Australia/Israel Review


Editorial: A shift towards lawfare

May 29, 2024 | Colin Rubenstein

Prosecutor of the International Criminal Court, Karim Khan (Image: Shutterstock)
Prosecutor of the International Criminal Court, Karim Khan (Image: Shutterstock)

Israel’s ongoing cautious and targeted operations in Rafah notwithstanding, it has become increasingly evident that the war that Hamas launched against Israel on October 7 has now significantly expanded outside the battlefield to places like The Hague, the United Nations, the cabinets of European governments, and university campuses.

Nothing captures the absurdity of this disturbing trend better than the May 21 announcement by the International Criminal Court’s (ICC) Chief Prosecutor Karim Khan that he would be seeking arrest warrants for war crimes, not only for the leaders of Hamas who planned the unprovoked October 7 massacre of civilians, but also for Israeli Prime Minister Binyamin Netanyahu and Defence Minister Yoav Gallant.

Aside from the glaringly obvious points that the ICC lacks jurisdiction on this matter and the arrest warrant requests also violate the ICC principle of “complementarity” (for more on this, see pp. 12-13), the accusations against Netanyahu and Gallant are Orwellian to the core. That is, the reality is actually the complete opposite of the allegations that Israeli leaders are responsible for “starvation of civilians”, “wilfully causing great suffering,” and “intentionally directing attacks against a civilian population.”

Israel has actually gone above and beyond what is required in terms of protecting civilian life under the Law of Armed Conflict, and made great efforts to facilitate aid entry in extremely difficult conditions.

John Spencer, the Chair of Urban Warfare Studies at the Modern War Institute at West Point and one of the world’s top experts in the field, detailed this on May 4, “Israel has done more to prevent civilian casualties in war than any military in history.”

Israel, he noted: Evacuated cities, provided safe routes and a humanitarian zone for evacuating civilians, dropped more than 7.2 million flyers, made over 79,000 direct phones calls, sent over 13.7 million text messages, and left over 15 million pre-recorded voicemails to warn civilians to leave danger areas; conducted daily multi-hour fighting pauses to allow evacuation; handed out military maps telling civilians where the IDF would be fighting next; developed a methodology to track civilian presence from a distance in real time; incorporated legal advisers into the targeting process; and more.

“The IDF’s 1 to 1.5 if not 1 to 1 combatant to civilian ratio… is better than any battles, past or modern, in urban warfare with even remotely similar context,” Spencer added. 

While no war can be fought without loss of civilian life – always tragic and sometimes requiring further investigation and accountability – the IDF has a robust internal legal system built to meet that challenge. 

As Israel’s independent Attorney-General Gali Baharav-Miara – who has often locked horns with the current Government – has said, “The security forces, including the IDF, wage war with full commitment to the rules of international law.” We also know that the Israeli legal system can hold the state’s highest officers to account, jailing both past prime ministers and presidents, while the current PM is on trial for alleged corruption offences.

The IDF’s current operations in Rafah aimed at defeating Hamas’ last battalions and destroying smuggling tunnels to Egypt have built upon lessons learned from earlier fighting. True to the assurances Israel offered to the US and international community, the Rafah operation proceeded only after the evacuation of more than 900,000 civilians to designated safe areas prepared with ample humanitarian infrastructure. 

This did not stop the International Court of Justice (ICJ), a different UN body, from agreeing to make itself a tool of South Africa’s efforts to abuse the meaning of the Genocide Convention to try to manipulate the Court to effectively provide victory to Hamas – which South Africa openly supports – in the war that terror group launched with its campaign of mass-murder, rape, torture and kidnapping on October 7. And rather than dismiss these efforts, as it should have, the Court ruled on May 24 that Israel should “Immediately halt its military offensive… in Rafah… which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”

Despite much incorrect reporting to the contrary, separate clarifying declarations by four ICJ judges make it clear that Israel is only required by the ICJ order to halt its actions in Rafah if they would risk inflicting “on the Palestinian group in Gaza conditions of life that could bring about its physical destruction.” Israel is definitely not doing this, as the successful evacuations made clear. Nonetheless, with its latest orders, the ICJ allowed itself to be made part of abusive lawfare. 

There is a thread that connects this lawfare and the Palestinian Authority’s partial success in upgrading its status in the UN General Assembly on May 10, and the recent coordinated announcement by Norway, Ireland and Spain recognising “Palestine” (despite it lacking the necessary criteria for statehood). 

The Palestinian leadership makes no effort to hide that its goal is to inflict maximum pain on Israel by legal and diplomatic means as an alternative to conducting the final status peace negotiations it has shunned for a decade.

This is why Prime Minister Anthony Albanese and Foreign Minister Penny Wong’s responses to the ICC’s political strongarming and the unilateral Palestinian statehood recognition drive have been so disappointing and counterproductive. Unlike our allies, including the US, UK and Canada, we refuse to condemn the ICC’s baseless manoeuvres. And Senator Wong suggests that giving the Palestinians dessert before dinner – recognising Palestine “as part of a pre-peace process” – could advance a two-state resolution, when it would in fact instead disincentivise this outcome.

Senator Wong and others argue that various measures pushing unilateral recognition of Palestinian statehood are a blow to Hamas because Hamas opposes a two-state resolution, but Hamas does not see it that way – welcoming both the May 10 UN vote and the recent recognition by three European states.

The Albanese Government rightly has pointedly rejected any moral equivalence between Hamas and Israel. It needs to go much further, and take a moral, principled and more effective stance, including following two common sense guidelines to direct its policy vis-à-vis Israel and the Palestinians: First, what is good for Hamas is never, ever good for Australian foreign policy; and second, any move that might be perceived as rewarding the Palestinians for the aggression of October 7 cannot possibly help encourage a two-state peace or strengthen moderates.

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