Article published in The Daily Telegraph, 20 August 2024. © Richard Kemp

It looks like International Criminal Court justices will soon decide whether to issue arrest warrants against Israel’s Prime Minister and Defence Minister. The very prospect of this is nothing short of outrageous.

Successive ICC Chief Prosecutors have long had Israel in their crosshairs, and Hamas’s October orgy of mass murder, rape, torture and kidnapping gave British lawyer Karim Khan, the current incumbent, the pernicious excuse to move forward. Not against the Hamas terrorist perpetrators, of course, but against Israel.

To make the point that everyone is equal under the law, Khan requested arrest warrants concurrently for Hamas and Israeli leaders. That obviously would have zero effect on Hamas, already designated terrorists around the world and with absolutely nothing to lose. A meaningless, symbolic gesture – you might think.

But it is far, far worse than that. Creating a false equivalence between arch terrorists whose currency is blood and suffering and the leaders of a democratic state defending their people from attack is nothing short of morally bankrupt. It is like indicting Osama Bin Laden and President George W Bush at the same time. Or dragging Winston Churchill into the dock at Nuremberg beside Heinrich Himmler.

The High Level Military Group, ten former chiefs of staff, senior officers and cabinet ministers from Nato countries, of which I am a member, has submitted to the court a strong professional objection to Khan’s schemes. The HLMG, whose members are from the US, UK, Spain, France, Italy and Finland, were in Israel in July.

Among other military issues, we focused on Khan’s allegations that the Israeli ministers intentionally attacked civilians in Gaza and intentionally used starvation as a method of war. In our submission, we pointed out to the ICC that an essential aspect of proving these national leaders ordered the offences alleged would be corroboration in the form of IDF operations that align with the alleged criminal objectives.

We observed the conflict first hand inside Gaza. We extensively questioned government ministers, IDF commanders and soldiers, and examined IDF operations in detail. Our findings led us to conclude that there is no substance to either of Khan’s claims as a matter of government policy or military practice.

Our assessment was that the IDF was complying with international law. We pointed out that they have been making greater efforts and employing more sophisticated procedures than any other armies to mitigate harm to civilians. We described the IDF’s unique Civilian Harm Mitigation Cell, which utilises sophisticated technology to guide commanders planning strikes in areas where there may be civilians, as well as the millions of leaflet drops, voice and text messages and phone calls – all intended to mitigate the possibility of civilian casualties.

We noted the rigorous selection of munition size based on the nature of the military target, intelligence regarding enemy presence and the proximity of civilians. And we referred to the high number of IDF attack plans cancelled when civilians might be harmed. Indeed, we confessed to being perplexed at how such comprehensive efforts align with Khan’s allegation that the Israeli leadership has directed the IDF to intentionally attack civilians.

We of course recognised that, despite the best efforts of the IDF, many civilians have been tragically killed in this conflict, as in all modern wars. We gave our professional view that civilian harm in itself is not evidence of misconduct, especially when one party to the conflict deliberately seeks to maximise such harm for tactical and strategic advantage. That of course is the well-documented and self-confessed policy of Hamas: to fight in a way that will ensure the deaths of as many of their own civilians as possible in order to bring international pressure to bear on Israel. And Khan’s application plays right into that depraved stratagem.

Turning to the Prosecutor’s accusations of deliberate starvation the HLMG made clear that in our considered military opinion “the State of Israel and the IDF are and have been since the inception of this operation complying in good faith with all international legal obligations to facilitate the provision of humanitarian aid into Gaza.” We observed that Israel is expediting aid to a level we have not seen in our own militaries. To our knowledge no other armed forces have ever made such efforts, or achieved such success, in facilitating aid delivery to civilians in enemy territory while still engaged in active hostilities in that same operational environment.

We pointed out some of the factual inaccuracies in Khan’s application, including an accusation that the IDF had imposed “a total siege over Gaza that involved completely closing the three border crossing points”. Even if Israel had intended to do that, which it did not, it would have been impossible given Egypt’s control over one of the three entry points until the IDF occupied the Philadelphi Corridor in May this year.

To get his men Khan is trying to push the court into unbelievable contortions. The HLMG turned our attention to one of these aberrations: violating the ICC’s foundational principle of complementarity. That means the court does not have jurisdiction over alleged crimes committed by citizens of a country that is capable and willing to investigate and prosecute those crimes. Israel has internationally respected civilian and military justice systems with a track record of credibly addressing war crimes allegations.

Thus the Prosecutor cannot lawfully assert jurisdiction over the Prime Minister and Defence Minister without evidence that the Israeli justice system would not itself bring such charges if there was a case to answer. Khan has no such evidence because it simply doesn’t exist – either on the basis of declared future intent or past practice. It is well known that the long arm of Israeli justice has previously reached out even as far as the highest offices of state.

Exposing another of the Prosecutor’s contortions the HLMG cited war crimes investigations by two ICC member states, the UK and Australia. We pointed out that these processes had taken years to conclude and nevertheless did not attract ICC intervention. The HLMG made clear that the proposed ICC arrest warrants would deny the investigatory leeway to the State of Israel which was exercised in these cases.

When deliberating on Khan’s application, the ICC judges should ask the same question that we have asked ourselves: why does the Prosecutor seem to be singling out the Jewish State for this special treatment?

If the judges do decide to grant Khan his warrants that would align the ICC with Hamas’s jihadist agenda and against the global values of justice that the court was set up to protect. This precedent would create a two-tier international justice system under which terrorists are effectively inviolable while democratic states trying to resist them are hung out to dry. That would inevitably undermine our own national security, with political and military leaders fearful of criminalisation if they have to order their armed forces into action for the legitimate defence of the country.

Image: Greger Ravik/Flickr