War Crime Charges make a Difference

Kenneth Roth, former executive director of Human Rights Watch, and a visiting professor at Princeton’s School of Public and International Affairs, offers an opinion for the Guardian on whether war crime charges make any difference in the conflict in Gaza.

ICC prosecutor requests arrest warrants for Netanyahu, Gallant and three Hamas leaders – video

The Israeli government is not about to surrender Netanyahu or his deputies for trial. But their travel would suddenly be limited. Although the US never joined the court, European governments have, meaning that suddenly Europe and much of the rest of the world would be out of bounds for those charged without risking arrest. It would also make it more difficult for Washington and London to pretend that their ongoing arming of the Israeli military is not contributing to war crimes.

In addition, an initial round of charges would be an implicit threat of more. As Netanyahu contemplates a potential invasion of Gaza’s southernmost city of Rafah despite 1.4 million Palestinians sheltering there, he must worry about whether more civilian deaths would spur Khan to intensify investigation of Israel’s apparently indiscriminate and disproportionate attacks on civilians. The ICC thus may live up to its potential not only to provide retrospective justice, but also to deter future war crimes. (Roth, 2024)

Barak Ravid reports two Israeli officials told Axios that Israeli Prime Minister Benjamin Netanyahu asked President Biden to help prevent the International Criminal Court from issuing arrest warrants for senior Israeli officials in connection with the war in Gaza, The officials said Netanyahu expressed his concern to Biden in a phone call on Sunday April 28, where the two leaders also discussed hostage negotiations, Israel's defense against Iran's missile attack, and the need to increase humanitarian aid to Gaza, according to a White House readout.

The ICC, which is based in The Hague, Netherlands, has been investigating possible war crimes by both Israeli forces and Palestinian militants dating back to the 2014 Israel-Hamas war.

U.S. officials said they do not have a clear indication whether the ICC is going to issue arrest warrants, but said the prosecutor's office is under pressure from NGOs and several ICC member states to do so. (Ravid, 2024)

Patrick Wintour and Julian Borger report to the Guardian that G7 diplomats argue any move now in an investigation launched in 2021 could disrupt current ceasefire talks.

Israeli politicians including the prime minister, Benjamin Netanyahu, have suggested that the ICC could press charges imminently after an investigation launched in 2021 that covers events starting in 2014. The inquiry has also been looking at Israel’s construction of settlements in occupied territory. (Wintour & Borger, 2024)

Bethan McKernan in Jerusalem reports for the Guardian on the Karim Khan application for warrants relating to alleged crimes committed during the 7 October attack and the ensuing war in Gaza. The chief prosecutor of the international criminal court has said he is seeking arrest warrants for senior Hamas and Israeli officials for war crimes and crimes against humanity, including the Israeli prime minister, Benjamin Netanyahu, and his defence minister, Yoav Gallant, a move that puts the post-second world war rules-based order to the test and presents new challenges for Israel’s western allies.

He named Yahya Sinwar, the Hamas chief in the Gaza Strip, and Mohammed Deif, the commander of its military wing, considered to be the masterminds of the 7 October assault, as well as Ismail Haniyeh, the leader of the group’s political bureau, who is based in Qatar, as wanted for crimes of extermination, murder, hostage-taking, rape, sexual assault and torture.

Netanyahu and Gallant are accused of extermination, causing starvation as a method of war, the denial of humanitarian relief supplies and deliberately targeting civilians. (McKernan, n.d.)

The Economist article comments that in The Hague, the International Criminal Court (ICC) is considering war-crimes prosecutions against Israeli leaders, including Binyamin Netanyahu, the prime minister, over the conflict in Gaza.

The ICC, more like a criminal court, investigates people rather than states. But it can prosecute a broader range of offences—not only genocide but also crimes against humanity and war crimes. Independent prosecutors decide whether to issue arrest warrants, but rely on states to enact them. They can charge anyone involved in crimes committed on the territory of countries that have ratified the ICC’s statute, or by their citizens. The ICC can investigate a fourth crime, of “aggression”—regarded as the “supreme international crime” that leads to other atrocities—but only if suspects are citizens of state parties. The ICC's work is thus limited because dozens of countries have declined to join the court—among them America, Russia, China, India and Israel.

A finding of genocide would be grievous to Israel, a country born from the ashes of the Holocaust. Israel is said to be threatening retaliation against the Palestinian Authority (which, in effect, granted the court jurisdiction in Gaza). Israel’s supporters in Congress call for sanctions against the ICC. Mr Khan, in turn, has demanded an end to “all attempts to impede, intimidate or improperly influence officials”.

All of which is a quandary for the Biden administration. America is not a signatory but has supported the ICC in Ukraine. Yet it says the court lacks jurisdiction in Gaza. America urges Israel to do more to protect Palestinian civilians, but has for months supplied it with weapons. On May 8th America confirmed it had suspended a shipment of heavy munitions out of concern that they might be used in Rafah, where more than 1m Palestinians are sheltering. Despite an international outcry, Israel is starting to push into that city. Talks about a ceasefire continue. (The World's Rules-Based Order Is Cracking, 2024)

The difference that pressure from International Courts and advice from traditional allies of Israel can make is to clarify to Israel that failure to attend to violations of humanitarian law, particularly in the areas of civilian famine, loss of medical services, lack of distinction of civilians, and lack of proportionality in pursuit of military objectives has consequence most immediately in loss of military support and ultimately in possible arrest of war criminals.

References

McKernan, B. (n.d.). ICC prosecutor seeks arrest warrants for Israeli PM and Hamas officials for war crimes. the Guardian. Retrieved May 20, 2024, from https://www.theguardian.com/law/article/2024/may/20/icc-prosecutor-seeks-arrest-warrants-israeli-pm-netanyahu-hamas-officials-war-crimes 

Ravid, B. (2024, April 29). Netanyahu asks Biden to help stop ICC arrest warrants over Gaza war. Axios. Retrieved May 20, 2024, from https://www.axios.com/2024/04/29/netanyahu-biden-icc-arrest-warrants-war-crimes 

Roth, K. (2024, April 29). What will happen if the ICC charges Netanyahu with war crimes? | Kenneth Roth. The Guardian. Retrieved May 20, 2024, from https://www.theguardian.com/commentisfree/2024/apr/29/netanyahu-icc-war-crimes 

Wintour, P., & Borger, J. (2024, April 29). ICC urged to delay possible war crimes charges against Israel and Hamas. The Guardian. Retrieved May 20, 2024, from https://www.theguardian.com/law/2024/apr/29/icc-possible-war-crimes-charges-israel-hamas-g7 

The world's rules-based order is cracking. (2024, May 9). The Economist. Retrieved May 20, 2024, from https://www.economist.com/international/2024/05/09/the-worlds-rules-based-order-is-cracking 

Resolve and Rafah

Israel insists the offensive in Rafah is being conducted as a necessary part of the right of the nation to defend itself. Many Western countries, traditionally supportive of Israel, oppose a military operation in Rafah that would have catastrophic consequences on the civilian population.

Assessing Rafah Incursion

Nidal Al-Mughrabi and Emily Rose report for Reuters that the slow progress of Israel's offensive, more than seven months after it was prompted by Hamas' deadly cross-border raid, highlighted the difficulty of achieving Prime Minister Benjamin Netanyahu's aim of eradicating the militant group.

South Africa asked the top U.N. court to order a halt to Israel's Rafah offensive, saying it was "part of the endgame in which Gaza is utterly destroyed". Israel has denied South African allegations of genocide in Gaza and said it had complied with an earlier court order to step up aid.

The United States State Department said the humanitarian situation in Gaza continued to deteriorate and urged Israel to allow sustained access for aid via the southern and northern parts of the enclave.

Israel's military says its operation in Rafah is meant to kill Hamas fighters and dismantle infrastructure used by the group, which governs the blockaded Palestinian territory. Israel accuses Hamas of diverting aid, something it denies.

Israel said its strikes were targeted at militants.

"We're operating ... where we know Hamas terrorists are hiding, and where we think we can find either tunnel shafts or terror infrastructure or ammunition of many types," military spokesperson Lt. Col. Nadav Shoshani said. (Al-Mughrabi & Rose, n.d.)

The Times of Israel reports that thirteen Western countries, including many traditionally supportive of Israel, appeal to it not to launch a large-scale offensive on Rafah.

“We reiterate our opposition to a full-scale military operation in Rafah that would have catastrophic consequences on the civilian population,” reads the appeal, sent by the countries’ foreign ministers to their Israeli counterpart Israel Katz and made public.

The signatories are Australia, Britain, Canada, Japan, New Zealand, South Korea and EU member states Denmark, Finland, France, Germany, Italy, the Netherlands and Sweden. (Times of Israel, n.d.)

The ministers welcome recent measures adopted by Prime Minister Benjamin Netanyahu’s cabinet to improve the flow of international aid into Gaza, but call for “further steps.”

“We urge the Government of Israel to let the humanitarian aid enter into the Gaza Strip through all relevant crossing points, including the one in Rafah,” they say. (Times of Israel, n.d.)

Emma Graham-Harrison, reporting for the Guardian, comments that South African lawyers urge the international court of justice (ICJ) to issue urgent measures over the assault on Rafah, Gaza’s southernmost city.

South Africa has asked the international court of justice (ICJ) to urgently order Israel to end its assault on Rafah, halt its military campaign across Gaza, and allow international investigators and journalists into the territory.

They argued that seven months into the war, which has killed more than 35,000 people and reduced much of Gaza to rubble, the scale of suffering was now so intense that a total ceasefire was needed to get food, medicine and other aid to its desperate population.

Prof Vaughan Lowe KC told the court that a destructive campaign in Rafah, the last corner of Gaza that has not faced a ground invasion by Israeli forces, would destroy “the foundation of Palestinian life” in the territory.

“If the court does not act now the possibility of rebuilding a viable Palestinian society in Gaza will be destroyed, at least for the lifetime of those who survive the current horrors of Gaza.”

South Africa also demanded access for reporters and war crimes investigators to Gaza, to collect and preserve evidence of potential war crimes.

“The details are not always easy to verify because Israel continues to bar independent investigators and journalists from entering Gaza, and over 100 journalists who were in Gaza have been killed since Israeli attacks began,” Lowe said. “Israel cannot block investigations by independent investigators and then say the court cannot proceed because there is insufficient evidence against it.” (Graham-Harrison, n.d.)

Israel’s foreign ministry said in response that South Africa was “presenting biased and false claims” which “rely on unreliable Hamas sources” and called on the court to reject the appeal.

“Israel acts in accordance with international law and its humanitarian obligations, while implementing measures to minimise harm to civilians and civilian facilities,” the ministry said late on Thursday. (Graham-Harrison, n.d.)

Nick Logan of CBC News reports that women, children still account for more than half of identified victims after the UN agency revises figures.

The breakdown of the casualties, however, only includes 24,686 identified fatalities as of April 30. 

From that figure, OCHA has recorded 10,006 were Palestinian men, accounting for 40 per cent of the identified fatalities, while 4,959 (20 per cent) were women and 7,797 were children (32 per cent). It also listed 1,924 elderly people among the fatalities, but did not differentiate them by gender. (Logan, n.d.) 

Distribution of identified fatalities

Burak Elmali in an article posted to the Anadolu Agency (AA) web site notes that  Israel’s use of advanced software tools underscores a harrowing reality: AI, when misapplied, can facilitate atrocities of catastrophic proportions The TRT World Research Centre reports that the conduct of warfare is among the many domains influenced by AI, and the latter’s impact on this field is no longer theoretical. Gaza is a case in point. This evolution prompts profound questions about human agency and responsibility within AI debates. What if the person wielding the technological prowess harbours a militaristic ideology so extreme that it sanctions genocidal actions?

Over a period exceeding six months, Israel has conducted airstrikes with indiscriminate genocidal intent, as revealed through the candid admissions of numerous military intelligence insiders. Their confession-like statements about Israel’s use of advanced software tools, such as Lavender and Where’s Daddy, underscores a harrowing reality: AI, when misapplied, can facilitate atrocities of catastrophic proportions, and turn out to be as inhumane as possible.

The Israeli Defence Ministry’s communication often follows the path of censorship, obfuscation, and deflection tactics. This time was no different. The spokesperson dismissed the accusations with a mere denial. Yet, the stark reality reflected in the civilian death toll leaves little room to ignore the assertions made about the AI-driven genocidal undertaking attributed to Lavender. The algorithm used indicated the acceptance of 15-20 civilian casualties for one low-ranking Hamas member and up to 100 for one senior Hamas member. 

Such robotisation of inhumanity is very disturbing. Alas, the figures are aligned with the reported death tolls in Gaza. Furthermore, the use of unguided bombs, which cause enormous devastation in heavily populated areas in scenarios involving unconfirmed junior Hamas members, suggests that Israel is conducting more war crimes, this time pretexting the use of AI.

This scenario lays bare a critical issue addressed in a recent controversial piece published by +972 Magazine. 

In essence, the situation boils down to a straightforward logic: Lavender’s method of compiling death lists based on physical traits and affiliations was seemingly acted upon without critical examination. When we factor in the IDF’s apparent indifference to the margin of error in these operations, as evidenced by a list encompassing 37,000 Palestinians, the implications of a potentially deliberate killing strategy become deeply shocking, inhuman, and intentionally genocidal. (Elmalı & Kilavuz, 2024)

The apparent “gray area” between military operations that observe international humanitarian law concerning distinction between civilian and military targets and proportional response with weaponry that limits killing of non-combatants and destruction of civilian infrastructure and killing and destruction that has the genocidal intent of eliminating Palestinian people is an area where war crimes are being committed and need detailed investigation by independent military experts and reported to the International Court of Justice.

References

Al-Mughrabi, N., & Rose, E. (n.d.). Israel moves into north Gaza Hamas stronghold, pounds Rafah without advancing. Reuters. Retrieved May 17, 2024, from https://www.reuters.com/world/middle-east/israel-moves-north-gaza-hamas-stronghold-pounds-rafah-without-advancing-2024-05-16/ 

Elmalı, B., & Kilavuz, İ. F. (2024, May 1). Israel Has Tainted AI with Genocide – TRT World Research Centre. TRT World Research Centre. Retrieved May 17, 2024, from https://researchcentre.trtworld.com/perspectives/israel-has-tainted-ai-with-genocide/ 

Graham-Harrison, E. (n.d.). South Africa calls on ICJ to order Israel to end Rafah offensive. the Guardian. Retrieved May 17, 2024, from https://www.theguardian.com/world/article/2024/may/16/south-africa-icj-international-court-of-justice-israel-rafah-gaza 

Logan, N. (n.d.). Why the UN changed its death tolls of Palestinian women and children killed in Gaza. CBC News. Retrieved May 17, 2024, from https://www.cbc.ca/news/world/gaza-women-children-death-toll-1.7203167 

Times of Israel. (n.d.). 13 countries – including UK, Germany, Canada – urge Israel not to launch ‘full-scale’ Rafah op. Times of Israel. Retrieved May 17, 2024, from https://www.timesofisrael.com/liveblog_entry/13-countries-including-uk-germany-canada-urge-israel-not-to-launch-full-scale-rafah-op/ 

Biden leads call to deny weapons to Israel

The decision by United States President Joe Biden not to supply weapons for an Israeli incursion into Rafah is in tension with resolve from Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant who told Israel's "enemies and friends" on May 8, 2024 that it would do whatever necessary to achieve its war aims in Gaza and the north, in an apparent response to U.S. pressure to halt its operation in Rafah. One controversial strategy of the IDF has been the use of AI software to kill at scale.

Israeli Defense Minister Yoav Gallant speaks during a joint press conference with U.S. Secretary of Defense Lloyd Austin at Israel's Ministry of Defense in Tel Aviv, Israel December 18, 2023. REUTERS/Violeta Santos Moura/File Photo

Nidal Al-Mughrabi, Mohammad Salem and Jarrett Renshaw reporting for Reuters, comment that Israel says Hamas militants are hiding in Rafah, where hundreds of thousands of Palestinians have sought refuge after fleeing combat elsewhere in Gaza, and it needs to eliminate them for its own security. Joe Biden, who says Israel has not produced a convincing plan to safeguard civilians in Rafah, issued his starkest warning yet against a full ground invasion.

"I made it clear that if they go into Rafah, ... I'm not supplying the weapons," Biden told CNN in an interview on Wednesday.

U.S. officials have said Washington paused delivery of a shipment of 1,800 2,000-pound bombs and 1,700 500-pound bombs to Israel because of the risk to civilians in Gaza.

Israel's United Nations ambassador Gilad Erdan said the U.S. decision to pause some weapons deliveries to Israel will significantly impair the country's ability to neutralise Hamas' power, according to Israeli public radio.

 Israel kept up tank and aerial strikes across Gaza on Thursday, however. Tanks advanced in the Zeitoun neighbourhood of Gaza City in the north, forcing hundreds of families to flee, residents said. The Israeli military said it was securing Zeitoun, starting with a series of intelligence-based aerial strikes on approximately 25 "terror targets".

The war began when Hamas militants attacked Israel on Oct. 7, killing about 1,200 people and abducting 252, of whom 128 remain hostage in Gaza and 36 have been declared dead, according to the latest Israeli figures. Israel's assault on Gaza has killed 34,904 Palestinians, most of them civilians, the health ministry in Hamas-run Gaza said. A U.N. official said no fuel or aid had entered Gaza due to the military operation, a situation "disastrous for the humanitarian response" in the enclave, where more than half the population is suffering catastrophic hunger.

After fleeing combat further north, Palestinians have crammed into tented camps and makeshift shelters in Rafah. The closure of the Rafah crossing with Egypt had prevented the evacuation of the wounded and sick and the entry of medical supplies, food trucks and fuel needed to operate hospitals, the Gaza health ministry said on Thursday. (Al-Mughrabi et al., n.d.)

Kevin Liptak of CNN, adds that the president’s announcement that he was prepared to condition American weaponry on Israel’s actions amounts to a turning point in the seven-month conflict between Israel and Hamas. And his acknowledgement that American bombs had been used to kill civilians in Gaza was a stark recognition of the United States’ role in the war.

The president has come under extraordinary pressure, including from members of his own party, to limit shipments of arms amid a humanitarian crisis in Gaza.

Until now, the president had resisted those calls and strongly supported Israel’s efforts to go after Hamas. Yet a looming invasion of Rafah, the city in southern Gaza where more than a million Palestinian civilians have been sheltering, appears to have shifted the president’s calculus.

“Civilians have been killed in Gaza as a consequence of those bombs and other ways in which they go after population centers,” Biden told CNN’s Erin Burnett in an exclusive interview on “Erin Burnett OutFront,” referring to 2,000-pound bombs that Biden paused shipments of last week.

“I made it clear that if they go into Rafah – they haven’t gone in Rafah yet – if they go into Rafah, I’m not supplying the weapons that have been used historically to deal with Rafah, to deal with the cities – that deal with that problem,” Biden said. (Liptak, n.d.)

Reuters reports on a statement by Israeli Defence Minister Yoav Gallant that Israel will achieve its war aims.

"I turn to Israel's enemies as well as to our best of friends and say - the State of Israel cannot be subdued," he said, according to remarks released by his office. "We will stand strong, we will achieve our goals - we will hit Hamas, we will hit Hezbollah, and we will achieve security."

The comments, from one of the war cabinet ministers considered to be most sensitive to the risk of alienating the United States, underlined the scale of the standoff between the Biden administration and the Israeli government. (Israeli Defence Minister Tells 'Friends and Enemies' Israel Will Achieve War Aims, n.d.)

Sulaiman Hakemy in an opinion piece for The National, asks about international law and the alleged use of AI software by the IDF to kill at scale.

To summarise the allegations briefly, the Israeli army has reportedly made use of an in-house AI-based programme called Lavender to identify possible Hamas and Palestinian Islamic Jihad (PIJ) militants from within the Gazan population, and mark them as targets for Israeli air force bombers. In the early weeks of the war, when Palestinian casualties were at their highest, the military “almost completely relied on Lavender”, with the army giving “sweeping approval for officers to adopt Lavender’s kill lists, with no requirement to thoroughly check why the machine made those choices or to examine the raw intelligence data on which they were based”.

Four allegations, in particular, stand out because of their dire implications in international law.

First, Lavender was allegedly used primarily to target suspected “junior” (ie, low-ranking) militants.

Second, human checks were minimal, with one officer estimating them to last about 20 seconds per target, and mostly just to confirm whether the target was male (Hamas and PIJ do not have women in their ranks).

Third, a policy was apparently in place to try to bomb junior targets in their family homes, even if their civilian family members were present, using a system called “Where’s Daddy?” that would alert the military when the target reached the house. The name of the software is particularly malicious, as it implies the vulnerability of a target’s children as collateral damage. +972’s report notes that so-called dumb bombs, as opposed to precision weapons, were used in these strikes in spite of the fact that they cause more collateral damage, because precision weapons are too expensive to “waste” on such people.

And finally, the threshold for who was considered by the software to be a militant was toggled to cater to “a constant push to generate more targets for assassination”. In other words, if Lavender was not generating enough targets, the rating threshold was allegedly lowered to draw more Gazans – perhaps someone who fulfilled only a few of the criteria – into the kill net.

Every time an army seeks to kill someone, customary international law of armed conflict (that is, the established, legally binding practice of what is and is not acceptable in war) applies two tests. The first is distinction – that is, you have to discriminate between what is a civilian and a military target. The second is precaution – you have to take every feasible measure to avoid causing civilian death. (Hakemy, 2024)

The prospect of atrocious levels of civilian death and injury resulting from use of weapons that by nature or design are not restrained by military authorities to attend to the international humanitarian laws of distinction and proportionality is leading to further isolation of the Netanyahu government from friends and allies in the Western democracies.

References

Al-Mughrabi, N., Salem, M., & Renshaw, J. (n.d.). Israeli forces mass on Rafah's outskirts as US warns a major assault could halt arms. Reuters. Retrieved May 9, 2024, from https://www.reuters.com/world/middle-east/us-warns-israel-that-rafah-invasion-will-jeopardise-weapons-supply-assault-2024-05-09/ 

Hakemy, S. (2024, April 4). Israel, Gaza and AI machines - is this the automation of war crimes? The National. Retrieved May 9, 2024, from https://www.thenationalnews.com/opinion/2024/04/05/israel-gaza-ai/ 

Israeli defence minister tells 'friends and enemies' Israel will achieve war aims. (n.d.). Reuters. Retrieved May 9, 2024, from https://www.reuters.com/world/middle-east/israeli-defence-minister-tells-friends-enemies-israel-will-achieve-war-aims-2024-05-09/