ICC puts burden on Israel to prove Hamas uses human shields - analysis

After two statements by the International Criminal Court Prosecutor’s Office in recent days, including Monday, war crimes charges versus Israelis may be closer than ever.

Likewise, Hamas’s use of human shields may not be enough to protect Israelis in the eyes of the ICC.

This is a potential paradigm shift since for nearly 10 years, the ICC Prosecutor’s Office has focused its energies on preliminary jurisdictional questions, such as whether “Palestine” constituted a country which could give the court jurisdiction to probe Israel and Hamas.

While the ICC decided that question against Israel and in favor of Palestine in 2021, The Jerusalem Post understands there was hope in top Israeli legal circles that the court would still refrain from actually indicting Israelis. Until this month.

If that did not work out, there was significant hope that the ICC would at least avoid going after the IDF, and at most would go after the settlement enterprise.

This was based on the idea that the IDF self-investigates when its soldiers allegedly violate international law.

Several IDF soldiers have been sent to jail, even if only for short sentences, when prosecuted and convicted for unjustifiably killing Palestinians.

According to the ICC’s Rome Statute, it cannot intervene if a country properly self-investigates.

So the greatest battle over whether the ICC would get involved in the Israeli-Palestinian conflict has always been about whether it would recognize Israel's own internal probes as sufficient.

This has huge implications, because if IDF and government officials are indicted, over 125 ICC member state countries, including most of the EU, could be put in the difficult position of being obligated to arrest IDF and top Israeli government and military officials. Any such trend could even potentially impact the future willingness of Israelis to join IDF combat units and heavily impact Israel's national security strategy.

From March 3, 2021 until Monday, a span of more than two-and-a-half years, the ICC issued no major detailed public statements about the Israeli-Palestinian conflict – this being evident from its website which lists those two statements consecutively.

Because of this and because the current chief prosecutor, Karim Khan, had kept a low budget for the Israeli-Palestinian probe, the Post understands that many top Israeli lawyers hoped that he was looking to stay out of the conflict.

How will the ICC get involved with the Israeli-Palestinian conflict?

KHAN IS acknowledged by most observers of the ICC as being far more politically astute than his predecessor, Fatou Bensouda, whom he replaced in June 2021 for the standard term of nine years.

Having the pulse of the ICC’s member states, many believed that he understood that key European financiers of the court – not to mention the US which while not a member still holds significant sway – opposed him getting deeper into the Israeli-Palestinian conflict.

This could not only undermine their efforts to negotiate a diplomatic solution, but if a democracy like Israel could have its military probes second-guessed, what would protect European democracies’ soldiers from the same fate? Under this theory, many ICC supporters want the court to exist to prosecute war criminals in countries that are not democratic and do not probe themselves, but not to second-guess democracies that do.

Khan crushed all of these theories with his statement on Monday.

He made it clear that though he knows Israel probes its own, he will not just take Israel’s word for it, but will demand access to investigative materials.

One strong positive for Israel is he may be the first major global official probing Israel to prominently acknowledge that the IDF has the theoretical right to target civilian locations if those locations are being abused by Hamas.

This could be a positive game-changer for the Jewish state, if Khan accepts its evidence, something which countless human rights advocates have been unwilling to even look into.

But the tone of Khan’s statement made it clear that he will place the burden of proof on Israel to prove Hamas has abused any given civilian location, that this abuse has shifted that location into being a valid military target, and that attacking the location would not violate proportionality rules regarding the expected collateral harm to Palestinian civilians.

In theory, such a position is highly logical and is simply a restatement of what the laws on the books say.

However, we are not in the realm of theory.

THE IDF has provided extensive evidence in recent days and weeks of Hamas’s systematic abuse of hospitals, mosques, UN facilities, and any civilian location one can name.

This should not be too surprising, because Israel has produced the same evidence of Hamas’s tactics to systematically turn Gaza into one big human shield, which violates international law dating back to the 2014 Gaza War, and even before.

What will worry Israelis is that all of this information has been publicly provided and Khan did not make reference to it.

His statements came off as if there is not already a massive wealth of evidence to support Israel’s claims that civilian locations in Gaza regularly lose their protected civilian status because of Hamas, when there is such evidence.

In a powerful part of his statement he said, “And I want to be quite clear so there's no misunderstanding: In relation to every dwelling house, in relation to any school, any hospital, any church, any mosque – those places are protected, unless the protective status has been lost. And I want to be equally clear that the burden of proving that the protective status is lost rests with those who fire the gun, the missile, or the rocket in question. My office certainly will scrutinize all information we receive in this regard to ensure that the law is not some kind of optional extra that one can take and leave.”

This sounds like a statement of someone who will demand evidence for every single attack on a civilian location where Israel claims Hamas was using to fight – and who might find Israelis guilty in a small number of cases where mistakes could have been made, even if in most cases, the evidence against Hamas is airtight.

And in general, Khan tried to strike a balanced tone between “potential” crimes committed by Hamas and by Israel.

It was favorable for Israel that his statements about potential Israeli war crimes were slightly more qualified than with Hamas, but the general tone lacked the same broader understanding of top US and Western European leaders that Hamas is a monster, and Israel is a democracy that is trying to prevent future massacres like October 7, which is dealing with a complex enemy who systematically abuses the rules regarding human shield under the laws of war.

THERE WERE some other important points in Khan’s statements.

“I'm also extremely concerned with the spike, the increase, in the number of reported incidents of attacks by Israeli settlers against Palestinian civilians in the West Bank," he said. "We will investigate these attacks, and all further attacks must cease immediately.”

On the one hand, one would think that Israel would agree 100% with Khan on settler violence and that it has prosecuted settlers who perpetrate violence against Palestinians. On the other hand, there is a long record on unresolved prosecutions of settler violence against Palestinians. Usually, the IDF or Israeli police and civilian prosecutors say they could not find a suspect or could not prove to a criminal standard who perpetrated the violence. Will these answers be sufficient for the ICC and what will it do (who will it go after) if it determines that Israel’s probes were not aggressive enough?

Khan went after Israel for so far preventing him from visiting. His visit to the Gaza border from the Egyptian side highlighted the intensity of his frustration.

The Post understands that the government has not allowed an ICC visit since the prosecutor’s office opened a criminal probe in 2021 (there was a visit by ICC staff in 2016), showing that it recognizes Palestine as a state. though the region is dynamic and one should never say never.

Khan mentioned he was watching humanitarian aid being impeded by Israel from getting into Gaza at a fast enough pace. One would think that if Israel is allowing humanitarian aid into Gaza, which it has been for a while, no war crimes could be alleged against its officials on this issue.

But the prosecutor suggested that if humanitarian aid was allowed in too slowly, this could also be a war crime. It is unclear how one would determine what “too slowly” means.

Israel has increased the rate of aid to 100 trucks per day as of Monday-Tuesday, but would some officials be culpable for a war crime for several days in which only 20 trucks were allowed in daily or some amount in between? How would the number which would have been “fast enough” be determined legally and objectively, especially given that Hamas is holding around 230 hostages and has released only a fraction – and would that issue be taken into account or ignored by the ICC?

A related question, which we may never know the answer to, is: Would Khan have been more lenient with Israel on the major issues at hand if the current war had not broken out?

Of course, Khan may eventually be impressed enough by the IDF's evidence that he may back off.

But until then, while portions of Khan’s statements raise more new questions than providing clear answers, his statements made it unequivocal that, at least post-October 7, he is far more committed to delving into the Israeli-Palestinian conflict – and potentially the IDF’s conduct – than what top Israeli lawyers had hoped for.