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Assessing ICC’s decision: Do the accusations against Israel form a valid case?

A demonstrators poses with a Palestinian flag outside the International Criminal Court (ICC) during a rally urging the court to prosecute Israel for alleged war crimes, in The Hague, Netherlands, November 29, 2019. (Peter Dejong/AP)

On Monday, May 20, 2024 Prosecutor Karim A.A. Khan announced that he is filing applications for warrants of arrest before Pre-Trial Chamber I of the International Criminal Court (ICC) in the Situation in the “State of Palestine”, more precisely in the Gaza strip following the attack on October 7. With his statement he drew an explicit parallel between three leaders of Hamas (Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif), Ismail Haniyeh) and Israeli Prime minister Benyamin Netanyahu and Israeli Minister of Defense, Yoav Gallant. 

International criminal law involves the notions of responsibilities of actors but also the rights of victims and the primacy of law. For every crime of equal gravity, the justice system must respond with measures of equal justice and every victim is entitled to recognition of their losses. But international criminal law also recognizes in theory the principle of complementarity, which says that the Court does not have priority in matters of prosecution but only acts if a State is unable or unwilling to do so. Based on this principle, the investigation into crimes committed by the Taliban and the Islamic State in Khorasan in Afghanistan was suspended in March 2020, at the request of the Kabul government, which was striving to prove that its judicial system was capable of prosecuting the perpetrators of the acts. 

It is therefore perplexing to see that the ICC accepted Afghanistan’s request to suspend the investigation while simultaneously, Khan requested arrest warrants for two representatives of the State of Israel. This decision seems inconsistent, considering that Israel is a State with a functional internal legal system capable of conducting its own investigations. Based on these observations, we can only assume that it reveals much about Kan’s perspective: he does not consider Israel a democracy, nor does he recognize the Supreme Court in Jerusalem as a legitimate legal system. However, this is the same legal system that, in early 2024, overturned a key component of the Prime Minister’s controversial judicial reform.

From a legal standpoint, Israeli Attorney General Gali Baharav-Miara and State Attorney Amit Aisman responded on Wednesday, May 22, to the ICC, rejecting Prosecutor Khan’s request for arrest warrants for Prime Minister Benyamin Netanyahu and Defense Minister Yoav Gallant as baseless. From a moral standpoint, the ICC’s credibility is also questionable following its 2021 decision to appoint as its Prosecutor a man who had previously defended Charles Taylor, the former Liberian dictator accused by a special UN tribunal of murder, rape, and the use of child soldiers, as well as Saif al-Islam, the son of Libyan dictator Muammar Gaddafi. But let us leave aside the ad hominem arguments.

As I talked before the “asymmetrical war”, there is also an asymmetry here that must be evoked. Hamas’ deliberate war crimes and crimes against humanity perpetrated on October 7, are not the same thing as victims (even in a high number) caught in a war context. On this subject, let us recall here that it is admitted even by the United Nations that in the context of a war, civilians account for nearly 90 per cent of war-time casualties. 

How did the far-right government lead Netanyahu to his downfall?

The existing corruption charges in Israel against the Prime Minister are no secret. However, nearly all of Israeli society would argue that the true offense lies in his establishment of a far-right government, whose statements, declarations, and political discourse have significantly harmed the country as a whole. Since late 2022, influential ministries have been increasingly influenced by prominent figures from the far-right spectrum of the country, particularly Bezalel Smotrich, leader of the far-right religious Zionist political party, and Itamar Ben-Gvir, considered a symbol of the radical far-right. Their consistent advocacy for West Bank colonization has only heightened existing tensions. 

Based on previous declarations, there seems to be no doubt that the accusations made by the ICC prosecutor were based on “Anatomy of a Genocide”, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 by Francesca Albanese, published in March 2024. In this report, she mentiones, for example, Israel’s settler movement and leaders to assert that, since the 2005 evacuation of Gaza, Israel has framed the enclave as a territory to be “re-colonized” and its population as invaders to be expelled. She explicitly used in her report two sources referring to the declarations of Bezalel Smotrich and Itamar Ben-Gvir. 

She also lists a series of statements taken out of context in order to support her arguments, particularly regarding “genocide intent”. For instance, she refers to declarations made by President Isaac Herzog, Prime Minister Benyamin Netanyahu, Minister of Defense Yoav Gallant or IDF Spokesperson Daniel Hagari  but also by far-right Minister Amihai Eliyahu who called for striking Gaza with “nuclear bombs”. However, not long after Eliyahu was suspended indefinitely for saying that dropping a nuclear bomb on the Gaza Strip was “one of the possibilities”. Thus, the question we ask here is the following: do statements of individual people, some of which are even suspended, really represent Israel’s policy in Gaza? In the eyes of the international community, it seems so. For this reason, Netanyahu shot himself in the foot when forming his government.

Indeed, we understand that from the start, the Albanese’s report is not about taking an objective look at Israel’s policy in Gaza but of incriminating Israel on the basis of the declarations of the most criticized and rejected members of the worst government the country has known in its entire history. Simultaneously, the Israeli far-right has aimed criticism at the military, labeling it a bastion of “leftists”, while an official commission of inquiry was created after the war to examine the military, but also political, responsibilities of October 7. Thus, we understand that the political declarations of certain individuals in no way reflect the policy and even less the military doctrine in Gaza.   

Let us keep in mind that as a conventional army, the Israel Defense Forces (IDF) is constituted to respond to the security issues that threaten the Jewish state. Today, its “mission” is limited to defending the existence, territorial integrity and sovereignty of the State of Israel. In order to ensure the objectives of this mission, the IDF are based on 7 essential points, constituting the IDF “doctrine”: Israel cannot afford to lose a war; IDF operations are only defensive on a strategic level and have no ambition for territorial expansion; the desire to avoid a war through diplomacy and a credible deterrent system; prevent an escalation of violence; determine the outcome of a war quickly and decisively; fight terrorism and minimize losses as much as possible. 

On the other hand, let us not forget that Israel is based on parliamentary democracy. The judiciary is independent of the executive and the legislature. In the same way that the Supreme Court acts independently of the government, the army in Israel is an organ that also functions independently and is not afraid to make decisions going against the will of parliamentarians. Just this month, Israeli Army Chief of Staff Herzi Halevi criticized Prime Minister Benyamin Netanyahu for the lack of a government strategy regarding governance of the Gaza Strip. Therefore, for the accusations made by the ICC to be true, the army would have to be in fact the instrument of Netanyahu’s government. But in Israel, the army remains relatively autonomous in its decisions but also transparent regarding its actions.

Since the start of the war, Israel has displayed its war objective (in accordance with its doctrine) which was the destruction of Hamas. However, beyond the statements unanimously condemned by representatives of the far-right within the government, the army has never sought to hide its responsibility even in the case of the accident which involved 3 Israeli hostages, mistaking their pleas for assistance as an ambush. Regarding the tragic incident involving the loss of seven World Central Kitchen (WCK) personnel due to Israeli drone strikes in Gaza last April, the Israel Defense Forces acknowledged “grave mistakes” that resulted in the unintended targeting of the workers. Subsequently, an Israeli military investigation led to the dismissal of two senior officers

“Anatomy” of an arrest warrant

Khan announced that the Prime minister and Minister of Defense would face charges of “starvation of civilians as a method of warfare”, “wilfully causing great suffering, or serious injury to body or health”, “wilful killing” and “intentionally directing attacks against a civilian population” constituting a war crime. Additionally, they would be charged with “extermination and/or murder… including in the context of deaths caused by starvation”, “persecution” and “other inhumane acts” as crimes against humanity, in connection with the ongoing humanitarian crisis in Gaza.

The jurisdiction of the Court is limited to the most serious crimes which affect the entire international community. Under the Rome Statute, the Court has jurisdiction over the following crimes: the crime of genocide; crimes against humanity; war crimes and the crime of aggression. Based “on the basis of evidence collected and examined” by his Office, Prosecutor Khan allegedly accused Prime minister Netanyahu and Yoav Gallant of committing crimes against humanity and war crimes in accordance with Article 7 defining crimes against humanity and Article 8 defining war crimes in the Rome Statute. 

One of the key challenges the three judges will encounter in reviewing the request for an arrest warrant is that, for Hamas, as well as for Russia, deception functions as a political strategy. For exemple, the first line of the summary of the report “Anatomy of a Genocide” states that “After five months of military operations, Israel has destroyed Gaza. Over 30,000 Palestinians have been killed, including more than 13,000 children.” However, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) significantly revised recently its reported child fatality figures from the Gaza war. Initially, on May 6, they reported over 14,500 deaths, but by May 8, this number was adjusted to 7,797.

Another example is that of an explosion which took place in the parking lot of the courtyard of al-Ahli Arab Hospital in Gaza City on October 17, 2023. Following the explosion, various media outlets around the world disseminated a false claim from the Hamas-run Palestinian Health Ministry, alleging that an Israeli airstrike killed hundreds of Palestinians at a hospital in Gaza City. Later during the month, Canada published a statement to say that : “Not only the European intelligence but also the Canadian Forces Intelligence Command confirms that Israel did not strike the al-Ahli hospital on 17 October 2023″ while the BBC and the New York Times apologized as well for having relayed Hamas propaganda about the bombing of the hospital. “The early versions of the coverage – and the prominence it received in a headline, news alert and social media channels – relied too heavily on claims by Hamas, and did not make clear that those claims could not immediately be verified”, wrote the New York Times on October 23, 2023. 

Moreover, if the charge of “starvation of civilians as a method of warfare” arises from Gallant’s controversial remarks at the beginning of the war on October 9, when he announced a “complete siege” of Gaza, it is crucial to remember that humanitarian aid trucks were soon later allowed into Gaza on October 21. Moreover, the limited piping of potable water from Israel resumed around the same time and has substantially increased since then. “As part of this improvement, on 24 October, an additional seawater desalination plant resumed limited operations in the Middle Area, after another plant in Khan Younis did so on 21 October”, wrote the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) already last October. 

Additionally, since the start of the war in October 2023, 19,354 trucks have entered Gaza through Rafah, carrying 19,952 tonnes of medical supplies, and 23,453 tonnes of food. In early December, Elad Goren, the head of COGAT, the Israeli Defense Ministry’s department managing civilian operations in the Palestinian Territories, also mentioned that they were striving to boost humanitarian aid efforts, with more than 60,000 tonnes already delivered through Rafah. Israeli authorities subsequently opened new crossings into the territory, facilitating the passage of aid, and also allowed access through the port of Ashdod. Just last month, on Wednesday, April 10, Israeli Defense Minister Yoav Gallant discussed the gradual increase of Gaza aid deliveries, aiming to restore them to pre-war levels of 500 trucks per day.

We clearly see that there is a gap between the accusations and the facts. Plus, as I already mentioned it when I talked about the alleged crime of genocide, the definition of Article 8 also clearly states that individuals facing charges under this article are “wilfully causing great suffering”, “wilful killing” and “intentionally directing attacks”. The acts are based first and foremost on an intention and can only be read and interpreted in light of the intent to destroy a given population. Beyond provocative political declarations which only involve those who made them – and not the army as a whole and as an institution whose mission is the protection of the State of Israel – we must assess whether Israel is intentionally targeting “members of the group” indiscriminately or if its primary aim, on the basis of its war objective, is the members of the Izz ad-Din al-Qassam Brigades, leading to unintended harm to civilians.

At least 10,000 civilians, including more than 560 children, have been killed since Russia launched its full-scale armed attack against Ukraine on 24 February 2022, according to the United Nations Human Rights Monitoring Mission in Ukraine (HRMMU). Estimates of the total number of deaths in the Syrian Civil War, by various war monitors, range between 580,000 as of May 2021, and approximately 617,910 as of March 2024. Almost a quarter of a million people have died in Yemen’s war, according to the UN Office for the Coordination of Humanitarian Affairs (OCHA). War in Sudan has killed up to 9,000 people in six months, according to the UN. And the sad list can go on. One war does not justify another, but we must exercise discretion so as not to put on the same level the actions of a regular army ready to be held accountable and those of dictators or terrorists.

As French Senator Roger Karoutchi reminded us on Wednesday, May 22, during the current questions to the Government (a meeting taking place weekly and allowing each political group to question a member of the Government, who responds in session, on a current affairs subject) : “Do not put on the same level, whatever the comments of one or the other on the Netanyahu government, do not put on the same level a democratic country with elected authorities and a terrorist organization which has murdered”.

About the Author
Nathalie Boehler, former journalist in Israel for i24NEWS and doctoral student in public law specialized in International Law, Criminal, Environmental and Humanitarian Law.
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