President Biden has responded to Hamas’s horrendous attacks on Israeli civilians with understandable outrage. In heartfelt terms, he called them “pure, unadulterated evil,” which they were. He spoke less powerfully about the Israeli government’s response, noting only that we “uphold the laws of war.” Unless the Israeli government heeds that advice, it will make a bad situation worse, which may well be exactly what Hamas hoped to provoke in a desperate attempt to revive the Palestinian cause.
Hamas’s random slaughter of Israeli civilians, its abduction of survivors as hostages, its indiscriminate rocket attacks on Israel’s cities are all war crimes – egregious violations of international humanitarian law, which is designed to spare civilians as much as possible the hazards of war. Using that legal framework is important because it also binds the Israeli military, which is the best way to ensure that the civilian toll in Gaza from Israel’s aerial bombardment and possible ground invasion does not quickly surmount the deaths at the hands of Hamas.
Already the Israeli military is disregarding that law. By October 9, it had already toppled four large apartment buildings. In the past it has cited a supposed Hamas presence somewhere in the complex, but that does not justify the disproportionate cost of rendering hundreds of Palestinians homeless. It has compounded its 16-year blockade of Gaza by now imposing a siege, blocking food, water, and electricity, despite the legal duty to allow humanitarian aid to civilians in need. It has bombed a market, killing dozens, and two hospitals. This all threatens to get worse once the anticipated ground invasion commences.
Though less frequently than in the past, the Israeli military is at times warning people in advance of attacks, as required when feasible, but that does not justify then reportedly pummeling entire neighborhoods. Civilians are still protected from attack whether or not they can, or choose, to heed such warnings. And it is difficult to see how the destruction of neighborhoods is a targeted rather than disproportionate response, a focused effort to attack Hamas fighters as opposed to collective punishment against civilians who have been forced to live under Hamas.
The Biden Administration has spoken only briefly about international humanitarian law, but the International Criminal Court will not be as reticent. Karim Khan, the chief prosecutor, has been too slow to pursue his office’s open investigation of war crimes in Palestinian territory, but the renewed war should provide a spur. Donald Trump imposed sanctions on Khan’s predecessor for pursuing this investigation—an outrageous assault on an institution of justice. Biden did the right thing by lifting those sanctions. He also recognized the appropriateness of ICC charges against Valdimir Putin for alleged war crimes in Ukraine (because Ukraine conferred jurisdiction even though Russia has not joined the court), which should mean the U.S. government would no longer object to ICC charges of Israeli officials for war crimes committed in the territory of Palestine (which has also conferred jurisdiction).
An unwillingness to hold the Israeli government to the most basic rights standards has also characterized Biden’s recent broader approach to the conflict. Every serious human rights group that has examined the issue has concluded that the Israeli government is imposing apartheid on the millions of Palestinians in occupied territory. But the Biden Administration still pretends to see this oppression as only temporary, to be resolved by a moribund “peace process” whose main remaining backers are Western governments seeking to avoid addressing the issue and the Palestinian Authority, whose status depends on continuing lip service to a “two-state solution” that long ago morphed into a “one-state reality.”
That abysmal state of affairs could be seen in the negotiations for the normalization of relations between the Israeli and Saudi governments. The only party to these negotiations who publicly seemed to be addressing Palestinian concerns was Mohammed bin Salman, the Saudi crown prince, who is reputed to be contemptuous of the Palestinian cause but compelled to address it at least nominally because of Saudi public opinion. He reportedly was proposing an infusion of Saudi cash to the corrupt Palestinian Authority and a modest transfer of land from Israeli government that would do nothing to change the reality of apartheid.
The Biden Administration has been concerned by Prime Minister Netanyahu’s efforts to undermine the independence of Israel’s judiciary. The outpouring of Israeli opposition to this attack on a pillar of democracy has been impressive, but it has been carefully circumscribed to avoid addressing the Palestinian issue, which Netanyahu clearly hopes to continue kicking down the road indefinitely.
This indifference to Palestinian rights does not justify Hamas’s war crimes. Nothing does. But it is the backdrop to Hamas’s brutal attack. Biden is wrong to substitute outrage over this attack for a more principled defense of human rights, which is the best way to avoid periodic future outbreaks of such violence of despair.
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