Is Israel ready for the next legal war crimes tidal wave? - analysis

By March 25, Israel is due to have submitted a significant update to the US regarding alleged war crimes files from the current war.

This submission is crucial to maintaining US military, diplomatic, and public relations support for Israel’s war and peace policies with Gaza and in the region.

At the same time, The Jerusalem Post understands that there is a chance that Israeli defense companies will be blacklisted from participating in the crucial EUSATORY defense conference in France in mid-June.

This comes after Israeli defense companies were recently banned from a major defense conference in South America.

Israel's national defense

Put together, Israel is facing the most daunting and critical period with its allies overseas in decades in ways that could strategically harm the Jewish state’s national defense in both the long and the short term.

Despite all of these challenges, the Post has learned that there is no clear legal strategy from Israel and the IDF to prevent the ongoing deterioration.

Rather, the current Israeli legal strategy is generally reactionary: providing specific updates quietly to the US on cases it asks about as they come up, with no plan to proactively present comprehensive details regarding a list of top war crimes allegations files anytime in the near future.

As the Post previously exclusively reported, the IDF legal division in January took the forward-looking move of vetting the potentially thousands of open files from the war to zero in on some dozens of high-profile cases to provide an earlier update on them.

Further, as of Monday, the Post can report that the number of expedited cases in the end is in the 60s in number.However, if there was some hope at some point of presenting interim findings regarding these cases around the time of the upcoming March report to the US or shortly after, presently, there is no such plan.

In addition, no one from the IDF is prepared to commit to an interim report, even coming out in parallel to the interim report that the broader IDF plans to issue in mid-June relating to the October 7 failure.

Initial interim reports to come later

Instead, the impression is that there may not even be an initial interim report on alleged IDF war crimes until late 2024, if not substantially into 2025.

This will effectively mean that the IDF and Israel will be yielding the floor to its critics on the issue not only for the entire first half-year since the war started but possibly for a year or more after the war started.

At this pace, even the expedited cases’ interim results may only come out after many decisions have already been made against Israel and the IDF.

What is unexpected about this situation is that after the 2014 Gaza conflict, some high-profile cases had initial results within mere weeks or months of the end of the 50-day war.

Sources have said that the two 2014 and 2023-2024 Gaza wars are not remotely comparable.

In 2014, the IDF performed 500 initial probes and 32 full criminal probes.

Yet, the scope of the current war so dwarfs that conflict that the IDF is expected to have to perform many thousands or more initial reviews to decide how many criminal probes are necessary.

But this is only a partial answer.

This answer only explains why it was so critical for the IDF to vet a group of high-profile cases to move forward with their results faster.

It does not explain why no results in no cases can be presented to the public for a year or more.

Once the number of cases being expedited becomes smaller, it is truly unclear why an interim report would not be issued much earlier.

There is no question that any extended further delay past the current point: when immense US and EU pressure is on the IDF to prove that the more than 31,000 killed Gazans and massive property damage in Gaza were legal and necessary – will significantly harm Israel. The only question is how large the harm will be.

This is without even getting into the proceedings against Israel at the International Court of Justice and the International Criminal Court, which likely will not wait another year or years to probe Israel for war crimes.

With all of this war’s unique complexities and the fact that legal cases do not move at the same pace as politics, there are ways and individual cases that could be moved faster.

Part of the reason that it seems that the vetted expedited cases are not moving faster is because of domestic political fears.

The second that any IDF officials are being indicted, let alone probed for anything criminal, Finance Minister Bezalel Smotrich and National Security Minister Itamar Ben-Gvir will scream bloody murder.

Prime Minister Benjamin Netanyahu is terrified of this scenario.

The IDF high command and the IDF legal division are more insulated from such political pressures, but to the extent they need to decide whether to make a “special” effort to move the expedited cases even further to confront global critics, the pushback from domestic critics may be a significant wrench in the works.

This is also not the only issue where Israel’s legal establishment is worried about attacks both from global and domestic critics, which press in contradictory directions.

None of the October 7 murderers has been indicted, and there is no schedule to indict them because the legal and political establishment has been unable to decide whether to bring them to trial in civilian courts, military courts, or under some kind of special war crimes tribunal. They are also worried that many of those who may be on the list to be prosecuted may also be on a Hamas list to receive in exchange for Israeli hostages.

Smotrich and Ben-Gvir would probably prefer the death penalty with no trial, and in any event, will likely slam any proceeding they perceive as leaving any possibility of anything besides life in prison.

This is at the same time that quite a few of the Hamas terrorists from October 7 can probably only be indicted for some kind of general terrorism offense and not murder, either because no one knows who many specific individual terrorists killed or because the evidence was compromised while evacuating the area under rocket fire.

While prosecuting IDF soldiers and prosecuting terrorists would not seem to be related in any way, they will both lead to criticism domestically from Smotrich and Ben-Gvir (and maybe some officials in the Likud like Transportation Minister Miri Regev.)

The bottom line is that the current IDF legal division approach may be only slightly better than if there was no expedited strategy. Absent a much more expedited strategy, the IDF and Israel may be hit by the full weight of the coming legal war crimes tsunami.