Attorney general slams ICC prosecutor, says he’s ignoring Israel’s legal system
Baharav-Miara says Israel is actively investigating allegations of Gaza war conduct, accuses Khan of violating court’s charter by rushing to seek arrest warrants
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Attorney General Gali Baharav-Miara upbraided International Criminal Court Prosecutor Karim Khan on Monday, insisting that Israel’s legal system is actively investigating allegations of possible criminal misconduct during the war in Gaza and that Khan’s request for arrest warrants against the prime minister and defense minister was therefore hasty and inappropriate.
In her first comments aimed directly at Khan, the attorney general asserted that his investigation of Israel’s actions during the conflict with Hamas lacked jurisdiction and that his request for arrest warrants was “baseless.”
She said that the prosecutor’s intervention violated a fundamental principle of the international court by failing to let an independent legal system, such as Israel’s, deal with any concerns before taking action.
The attorney general’s comments come as Israel faces intense legal scrutiny of its conduct of the war against Hamas in Gaza, with the ICC prosecutor requesting last week that the court issue arrest warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant on crimes against humanity and war crimes charges, and the International Court of Justice intervening on Friday in the IDF’s ongoing operation in Rafah. Khan also requested warrants against three top Hamas leaders.
“The decision of the prosecutor ignores, among other things, the fact that Israeli legal system has proved its independence in the past, its impartiality, and its commitment to the values of truth and justice,” Baharav-Miara said at the annual Israel Bar Association conference in Eilat.
“We do not shy away from enforcing the law against any person, even the heads of the military and the state, if there are well-founded suspicions of violations of the law. We examine and will examine thoroughly suspicions of illegal actions. We don’t need outside help to clarify suspected criminal activity.”
The attorney general also pointed out that the military is itself currently conducting criminal investigations regarding possible violations of the law during the war in Gaza.
“The states that established the [ICC] court saw it as a tool for dealing with situations where there is ‘no law and no judge.’ That is not our situation,” she averred.
“The steps taken by the ICC prosecutor contravene the basic legal idea on which the court was founded, the principle of complementarity,” she pointed out, in reference to the principle in the ICC’s charter in which the ICC cannot accept a case if the state in question is willing and able to investigate alleged wrongdoing.
She also noted that under Israeli law a state commission of inquiry can be appointed that is independent of the political system and has broad investigative powers and whose conclusions can be used for subsequent action in the legal realm.
Such commissions are either established by a cabinet decision or through the Knesset State Control Committee.
“It would have been more correct for the [ICC] prosecutor to wait until the internal state procedures were completed before making a decision,” said Baharav-Miara. “It would have been right to give the State of Israel a fair opportunity in this regard.”
Baharav-Miara also said that “any intelligent person who looks directly at reality knows that the challenges of fighting Hamas are unprecedented,” and asserted that the terror organization not only violates international law but also “abuses in a manipulative manner Israel’s commitment to those rules.”
And she insisted that the IDF is operating in accordance with the laws of war, which she described as a position “not of weakness but rather strength, the moral strength of the Jewish and democratic state.”
Against this background, Baharav-Miara denounced the procedures in the International Court of Justice against Israel, saying the allegation by South Africa that Israel was committing genocide was “outrageous” and a “cynical and illegitimate use of the court’s procedures.”
She also described South Africa’s suit as “baseless” and as “totally distorting the concept of ‘genocide.’”
Said the attorney general, “Hamas is a genocidal organization that murders Israelis and Jews because of who they are. It is carrying out abominable war crimes at this very moment. Hamas is responsible for the suffering of Gaza’s residents, it does not take care of them. It has invested massive sums in building terrorist infrastructure and uses civilians as human shields.”
The war in Gaza broke out after Hamas’s October 7 attack on southern Israel in which terrorists murdered some 1,200 people and kidnapped 252.
The Hamas-run Gaza health ministry says more than 35,000 people in the Strip have been killed or are presumed dead in the fighting so far, though only some 24,000 fatalities have been identified at hospitals. The toll, which cannot be verified and does not differentiate between terrorists and civilians, includes some 15,000 terror operatives Israel says it has killed in battle.
Israel also says it killed some 1,000 terrorists inside Israel on October 7.
Two hundred and eighty-eight soldiers have been killed during the ground offensive against Hamas and amid operations along the Gaza border. A civilian Defense Ministry contractor has also been killed in the Strip.
