Will the ICC Prosecutor Cause Gazans to Die?

Many have explained that the ICC Prosecutor’s application for warrants to arrest Israeli leaders is both contrary to law and morally obscene.  I feel compelled to add that it risks putting Gazans in more danger.  The IDF has gone above and beyond many requirements of the laws of war to spare lives in Gaza.  Having been rewarded for this compassion with war crimes accusations, what motivation will Israel now have to continue endangering its soldiers by acting with more restraint than the law requires?

Take, for example, the IDF’s warnings about upcoming attacks.  The United States Department of Defense Law of War Manual explains that warnings are not required “where giving a warning would be incompatible with legitimate military requirements, such as exploiting the element of surprise . . . and preserving the security of the attacking force.”  The IDF has forfeited the element of surprise and endangered its forces daily in Gaza by publicly declaring its intentions (via millions of leaflets, text messages and phone calls, and even publishing its own military maps).  In many cases the IDF has provided weeks (not minutes, hours, or even days) of advance notice regarding where the IDF will operate.

The DOD Manual recognizes that, when an enemy uses a civilian population to shield itself, the attacking force’s “ability to discriminate and to reduce the risk of harm to the civilian population likely will be diminished by such enemy conduct.”  Despite Hamas operating from mosques, schools, hospitals, UN facilities, and humanitarian zones, Israel has achieved a non-combatant to combatant death ratio close to 1:1 — almost an order of magnitude better than the 9:1 ratio the UN has documented, on average, in modern wars.  The IDF has gone to extraordinary lengths – beyond the measures needed to comply with the laws of war – to reduce non-combatant deaths to this low level.

The DOD Manual explains it is permissible to starve enemy forces, so long as the expected harm to civilians is not excessive compared to the anticipated military advantage.  Despite starvation being a legitimate military tactic (within limits as noted), Israel made a decision early in the war not to pursue it at all.  More food is entering Gaza now than before October 7.  The UN Office for Coordination of Humanitarian Affairs (OCHA) provides a dashboard on its web site showing monthly imports to Gaza.  In Q1 2024, 9,000 truckloads of food entered.  In Q1 of each year from 2014-2023, the number was between 5,000-7,000 truckloads.  The ICC Prosecutor’s “starvation” accusation is a baseless blood libel.

The IDF operates by a lofty moral code.  But, with the ICC Prosecutor nonetheless accusing Israel of war crimes, it will be increasingly difficult for Israel’s government to justify the additional price Israel’s soldiers are paying by acting with more restraint than the laws of war require.  Thus, the ICC Prosecutor may ultimately be the one responsible for unnecessary civilian deaths in Gaza.

About the Author
Michael Rader is an attorney who focuses on patent and intellectual property litigation. Mike serves on the Board of Directors of American Friends of Leket Israel (which supports Israel’s National Food Rescue Organization, Leket Israel) and on the Board of Directors of Tzohar Israel Foundation (which supports Israel’s leading Modern Orthodox rabbinic organization, Tzohar). He and his family reside in the New York area.