Jessica Wolfendale has an op-ed article in Forward on the Israel's war in Gaza and what might be done to persuade Israel to back off; it makes a few good points but also unfortunately makes some common errors and dubious assumptions when it comes to the international law of war. For instance, she discusses the ICC arrest warrant applications earlier this year, as well as the sharp criticisms that they received for treating Hamas and Israel as equivalent, and says:
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.I don't think this is quite the assumption of the false equivalency claim, but there's a broader problem here that comes from Wolfendale's sloppiness (not confined only to her) on the matter of war crimes. The problem is that sovereign states cannot commit war crimes. There are no war crimes without war criminals, and potential war criminals are natural persons capable of responsible decisions connected to the supposed crimes, not juridical persons in the care of natural persons, which is what a state is. You cannot arrest or imprison a state. And this is fully recognized in international law; the arrest warrant applications, for instance, were not for 'Israel' but for the prime minister and defense minister of Israel. While we do recognize states as juridical persons, and therefore acting as a whole, we don't (for quite good reasons) generally treat them as responsible parties for criminal purposes.
This is connected, I think, with a common failing in academic discussions of international law of war, which is not recognizing how very limited it is and how very (deliberately) skewed it is. There was a recent example of this, although I cannot currently find the particular example, with regard to Israel's use of pagers to do significant damage to Hezbollah. The academic in question was stating, as if it were obvious, that Israel had violated the Geneva Conventions on booby traps. Now, obviously, Israel's pager gambit would fit what we colloquially call a 'booby trap'. But international law is like many fields of law, but worse than most, in often not using words in their common senses. As it happens, the explosive pagers do not seem to fit the Protocol definiton of 'booby trap', which requires that something explode because it is approached or disturbed in a way that would ordinarily be a safe action; the explosive pagers were exploded by remote-control detonation, not by the users disturbing them with an apparently safe action. That makes them closer to what the Protocol calls 'other devices'. But are the pagers violations of the 'other device' clauses? Well, one of the things that people often overlook is that international law forbids very little in war as long as it is proportional to what is known as a "military objective", which means, more or less, the reduction of the fighting capability of hostile combatants. Whether that's the case here depends on whether Israel's plan for the pagers was specifically geared to such an objective, whether it took any steps to minimize collateral damage to the extent possible, and whether it could have had roughly the same result in a way that was less risky for collateral damage. None of these things could possibly be determined without actual investigation. International law is not intuitive and you should always be suspicious of someone treating technical legal matters as obvious.
International law is also a construct negotiated among sovereign states, and is particularly at present a project of states of broadly liberal tenor, and thus unsurprisingly is designed to favor sovereign states, particularly of a broadly liberal tenor. This, of course, is one of the reasons for the international anger caused by the arrest warrant applications; the prime minister and defense minister of Israel, unlike any Hamas leaders, are elected officers of a sovereign state. The only two ways you could enforce anything against them are (1) if Israel itself hands them over for war crimes or (2) if you declare war on Israel and impose it as a condition of surrender. I can assure you that neither of these are going to happen, so what was the point of doing it?
It seems to have been symbolic. Either the prosecutor wanted to issue a warrant against Hamas leaders and thought that he could not for political reasons get away with doing so unless he showed that he was not taking Israel's side (in which case the claim that he was treating them as equivalent seems to be right), or he was showboating and thus misusing his position, or he was sincerely acting in the belief that the ICC is empowered to issue arrest warrants against sitting elected officers of sovereign states. The last is the most interesting one; it is known that the ICC holds that sitting elected officers of sovereign states do not have immunity before international courts, and also known that this position is not accepted by most of the states that are party to the authorizing statute of the court. Some of them are quite serious about this; the United States, for instance, famously has a law authorizing the President to do any and all acts, including invasion, necessary to free U.S. officials detained under these kinds of conditions. The interpretation seems to commit the parties to the treaty to committing hostile actions that could cause wars; the ICC has issued an arrest warrant against Putin, for instance, but arresting the head of state of the Russian government seems to require a willingness to go to war with Russia over it. Israel is a much weaker state than Russia, of course, but it also is considered an ally by the United States, which is most definitely not a weak state, and it is known that the America does not look kindly on states that make its foreign policy in the Middle East more difficult. One of the other ways international law is skewed is that it is designed to be used as an instrument by powerful states to prevent weaker states from becoming a threat and and to make this look fair by also being a means for weaker states to issue ineffecutal protests against more powerful states. But in any case, interpretations of international law that could require that states engage in bloody and costly wars are a hard sell, regardless of the intentions behind them.
Wolfendale seems to see the international law apparatus as a means of forcing states to do things; but in reality, the international law apparatus depends heavily on the willingness of states to conform to it. The primary enforcer of any international laws concerning actions committed by offcers in the Israeli state is the Israeli state; and by and large any states not already hostile to Israel will defer whenever possible to Israel's own judgment about how they should be enforced. That is perhaps not fair, but it is the way things are. International law does not work by good intentions and ideals but by ordinary politics and pragmatic negotiation. And, outside of cases where Israel itself puts its soldiers and officers on trial for war crimes -- which like most militarily active nations it has occasoinally done -- critics of Israel are unlikely to find any gambit under international law that would have any serious effect. Part of this is the practical realities already mentioned. But part of it is that Israel is very, very good at playing the system. The legal review apparatus that Israel uses to review its strategy and tactics is magnitudes more sophisticated than that of any other military in the world; even big players like the United States do not review their military actions for legality as extensively and rigorously as Israel does. It does, of course, give Israel its air of often sacrificing the spirit of the law to the letter -- and frankly that is often quite deliberate. Most states do this, and it sometimes seems that international anger against Israel is due less to its practice here than to its unusual competence at it. But you can only enforce the spirit of the law by enforcing the letter, and Israel, even if sometimes only by the thinnest of technicalities, is very careful always to have grounds to argue that it complied with the letter. The idea Wolfendale has, that you could seriously affect Israeli foreign and military policy by this sort of clumsy lawfare, does not seem to be well founded.
Does this mean that nothing can be done externally to influence Israel? No. Israel's position in the international scheme depends in several ways on not being opposed by certain major players -- the United States and the United Kingdom, in particular -- so the one factor that is almost as important to Israel's policy as Israel's own domestic politics is what keeps the U.S. and the U.K. tolerant, or at least reluctant to intervene. But the threat of such intervention also does not work by good intentions; it works by a willingness to use force. Outside of that, nothing will work except negotiating with Israel by offering it something that it wants more.
In short, international law is not intuitive but very legalistic, it is not self-operating but dependent on the cooperation of the state parties involved, and it always gives the preference to powerful sovereign states of a broadly liberal bent, regardless of what they are doing. It does not descend from heaven, or well up from pure reason; it is a very limited instrument, and while it has been known to be used as a cover for a powerful state's bullying of a less powerful state, it has never itself been a significant lever for shifting military behavior. That contrasts with, say, the United States being willing to invade over a matter, which has occasionally worked miracles. The truth of the matter is, no clever armchair solutions to a problem like the war in Gaza are genuinely feasible, and whenever you look at them closely their tinny tinsel can be seen for the mere facade that it is. The only thing that will change the behavior of a state engaged in military action is war-weariness at home or powers abroad actively raising the cost of the status quo to such a height that the state cannot practically continue. Or to put the matter more crudely: If you don't like what Israel is doing, your options are to wait until it gets tired of doing it, perhaps at most hoping that minor harassments of law and economics will make that time come sooner, or to step in with fists ready to bloody its nose. That's how you persuade a state.
