Top foreign military officials to ICC: Don't arrest Netanyahu, Gallant

The Higher Level Military Group has submitted a legal brief to the International Criminal Court seeking to convince the judges to reject a request by ICC Prosecutor Karim Khan for arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.

The specific legal group includes top former military generals and military legal officials from several North American and European countries who in July visited a wide variety of IDF bases and humanitarian aid sites at both higher and lower command levels throughout Israel and Gaza.

In the brief, the group addresses Khan’s two main thrusts for prosecuting Netanyahu and Gallant: charges of alleged starvation and charges of alleged deliberate killing of Palestinians by the IDF under orders.

Regarding the charges of starvation, the brief finds that Israel and the IDF’s humanitarian efforts were initially delayed by several days of fighting to expel the Hamas invasion, which went on for the greater part of the week after October 7 as well as another week of initial massive deployment efforts of around 100,000 troops to the Gaza front, many of whom also lacked proper food and supplies at times.

However, from October 21 onward, the group found that the IDF facilitated humanitarian aid convoys (initially via the Nitzana Crossing.)

Further, the group said that there is no war crime for first providing aid to one’s troops at a minimal level before facilitating aid to a foreign civilian population and that the delay was short-lived and did not lead to starvation given the food and supplies previously stocked up in Gaza.

Arguments over whether Kerem Shalom crossing could have opened earlier 

Regarding the Kerem Shalom crossing, which was only opened in mid-December, there are complex arguments about whether it could not have been opened earlier because the IDF did not have sufficient security control in northern Gaza to keep the crossing and aid coming from it safe, or whether there were internal Israeli political issues. But, generally, the group argues that there is no evidence of Israel wholesale blocking aid.

Rather, the group asserts that the IDF set innovative and high standards for providing aid in a complex urban warfare zone where Hamas was trying to steal or siphon the aid away from its own civilian population, making the challenges involved beyond anything with which other democracies have had to contend.

In addressing targeting issues, the group said that the IDF had developed innovative technologies to help move and map out the movements of large Palestinian civilian groups to ensure their safety despite massive security challenges.

According to the brief, the IDF is up against a unique enemy, in that Hamas systematically uses its civilian population and their civilian buildings like hospitals, mosques, and schools, as human shields.

Further, the brief noted that Hamas fired 10,000 rockets into Israel’s home front, ongoing through July and August, something that Western militaries have not had to face.

Most importantly, the group interviewed forward commanders and troops and found that their understanding of the laws of war corresponded to proper views as directed by the IDF legal division.

From the perspective of the ICC’s own laws, the brief said that it was premature for Khan to get involved when the IDF is still at the early and middle stages of probing its own alleged war crimes.

In fact, the group said that the IDF is now probing around 300 possible war crimes from the current war, nearly double the previous number reported.

This was a significant update from May 27 when IDF Military Advocate-General Yifat Tomer Yerushalmi publicly announced that she had opened around 70 criminal probes until then.

The group said that Khan cannot even make any initial conclusions about potential war crimes for Netanyahu and Gallant without evidence about whether the soldiers whom they allegedly ordered to commit war crimes, in fact perpetrated them.

Rather, the group said that it was quite possible that the broader IDF apparatus directed by Netanyahu and Gallant acted properly, but that there were a number of incidents of failures by middle- and lower-level commanders.

As an example, the group noted that the IDF has coordinated 16,000 aid deliveries since the start of the war, with only a few leading to incidents.

However, the group noted that most of the world’s attention tends to focus on such individual incidents as when the IDF mistakenly killed seven aid workers of the World Central Kitchen (three top IDF officers were either fired or reprimanded) and not on the nearly 16,000 successful aid deliveries.

One problem Israel has faced is that there is currently no probe of government officials, though the Post has recently reported exclusively that such an independent state inquiry is being highly considered to avoid ICC intervention.

The court is not supposed to intervene if a country proves its own alleged war crimes.

Overall, the group said that if the ICC goes after Netanyahu and Gallant, then it will have created a new standard to which essentially no democracies will be able to live up to if facing an asymmetric enemy like Hamas or ISIS, which systematically uses civilians as human shields.