaria, and east Jerusalem.

"They will say they are dealing with a legal issue, but of course, if we look at the wider picture, what is happening is that since 1967 the international community has found different ways of criminalizing Israel. It didn't happen in a single day. Gradually, a [legal] infrastructure arose that decided that Jews living in their ancestral homeland are war criminals according to law. This process occurred through UN resolutions and declarations of policy from the European Union, like the recent decision about labeling settlement goods.

"These positions turned into tools that are presented as international law, particularly UN Security Council Resolution 2334 of December 2016, which declared that the settlements were illegal. [Then-US President] Obama not only did not prevent it from passing, he encouraged it to be adopted. Its goal was to say that any Jew living over the Green Line is an occupier, even in east Jerusalem. So according to the UN and the ICC, Israel is in violation of international law."

Rights in Jerusalem and Hebron

In Neuer's opinion, Israel can say that the advancement of this international view is based on a political agenda.

"Take the case of the EU. Its stance on Israeli settlements does not hold for other similar situations. Turkey occupies northern Cyprus – there are settlements there, an obvious population transfer, and the EU is not only not responding, but also giving money to the residents of Cyprus. In other words, Israel is treated differently. It's obvious that the UN has a double standard when it comes to Israel. But we have higher expectations of the EU itself, since it is not an organization that represents dictatorships, like the UN Security Council.

"The EU is made up of democracies, and yet it still has a double standard when it comes to Israel. When I ask European diplomats why they vote against Israel in the UN General Assembly, they answer that it's because they care about international law and universal human rights. So why don't they bring a resolution about the Turkish occupation of Cyprus to a vote, or the Moroccan occupation of the Western Sahara? The EU has no problem with this. The Turkish settlers in northern Cyprus are eligible for support from the EU, so why aren't they [the EU] giving money to Jewish settlers? They claim that they care about occupied territory, but the truth is – they don't. It's just a weapon developed over the past 50 years to attack the Jewish state."

Q: In effect, there are two contradictory international laws: the historic one, based on the Balfour Declaration, which gives Jews the right to settle the Land of Israel, and the one invented in the past 50 years with the goal of erasing the existing international law.

"Indeed. It's important to understand that the Balfour Declaration was not a strong-arm move by one government. It was the British Empire, which the time controlled a quarter of the world's territory. The Allies who won World War I worked together, and the declaration was ratified at the San Remo conference and became a mandate from the League of Nations that recognized the Jews' historic rights to the Land of Israel. It didn't pertain to just Tel Aviv, but also to Jerusalem, Hebron, and the biblical places that make up the heart of the Jews' historic homeland.

"We know that anti-Semitism changes its face. The current mutation of Jew-hatred is expressed in the Christian West and Muslim world's obsession with Israel. The claims against the Jews today rest on human rights, the war on racism and international law. Israel is accused of being a racist state, and the talk about occupation and the territories uses terminology that was used about the Nazis. The Nazis occupied, Israel occupies. The Nazis committed genocide, Israel is committing genocide. We are witnessing a grab of specific terminology that dehumanizes and delegitimizes Israel and the Jewish people."

Q: Do you see a scenario in which the ICC judges go back to the prosecutor and tell her the court has no authority to try the matter?

"Objectively speaking, there is no such state as 'Palestine.' [PA President] Mahmoud Abbas talks about it, and then he says he wants to hand the keys back to Israel. I've never heard any other entity say it's a state, but that 'tomorrow we'll give up our nation.' It's absurd. Abbas had no control over the Gaza Strip or large parts of Judea and Samaria, which under the Oslo Accords are still under Israeli control. And if he does control Gaza, he should be tried for war crimes because of the rocket fire on Israel from there. But the decision the judges make will be a political one, no doubt influenced by political factors. We know that the UN decided that Palestine is a state. So it's unlikely that they [the ICC] will make a decision that goes against that of the UN."

Q: So in terms of international law, does Palestine have national status, or not?

"The UN has declared Palestine a non-member state. It doesn't have the right to vote, like Israel or more than 190 other countries do. The moment they were recognized as a state they appealed to the ICC in The Hague and announced they wanted to give the ICC the authority to try war crimes committed by Israel in their territory. Thus far, the court has treated Palestine as a state. Therefore it started a preliminary investigation, and I expect they will decide that they have the authority to handle the matter."

Q: How can Israel fight that?

"By being sure of itself, its past, by creating alliances with different players in the international arena – Western countries and non-Western countries. And there is also the battle in the legal sphere. As part of its broader struggle, Israel has racked up plenty of achievements in the non-Western world. Israel's ties to non-Western nations, including some in the Middle East, have improved. On the other hand, its relations with the West have grown worse.

"Israel is facing a tough battle for the legitimacy of its historical narrative. Israeli leaders' declarations about their intention to annex certain areas don't help much when it comes to The Hague's investigation of the settlements. The battle should be waged through a combination of professional legal experts and political leadership, whose statements can have an adverse effect of the court. A conflict with the court is inevitable."

Q: The ICC itself has a serious problem with legitimacy. Two major world powers, the US and Russia, don't recognize it. A few African countries, including South Africa, have left it. Most Asian nations aren't members, not to mention the Arab world. Could a conflict with Israel further weaken its legitimacy?

"Thus far, the court has dealt with many war crimes in Africa. It would be very simple to attack Israel now, and it would make a lot of countries happy, especially Muslim ones. The question is what price they will pay for ... It's fairly clear that it would enrage the US. Incidentally, it's interesting that there was a preliminary investigation into alleged US war crimes in Afghanistan. The US announced it would not allow the ICC into its territory. Shortly thereafter, the investigation was dropped.

"If the judges in The Hague decide to take further steps against Israel, they will lose a certain degree of legitimacy among certain governments. But beyond that, in Europe – where members of legal academia would be happy to persecute Israel – and among the world's legal elite, they will win support. Maybe a few experts will recognize the absurdity of a court that is supposed to deal with the horrors that the worst dictatorships in the world perpetrate persecuting a democracy with a legal system that has authority, one that is involved in a conflict but still fights better than any other country in the world, as American and British generals have testified. There is no army in the world that operates as carefully as the IDF in identical conflicts. But a lot of people in the world don't see how absurd this is."

The post They say every Jewish settler is a 'war criminal' appeared first on www.israelhayom.com.

Both of these assumptions are the fruit of an international campaign waged by a network of NGOs in Israel (primarily the B'Tselem rights group) and the Palestinian Authority that receive funding from European nations.

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For example, the terms of a 250,000 euro ($280,000) grant to B'Tselem from the government of the Netherlands in 2018 include a clause that addresses the "Supreme Court and expulsion of communities," which describes planned activities for the second half of 2018 in which B'Tselem was to "produce a report about the functioning of the Supreme Court on the matter of expulsion of Palestinian communities."

The document states that B'Tselem sees the Supreme Court of Israel as the main mechanism that allows for the "ongoing occupation" and the "violation of human rights" by granting legitimacy to Israeli policy.

In 2019, B'Tselem received an 87,000 shekel ($25,000) grant from the Swedish Diakonia organization that was earmarked for an "examination of the court's rulings about violations of Palestinian human rights." This was after the organization received 70,000 shekels ($20,000) in 2018 for a project to review "Supreme Court rulings about home demolitions."

According to a probe conducted by the watchdog NGO Monitor, some of the grants were specifically issued to be used for activity involving the International Criminal Court in The Hague.

Another major player against Israel in the ICC is the nonprofit Adamir, which was recently the focus of media attention thanks to two of its employees being involved in the murder of Israeli teen Rina Shnerb, 17, in a roadside bombing in August. In 2018, Adamir received $120,000-$150,000 from the Swiss government, after it committed to continuing to work to bring Israel to the ICC.

Yet another organization involved in anti-Israel efforts at The Hague is the Palestinian Center for Human Rights, which received the following grants: 270,000 Swiss francs ($275,000) in 2018; 340,000 euros ($370,000) from the government of Germany; and 70,000 euros ($77,000) from the government of Ireland in 2017. The PCHR's contract with the Swiss government stipulates that the organization was to supply the office of the ICC's chief prosecutor with information. The contract also states that the success of the organization would be measured by "the number of people who manage to access the international mechanism of justice as a result of the organization's activity."

The legal principle of complementarity determines that the ICC has no legal mandate over nations with functioning legal systems, which is what has kept Israel from being prosecuted at The Hague. But if one tracks activity by B'Tselem, it appears that the organization has been attacking that principle ceaselessly. This past February, B'Tselem put out a report that attacked the legitimacy of Israel's Supreme Court. The report examines "the responsibility of the Supreme Court justices for demolitions of Palestinian homes and their [Palestinians'] expulsion."

Professor Gerald Steinberg, president of NGO Monitor, said that "some of the organization tried to damage the independence of the Israeli legal system in order to present it as ineffective in the eyes of the international community. The main question is how we can make it clear to the Europeans that their money cannot continue to be part of the ongoing campaign against Israel."

B'Tselem issued a detailed response to the above allegations:

"The Israeli legal system is one of the mechanisms of the occupation. If the Israeli legal system were to do its job in the pursuit of justice and defending human rights – rather than comprising a central mechanism of allowing the occupation – the reality here might be markedly different."

B'Tselem took issue with the "tone" of the Israel Hayom reporter's query.

"Our efforts are not to 'attack,' but rather to expose the truth, according to the facts and figures that we have been publishing for years clearly state it to be. The truth is that because Israel does not conduct real investigations, but rather upholds a system of whitewashing, the 'principle of complementarity' does not defend it, and there is nothing to defend. Attorney General Avichai Mendelblit, especially in his former role as chief IDF prosecutor, certainly understands that very well.

"Israelis would do well to ask themselves who better interprets international law. For example, B'Tselem called on soldiers not to obey explicitly illegal orders to use live fire against Palestinian protesters in Gaza. In response, government ministers called for an investigation into B'Tselem while the orders on opening fire – the same illegal orders – were given week after week, exacting the terrible price of hundreds of Palestinian protesters being killed and thousands wounded in Gaza. Now, the prosecutor of the ICC has declared that she can investigate the issue. Wouldn't it have been better for her to come down on the side of B'Tselem from the start?

"B'Tselem is once again clarifying that the responsibility for violations of international law and the perpetration of war crimes by Israel lies first and foremost with the top political and military echelon. Any attempt by cowardly ministers to pass of this responsibility on subordinates is an attempt to distract people and evade responsibility.

"In conclusion, some legal advice: Anyone who doesn't want to stand trial for war crimes would do well to avoid committing such crimes [and] not move the population of an occupying state into occupied territory, not bomb homes with their inhabitants inside, not shoot unarmed protesters, not demolish homes, and expel their residents. Don't commit crimes. Please."

The post How B'Tselem is helping the ICC target Israel appeared first on www.israelhayom.com.

One was the response to the US State Department's announcement that Israeli settlements don't violate international law. What was striking was that many opponents didn't actually challenge the department's (correct) legal conclusions. Instead, they objected on policy grounds.

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Democratic presidential candidate and former vice president Joe Biden, for instance, complained, "This decision harms the cause of diplomacy, takes us further away from the hope of a two-state solution, and will only further inflame tensions in the region." Another leading Democratic candidate, South Bend Mayor Pete Buttigieg, termed the announcement "a significant step backward in our efforts to achieve a two-state solution."

Rabbi Rick Jacobs, president of the Union for Reform Judaism, was particularly blatant. While acknowledging that the decision focused solely on international law, he worried that it "will be widely read as a broader change to the US position on Israeli settlements," which "would place serious and critical obstacles to a viable two-state solution." Consequently, he urged the administration "to reverse its position."

Essentially, all three want the settlements declared illegal simply because they think settlements are bad policy, regardless of what international law actually says. In other words, they're incapable of distinguishing policy from law.

People who understand this difference have no problem with settlements being recognized as legal because they understand that something can be bad policy even if it's legal. Indeed, that's precisely what all administrations, both Republican and Democratic, did for roughly three decades between Jimmy Carter and Barack Obama: They vehemently opposed settlements on policy grounds while simultaneously acknowledging that they weren't illegal.

Yet the concept of "it's legal, but it stinks" has evidently gone out of style, especially on the Left. When leftists think something stinks, they want it declared illegal, even if it's not.

The advantages of this tactic are obvious. Policy questions, by definition, are disputable; indeed, many people disagree that settlements are bad policy. But law ostensibly eliminates controversy because once the courts rule something illegal, then everyone is supposed to accept that it must stop. Thus branding any policy one opposes as illegal is meant to make it politically illegitimate. If settlements are illegal, they mustn't be built, even if they're actually good policy.

Granted, this ploy has an inherent problem when it comes to international law since there are no recognized courts whose authority to make such judgments is universally accepted. Neither America nor Israel, for instance, ever agreed to accept the legal interpretations of the International Criminal Court, UN agencies or any other such body. And without an accepted arbiter, whether or not something violates international law is endlessly debatable.

But the bigger problem is this tactic's enormous cost, which far outweighs any possible benefit: When people start branding anything they object to as "illegal," they turn the law into just another player on the political battlefield. And once that happens, legal decisions will be treated with no more respect than any other political pronouncement.

Thus Americans who object to recognizing the settlements' legality on policy grounds are destroying any pretensions that international law might have to objectivity and impartiality, just as the European Union did by insisting that international law requires labeling products from Israeli settlements, but not from Turkish settlements in northern Cyprus or Moroccan settlements in Western Sahara. In both cases, international law is being treated not as an objective, universally applied standard, but as a selective political tool to punish disfavored countries or policies. And as such, it deserves no more deference than any other political decision.

Given how amorphous international law actually is, that may be no great loss. But when the same tactics are applied to domestic legal systems, the consequences become devastating. Once a significant portion of the citizenry starts to view legal decisions as politics in another guise, the consensus on which democracy's survival depends – that legal decisions must be honored – will rapidly erode.

As I've noted before, this is already happening in Israel. But last week's indictment of Israeli Prime Minister Benjamin Netanyahu provides a particularly worrying example of the costs.

I'm the rare Netanyahu supporter who thinks that one of the three cases against him is actually serious. But for two understandable reasons, many supporters believe that he's simply being persecuted by a leftist legal establishment frustrated by repeated failures to oust him through democratic elections.

The first is that the Attorney General's Office and the courts have intervened in literally thousands of policy decisions over the past three decades, frequently in defiance of actual written law and almost always in the Left's favor. In short, both bodies have routinely behaved like political activists rather than impartial jurists. So rightists have no reason to trust their impartiality now.

Second, Netanyahu has been targeted by frivolous investigations – including, in my view, two of the three now going to trial – ever since he first became prime minister in 1996. All involved genuinely repulsive conduct on Netanyahu's part. But rather than treating such conduct as a problem on which the public, rather than the courts, must render judgment, the legal establishment repeatedly opened cases against him, to which they devoted countless man-hours before finally closing them.

Now, the legal establishment says it has finally found a real crime. But like the boy who cried wolf, Netanyahu's supporters no longer believe it.

The combination of these two factors means that many Israelis genuinely feel that their prime minister has been ousted by a corrupt legal establishment solely because it opposes his policies. And that will inevitably foster even greater distrust of the legal system.

Leftists spend a lot of time these days fretting about democracy's possible collapse. But if they really want to avert such a collapse, the first step is to stop politicizing the law, so that legal institutions can regain public trust. For without a legal system whose decisions are widely respected, democracies will be left with no way of resolving disputes but the one shared by dictatorships and anarchies – plain old-fashioned brute force.

Reprinted with permission from JNS.org

The post Legalizing politics and politicizing the law appeared first on www.israelhayom.com.

Notices sent out to haredi conclaves on Tuesday reported that representatives of the group intended to visit the UN Office for the Coordination of Humanitarian Affairs in Jerusalem at 3 p.m. Tuesday to hand over the letter, which detailed the "crimes" they allege the government is perpetrating against them.

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The committee, which is linked to the extremist Jerusalem-based Edah Haredit sect, is claiming that their protest is a historic moment for the nations of the world to "stop forcing young people to join the annihilation army, which is a violation of three serious laws of the Jewish religion."

The haredi news site Kikar Hashabat quoted parts of the group's letter to the UN.

"We have lived in Jerusalem since the days of the Turkish Ottoman Empire, and since then have lived in peace with our Arab neighbors. [We are] seeking the urgent intervention of the United Nations against the Israeli government for gross violations of international law, and actions that go against the same foundations that the Israelis claim their country and legal system are based on," the letter reads.

"We are persecuted daily," the group claimed.

"We ask the UN General Assembly/or the UN Human Rights Department [sic] to inform the Israeli government that it is carrying out illegal actions as part of its desire to re-educate the sons of the haredi minority.

"In addition, we would like to inform them that they must refrain from such actions in the future and that they must allow a minority the right … not to be called 'criminals' just because they wish to uphold their religious principles," the letter adds.

The post Haredi extremists seek UN protection as a 'persecuted minority' appeared first on www.israelhayom.com.