Heads of state have many responsibilities, none more fundamental than protecting the lives, safety, and Security of their own citizens. A leader who knowingly fails to defend the people they govern also fails at the most basic obligation of public office.
That principle has guided presidents, prime ministers, kings, and generals throughout history. It guided Franklin Roosevelt after Pearl Harbor, and Winston Churchill during the Blitz. It guided Harry Truman as World War II reached its bloody conclusion. It guided Golda Meir after the Yom Kippur War. These days, it guides Volodymyr Zelenskyy as Ukraine fights for survival, and it undoubtedly guides Benjamin Netanyahu after October 7, 2023, when Hamas carried out the deadliest terrorist attack in Israel’s history.
That does not end the legal inquiry—it begins it.
International humanitarian law does not ask whether a nation has the right to defend itself. It does. The question is how.
The International Criminal Court has accused Benjamin Netanyahu of committing war crimes during Israel’s campaign in Gaza. Whether these allegations are sustained remains to be seen. An arrest warrant is not a conviction. And like every defendant, Netanyahu is entitled to a presumption of innocence and to have the evidence tested before judgment is rendered.
But the ICC’s actions raise a fascinating—and uncomfortable—question.
If today’s legal standards existed in August 1945, would Harry Truman have been indicted for ordering the atomic bombings of Hiroshima and Nagasaki?
That is not a rhetorical question.
The bombings killed enormous numbers of civilians. Under today’s understanding of international humanitarian law, lawyers would inevitably ask whether the attacks satisfied the principles of distinction, proportionality, military necessity, and precautions to minimize civilian harm.
Some respected legal scholars believe Truman would have faced prosecution.
Others argue just as passionately that he would not.
Extraordinary circumstances confronted Harry Truman. Japan had not surrendered. The Pacific War had already claimed millions of lives. American planners anticipated staggering casualties from an invasion of the Japanese mainland. Truman believed—rightly or wrongly—that ending the war immediately would ultimately save lives.
And reasonable people continue to debate that decision more than eighty years later.
Which leads me to another question:
If we are going to evaluate Benjamin Netanyahu through the lens of modern international criminal law, should we not ask how that same lens would view other wartime leaders?
There is one obvious exception.
Adolf Hitler occupies a category almost beyond comparison. His regime did not merely wage war; it launched wars of conquest, industrialized genocide, and systematically exterminated six million Jews along with millions of other innocent victims. The Holocaust remains the defining crime against humanity against which all others are measured. Nothing in this essay minimizes those horrors or equates them with the actions of any other wartime leader—quite the opposite. Hitler serves as the benchmark that reminds us why the remaining historical examples demand far more careful, contextual analysis.
The point is not that all of these leaders were war criminals. The point is that once we move beyond Adolf Hitler—whose crimes are so monstrous that they define evil itself—the legal and moral questions become far more complicated.
History is filled with leaders forced to choose among terrible options.
Context matters.
Intent matters.
Available alternatives matter.
And above all, it is every leader’s obligation to protect their own citizens.
I have no interest in serving as Benjamin Netanyahu’s defense lawyer. I’ve disagreed with many of his political decisions over the years and believe a different Israeli leader might have preserved more of the world’s sympathy after October 7. But legal judgments require context, and context begins with recognizing the circumstances a leader confronts.
Of the leaders commonly discussed in debates about wartime responsibility, Benjamin Netanyahu occupies a unique position. Unlike Hitler, Mussolini, Hirohito, Sadat, Nasser, King Abdullah, Riad Al Solh, or Vladimir Putin (currently the subject of an ICC arrest warrant), Netanyahu’s military campaign in Gaza followed immediately after the largest terrorist attack in Israel’s history—a deliberate massacre of civilians, hostage-taking, rape, torture, and kidnapping carried out by a non-state terrorist organization operating from territory immediately adjacent to Israel.
And while Harry Truman likewise inherited an ongoing world war, he did not decide to nuke two major Japanese cities while American civilians were under continuing attack on American soil.
Imagine if terrorists crossed from Mexico into Texas, murdered over a thousand Americans, kidnapped hundreds more, and then retreated across the border to hide among the civilian population.
What American president—Republican or Democrat—would declare the matter closed? Isn’t it every president’s first obligation to ensure that such an attack could never happen again?
The debate wouldn’t be whether America would respond, but how America would respond.
Israel does not fight a conventional army. It fights a terrorist organization that refuses to recognize Israel’s right to exist and is willing to resort to terrorism to accomplish its objectives. It has celebrated attacks against Israeli civilians as legitimate acts of resistance. Israel argues—and substantial evidence has been presented—that Hamas deliberately embeds military assets within densely populated civilian areas, making lawful military operations extraordinarily difficult.
Critics argue that Israel’s response has nevertheless caused disproportionate civilian suffering. These factual and legal arguments are appropriate for the International Court to evaluate. However, another reality cannot be ignored.
Israel is the world’s only Jewish state, and antisemitism did not disappear with the defeat of Nazi Germany. It continues to exist across the political spectrum and around the globe. That history inevitably shapes the Jewish worldview—including mine—on international criticism directed at Israel. And while it does not prove that every criticism is motivated by antisemitism, neither should that possibility be ruled out. History gives the Jewish people good reason to ask difficult questions when Israel finds itself uniquely isolated.
This post is not about proving Benjamin Netanyahu’s innocence. Nor is it about proving that the International Criminal Court is wrong. It asks a legitimate question about whether the ICC is applying international criminal law with the consistency its legitimacy requires.
Would today’s ICC indict Harry Truman for war crimes in 1945?
If today’s legal principles would indict Harry Truman, then perhaps modern international law has evolved beyond what previous generations accepted. But if they would not indict Truman because of military necessity, existential danger, or the duty to protect American lives, then it is fair to ask whether those same considerations deserve equal weight when evaluating Israel’s leaders.
The law was never meant to eliminate the need for judgment. It was meant to guide it.
Context matters. Intent matters. Available alternatives matter. The duty to protect one’s own citizens matters. And if those factors are ignored, international justice risks becoming an Exercise in hindsight rather than an instrument of law.
The easiest judgments in history are made decades later, after the smoke has cleared and the graves have been counted. The hardest judgments are made in real time, when leaders must choose between terrible options with incomplete information and the lives of their own citizens hanging in the balance. International law exists to guide those decisions—not to erase the reality that sometimes every available choice carries an unbearable human cost.
So I return to my question:
If today’s ICC had existed in 1945, do you think Harry Truman would have been indicted for Hiroshima and Nagasaki?
The answer may tell us as much about the equal application of law and the politics of war as it does about Harry Truman—or Benjamin Netanyahu.
Justice demands consistency. Mercy demands context. Wisdom requires both. Before judging Benjamin Netanyahu—or Harry Truman, Anwar Sadat, or any leader forced to make life-and-death decisions in war—ask yourself one final question:
If you had awakened on October 8 as Israel’s prime minister, responsible for protecting nine million citizens after the deadliest attack in your nation’s history, what would you have done?
Mark M. Bello is an attorney and award-winning author of the Zachary Blake Legal Thriller Series, ripped-from-the-headlines, realistic fiction that speaks truth to power and champions the rights of citizens in our justice system. These novels are dedicated to the social justice movement. They educate, spark discussion, and inspire readers to action. One of these was “Betrayal of Justice, a blistering novel about presidential misconduct and hypocrisy” For more information, please visit www.markmbello.com.
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