“The Hague’s Hypocrisy,” roared the headline in one of Israel’s mass-circulation dailies. “The Hague’s Disgrace,” blared the competing paper.
Outrage was the most obvious public response in Israel when the prosecutor of the International Criminal Court, Karim Khan, announced that he’d seek arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant on charges of crimes against humanity. Khan’s parallel request to arrest three Hamas leaders didn’t quiet the fury.
Netanyahu, predictably, accused Khan of feeding “the fires of antisemitism.” But even Israeli legal experts who are deeply critical of the prime minister were disturbed that Khan seemed to put Israeli and Hamas commanders in the same category. “It’s unacceptable to create legal equivalence between the attacker (Hamas) and the attacked (Israel),” as one wrote.
I’m an ordinary enough Israeli to share some of that reflexive anger. The world does seem to pay outsized attention to Israeli actions, and to forget which side committed atrocities on Oct. 7, 2023, and ignited this war.
But outrage is a poor tool for judging whether Khan has a case against Netanyahu and Gallant. For me, the key to answering that question is in a name: Theodor Meron.
Before submitting his request, Khan submitted his evidence to a committee of leading experts on the laws of war. They agreed unanimously that “there are reasonable grounds to believe that the suspects he identifies have committed war crimes and crimes against humanity within the jurisdiction of the ICC.” Theodor Meron—a 94-year-old Holocaust survivor, jurist, and former Israeli diplomat—is by far the most prominent of those experts.
I first encountered the name “T. Meron” in the Israeli State Archives more than 20 years ago while researching The Accidental Empire, my book on the history of Israeli settlements in occupied territory. His signature appeared at the bottom of a page in a declassified file from the office of the late Israeli Prime Minister Levi Eshkol. The top of the page was marked “Most Secret.” What appeared in between pushed me to find out more about him.
Meron was born in 1930 to what he would describe as a “middle-class Jewish family” in Kalisz, Poland. His “happy but, alas, short childhood” ended at age 9 with the German invasion. Somehow, he survived the Holocaust while living in Nazi ghettos and labor camps. Most of his family did not. Soon after the war, at age 15, he managed to immigrate to the city of Haifa in what was then British-ruled Palestine.
For six years, his only schooling had been suffering. The lost years of education “gave me a great hunger for learning,” he’d say later. He completed high school in a new language, then a law degree at the Hebrew University, then a doctorate at Harvard and post-doctoral studies in international law at Cambridge.
In 1957, with no academic position in the offing, he took an offer from the Israeli Foreign Ministry. Just after the Six-Day War in 1967, he was appointed as the ministry’s legal advisor—effectively, the Israeli government’s top authority on international law—as a 37-year-old wunderkind.
A decade and an ambassadorship later, he returned to academia. As for many Israeli scholars, this meant going abroad—in Meron’s case, to New York University’s law school. His legal writing has been described as having “helped build the legal foundations for international criminal tribunals”—starting with the one established by the United Nations in 1993 to deal with crimes committed in the wars following the breakup of Yugoslavia.
By then a U.S. citizen, Meron was appointed as a judge on that tribunal in 2001. He served for several years as its president and on its appeals court. In an interview, he said he found his position “poignant” and “daunting”: the onetime child prisoner of the Nazis now presiding in judgment on crimes including genocide. He has taken particular pride in a ruling that “defined rape and sexual slavery as crimes against humanity.”
Well into his 90s, Meron is again a law professor, this time at Oxford University—as well as an advisor to Khan, the ICC chief, most recently on the case against the Israeli and Hamas leaders.
It is crucial to recall that Khan’s request for warrants is not a conviction. What Meron and the other experts confirmed is that the evidence and the law provide a basis for trying Netanyahu and Gallant, as well as Hamas figures Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh.
The experts’ report rejected any Israeli claim that the International Criminal Court lacks standing. “Palestine, including Gaza, is a State for the purpose of the ICC Statute,” they said. Unlike Israel, it has accepted the court’s jurisdiction. The court therefore can rule on actions in Gaza—and by Palestinians on Israeli territory, the report says.
In a joint opinion piece in the Financial Times, Meron and his colleagues also stressed that “the charges have nothing to do with the reasons for the conflict.” To unpack that: Israel may be fighting a justifiable war of defense—but certain Israelis, including the head of government, may have committed crimes in the way that they’ve conducted that war.
The proposed charges against Sinwar, Deif, and Haniyeh include the crime against humanity of extermination in the killing of civilians in the Oct. 7 attack on Israel, and the war crimes of taking hostages and of rape.
The central charge against Netanyahu and Gallant is that they engaged in “a common plan to use starvation and other acts of violence against the Gazan civilian population”—in order to eradicate Hamas, free the Israeli hostages, and punish the Gazan population. In other words, impeding humanitarian aid wasn’t a foul-up. It was allegedly an intentional means of waging war.
Khan lists the types of evidence that he gathered—interviews with survivors, video material, satellite images, and more. He did not release the evidence itself. For now, we’re left to rely on the unanimous view of the experts. And there is likely no one on earth more qualified than Meron to judge whether Khan has a solid case. To suggest that Meron is persecuting Israel seems laughable. To claim that he is antisemitic is obscene.
This isn’t a verdict. It’s a reason to take the charges seriously.
In fact, Israel would likely not be in this situation if its government had taken Theodor Meron seriously much sooner—in September 1967, when he wrote the memorandum that I found in the archives.
At the time, Prime Minister Eshkol was weighing whether Israel should create settlements in the territory it had conquered in the unexpected war three months earlier. Eshkol leaned toward reestablishing Kfar Etzion, a kibbutz that had been overrun by Arab forces in 1948. The site was between Hebron and Bethlehem in the West Bank, which had been ruled by Jordan in the intervening years. Eshkol was also interested in settlement in the Golan Heights, Syrian territory that had also recently been conquered by Israel.
In a cabinet meeting, though, the justice minister had warned that settling civilians in “administered” territory—the government’s term for occupied land—would violate international law. Eshkol’s bureau chief asked the Foreign Ministry’s legal advisor to weigh in.
Meron’s response was categorical: “My conclusion is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.” The 1949 convention on protection of civilians in time of war, he explained, barred an occupying power from moving part of its population into occupied land. The provision, he wrote, was “aimed at preventing colonization” by the conquering state.
Nine days later, a group of young Israelis settled at the Kfar Etzion site, with the government’s backing. At first, the settlement was identified publicly as a military outpost. As Meron himself had noted, it was legal to build temporary military bases in occupied territory. But this was a ruse, and it quickly wore thin as the civilian character of new settlements became obvious.
So the government soon depended instead on the argument of two prominent Israeli jurists, Yehuda Blum and Meir Shamgar. They argued that the Fourth Geneva Convention didn’t apply to the West Bank. Since Jordan’s sovereignty there had gone almost entirely unrecognized internationally—so their argument went—it wasn’t occupied territory.
As Meron himself wrote in 2017, 50 years after his original memorandum, this theory doesn’t hold water. The convention isn’t aimed at protecting states and claims of sovereignty. It protects people living under occupation from acts of the occupying power.
This raises the question: What would have happened if Eshkol’s government had gritted its teeth in 1967 and accepted its own lawyer’s opinion?
To start, there’d be no settlements in occupied territory. The entire network of large Israeli suburbs, smaller gated exurbs, and tiny outposts wouldn’t exist. The Israeli military would not need to guard these communities, and Israel would not have invested vast resources in tying itself to occupied territory.
We can’t know if there would now be a Palestinian state next to Israel, or perhaps peace in some other constellation. Settlements have not been the only obstacle to a peace agreement. But they are a major one. Moreover, a portion of the settlements—the ideological exurbs—have been a hothouse for the Israeli radical religious right, utterly opposed to giving up land. The two most extreme parties in Netanyahu’s government are led by settlers and count the settlements as their core constituency. Without the settlements, the odds of Israel avoiding its current predicament would have been better.
Accepting Meron’s opinion back then could also have established a different attitude toward international law among Israeli politicians and military leaders—namely, a position of stringent observance. Perhaps such an attitude would have led Netanyahu and Gallant to conduct the current war in a different way, avoiding the acts now alleged by the ICC prosecutor.
Yet the key word is alleged. A critical element of the crimes that Khan alleges is that they were intentional—that starvation and other causes of civilian death were a policy.
It is indeed possible that Israel’s leaders deliberately prevented food and other basic needs from reaching the people of Gaza—that aid was blocked as a means of pressuring Hamas to release hostages or even to give up rule of Gaza. Hamas has used Gazan civilians as human shields; perhaps Netanyahu sought to use their suffering as a weapon against Hamas.
It’s also possible that the failure to get food to Gazans is a result of multiple factors: of the chaos of battle, Egyptian mistakes, Hamas actions, Israeli soldiers mistakenly firing on aid workers just as they have sometimes mistakenly fired on other Israelis, and of the Israeli government’s incompetence—a continuation of the miserable ineptitude that left Israel unprepared on Oct. 7.
All too many people in the world seem to be certain already which of these possibilities is true, based largely on their prior assumptions or the tsunami of media reports. If Khan ever does manage to bring Netanyahu and Gallant to trial, though, he will need to establish intent with hard evidence.
There is another lesson that I took from finding Meron’s 1967 memo: The best evidence of government intent often lies in documents that stay secret for decades. This is even more true of decisions in war, and it adds to the reasons that Israel itself should be investigating what has happened in Gaza.
It’s unlikely that the International Criminal Court would have access to classified Israeli documents. On the other hand, an Israeli state commission of inquiry into the entire conduct of the war—from the disastrous intelligence failure of Oct. 7 onward—would be able to demand such access, and to call top officials and officers to testify.
An explicit point made in Khan’s announcement is that he would defer to Israel if it were conducting its own “independent and impartial” investigation of the alleged crimes. This is the principle of “complementarity”: The ICC’s jurisdiction applies only when national judicial systems fail to act.
A commission of inquiry isn’t a criminal proceeding. But if Israel were investigating itself, then Khan would have good reason to suspend or end his own investigation.
Within Israel, however, it’s a given that Netanyahu’s government will not instigate an inquiry commission with the necessary independence and wide mandate. That can come only if the country’s intense political crisis leads to the fall of the government and new elections.
Netanyahu would like to use the reflexive public anger against the Khan’s request for arrest warrants to restore some of his lost support. But the rational reaction is the opposite: The potential ICC case is one more reason to end Netanyahu’s rule and investigate all facets of the war.
Or to put it differently: In 1967, at the start of the occupation, an Israeli government ignored a warning from a remarkably young advisor on international law. Today, Israel needs to heed a new warning from a remarkably old authority on the laws of the war—the same man.
The post The Man Who Tried to Save Israel From Itself appeared first on Foreign Policy.
