ICC arrest warrant for Netanyahu and Gallant

I will post a few thoughts on the law to this very strange case - in addition to my previous post on the politics.

I don’t think this will be problematic for Israel to defend. The burden would be on Karim Khan, and I think that’s a problem.

The real nuisance would be the precedent of the de facto jurisdiction of the court over the Israeli Prime Minister and government. What’s striking is the remarkable soft-power of the court’s jurisdiction over non-signatories (and, for that matter, over non-states).

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So, the alleged war crimes are (1) “starvation ... as a method of warfare” and (2) “willful killing”.

The problems are:

1. Intentionality - The problem with the charge of “causing starvation” is that it would require intentionality. I think this would be v. hard to prove. The prosecutor, Khan, would need to prove to at trial that the Israeli government was intentionally starving people in Gaza. That’s ridiculous. It’s clear that Israel has no policy of starvation. There’s no evidence of that. The issue of intentionality is key to the laws of armed conflict. Khan would have to argue that Israel ought to have known that a given policy would lead to starvation. That is a hard factual & legal point to prove.
2. Cost-benefit knowledge - For the “wilful killing”, Khan would need to show that the commanders knew that the scope of civilian casualties would well exceed the military necessity. How can Khan prove such knowledge? Especially since the use by Hamas of civilian infrastructure for military purposes turns those facilities into lawful targets, and the lengths Israel goes to avoid them.
3. Gallant’s “no electricity, no food, no fuel” remarks - A lot may be riding on Gallant’s comments just after Oct-7 on the “complete siege” of Gaza. The Ex-Defense minister’s remarks are not evidence though because they don’t take the form of government orders, protocols, or decisions. Those comments were a PR problem. The IDF operations in Gaza are conducted alongside the IDF Military Justice System and judicial department advisory.
4. The principle of complementary - Any accusation by a Hague prosecutor against any democratic state is supposed to defer to and respect that state’s judicial system - before intervening. The whole point of the ICC is to step in when the judicial system has collapsed (i.e. dictatorships). But, Israel has the Military Advocate General’s Corps which investigates unlawful conduct by the IDF. Yet, Khan opted to cancel his visit to Israel to discuss these matters in favour of his well-publicised applications for arrest warrants. 

I don’t see how he can prosecute his case.