Israel probably missed chance to flip narrative at ICC, but still has chance at ICJ

The volatile mix of politics and law is always a piece of international court cases, but when cases are on the fence, the impact of that mix looms larger.

This past April, Israel had a rare legal win at the International Criminal Court Appeals Chamber. It was one of those unique moments when Israeli lawyers could stand a bit taller and argue that trying to plead the Jewish state’s legal defense is worthwhile and not futile.

And if the IDF would bother to make its case regarding the Israel-Hamas War, Israel had a serious case to defend its military actions in many areas.

Also, if Israel had not allowed the food security situation in Gaza to deteriorate to a dangerously precarious point – and maintained the humanitarian aid levels from during the January-March ceasefire months – it would have continued to have taken away the ability to make “starvation” claims, which had mostly gone quiet for a period of months.

Finally, if the IDF had learned its lesson from some dozens of incidents where it mistakenly killed aid workers or journalists in sensitive areas such as hospitals, then with Hamas’s 24 battalions defeated already in the summer of 2024, it did not need to risk attacking such targets anymore. Rather, it could have avoided new high-profile tragic incidents, which lend fuel to the fire and makes judges worry that if they give Israel a pass, there will be more alleged war crimes or large-scale mistaken deaths incidents.

But Israel did the opposite of the smart move in all three of these major issues just as it entered a period of months when the ICC lower court would need to decide whether it could stick to its original guns of endorsing criminal probes and arrest warrants for Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, or retreat from going after Israel after the ICC Appeals Chamber warned it had jumped the gun.

The reason the question was up in the air was that the ICC Appeals Chamber did not end the case against Israel; it only said the ICC lower court had rushed too much without fully analyzing and weighing all of Israel’s defenses.

That makes Israel’s case a case that is on the fence.

The volatile mix of politics and law is always a piece of international court cases. But when cases are on the fence, the impact of that mix looms larger.

Since August 2024, the IDF has failed to release a single major update on its more than 90 criminal probes of its own soldiers, hundreds of disciplinary probes, and more than 1,000 preliminary probes relating to fighting in Gaza.

The Jerusalem Post has reported exclusively on several rounds of when an update almost came out dating back to this past January but has been repeatedly delayed.

IDF legal source says delay due to complexity, length of war

Although IDF legal sources tell the Post that the delay is entirely because of the complexity and length of the war, in fact, they could have issued a partial update on 20 or even 10 high-profile cases a year ago or certainly six months ago (since they were on the verge of doing so).

IDF legal sources deny that they have delayed over concerns of being attacked domestically within Israel by hard-right coalition members who tend to be against almost any probes of IDF war conduct.

So, those sources may have the pressure so baked into their action that they may not fully realize how much slower and reactive they have become to problematic cases.

Or they have lost faith in the chances of Israel before the ICC despite the win in April – in which case there is no rush.

Or some other IDF sources have told the Post that so much of Gaza has been destroyed, and so many Gazans killed, that it is simply becoming impossible for the IDF to come to clear-eyed answers on many of the cases, though it did in other smaller wars.

If this last point is true, then it becomes even more problematic every time the IDF decides to slow-walk probing any new incidents.

Either taking longer helps get to the heart of a case or it doesn’t – in which case, the cases should be decided much faster than in the past.

It is also possible that IDF Military Advocate-General Maj.-Gen. Yifat Tomer Yerushalmi is waiting as long as she can to issue certain controversial decisions, so that if the political class jump on her, she will be close to the end of her term anyway.

Next week she will finish the fourth year of her term; officially, her role is supposed to run for five years.

Many IDF senior lawyers and advocates-general have held some of their most controversial decisions for the end of their terms.

All of this is before getting to the “starvation” food insecurity issue.

From March to May, Israel blocked new food supplies into Gaza. Israel’s claim that Gaza had enough food at the time was clearly true, because there was no mass starvation during those months.

Those months eroded most of Gaza’s food inventory, however, which meant that if new food supplies in May or June came a day late due to a logistical delay at the border crossings or a military delay with attacks happening along the food delivery route, some Gazans suddenly were actually in a state of food security danger.

It was exactly because of this that one month ago, Israel suddenly completely reversed its policy of only allowing selective UN and humanitarian aid into Gaza, and it opened the floodgates to let just about every group in.

But the damage was already done. It does not matter that there has not been mass starvation. There has likely been some starvation in small numbers, and there has been dangerous food insecurity in higher numbers.

After Israel managed to neutralize the starvation claims against it for much of the war, about 21 months into the war, it fell into a trap of its own making by tiptoeing too close to the line in terms of minimal food needs in Gaza and publicly being on record blocking food for two months earlier in the Spring.

Finally, what utility has Israel really gotten out of recent attacks on dual-hat Hamas terrorists posing as journalists?

It might be legal to kill such individuals, but if Hamas’s 24 battalions were beaten in summer 2024, what is the utility of killing one more Hamas terrorist, compared with the intense condemnation Israel gets for killing a journalist, dual-hat or not?

And how much benefit of the doubt does Israel expect to get with incidents like the one on Monday when it accidentally killed journalists, when it recently did so on purpose?

It is not that Israel does not have a case in both instances, or that there are not nuanced differences between the various cases. There are.

But trying to explain those nuances pales under the overall dynamics in the war and when the last time Hamas was able to really endanger Israelis was around January 2024.

Knowing Israel had a special shot before the ICC in this unique time period, Jerusalem essentially dropped its chance without trying much of a legal fight.

Still, for now, the ICC is “only” going after Netanyahu and Gallant.

The International Court of Justice (ICJ) is going after the whole Israeli system.

Fortunately, Israel convinced the ICJ judges earlier this summer to give it until January 2026 to respond to the genocide charges against it.

Maybe Israel will use the next four months to try to present a better, more transparent, and more stable case to the ICJ than it has to the ICC.