Abbreviated Pundit Roundup: The intersection of law and justice

We begin today with James Smith writing for The Atlantic asking: what about Hamas?

For the law to provide justice… it must be fairly and evenly applied. South Africa’s case raises the question of why Israel is accused of genocide when Hamas is not.

The fighting in and around Gaza is an asymmetric conflict, but there are two sides. Against the accusation of genocide, Israel says it is acting in self-defense, and this latest round of fighting began when Hamas slaughtered some 1,200 men, women, and children—even infants in their cribs—on October 7. Moreover, unlike Israel, which denies any genocidal intent, Hamas has publicly espoused genocide against Israelis for decades. […]

The asymmetry of the conflict has legal bearing, exposing a grave loophole in the international legal system. Hamas cannot be called before the International Court of Justice, nor can any government of Gaza, nor even Palestine, which is not a fully sovereign state and has only observer status at the United Nations.

In other words, nonstate actors can threaten genocide and even act upon that threat and avoid the accountability that applies to sovereign states. Although the court has rightly enjoined Israel to prevent genocide against Palestinians and punish its incitement, no authority has ordered the Gazan government to prevent genocide against Israelis and punish its incitement, which occurs daily; no orders have been issued for Hamas to stop firing rockets at Israeli civilians, which continues; and no order has come down for Hamas to prevent genocidal acts by its fighters.

One of the world’s foremost experts on the law concerning crimes against humanity, Professor Leila Sadat of Washington University in St. Louis, writes for Jurist outlining the possibilities of how a criminal case against Hamas and/or Israel might unfold.

Can Members of Hamas be Prosecuted at the ICC?

Jurisdiction. Because Palestine joined the Court, the ICC has jurisdiction over crimes committed by Palestinian nationals, including Hamas. ICC Prosecutor Karim A.A. Khan has visited Israel and the West Bank, and already raised questions about murder, sexual and gender-based violence, hostage taking, inhumane treatment, and torture, and announced his intention to investigate those crimes. The ICC is a court of last, not first resort, however. If Israeli authorities can identify specific perpetrators, it would have the best chance both of apprehending perpetrators and bringing cases against them. In addition, under the principle of complementarity, if Israel opens an investigation into a specific individual for the conduct also being investigated by the ICC, the Court must relinquish its jurisdiction. Prosecutor Khan has announced his willingness to work with national authorities.

War Crimes. The publicly available evidence suggests that the final death toll from the October 7 attack is now thought to be 695 Israeli civilians, including 36 children, as well as 373 security forces and 71 foreigners. Crimes included killings, torture, rape and sexual violence, arbitrary arrest and detention, hostage taking, and other inhumane acts. These could be charged under Article 8 of the Rome Statute as war crimes. Because Hamas is a non-State actor, the charges would be brought under the provisions of Article 8 applicable in non-international armed conflict, although some have argued that the conflict is international in nature due to Israel’s status as an occupying power (and the Prosecutor raised both possibilities in her earlier conclusions). While the ICC cannot charge individuals with terrorism as an offense, Israel could. Under the Rome Statute, the Prosecutor does not need to show that an organization or a State had a policy to commit war crimes in order to charge individuals with their commission. This is why war crimes charges are “easier” to levy at the Court than charges of crimes against humanity or genocide. […]

Hamas has argued it was fighting an illegal occupation, which justified its actions, although it has now admitted to “faults.” Israel has defended its actions on the basis of military necessity and argued that it is complying with humanitarian law in its campaign to totally destroy Hamas. The ICC does not condemn countries, it takes up the guilt or innocence of specific individuals. Not all members of Hamas will be charged or found guilty of ICC crimes; the same is true of Israelis. Under the Rome Statute, the official position of the accused is not a defense (article 27), following orders is not a defense (unless obeying a non-manifestly unlawful order in the context of war crimes)(article 33), and ignorance of the law is not a defense (article 32(2)). While individuals can assert the defenses in Article 31 of the Rome Statute, including self-defense in Article 31(1)(c), the defense must be reasonable and respond to an “imminent and unlawful use of force in a manner proportionate to the degree of danger to the person(s) protected.” Being involved in a “defensive operation conducted by forces,” does not by itself constitute a defense. In other words, committing ICC crimes on the theory that the other side is committing them does not exclude the criminal responsibility of the accused.

Jamelle Bouie of The New York Times points out that there was (and is) much more at stake than the right to an abortion when the Supreme Court decided Dobbs.

One thing to recognize about the scope of states’ power from the founding to the Civil War is that it was broader and more expansive than we tend to recognize under modern conceptions of constitutional law. States, as most Americans understood them at the time, were governments of general jurisdiction with far-reaching police powers that gave them almost total discretion to regulate internal affairs. The federal government, by contrast, was a limited government of enumerated powers — a government that could take only such action as allowed by the Constitution. […]

The Civil War and the constitutional amendments that followed brought a fundamental transformation of state and federal power. The states were now subordinate to the federal government in a way that wasn’t true before the war. And state police powers were now bounded by the rights established in the 13th, 14th and 15th Amendments. One way to understand the 20th-century expansion of national rights is that those constituted further restrictions on the police powers of the states. The constitutional right to an abortion, for instance, put real limits on the ability of states to regulate activity within their borders.

Seen in this light, the conservative judicial attack on reproductive rights and voting rights and other breakthroughs of the 1960s and ’70s is about not just those rights but also freeing states to take a heavier hand in regulating their internal affairs.

Perry Bacon Jr. of The Washington Post thinks that journalism need to refocus on its mission as opposed to making money— because journalism isn’t making any money, nowadays and may never make money again.

So what kind of journalism should Americans be willing to fund? Three kinds in particular. Government and policy news, particularly at the local and state levels; watchdog journalism that closely scrutinizes powerful individuals, companies and political leaders; and cultural coverage, from important books and movies to faith and spirituality.

Why those things? They capture the major crises in America: the antidemocratic drift in the Republican Party; the growing, often-unchecked power of corporations and the wealthy; the rampant homelessness, drug addiction, declining life expectancy and other problems affecting America’s less fortunate; the increasing effects of climate change; and a decline in connection and community as Americans navigate a world full of social media but lacking religious congregations and other community-based groups.

Aren’t news outlets already on top of those crises? Not completely. Americans living in rural and suburban areas often have little information about school boards, city councils and other decision-makers in their communities because their local papers have been cut to the bone. News organizations at the local and national levels are reducing cultural coverage, wrongly believing it is unessential.

Since Mr. Bacon seems to feel that there should be “fewer journalists in football stadiums,” the natural follow-up is Jemele Hill of The Atlantic explaining that maybe the NFL is now starting to trust Black NFL coaches.

Thursday, ESPN reported that the Atlanta Falcons will be hiring Raheem Morris to be their next head coach, making him the third Black coach to be elevated during this season. Previous hiring cycles haven’t been kind to Black coaches. In the five cycles before this season, 33 non-interim head-coaching jobs were available across the NFL. Just five of those positions went to Black coaches. In fact, upward mobility for Black coaches had been so abysmal that the former Miami Dolphins head coach Brian Flores filed a discrimination lawsuit against the NFL in 2022, and two other Black coaches joined.

But these three recent hires are noteworthy because they show that NFL owners are finally extending a level of trust that seems to have been reserved mostly for white coaches. Morris was the head coach of the Tampa Bay Buccaneers from 2009 to 2011, and rarely are Black coaches given a second opportunity to be a head coach. A day after the New England Patriots and legendary coach Bill Belichick parted ways, the team announced that it had hired Jerod Mayo, who at 37 is now the NFL’s youngest head coach and the first Black head coach in New England’s history. And then this week, the Las Vegas Raiders promoted Antonio Pierce from interim to head coach.

Now more than three Black head coaches will be on the sidelines come next NFL season, unlike the past five years. But beyond a slight increase in the number of Black head coaches, the bigger statement made with Mayo and Pierce is that they were both outside-the-box hires who received head-coaching opportunities despite lacking significant NFL coaching experience.

Renée Graham of The Boston Globe writes about a Republican ad campaign that criticizes the Biden Administration for wanting to ban menthol cigarettes. 

A Republican strategist told CNN that an organization calling itself Liberty Policy Foundation is launching an ad campaign critical of the proposed menthol ban and accusing Biden of trying to “criminalize” menthol cigarettes — and, implicitly, the Black people who smoke them.

According to its bare-bones website, dominated by a photo of the US Capitol, Liberty Policy Foundation “is a conservative advocacy and oversight organization that fights for smaller government and greater freedom.” There’s no “about us” button to find out more about the group and nothing to indicate who is associated with or behind it. Clicking on “press releases” bounces users back to the home page.

In parts of an ad shown in the CNN report, a voiceover says, “President Biden keeps talking about uniting Americans, bringing us together, so why is he pushing policies that continue to divide us? Like his proposal to criminalize menthol cigarettes. Community leaders have warned Biden about the unintended consequences of banning menthol cigarettes.”

Then, in a misleading attempt to amplify those “unintended consequences,” the ad shows a headline about the 2014 killing of Eric Garner, a Black man who was accused of selling illegal “loosies,” or single cigarettes. Garner died when a New York police officer wrestled him to the sidewalk and suffocated him in a chokehold, which was prohibited by the police department.

Joshua Keating of Vox writes that if it seems that the number of wars has been increasing worldwide, it’s because there are more wars going on.

For Americans, the first decade of the 21st century may have been dominated by the 9/11 attacks and the bloody and controversial wars in Iraq and Afghanistan, but by some measures, it was one of the most peaceful periods in recorded history, with fewer recorded battlefield deaths than the world had seen in a century. […]

In the decade that followed, due largely to the raging conflict in Syria, the number of civilian and military deaths in state-based conflicts around the world climbed from just over 25,000 in 2011 to just short of 116,000 in 2014, according to data from the Uppsala Conflict Data Program and Peace Research Institute Oslo. But that’s still lower than many years in the 1970s and 1980s, when global totals often exceeded 200,000 annually, let alone the more than 400,000 who died on average per year in the late 1940s. By 2020, the number had fallen back below 54,000. […]

Then came 2022, which, according to Uppsala and PRIO, saw more than 204,000 war deaths. That made it the deadliest year for conflict since the mid-1980s. Russia’s invasion of Ukraine made the biggest headlines…

But it wasn’t even the deadliest war of 2022. That dubious honor went to Ethiopia’s war with separatists in the Tigray region, which led to between 300,000 and 600,000 deaths over the course of two years. Though Uppsala and PRIO haven’t yet released numbers for 2023, it’s unlikely the outlook has improved given the brutal toll in Gaza since October 7 as well as conflicts elsewhere.

Finally today, The Grammarian writes for The Philadelphia Inquirer writes about the banning of the dictionary in Escambia County, Florida.

In June, a month after DeSantis signed the bill, the School District of Escambia County decided “to adopt emergency rules necessitated by a danger to health, safety, and welfare.” Pending further review, it removed every book it could think of that might give students … information? […]

As with much terrible legislation, the problem lies with the law’s lack of precision. Also: the fact that it simply makes up what it wants certain words to mean.

That’s not how language works.

The opening lines of the bill define the word sex as “the classification of a person as either female or male based on the organization of the body of such person for a specific reproductive role, as indicated by the person’s sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth.”

No reputable dictionary defines sex that narrowly. Neither the Merriam-Webster nor the Oxford English Dictionary definition is what anyone would consider radical wokeism, but, like any dictionary, both contain multiple definitions that encompass the ways that sex appears in our lexicon.

Try to have the best possible day everyone!