The ICC Is Advised:  Don’t Issue Arrest Warrants – OpEd

It was on May 20, 2024 that Karim Khan KC, a British jurist and chief prosecutor of the International Criminal Court (ICC), applied to the court to issue international arrest warrants against three Hamas leaders and also against Israel’s prime minister Benjamin Netanyahu and defense minister Yoav Gallant. His request in respect of the Israeli leaders was backed by a catalog of alleged war crimes and crimes against humanity that he accused them of committing.

The High Level Military Group (HLMG) is an association of military leaders and officials from NATO and other democratic countries. Between them they have a wealth of experience at the very highest operational and policy levels as regards the conduct of warfare and its attendant policies.

On August 17 a letter signed by 10 of their members was published in Britain’s Daily Telegraph. In it they state: “We believe that the International Criminal Court’s pursuit of arrest warrants for Israeli national leaders is unjustified.” They back their assertion with evidence gathered in direct investigations the group undertook in July within the IDF and inside Gaza.

They describe the IDF military justice and accountability mechanisms as “consistent with the highest standards of our own armed forces,” and that Israel has both the ability and the will to implement them. They contend that issuing arrest warrants would deny Israel the time and opportunity permitted to other countries to do so.

Their conclusion: “These warrants should be dismissed.”

When Khan originally applied to the ICC for these international arrest warrants, Britain’s then Conservative government wanted to question the court’s power to do so. Since then, a general election has resulted in a new Labour administration, and one of its earliest decisions was not to proceed with Britain’s submission to the ICC.

Media comment had concentrated on possible submissions from other parties that questioned the court’s jurisdiction. None had anticipated a submission that attacked its chief prosecutor’s case for issuing arrest warrants against Israel’s leaders in the first place. But this is precisely what happened when, on August 5, Dr Rafael Bardaji presented an amicus curiae submission to the ICC on behalf of the HLMG. It tore Khan’s case to shreds.

In his application to the ICC, chief prosecutor Khan states as a fact that Israel indulged in “collective punishment of the civilian population”.He substantiates this by asserting that Israel “deliberately” starved the Gaza population, “wilfully” caused them great suffering, serious injury and death, and “intentionally” directed attacks against them, murdering and persecuting them. He makes these assertions without offering any proof that the actions he listswere deliberate, wilfull or intentional.

The HLMG did not indulge in matching assertion with counter-assertion. As it made clear in the first paragraph of its 28 paragraph submission: “The HLMG conducted an in-country assessment of the Gaza conflict in July 2024, visiting IDF military HQs from the top level; humanitarian aid installations and operations; units down to battalion level of command; and a visit inside Gaza.” In short, its observations are based on solid, first-hand evidence.

It first tackles Khan’s allegations that Israel blocked food supplies from reaching the Gazan population, deliberately starving them. The HLMG describes visiting crossing points

built by the IDF since the war began specifically to facilitate increased volumes of aid entering the Gaza Strip. The Erez Crossing was completely destroyed by Hamas on 7 October, “Since then two vehicle crossing points in Erez were established by the IDF. We observed roads inside the Gaza Strip that were built by the IDF specifically to enable delivery of aid laterally and south to north.”

The submission continues: “The IDF operates according to a clear chain of command. The directives and commands we reviewed did not include any order to starve civilians, or to use issues related to humanitarian assistance as a method of warfare, and in fact, included clear statements regarding the IDF’s legal obligations towards the civilian population.”

Its conclusion: “Our assessment shows that the IDF is operationalizing the Israeli government’s stated policy to ‘flood Gaza with aid’… we believe this is counter indicative of and inconsistent with any plan or intent to employ starvation as a method of warfare at any stage in this conflict.”

The submission then turns to Khan’s assertion in his arrest warrant application that Israel imposed “a total siege over Gaza”, demonstrating from known and provable facts that at no stage was Gaza under siege.

The group’s paragraph 14 demonstrates that Khan’s assertions about the cutting of water and electricity supplies into Gaza are riddled with factual inaccuracies. It deals equally robustly with the other charges included by Khan in his application: “Based on our observations, we do not believe the evidence of actual operational practice in any way corroborates the accusation of policies [designed] to intentionally attack civilians. In our view, the IDF has developed and implemented innovative procedures to mitigate the risk to civilians arising from attacks on valid military objectives.”

Finally the submission describes the IDF military justice and accountability mechanism which the HLMG found “consistent with the highest standards of our own armed forces.” The group singled out for praise the IDF Fact Finding and Assessment Mechanism (FFAM), which examines any incident that could raise a charge of possible illegal conduct or military procedural misconduct. “There are currently approximately 300 incidents being actively investigated by the FFAM,” it says, “with many more which they have received initial information about. To our knowledge no other armed forces have established such a permanent system but would benefit from doing so.”

The ICC describes its own remit in these terms. “The ICC intervenes only in situations where States themselves are either unwilling or unable to genuinely investigate and prosecute the perpetrators of genocide, war crimes and crimes against humanity.”

The HLMG submission states: “We do not believe there is a credible basis to conclude Israel lacks the ability or will to implement national investigatory and judicial processes that are comparable to other countries and their militaries.” No individual, it adds, including the prime minister and minster of defense, is immune from this process.

“The proposed ICC arrest warrants,” it concludes, “ would deny investigatory leeway to the State of Israel.”

In other words, reject your prosecutor’s request.