Retired generals to ICC: Prosecutor has no evidence for allegations against Israel
In court briefing, senior officers from US, Italy and UK say warrants against PM and Gallant would set ‘unbearable, unrealistic standards’ for other armies engaged in urban combat
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
A group of international retired generals and senior military officers have told the International Criminal Court that its chief prosecutor Karim Khan’s claims that Israel deliberately starved Palestinians and intentionally targeted civilians during the current war in Gaza lack evidence and do not stand up to scrutiny.
The High Level Military Group (HLMG) made its comments in an amicus brief filed to the ICC earlier this week, in which it argued that Khan’s request for arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant was unjustified owing to Israeli efforts to facilitate the entry of humanitarian aid to Gaza and what it described as the Israel Defense Forces’ rigorous efforts to avoid civilian casualties.
HLMG’s brief was one of dozens submitted to the ICC — arguing for and against Khan’s request for arrest warrants — after the court in June accepted a request from the United Kingdom to file an amicus brief challenging its jurisdiction.
The UK subsequently decided not to file the brief after the new Labour government took power, but numerous other states, organizations, elected officials and academics filed briefs to the court before the August 6 deadline.
The three judges of Pre-Trial Chamber I will now have to review the claims included in the briefs, as well as a response from Khan, before ruling on the various issues raised by the submissions.
The signatories to HLMG’s brief included the former head of the Italian armed forces, General Vincenzo Camporini; retired Lt. Gen. David Deptula of the US Air Force, who served as director of the Combined Air Operations Center during Operation Enduring Freedom in Afghanistan, among other command roles; retired UK Col. (ret.) Richard Kemp; and other generals and senior officers from the British and French armies.
HLMG focuses on the challenges facing Western democracies fighting terrorist armies and non-state actors and has produced several reports defending Israeli military campaigns.
“Should the court approve the requested arrest warrants it is our professional military opinion that this would set standards that are unbearable and unrealistic with regards to military operations and the facilitation of humanitarian activities during active hostilities, and standards which would be unacceptable for other democracies and their armed forces (including our own) that engage in urban warfare,” HLMG told the ICC panel that is considering Khan’s request.
Addressing one of Khan’s central charges that Israel used starvation as a method of warfare in Gaza, which is a crime against humanity, HLMG noted that during a visit to the region in July, its representatives observed the two new goods crossings Israel has built to deliver humanitarian aid into the northern Gaza Strip after the Erez Crossing was destroyed by Hamas during the terror group’s October 7 attack that started the war.
They also pointed to roads built by Israel inside Gaza to facilitate the collection and distribution of aid to the local population, as well as Israel’s cooperation in the coordination of aid air drops and the construction of the US floating pier (JLOTS), which were also designed to increase the amount of aid that could be transferred into the territory.
The organization also noted that beyond the amount of aid that has been delivered to Gaza since October 7 — around 869,000 tons — some 16,000 coordination operations have been conducted in the territory to get the aid from the crossing points to the population, a key issue which aid organizations have criticized Israel over.
“The logistical efforts of the IDF, the infrastructure they have built and maintained, the resources dedicated by the IDF to these efforts, the directives and commands we saw, and the commanders we met all suggest that there is a genuine, ongoing and concerted effort to alleviate the humanitarian situation in Gaza, in direct contradiction to the claims of the Prosecutor,” the HLMG generals wrote.
They added that food insecurity in Gaza was instead due to the “unavoidable effects of large-scale urban warfare,” as well as Hamas’s role in hijacking aid consignments and other misuses of aid in Gaza.
“It is our professional view that accusations of an intent to starve civilians by the Israeli prime minister and minister of defense are unsupported by all available evidence, most importantly by the actual conduct of IDF operations in and around Gaza.”
Addressing Khan’s claims that Israel has targeted Palestinian civilians in Gaza, HLMG said that “there may well have been instances of unlawful killing by IDF forces” during the war, whether negligently, accidently or even deliberately.
“There has never been a war where such incidents have not occurred, and not in our collective experience,” the generals said, adding that investigations they have conducted “confirmed” such incidents were not a manifestation of an intent to attack civilians transmitted to the force by the prime minister or defense minister.
The group also pointed to Hamas’s tactics, noting the terror organization “consistently and pervasively embeds itself into the civilian population,” complicating the Israeli military’s “distinction process” in differentiating between civilian and military targets; uses human shields; does not have its combatants wear uniforms; is holding of hostages in Gaza, including in civilian homes; and maintains a tunnel system that runs under civilian infrastructure.
All of this, the group said, meant that Gaza had become “the most complex and challenging battlefield of modern times,” adding that harm to civilians in such a war was not evidence of misconduct.
HLMG also pointed to the fact that Israeli military prosecutors had themselves investigated incidents of alleged violations of the laws of war, putting the current number of investigations at 300. It noted that though these investigations have not been completed, Khan went ahead and requested the arrest warrants, labeling his step “patently premature.”
A foundational principle of the ICC is that it is a court of last resort and can only intervene when a state is unable or unwilling to conduct credible investigations of itself, known as the complementarity principle.
The organization also noted that recent war crimes investigations in Australia took four years to conduct and another three years to bring charges, while a UK investigation into war crimes which began in 2022 has yet to be concluded, asserting that Khan’s decision to seek arrest warrants in Israel’s case was therefore unjustifiably hasty.
“The proposed ICC arrest warrants would deny the investigatory leeway to the State of Israel which was exercised in the cases we mention above,” HLMG said.
A separate brief filed by two prominent Israeli academic experts on international law, Prof. Yuval Shany of Hebrew University and Prof. Amichai Cohen of the Israel Democracy Institute, strongly challenged the ICC’s jurisdiction over the case, particularly pointing to the court’s own decision from 2021 that the Pre-Trial Chamber would have to rule on its jurisdiction before warrants could be issued.
In 2021, when the “State of Palestine” acceded to the ICC, the court ruled that it would need to make a final decision on Israel’s claim that the Palestinian Authority’s request to join the ICC violated the Oslo Accords.
The terms of the Oslo Accords state explicitly that the Palestinian Authority will not have criminal jurisdiction over Israeli citizens.
Since the ICC works under the principle that its member states delegate their ability to exercise criminal jurisdiction to the court, Israel and its allies argue the Palestinians never had jurisdiction in the first place to confer on the ICC.
“That jurisdiction over Israelis was explicitly retained by Israel under the Interim Agreement (article 17(4)) is reflective of the creation of the PA as a form of self-government over local Palestinians… Significantly, it [the PA] was created without legal power to apply its laws to Israeli nationals, even in those areas over which it possesses some governmental authority,” wrote Shany and Cohen.
The two professors also questioned whether Khan abided by the principle of complementarity by so swiftly seeking arrest warrants against Netanyahu and Gallant, telling the Pre-Trial Chamber that in so doing he had “deprived Israel and other states of a reasonable opportunity to open a ‘mirroring investigation’ within the timeline envisioned by the [ICC’s founding charter the Rome] Statute.”
