The ICC’s arrest warrants for Israeli and Hamas leaders have sparkd a debate on the application of international law and the dehumanisation of belligerents. Narratives of “civilisation” and exclusion undermine the principles of justice in the laws of war.

In May this year, the Prosecutor of the International Criminal Court (ICC), Karim Khan, filed applications for warrants of arrest for Israel Prime Minister Benjamin Netanyahu and then-Israel Defence Minister Yoav Gallant; as well as Yahya Sinwar, Ismail Haniyeh, and Mohammed Diab Ibrahim Al-Masri (commonly known as Deif), all political and military leaders of Hamas. In November, an ICC Pre-Trial Chamber issued arrest warrants for Netanyahu and Gallant for crimes against humanity and war crimes; and for Dief for crimes against humanity and war crimes (Sinwar and Haniyeh have since died, and although Dief is also suspected to have been killed, this hasn’t yet been confirmed).

The confirmation of arrest warrants was greeted with outrage from the usual quarters. Alan Dershowitz claimed that issuing arrest warrants for Israeli leaders and a Hamas terrorist equated the “the terrorism of Hamas […] with the self-defence of Israel.” Benjamin Netanyahu described the warrants as “an antisemitic decision […] equivalent to the modern Dreyfus trial.” And Cameron Stewart, writing in The Australian, argued that the fundamental problem with the ICC’s decision is that “it chooses to label as war crimes the Israeli government’s actions on the battlefield in a hot war against a terrorist organisation that slaughtered its own people.”

There are numerous problems with the above criticisms. First, the ICC is not equating anything with Israel’s right of self-defence. Very few reasonably minded people, least of all the ICC, are denying that Israel has a right of self-defence; rather, per its jurisdiction, the ICC is investigating whether the methods of the IDF constituted violations of the laws of war, of which there is ample evidence to suggest they have. Second, the charge of antisemitism cheapens the term; there is nothing in the Court’s history that suggests a fixation with prosecuting Jews. And third, setting aside the fact that “hot war” has no legal meaning, Cameron seems to be suggesting that the laws of war can be set aside when fighting against “terrorists.”

Indeed, arguably the most worrying aspect of the highlighted criticisms of the ICC’s decision to issue arrest warrants for alleged war crimes is the tacit and explicit indulgence in false dichotomies of civility and barbarism. Netanyahu described the war against Hamas thus:

We’re facing monsters, monsters who murdered children in front of their parents and parents in front of their children, who raped and beheaded women, who burned babies alive, who took babies hostages. This is a battle, not only of Israel against these barbarians, it’s a battle of civilization against barbarism.

Efforts to de-humanise belligerents echo the language of the “standard of civilisation,” which is a tool (albeit contested) by which to explain inclusion and exclusion in the expansion of European international society in the late 19th and early 20th centuries. In terms of giving rise to the European “standard of civilisation,” the adjective “civilised,” and its counter concept “uncivilised” (or “barbarian”) found its way into the writings of publicists, as well as judicial decisions and treaties. The two terms described and evaluated peoples, nations or states in their relation to sovereignty; the civilised, those endowed with civilisation, were recognised as proper subjects of international law. The uncivilised, those lacking civilisation, were left outside international law.  The “standard of civilisation” supported a partly racist taxonomy of “savage, barbarian and civilised” as a way of classifying the non-European world in relation to Europe and became the means by which people or states were admitted or barred from the international society of states.

Thus, the belief in a standard of civilisation by European and western powers permitted them to exclude those who didn’t meet the expectations of the standard from the protections afforded by the newly forming body of international law. The darker actualisation of the “standard of civilisation” as it related to the application of newly codified laws of war was borne out through European colonial powers that developed multilateral legal constraints on the waging of war in the name of humanity and civilisation only on the basis that it applied to war between civilised peoples, excluding non-European “savages.”

At the beginning of the US’ “War on Terror,” the Bush administration argued that “even if al-Qaeda were a nation-state and a party to the Geneva Conventions, its members would still qualify as illegal belligerents due to their very conduct.” While the examples discussed above are not as explicit, the tacit application of the “standard of civilisation” serves to deny the non-state Hamas (and other “terrorist” groups) entry into international society; the dehumanising of the enemy, based on their conduct, reinforces their status as “barbarian” or “savage,” thus further justifying the denial of protections afforded by the laws of war—the (il)logical endpoint being that war crimes can’t have been committed against a “barbarian” enemy.

The application of the standard of civilisation, albeit often tacitly, is part of a broader trend of attempts to dehumanise belligerents in order to deny them protections afforded by the laws of war. Examples include, but are not limited to, the war in Ukraine, and there was also evidence of dehumanising by Australian special forces in the Brereton Report. This is a disturbing trend that dangerously undermines the purpose of the laws of war, and in turn means justice becomes defined by the self-anointed “civilised.”

Dr Matt Killingsworth is a senior lecturer in International Relations at the University of Tasmania. He is co-editor of Violence and the State (Manchester University Press, 2015) and Civility, Barbarism and the Evolution of International Humanitarian Law: Who Do the Laws of War Protect? (Cambridge University Press, 2023).

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