It’s hard to predict with certainty how the inadvertent deaths of Palestinian civilians on Sunday in Rafah as a result of Israel’s targeting Hamas leaders will impact U.S. policy. Surely, if it were to be merit-driven, we would have no doubts. However, we know this is not the case.

Yet, for a while last week it seemed that Israel had suddenly experienced a welcome change of fortune after weeks of the gloom and doom of incessant international pressure and attempts at intimidation.


For one thing, President Biden pulled well back from his “red line” Rafah incursion brinkmanship, which had seemed to be ineluctably heading towards the survival of Hamas, despite proclaiming his goal to be the destruction of the terrorist group.

And for another, he once again reported progress towards an Israeli-Saudi “normalization” deal. Yet, significantly, almost at the same time his Secretary of State told Congress “The Saudis demand a ceasefire in Gaza and a pathway to a Palestinian state, and it may well be that Israel isn’t able, willing to proceed down this pathway.” Is Prime Minister Netanyahu beginning to make his arguments better understood? Or is there some sanity creeping in?

Similarly, the prosecutor for the International Criminal Court recently announced that he is seeking arrest warrants for the arrest of Israel’s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for alleged war crimes and crimes against humanity in connection with their conduct of the war in Gaza. As well, he is seeking warrants for the arrest of three top leaders of Hamas on the same general allegations.

Yet despite all of the initial hoopla, one now detects slight fizzle in the enthusiasm. There are many who have expressed outrage and incomprehension that Israel would be lumped together with Hamas; simply given the way Hamas barbarically began the war and continues in its brutal human trafficking and use of human shields for protection. And after all, there are also procedural niceties at the court which must be observed, despite the desire by many there to make political and emotional points dressed up as legal imperatives. So, it will likely be months before any developments – if any. Nor is the plain fact that the court has no real enforcement arm inspiring confidence in the process. Rather it has to rely on actions of individual nations who have joined the court.

We have also seen the same trajectory over at the International Court of Justice, the other international court located at the Hague with jurisdiction limited to genocide, where with much excitement and agitation, judges were said to be contemplating ordering Israel to abandon its military operation in Rafah. But the ruling it issued last week was a decidedly sputtering one. The operative language on Rafah stated that Israel must, “immediately halt its military offensive, and any other action in the Rafah governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”

The order would seem to be a limited one directed at Israel’s compliance with the Genocide Convention in the course of its activities in Rafah. It does not at all appear to call for a cessation of all Israeli military action in Rafah.

Finally, at about the same time the rulings were issued, three European countries announced that they planned to formally recognize Palestinian statehood to force a Gaza cease fire on Israel and to jump start long ago abandoned negotiations between Israel and the Palestinians. Of course, one wonders what those negotiations would entail if Palestinian statehood became a fait accompli.

At all events, the initial reaction was that recognition could open up the anti-Israel floodgates. But the fact that 144 out of 193 UN member states already recognize a Palestinian state and the sky has not fallen soon began to resonate. Indeed, Palestinian statehood is not recognized by the UN Security Council where it matters and where the U.S. has a veto.

As we cautioned at the outset, these encouraging indications may well be upended by Monday’s news that an Israeli airstrike in Rafah that successfully targeted two senior Hamas commanders may have also, according to Israel, sparked a blaze that spread to a nearby civilian refugee tent encampment. This, Israel said, may have unintentionally resulted in civilian death – the Gaza Health Ministry asserts (without offering evidence) that 45 people were killed, 249 were wounded.

While this development may trigger a wooden, anti-Israel backlash – and there was already some of that from Ireland and some African countries – there was also this bit of evenhandedness from, of all people, the United Nations Middle East envoy Tor Wennesland: “I call upon the Israeli authorities to conduct a thorough and transparent investigation into this incident, hold those responsible for any wrongdoing to account, and take immediate steps to better protect civilians.”

Hopefully President Biden is still looking to resolve any problems with Israel that will arise and not to exploit them.

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