The Biden administration’s attempt to criticize and shift some of Israel’s conduct in handling Palestinian issues in a nuanced way was an attempt to walk a tightrope that could still end in a train wreck.
Despite that opening, it makes sense to give the Biden administration some credit for trying: they tried to water down the body somewhat slam they just gave to the IDF and the credibility of Israel’s system to prosecute its alleged war crimes.
They did not focus heavily on the IDF but kept their focus narrow, seeking sanctions only against the Netzah Yehuda battalion.
Sticking to the facts, the Netzah Yehuda battalion has seen around half a dozen or more scandalous cases against its soldiers, leading to jail time, firing, or heavy censure for beating or causing the death of innocent Palestinians in recent years.
In other words, the IDF has found the battalion, or indeed, an unusually high number of its soldiers, even if a minority, lacking.
Further, the criticism of the battalion was connected to its operations in the West Bank, not the current Gaza war, such that Washington has still not called anything in the Gaza war criminal.
IDF deployment shift and US leaks
On that issue, the IDF purposely ordered the battalion out of West Bank duties, and until October 7, to focus on the northern border to avoid regular contact with Palestinians (though the IDF gave other reasons for the change.)
Also, the US leaked their likely sanctions of the Netzah Yehuda battalion at the same time as the US moved forward on a massive foreign and defensive aid package for Israel.
From that perspective, the Biden administration was not looking to hurt Israel, but to have a nuanced argument over areas where it feels the IDF is not at its best, and may even be carrying out war crimes.
After all of those qualifications, this nuanced plan likely flopped utterly.
Already on Thursday, there were first reports that the International Criminal Court is going to try to issue arrest warrants against Israeli officials, potentially including both political and military officials, and The Jerusalem Post confirmed these trends over the weekend.
The ICC may have queried Israel’s European allies about whether they would cooperate with arrest warrants issued for Israeli officials, which they are technically bound to do as members of the ICC.
Some of these allies could have passed on these hints to Israeli officials.
The US has been probing Netzah Yehuda since 2022, so every indication is that the leak regarding the sanctions against the battalion was planned before anyone knew the ICC leak about arrest warrants would come out.But that does not matter at this point.
The ICC leak occurred around 48 hours before the US’s sanctions against the Netzah Yehuda leak.
That means that before the leak was made, top US officials knew that whatever they issued against Israel, especially the IDF, could be used by the ICC and others to undermine the credibility of Israel’s legal system.
And make no mistake, that is what sanctions mean.
Even if the sanctions are narrowly tailored to Netzah Yehuda, the big issue is not Netzah Yehuda.It is that the US is saying that Israel’s legal system was not stringent enough with Netzah Yehuda.
And if Israel’s legal system was too lenient with Netzah Yehuda, according to the US, what is there to stop the ICC from arguing that Israel and the IDF are too lenient with other units also?
To be sure, the US did not create the war crimes controversy.
The Palestinians did that. Moreover, however serious the IDF’s probes were and are when the IDF killed over 1,000 Palestinian civilians in the 2014 Gaza conflict, and possibly 18,000-20,000 Palestinian civilians during this war (when subtracting 14,000 Hamas and a couple of thousand civilians killed by Palestinians own rocket misfires), there was going to be international scrutiny.
But until now the Biden administration had endorsed Israel’s narrative that Hamas was to blame for most civilian deaths because they turned Gaza – from hospitals, to schools, to mosques, to UN buildings – into one giant human shield.
One of the finest moments of US-Israeli relations was October 18 when Biden himself personally denied the false story that Israel had attacked a Gaza hospital, and endorsed Israel’s proof – which Islamic Jihad later admitted to – that a terror group had hit the hospital area with a rocket misfire.
One of Israel’s best answers to scrutiny from the ICC until now was full backing from the US that it was not committing war crimes.
Sanctions are not the same as war crimes and do not carry a criminal standard of proof, but when Washington sanctions a piece of the IDF, the signals it sends to the ICC, intentionally or not, are unmistakable.
One thing Israel could do would be to go more public with its findings in each case and ask the US to explain precisely what it would have done differently. For example, in one case, the IDF did not prosecute in no small part because the Palestinians refused to grant access to an autopsy.
Is the US saying that under American law, convictions can be easily gotten without autopsies?
By the way, the Post has previously suggested that Israel and the US work out a third party autopsy system where the US takes the lead on autopsies of Palestinians killed by Israelis with both Israeli and Palestinian experts observing.
But short of that, what would the US do differently?
Some Netzah Yehuda soldiers were sentenced to several months in jail for beating Palestinians. Would the US put its soldiers in prison for ten years for a beating that does not lead to permanent bodily damage?
An interesting theoretical question is also whether Biden wanted some additional scrutiny, not only to assuage Muslim critics in the swing state of Michigan for the upcoming presidential election but because he thinks the IDF has been too aggressive sometimes, even taking into account Hamas’s human shield policy.
And this is where even moderates like Benny Gantz and Gadi Eisenkot part ways with the US. They dislike Itamar Ben-Gvir as much as Biden does.
But they understand the threat that Hamas has posed to Israel during this war at a much deeper level than even American supporters.
Top Israeli defense officials expressed anger when American generals told them to adopt US tactics in Afghanistan and Iraq, when New York and Washington DC were not under rocket attack, and the US military took its time to plod through battles a world away from its mainland.
Israel has not had the privilege of fighting from a distance but instead has spent months with its entire home front under fire, and even today, 50,000 northern residents cannot return home because of Hezbollah attacks.The US is worried in a very long-term sense about Iran, but the Islamic Republic cannot reach it with 350 missiles or drones like the ones it just launched at the Jewish state on April 14.
When America has fought wars, deterrence is nowhere near as serious as it is for Israel, which feels it must deter future attacks from Iran.
The US and Israel will remain friends and allies for the foreseeable future. But the Netzah Yehuda saga has all the signs of a royal mess.