On October 29, November 7, and November 30 to December 2, International Criminal Court Chief Prosecutor Karim Khan made more statements and gave observers a deeper understanding of how he approaches the Israeli-Palestinian conflict than he had in the previous nearly two and a half years of his term.
What follows is an analysis of where his statements show he is likely to go, followed by a review of some cutting-edge related issues that top Israeli officials are concerned about and could also reflect on the broader picture of ICC-Israel relations.
The Jerusalem Post has also had extensive contact with Khan’s office, previous ICC officials, and top Israeli officials on a variety of issues.
Probably the two most critical issues will be whether Khan views Israel’s targeting system as legitimate and its legal system of self-prosecution of its own soldiers as legitimate.
In analyzing that issue, it will be crucial to see whether Khan rules that IDF attacks on hospitals, mosques, and schools were: 1) justified because Hamas abused them; 2) unjustified because the IDF failed to prove both military necessity and proportionality; or 3) sometimes justified and sometimes not.
Israel has produced voluminous evidence of Hamas systematically using hospitals for their own nefarious activities, such as storing weapons; as weigh stations for transporting Israeli and foreign hostages after October 7; and as command and control bases for coordinating attacks. The Post viewed some of this evidence in person at Shifa Hospital in Gaza City on November 22.
The IDF has also produced mounds of evidence of Hamas systematically using mosques and schools for storing and planning attacks.
In 2014, Israel also acquired a large body of evidence of Hamas shooting rockets directly from or from nearby hospitals. During the current war, there is only one such recorded example, when Islamic Jihad fired 10 rockets on October 17 from a cemetery right next to the Al-Ahli Baptist Hospital in Gaza (there was a misfire that killed many civilians at and around the hospital).
There are, however, numerous examples of Hamas firing rockets from humanitarian safety zones, including three documented by the IDF from December 6 at 12:52, 14:12, and 15:59.
So if the ICC’s standard for recognizing changing the status of a civilian location to a valid military target is based on presenting evidence that Hamas used these locations for military purposes, Israel should be fine.
It will be able to present the necessary evidence.
But what if the ICC requires a higher standard?
Public statements by Khan and communications with the Post have suggested that Khan’s office will continue to place the burden of proof on Israel, despite the significant evidence that the IDF has already publicly produced.
When Khan says things like he will not allow the laws to be hollowed out to the point where exceptions are used to justify collateral harm to Palestinian civilians on a large scale, he seems to suggest that he will not approach the issue from the starting point of assuming Hamas’s systematic abuse of civilian locations and its use of human shields. Rather, he will demand highly specific proof each time.
What if the ICC goes so far as to require that Hamas forces have to be involved in an imminent attack on IDF forces or Israeli civilians to permit an IDF attack on them in a civilian location?
The same could be true for houses and other civilian locations.
Israeli sources have made it clear to the Post, and some other countries also say that if a terrorist has fired or intends to fire a rocket, he may be attacked before or after the rocket is fired at a civilian location.
But some interpretations of the laws of war are more narrow. They would only allow attacking such a terrorist if it could be proven that he was in the process of imminently getting ready to fire the rocket, as opposed to previous firing or firing in the coming hours or days.
Or what if the ICC accepts Israel’s evidence that Hamas stored weapons and hid their terrorists in civilian locations as enough to prove that the location could theoretically become a military target, but rules that attacks were not proportional because of potential collateral harm to civilians? There have been significant hints from Khan and ICC officials over the years to the Post that they may draw the line of proportionality differently than Israel.
It would be widely accepted that a military attack could kill a top Hamas leader, as well as one civilian nearby caught up in the blast.
Likewise, it would be widely accepted that knowingly killing 100 civilians to get to one Hamas official would fail the proportionality test.
In between those scenarios – where the IDF often has had to choose to attack or allow Hamas terrorists to escape and continue either ambushes of IDF forces or firing rockets at Israeli civilians – is where most of the scenarios in Gaza are playing out.
There is no set rule regarding these numbers in any international law code.
Making some of the cases even more complex, what if too many Palestinian civilians are killed by “mistake,” where Israeli estimates were that “only” a few or a small number of civilians would be killed along with several or dozens of terrorists, but then dozens or more civilians are killed by accident?
Such accidents can happen when artillery or even an airstrike misses, or when intelligence mistakenly thought nearly all civilians had left an area and many more remained than expected, or where an attack hits one target, such as one building, but the tunnels under that building collapse, which collapses an entire block.
This last scenario happened during the current war in Jabalya and also during the May 2021 conflict with Hamas.
Regarding humanitarian issues, will Israel get credit for allowing humanitarian aid into Gaza and delaying taking control of Shifa Hospital by several days to avoid a battle with Hamas in the hospital and collateral civilian harm?
Or will the ICC try to charge Israel with war crimes for blocking civilian aid for some days at the start of the conflict, and for security checks slowing civilian aid for weeks into the conflict?
On this point, Khan has been adamant in his public statements and seems to consider even a delay of humanitarian aid for security purposes – inspecting the aid and finding out where it is going – as a war crime.
This can be somewhat confusing because he has also demanded that Hamas not steal the aid, and there are documented cases of Hamas doing just that.
Will Khan seek to reconcile these contradictions and come out in Israel’s favor, or will he decide that pushing Israel and others not to slow humanitarian aid is more important than whether all the aid gets to civilians?
Israel may be on the weakest ground in terms of violence from West Bank Jewish residents against Palestinians. (The ICC may also indict Israelis for the settlement enterprise itself, but this article focuses on war issues.)
The IDF and other security services have admitted that they have had poor control over this issue, at least since February of this year, when there was a mass attack on the Palestinians in Huwara.
If Khan’s statements are any guide, his instinct would be to charge Palestinian West Bank terrorists with war crimes, and also Jews who respond with their own terror and price tag attacks.
He will have support for this from the US, which has said it will start to deny travel rights to any Jewish Israelis with suspicions of involvement in such attacks.
How the ICC will identify individuals or if it will try to charge Israeli security officials who have failed to catch these individuals – something that does not seem to have a basis in the laws of war – is far from clear.
Besides the issues unique to the current war, top Israeli officials have raised concerns in the not so distant past with the Post regarding the ICC.
AI and the IDF target bank
The Post has published an extended report about the IDF’s cutting-edge artificial intelligence-led (AI-led) target bank.
On one side, the AI-led process means that legal principles automatically play a more prominent role in the target selection and intelligence collection process than ever before.
On the other hand, when, as the Post has reported, a process that once took 10 days can now take minutes, it stands to reason that there would be less need for lawyers to provide a check or brake on the process and any run to go after a controversial target.
Israeli sources have said that despite IDF intelligence, AI’s target bank process – including aspects of legal principles, – there are still certain things that the AI lacks the capability and the vision to understand.
In that sense, they say that there is no goal for the AI to approve attacks without the involvement of a human being to weigh legality and ethics.
After that qualification, Israeli sources say that the current system is much more effective as a whole than the old system because it includes far more compiled intelligence, which is presented in a more efficient way to serve the decision-makers.
The technological advancements, they say, significantly improve the product of intelligence and analysis in terms of the much wider scope of targets that can be rapidly “incriminated” and then physically attacked simultaneously.
Swinging back toward legal concerns, Israeli sources say that the new target bank process ensures that every target receives more careful individual legal approval than in the past.
Part of this is because they say that the information coming into the targeting evaluators is much more accurate. Nothing is written on paper anymore; now everything is computerized.
Besides those advances, they say that the core of injecting legal considerations into the process is the same. These legal considerations look at whether the military conditions and other factors make the attack legal, with technology increasing the pace of the process and communication.
For example, messages between the legal division and commanders in the North get sent immediately.
Israeli sources say that the Jewish state’s efforts in the future to make military platforms more autonomous and to analyze the related legal issues are far beyond where the rest of the world is in these areas.
But again, no one is talking about dropping human involvement and discretion. Furthermore, Israeli sources say that machine learning and AI may be used to assist the IDF with complex considerations normally placed in the “box” of “discretion,” but only in the distant future.
But the ICC may view this issue differently.
It may try to put together various statements by Israeli officials about the speed of attacks and approvals, along with outside criticism, to try to conclude that the IDF is allowing AI-led attacks without sufficient legal approvals.
Or the ICC may try to put the burden of proof on this issue on the IDF, forcing the IDF to either reveal classified intelligence processes or fail to prove it has a defense. Such an approach of pressing the IDF to reveal intelligence, hinted at by some ICC sources over the years, would be unprecedented, but so is the entire field of AI.
Trips to Israel for foreign legal military officials
There is also regular dialogue between top Israeli legal officials and non-legal commanders with their foreign military counterparts. Before the war, foreign military chiefs were brought to Israel and given tours of the northern border so the foreign officials could see the strength and capabilities of the Hezbollah terror organization with their own eyes and how they improperly embedded themselves within the civilian populace.
There have also been multiple rounds of the conference of military legal chiefs (known as the MAGs conference) hosted in Israel. Sources indicate that promoting such people-to-people opportunities is important, as dialogue helps preserve the IDF’s freedom of action in promoting Israel’s robust definition of self-defense.
There were some missed years because of the pandemic, but there has been a real desire to return to such conferences, say sources. The IDF has also been careful to bring a diversity of opinions to such conferences so that they will truly be a serious forum for debate.
Israeli sources say it’s also important to jump into the critical international legal debates, not just on cyber or autonomous warfare issues but also on finding the synergy between classic warfare issues and the harder issues that terror groups, like Hamas, impose on Israel when fighting, surrounded by civilians and booby-trapped civilian houses in urban settings.
One thing is for sure: With the high number of dead Palestinian civilians, Israel’s hopes that dialogue will gain it greater global understanding of laws of war issues are about to be put to the test.
How war impacts the environment
Israeli officials told the Post that a major issue that they are trying to influence regarding international law and war is how war impacts the environment. This is important in order to make serious contributions to that area’s general evolution and to help Israel on other issues.
This is extremely relevant in general for Israel, but especially during the current war, with the impact of Israeli attacks on Gaza and reports that the IDF will use seawater to flood Hamas tunnels – something that could harm the future usage of land in Gaza.
For example, many countries and experts are analyzing how war impacts the environment and want to limit the actions of militaries due to this issue. Israeli sources say it is very important to advance certain values.
They note that many discussions regarding the environment and war do not analyze the factors that should be taken into consideration when deciding whether a military strike can be justified, even if there is an impact on the environment.
Namely, if there are scenarios where military necessity allows even harming some innocent civilians to strike a crucial enemy target, those same scenarios would typically allow for some environmental harm, though both civilian and environmental harm should be avoided as much as possible.
Israel needs to address its specific, complex issues, they say. They emphasize that the Jewish state is extremely small and accordingly, in most conflicts, all of its civilians are under attack.
There are not many parallels in the world for this, and it significantly impacts the way Israel implements the balance of advancing its war aims and its humanitarian obligations.
Connecting discussions about the environment, state practice, and the geopolitical atmosphere, some Israeli sources would also note that serious discussions about environmental issues increased when the US and the West were no longer in any significant battles in Afghanistan, Iraq, and Syria.
The implication would be that those democratic countries found time to worry more about the environment in war again after they were no longer involved in major conflicts with terrorists.
In this situation, Israel would see it as its responsibility to make sure that the principle of military necessity is not ignored.
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