Dethroning Hamas in Gaza may require a temporary period of chaos, former National Security Council chief Meir Ben Shabbat said at the Kohelet Policy Forum conference.
Ben Shabbat, who currently heads the Misgav Institute for National Security & Zionist Strategy, explained that any alternative to some temporary period of chaos and Israeli control of Gaza would leave Hamas in charge for all practical purposes.
He said this would be true regardless of who might be officially in control – with various plans suggesting the Palestinian Authority or a mix of moderate Arab allies like Egypt and the UAE – because Hamas would use the Hezbollah tactic of using its arms to rule from behind the scenes.
Earlier at the conference, top international law experts debated whether Israeli efforts for dialogue with the International Criminal Court could have any impact on its war crimes investigation of Israelis.
To date, the ICC has issued arrest warrants for Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, but it still remains to be seen whether it will indict them and whether it will issue arrest warrants for Israeli soldiers who participated in the current war.
ICC's "complementarity"
Former IDF International Law Division chief Col. (ret.) Pnina Sharvit Baruch said investing in dialogue with international tribunals is important, especially because “it can give a good answer for complementarity for the ICC. I don’t believe in [the ICC’s integrity] much, but it could be a tree [for the court] to climb down from to get off of the [US] sanctions.”
The ICC “prosecutors don’t want these cases; they want [us] to give them a reason to close the case,” she added.
Sharvit Baruch was referring to the ICC rule of “complementarity,” which states that it cannot intervene against a country that self-investigates war crimes allegations.
In essence, she hopes that if Israel continues to investigate allegations against its own soldiers and presents these probes to the ICC prosecution, eventually, Chief Prosecutor Karim Khan will “use” the excuse of complementarity to drop the case to get out of sanctions the US slapped the ICC with to penalize it for going after Netanyahu and Gallant, even if he might otherwise not treat Israel fairly.
Former head of Military Prosecution for Judea and Samaria Lt.-Col. (res.) Maurice Hirsch responded, “We need to throw the International Committee of the Red Cross (ICRC) guidance [on the laws of war] into the garbage bin. Regarding complementarity [and the ICC], for our own souls, we have a duty to protect our soldiers with our understanding of the laws of war so that they respect themselves as human beings, but not for self-flagellation.”
No point in reasoning with the ICC
“But it is beyond naïve” to think that the ICC can be reasoned with regarding its handling of Israel since “the court invented a state which doesn’t exist [in 2021 it recognized Palestine as a state]. To think that they’ll accept our investigation of ourselves for complementarity purpose is beyond naïve,” said Hirsch, though the former IDF prosecutor himself has full faith in Israeli probes.
In other words, Hirsch said it was a waste of time to try to convince the ICC to treat Jerusalem reasonably, given his view that it is heavily biased and that no IDF soldiers should be probed to try to achieve that. Only where Israel itself thinks that probes are appropriate to maintain its own moral standards should they be implemented.
Sharvit Baruch responded, “I am not naïve about the ICC. I agree with you. But we can give them a pretext where the prosecutor [who] has sanctions against him can get out of this case.
“Complementarity could be a way out for him. It could also be relevant to courts around the world” and has helped Israel get out of war crimes cases in foreign countries in the past. She cited a particular case in the Spanish courts as just one of many examples.
Talia Einhorn, an Ariel University international law professor and Government Professional Advisory Committee member, said that Jerusalem is wasting time trying to reason with the ICC and the International Court of Justice “since all of this is a political matter; they don’t care about the laws of war.”
Justice Ministry Law of Armed Conflict Division head and former IDF International Law Division chief Col. Noam Neuman said Israel does succeed at influencing the rules of the laws of war, especially among critical countries like the US, the UK, and other allies.
He added that there will always be differences between Israel and the ICRC in interpreting the laws of war but that Jerusalem “must be part of the discussion and must try to convince others.”
Looking forward
Neuman also said that Israel will soon be organizing a symposium of like-minded countries relating to the laws of war in the shadow of the current war.
Further, after Einhorn said that Jerusalem should follow the US Department of Defense 2015 Law of War Manual instead of their current more restrictive legal approaches, Neuman responded that Israeli military lawyers are familiar with the US manual but that the war manuals of the UK, France, Denmark, and others were actually more useful in some ways.
He rejected any claim that IDF lawyers are restrictive in their legal approaches to war, instead saying sometimes the government or military as a matter of policy is more restrictive than the law (for example, to please the Biden administration), and he advocated for Israel having its own war manual.
Sharvit Baruch said many Israeli officials have been antsy over the years about committing to a set public manual, which could be twisted and used against Israel by its critics.
