What the ICC/ICJ/UN gets wrong about Israel

The IDF should be commended for its efforts to reduce civilian harm, not charged in an international court alongside Hamas leaders.

By John Spencer, JNS

In May, the International Criminal Court announced applications for warrants for the arrests of Israeli Prime Minister Benjamin Netanyahu and his defense minister, Yoav Gallant.

“Today we once again underline that international law and the laws of armed conflict apply to all,” said the court’s chief prosecutor, Karim Khan.

“No foot soldier, no commander, no civilian leader—no one—can act with impunity.”

The charges follow a U.S. State Department report that was similarly critical of Israel for not doing enough to prevent the loss of civilian lives.

As someone who has visited the frontlines in this war, and who has written about, visited, and engaged in various urban battles over the past two decades as a U.S. Army officer and researcher, even as I applaud the court’s attempt to hold those guilty of war crimes accountable, I believe the ICC prosecutor’s decision is wrong.

Worse, if granted, the warrants could perversely have the opposite of the effect intended:

By holding all states to such a high standard when it comes to avoiding civilian harm, governments may feel hamstrung to respond to attacks in the future, even in self-defense.

That could have a chilling effect on countries that adhere to international legal norms while providing a bonanza for rogue states like Russia or non-state actors like Hamas that ignore these norms.

The war in Gaza is unlike almost any other I’ve seen.

The terrain, the density of tunnels under population centers, the nature of the enemy, and the presence of hostages all combine to make this war an exceptionally fraught one for Israel to fight bloodlessly.

What I saw in Gaza convinced me that Israel has taken the necessary steps to avoid civilian casualties, even as it has come under unwavering criticism for its handling of the war.

As the Israeli Defense Forces now conducts a constrained ground operation into Rafah, the last Hamas holdout in southern Gaza and where the remaining Israeli hostages are believed to be held, the Israeli government continues to announce temporary evacuations of southeastern Rafah, instructing civilians to move out of harm’s way.

Israel has gone above and beyond what is traditionally required of armies.

In Gaza, they faced 40,000 enemy defenders in dense urban terrain featuring some 400 miles of deeply buried military tunnels, at a depth of 15 to over 200 feet, purposely built under civilian and protected sites.

The defenders were equipped with over 15,000 rockets and a full array of small arms, mortars and improvised explosive devices.

The enemy had defenses that took at least 15 years to prepare and fortify.

Hamas held over 200 hostages, disguised themselves as civilians and used ordinary Gazans as human shields to manipulate external actors, especially the United States, to stop Israel from escalating and instead to push for a ceasefire.

Largely because of Egypt, there was almost no possibility for the 2.2 million civilians in Gaza to completely flee the war zone by land.

The laws of war are clear.

Militaries must distinguish between unarmed civilians and combatants as well as between civilian-use objects (hospitals, schools, etc.) and military targets (ammo dumps, bases, etc.).

But militaries must also take constant care to “spare civilian populations, civilians, and civilian objects to include all feasible precautions to avoid and minimize incidental loss of civilian life, injury to civilian life, injury to civilians and damage to civilian objects.”

There is no place on earth in which it is harder to uphold these principles than in a densely packed city, especially against a combatant who wears no uniform, or who attempts to blend in with civilians.

Historically, the main approach militaries take to preventing civilian casualties in this kind of terrain has been to evacuate city centers before the main battle begins.

Only during the last two decades of counterinsurgency and counterterrorism wars have some countries like the United States developed concepts pertaining to “civilian harm mitigation.”

These best practices were developed by various commanders and units against insurgents and terrorists in Afghanistan, Iraq and Syria and then collected in a policy and adopted officially in a Department of Defense instruction in December 2023.

Many of these concepts and practices have never been attempted in unconventional warfare where the military objective is to overthrow a ruling power and destroy its military.

Israel has obviously made mistakes—all militaries do.

Aid and food convoys came under attack earlier this spring, mostly a result of faulty intelligence in a split-second decision.

The ICC prosecutor has accused Israel of “starvation of civilians as a method of warfare,” and “intentionally directing attacks against a civilian population.”

This kind of accusation ignores mountains of evidence to the contrary which I saw firsthand.

To its credit, Israel has implemented almost all the civilian harm mitigation practices required for urban warfare and legal norms spelled out by international humanitarian law (IHL), as well as created a few new ones no military has ever tried.

For example, the IDF provided ample time for civilians to evacuate Gaza’s major cities.

At the beginning of the war, Israel waited several weeks after civilians had been cleared before beginning its full ground invasion in Gaza.

To prevent accidental targeting, the IDF provided safe routes for civilians to use and a humanitarian zone for them to flee to.

Despite reports of the IDF conducting operations near the routes and safe zone, they positioned IDF soldiers along the route or halted operation near the routes to protect civilians.

At the same time, there is video documentation of Hamas preventing civilians from using the routes, attacking civilians on the routes by shooting at them and emplacing rocket launchers next to the routes and zones to draw Israeli fire.

Historically, the most common tactic to evacuate cities smoothly has been via social media and dropping flyers. The IDF did both, but also utilized other methods to locate, notify and encourage civilians to temporarily evacuate main combat areas.

As of January 2024, Israel had dropped more than 7.2 million flyers, but also made over 79,000 direct phone calls, sent over 13.7 million text messages, and left over 15 million pre-recorded voicemails to notify civilians that they should leave combat areas.

The IDF flew drones equipped with speakers into Hamas-held territories and parachuted in large speakers that broadcasted for civilians where to evacuate.

No military has ever deployed all these other direct electronic measures to reach civilians.

The IDF also conducted what are called “roof knocks” ahead of many air strikes—a procedure whereby the IDF calls everyone in a building, provides time for them to evacuate, and if necessary, drops small munitions on the roof to signal an imminent attack.

No other army in the world does this.

The IDF fields legal officers at the brigade and division level to approve targets and provide guidance to avoid civilian casualties and violations of IHL.

As far back as November they conducted daily pauses of combat operations for several hours to allow civilians to pass through friendly lines during the battles.

As the war progressed, Israel learned the operational tactics of Hamas, which was bent on increasing civilian harm to win over global and regional sympathies.

As such, the IDF evolved and adapted to various civilian harm mitigation approaches.

By December, the IDF had begun handing out their military maps to Gazans.

These maps were used to communicate directly to civilians, not only to make evacuations more orderly but also to notify civilians where the IDF would be operating on a day-to-day basis.

This information of course was useful for Hamas and increased the risk to IDF soldiers.

Or consider the IDF’s creation of a Civilian Harm Mitigation Cell (commanded by a one star general) during the war.

The cell developed a new methodology to track civilian presence in real time.

Using cell phone presence, satellite, drone footage, and street-by-street battle damage assessment, this methodology can determine the percentage of residents remaining in areas of Gaza.

The new awareness and real-time mapping software enabled the IDF to take additional precautions and limit operations in densely populated areas, no doubt reducing civilian casualties.

Similarly, other restrictions the IDF has imposed include altering their rules of engagement and release authority for strikes, including the implementation of standard military control measures such as “no fire areas” on protected buildings and sensitive sites.

Conducting an operation, entering, or even returning fire in some locations requires the approval of the IDF Chief of General Staff.

The IDF conducted large “call out” operations in which the IDF encircles a location, such as the Al-Nasser Hospital, or entire neighborhoods (tens of thousands of people), then instructs noncombatants to evacuate through IDF positions.

If anything, these operations increase the risk to the IDF. Then, large facial recognition assets are used to identify Hamas members trying to blend in with the evacuating civilians, who are then detained.

Rather than argue that the IDF did not implement all the above measures, pundits either cherry pick from among these practices, or like the State Department report acknowledges, make assumptions without access to needed information.

They also interpret the effects of IDF operations, irrelevant of the context of each action, to claim based on their own kabuki dance of statistics that these measures do not matter because they have been ineffective.

Many of these groups also cite a standard of civilian harm mitigation measures, like the new Defense Department policy, that no military has yet followed, especially in a conventional war.

Regardless of the facts, critics frame the fighting by comparing the war in Gaza to single battles, in a counterinsurgency or counterterrorist campaign, that do not pose nearly the same military challenges.

Again, to its credit, the IDF managed to successfully evacuate over 850,000 civilians out of 1 million people (85% to 90%) from northern Gaza before the heaviest fighting began, and now in Rafah there are reports of temporary evacuation of a similarly high percentage.

These percentages are consistent with urban warfare history, that shows that no matter the effort, about 10% of a population always stays.

The majority of the criticism and condemnation of Israel’s actions in Gaza focuses on the combatant to civilian ratio in the war.

But even that metric does not show that the IDF has not been effective in reducing civilian harm given the context of the size, disposition (i.e. tunnels under civilian areas) and tactics of Hamas.

The Hamas-run Gaza Health Ministry estimate of over 36,000 civilian deaths does not acknowledge a single Hamas casualty.

It also does not distinguish between those killed by the IDF and those killed by the misfiring of the more than 13,000 rockets launched by Hamas or other terrorists—estimated at between 10% to 20%.

Nor does the figure account for the killing of civilians by Hamas or for deaths by natural causes. This figure is a literal count of every death in Gaza since Oct. 7.

Israel now publicly estimates it has killed around 15,000 Hamas operatives.

Common sense would be to subtract the IDF estimate of Hamas fighters from the Gaza Health Ministry’s figure for total deaths in Gaza to get 21,000 civilian deaths according to Hamas.

That would be a 1 to 1.5 or 1.6 ratio.

But even the Gaza Health Ministry recently announced it had incomplete data for over 11,000 of the casualties it claims and cannot provide the names of more than 10,000.

This acknowledgment was followed weeks later by the United Nations acknowledging that over 10,000 names were unverifiable, and that of those names accounted for, the number of women and children was less than half that previously reported by the Gaza Health Ministry.

So, combined with Hamas’ historic practice of exaggerating casualty figures, the combatant-to-civilian death ratio is more likely one to one, which would be historically low for high intensity urban warfare.

Consider the 2016-2017 Battle of Mosul, the biggest urban battle since the Second World War.

The U.S.-led Iraqi Security Force operation led to the death of 9,000 to 11,000 civilians in order to take out 3,000 to 5,000 Islamic State combatants in the city.

That is a 1 to 2.5 combatant to civilian death ratio.

Perhaps the 1945 Battle of Manila is a more apt comparison, given its variables similar to Gaza, such as a high number of defenders, tunnels, and hostages.

During that American operation, 100,000 civilians were killed to defeat 17,000 Japanese defenders. That is a one to six combatant-to-civilian ratio.

Or take the 1950 Second Battle of Seoul, another battle with similar variables to the war in Gaza, when American forces likely killed tens of thousands to destroy the 8,000 North Korean enemy defenders and recapture the city.

There is no record of how many civilians died in the city battle out of the estimated 2 million-plus civilians who perished in the war.

So, applying all the numbers available, the IDF’s 1-to-1.5 if not one-to-one combatant-to-civilian ratio would be considered more humane than almost any other battle, past or modern, in urban warfare with even remotely similar conditions.

Before the war in Gaza, the United Nations and many other international organizations regularly stated that civilians accounted for 90% of the casualties of modern urban wars.

The truth is that no one knows how many civilians have died in Gaza, especially not Hamas.

There has never been a war or battle fought in urban settings where an organization could track the civilian deaths on a day-to-day basis and down to the single digit. It is impossible.

The fog of urban war is thicker than that of any other battleground.

A year after the 2016-2017 Battle of Mosul, the Iraqi government did not know how many civilians had died there, with estimates ranging from 11,000 to 40,000.

The IDF has also reduced an already low combatant-to-civilian casualty ratio in the war.

Even The New York Times stated that the IDF had reduced the daily civilian death toll in Gaza by more than half by December and by almost two-thirds from its peak by January.

By the time the IDF reached the city of Khan Younis in February, the civilian deaths caused by IDF actions in the war were very low in comparison to the heaviest fighting in northern Gaza.

Another much-leveled accusation, one the ICC prosecutor continues to make, is that Israel has conducted “large-scale bombing that has caused and continues to cause so many civilian deaths, injuries, and suffering in Gaza.”

This is likely related to the misplaced coverage of Israel’s use of 2,000-pound bombs.

Many have tried to argue that the 2,000-pound bomb, which is commonly deployed against enemy forces in bunkers and tunnels, has rarely been used in urban areas.

This is not only false, but the claim is always made without mentioning what Israel has used the bombs against; Hamas in their 400 miles of deep-buried tunnels.

The United States military dropped over 5,000 of these heavy bombs in the 2003 invasion of Iraq in just one month (March 19 to April 18, 2003) including in Baghdad, a city of over 5 million residents at the time.

They dropped four 2,000-pound bombs on just one building trying to kill Saddam Hussein and his sons in Baghdad.

In the 42 days of the First Gulf War (January 17 to February 27, 1991) the U.S. military dropped 11,179 Mk-84 (2,000-pound) bombs as well as 4,616 other 2,000-pound bombs on military targets in urban areas across Iraq.

All war is hell, but when a nation is forced into combat there are laws of armed conflict and recently developed civilian harm-mitigation measures that seek to reduce that hell for civilians caught in the crossfire.

Because of the constraints of modern war—which is increasingly urban, hybrid, and fought in civilian areas—for the ICC to rule against Israel will in fact criminalize the very act of war itself in its current manifestation.

The result is that any government or military, even one provoked or attacked without justification, will be hamstrung with regard to responding proportionately.

Such a ruling would make a mockery out of Article 51, which allows countries to act in self-defense.

No doubt Israel, just as the United States did in Iraq and Afghanistan, has made mistakes, and thousands of innocent lives have certainly been lost.

Yet the IDF has also employed nearly all the best practices used by other militaries, in addition implementing many none have ever tried.

The question becomes, if any country can take all these precautions and still be considered beyond the pale of modern war, can any country that seeks to adhere to international humanitarian legal norms fight wars at all, particularly ones in urban settings, even to defend themselves?

Ironically, by singling out the Israeli leadership for war crimes, the court may reduce the deterrent effect other states seek via fielding large armies and deploying expensive weapons.

The result could be a blank check to rogue actors like Hamas as well as rogue states like Russia, Iran, or North Korea.

The IDF should be commended for its efforts to reduce civilian harm, not charged in an international court alongside Hamas leaders—particularly when compared to measures Hamas has taken to increase civilian suffering in Gaza.

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