Justice in Gaza
Israel on trial: can the country police its own war crimes?
Israel’s legal system claims to be fiercely independent. On the Gaza war it is largely silent
Gali Baharav-Miara, Israel’s attorney-general, has been duelling with Binyamin Netanyahu, the prime minister, since Mr Netanyahu’s latest stint in office began in 2022.
Appointed to a six-year term by the previous government, she loudly and publicly denounced the current one’s plans to overhaul the judiciary in 2023.
The cabinet set in motion plans for her dismissal, and on August 4th formally voted to sack her (the decision will be challenged in the Supreme Court).
She is, in short, neither docile nor reticent.
Yet when the cabinet voted in July to force all 2m people in the Gaza Strip into a tiny “humanitarian city”, indefinitely and perhaps permanently—a plan many Israelis and foreigners alike considered a brazen war crime, and which since seems to have been set aside—she uttered not a word of misgiving, at least publicly.
She has not formally investigated, nor even chided (beyond a vague warning), any of the members of the cabinet who have called for all Palestinians to be removed from Gaza or to be starved into submission, even though both those steps would be illegal under Israeli law.
Indeed, although it is her job to advise the government of the legality of its policies, she is not known to have taken issue with anything it has done in its 22-month war.
Israel has been accused of all manner of misdeeds in Gaza.
They concern every level of its war machine, from the actions of individual soldiers to high-level directives about how the war should be prosecuted, issued by the cabinet.
Israeli government spokesmen deny most of the accusations.
To the extent that they admit wrongdoing, they argue that Israel’s internal procedures can be relied on to rectify the problems and punish those responsible.
Yet Ms Baharav-Miara’s silence suggests that the system is not working as intended—and there are many other signs of dysfunction lower down the chain of command.
After militants of Hamas and other Palestinian Islamist groups launched a surprise attack on Israel in October 2023, massacring nearly 1,200 people and taking 250 hostages, they retreated to the Gaza Strip.
They hid in a warren of tunnels under Gaza’s densely populated cities and refugee camps.
Any large-scale Israeli retaliation was bound to present moral and legal quandaries, given Hamas’s deliberate intermingling of combatants and innocent bystanders.
The likelihood of civilian casualties was high.
“There’s no way this war could look good,” says an Israeli general.
Indeed, it has not.
By July 29th at least 60,000 Palestinians had been killed in the war, according to a tally kept by the Gaza health ministry, which says it is unable to count everyone, with thousands still buried under rubble.
A study by researchers at Royal Holloway, University of London and others estimated that by January 2025 another 4,500 to 12,500 had died from indirect consequences of the war, such as lack of medical care.
This was before supplies of food were largely cut off.
Named lists of the dead kept by the ministry of health suggest about half are women and children.
Even the most optimistic Israeli intelligence assessment speaks of only around 20,000 being members of Hamas or other militant groups.
Satellite data suggest roughly 60% of buildings in Gaza have been damaged or destroyed.
The war crimes of which Israel has been accused fall into three broad categories.
The first involves actions allegedly carried out by individual soldiers and commanders on the battlefield, such as the shooting of civilians, the destruction of civilian buildings and infrastructure without military authorisation, and the mistreatment of prisoners.
In most of these cases the perpetrators would have been acting against orders.
A second category concerns the operations themselves, in particular air strikes and artillery barrages which hit populated areas, targeting civilians or “disproportionately” harming them if aimed at military targets.
Last come the decisions made by Mr Netanyahu’s cabinet.
Although ministers do not usually dictate military tactics or targets, the cabinet has determined Israel’s humanitarian policy in Gaza.
It has often prevented supplies of food, medicine and fuel from entering the strip, sometimes for long periods.
These last policies were the main reason the International Criminal Court (ICC) issued arrest warrants last year for Mr Netanyahu and his former defence minister, Yoav Gallant, for the “war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts”.
The same humanitarian horrors, and especially the statements made by Israeli politicians in favour of starving and destroying Gaza, were at the centre, too, of a South African complaint to the International Court of Justice (ICJ) at the end of 2023 that Israel was committing genocide.
A system on trial
Although Mr Netanyahu has fulminated against these international proceedings as “motivated by antisemitic hatred of Israel”, the Israeli government’s lawyers have presented a more technical defence: that under international law countries are allowed to investigate and prosecute war crimes in their own legal systems.
Under this “complementarity principle”, the ICC is a court of last resort which should act only if sovereign states have failed to do so.
In effect, Israel is insisting that it can hold itself to account. Can it?
Israel’s system for policing possible war crimes has several tiers.
The Israel Defence Forces (IDF) has a Fact-Finding and Assessment Mechanism (FFAM), a team of experienced commanders with the authority to examine what the IDF calls “exceptional incidents” or “deviations” on the battlefield.
Its role is to make initial assessments of cases, both for operational needs, such as clarification of orders and procedures, and as a prelude to criminal investigation.
Since the war began, the FFAM team has been beefed up and now includes, according to the IDF, “dozens” of investigators, led by a former major general and six former brigadier generals, dealing with “hundreds” of cases.
It is supposed to be outside the chain of command, with access to all military records and data, and answerable only to the IDF’s chief of staff and the office of the Military Advocate-General (MAG), which is responsible for implementing the rule of law within the IDF.
“The mechanism works to a degree,” says an IDF officer who served in Gaza and was involved in one of its investigations into the killing of civilians.
“Officers came to our unit, interviewed officers and had all the information.
We didn’t hear from them again and this was eight months ago.
Many other cases didn’t get investigated because there were no complaints.”
Yesh Din, an Israeli human-rights organisation, has called it the “whitewashing mechanism”, pointing out that only 7% of the FFAM’s complaints to the IDF in the nine years before the war led to criminal investigations against soldiers.
Incidents that took place in Israel’s campaign in Gaza in 2014 were still being investigated nine years later.
“The mechanism is part of the IDF’s own operational debriefing system,” says Michael Sfard, an Israeli human-rights lawyer.
“Soldiers and commanders talking to the investigators can’t be prosecuted on the basis of what they say and the investigations drag on for years.
It’s not an effective procedure.”
IDF officers insist that confidential testimony, allowing soldiers to talk freely, is essential for fact-finding and that investigations may be slow but they get done.
A former chief of the Australian defence force, Mark Binskin, dispatched by the Australian government to look into the death of an Australian aid-worker killed in an Israeli drone-strike in Gaza, credited the FFAM’s procedures as “timely, appropriate and, with some exceptions, sufficient”.
But the hundreds of cases that do not attract international attention are a different matter.
One general admits that it will take many years to investigate all the allegations, once the war in Gaza is over.
In cases where evidence is deemed sufficient, the military police carry out criminal investigations from scratch.
Those that are indicted are then heard before military courts.
But, unlike the combat veterans of the FFAM, the military-police investigators whose job it is to build the cases are unpopular within the ranks and suffer intimidation.
In July 2024, when they arrived at the Sde Teiman detention centre to question and arrest suspects over the sexual assault of a prisoner, investigators were met with violence from the soldiers and had to wear masks to conceal their identity.
“Ultimately, in a war of this magnitude, the FFAM and [the military police] are overwhelmed,” argues one senior military judge.
“There are hundreds of allegations and by the time they make it through the pipeline, there is no crime scene, the weapons have been used many times, and the evidentiary basis for a prosecution, much less a conviction, has been chewed over.
That doesn’t mean that allegations are being ignored, but it does mean we’ve failed when it comes to establishing norms through indictments.”
The IDF has not released up-to-date numbers of investigations or cases.
In the first year of the war around 15 soldiers were indicted for conduct on the battlefield, mostly for looting and theft from the army.
Five of the suspected assailants from the detention centre were indicted in February and another was convicted and sentenced to seven months in prison for treating inmates brutally.
Most of those indicted are low-ranking soldiers.
One brigadier general who ordered the destruction of a university building without authorisation was investigated, received a minor reprimand and was appointed commander of the Gaza Division.
Another division commander who ordered the destruction of Gaza’s only cancer hospital without authorisation remains in his post.
Senior officers in the MAG’s unit say they have identified hundreds of incidents that need investigation and have established a set of priorities to deal with them.
But amid an ongoing war, which stretches beyond Gaza, it will take years to complete the inquiries, if they are completed at all.
“Internal investigations in any organisation are a difficult process,” says one former military lawyer.
What is more, “You can’t detach the weakness of the IDF’s internal investigations from the broader context of an Israeli army and society which were traumatised and humiliated on October 7th, where the senior generals had lost credibility and were under fire from politicians.
Enforcing the law within such an army, whether among young conscripts or reservists, was always going to be extremely difficult.”
The MAG’s unit has an additional role: advising on the military-planning process.
Its legal officers are involved in authorising operations, air strikes and targets, when these are planned in advance, at division level or higher.
Many of the tens of thousands of deaths in Gaza have happened in such strikes.
But although some of the strikes have been investigated by the FFAM, no criminal investigations have been launched.
A senior IDF officer involved in the investigations claims that every strike has been aimed at a “legitimate military target” and that, at most, investigators have identified “mistakes” or use of the “wrong munition”, leading to procedures being tightened up.
The MAG’s officers insist that the death toll in Gaza is proof not of war crimes, but of an unprecedented war the IDF had no choice but to fight in a dense urban environment, against an enemy hiding behind and beneath civilians.
Yet the international-law department in the MAG’s unit, which prescribes the IDF’s rules of engagement and targeting, has been stretching the principle of discrimination—which defines who is a legitimate Hamas target—to include civil servants and journalists affiliated with the movement.
It has also adjusted the principle of proportionality, or how many civilian casualties are permissible in striking a legitimate military target.
Since the October 7th attack, the IDF’s legal parameters of proportionality have been moved to a point where killing dozens of civilians in an attack on a mid-level Hamas commander—a number that would previously have been deemed excessive even for the most senior leaders—is now acceptable.
A senior officer in the MAG says that “there is no textbook answer for the dilemmas of proportionality.
You can’t ask ChatGPT.
But the red lines were not redrawn, they were applied differently,” owing to the war’s circumstances.
“It’s a total blurring of lines,” one combat officer admits.
“There is a philosophical dilemma at the base of international law,” says one IDF lawyer.
“For human-rights lawyers it’s humanitarian law and is focused on how to protect civilians.
For military lawyers it’s the laws of conflict and they’re all about how an army can go about killing people, including innocent civilians, legally.”
From the barracks to the cabinet
At the heart of Israel’s “complementarity” defence is the claim that its military and civilian legal advisers are independent.
Formally this may be true, but the government is undermining the principle.
The military advocate-general, Major General Yifat Tomer-Yerushalmi, has become a hate-figure for the government’s nationalistic supporters, who accuse her of “tying the hands” of Israel’s fighters on the battlefield and decry the arrest and investigation of soldiers in the Sde Teiman case.
In May the defence minister instructed the IDF’s chief of staff to prevent Ms Tomer-Yerushalmi from speaking at the annual conference of the Israel Bar Association.
It was not the first time government politicians had intervened in the military legal process.
In July 2024 coalition parliamentarians led a mob which stormed the Sde Teiman base, trying to impede the investigation there.
Such interventions go back at least to 2016, when Mr Netanyahu, who was prime minister at the time, made a supportive phone-call to the family of a soldier who had been accused of killing a wounded Palestinian assailant in the city of Hebron.
After the soldier had been convicted of manslaughter, Mr Netanyahu called for his pardon.
The IDF’s legal apparatus is not supposed to work on its own.
At the civilian level, Ms Baharav-Miara, in her role as the government’s chief legal counsel, is supposed to both guide the MAG and ensure that the cabinet’s directives to the IDF conform to the standards of Israeli and international law.
“Our biggest problem in enforcing legal standards during this war is that the attorney-general has become a rubber-stamp,” says a veteran legal officer in the IDF.
“On constitutional matters she is a fighter.
On security issues she hasn’t spoken out once.”
Human-rights lawyers agree.
The attorney-general represents many in the Israeli legal establishment, says Mr Sfard, “who think that we can fight for democracy at home without checking out the torture chamber in our backyard.”
The lack of legal restraint by the attorney-general on the government’s war policies has been most evident in the legal petitions against the government’s practice of blocking or severely restricting food and medical supplies to Gaza, which in recent months have slowed to a trickle (see chart).
These petitions were made at what should be the highest tier of accountability, the Supreme Court, which hears complaints from individuals and organisations against government actions.
Despite being at loggerheads with the Netanyahu government and refusing to represent it in a number of cases over the past two-and-a-half years, in the main petition against the blockade of aid the attorney-general’s representatives seemingly had no issue with presenting the government’s arguments.
The defence ministry was closely monitoring the situation and there was no hunger in Gaza, they claimed.
What’s more, they added, Israel was not an occupying power and therefore under no legal obligation to supply the needs of the population there.
After the petition dragged on for a year of war, during which the judges granted the government repeated continuances and refused to issue any temporary injunctions, the Supreme Court backed the government’s humanitarian policy on Gaza in a 64-page ruling.
The court’s president, Yitzhak Amit, who has clashed frequently with the Netanyahu government and was appointed against its wishes, wrote that “the state of Israel is not allowed to ignore” the human suffering in Gaza, but put the responsibility for that on Hamas and did not accept that Israel was using starvation as a weapon of war.
Osnat Cohen-Lifshitz, the legal director of Gisha, an Israeli human-rights organisation which advocates for Gazans and which petitioned the court, says the entire proceeding was “a farce in which [the court] collaborated with the state to create the appearance of a legal proceeding.
The judges could have saved lives, but they gave the people of Gaza nothing.”
A reckoning postponed?
Justice Amit was reviled by the far right for even being prepared to hear the petition and his detailed ruling is far from a summary dismissal.
But it is hard to escape the impression that, like the attorney-general, he is choosing his battles with the government and prefers not to challenge it on war-related matters.
There is one more tier of accountability in Israel.
National commissions of inquiry have been formed in the past to examine the conduct of its armed forces.
The most famous was the one established in 1982 to investigate Israeli complicity in a massacre in the Palestinian refugee camps of Sabra and Shatila in Israeli-controlled Beirut.
The killings were carried out by Israel’s allies, the Phalangist militia.
The commission ruled that, although the IDF was not directly involved, senior Israeli officials had been aware the massacre could take place and had not acted to prevent it.
The then defence minister, Ariel Sharon, and the commander of military intelligence were forced to resign.
Such a commission, whose members are appointed by the president of the Supreme Court, could provide the necessary accountability in this war as well.
But the decision to hold a national inquiry is the government’s, and Mr Netanyahu has so far adamantly refused to appoint one.
The attorney-general has called for a commission of inquiry, though she has specified that its mandate should be to investigate the failures of Israel’s political and military leadership which allowed it to be taken by surprise by Hamas in October 2023, rather than the events of the war itself.
This might change if Mr Netanyahu’s government were to fall.
A new government could appoint a commission, possibly with a mandate to examine the government’s actions during the war as well as leading up to it.
In the meantime, the apparent humanitarian abuses seem only to be growing more severe.
Perhaps the ultimate test of the government’s ability to restrain itself will be its next steps in Gaza.
The mooted “humanitarian city” appears to have been set aside, at least for now.
In an open letter to the defence minister and the IDF’s chief of staff, a group of Israeli experts on international law argued that herding Gazans into the city would involve “a series of war crimes, crimes against humanity and in certain circumstances could be considered the crime of genocide”.
Some of the IDF’s own lawyers privately argue that it would amount to ethnic cleansing.
Until now, Israeli lawyers insist, the displacement of civilians in Gaza, although widespread, has conformed to three important conditions: it has been carried out to protect the civilian population from specific military operations; it has been temporary (although in many cases the homes to which displaced civilians might seek to return have been destroyed); and it has been voluntary, in the sense that civilians could choose to remain in an area being pulverised by air strikes if they wanted to.
The plan for the “humanitarian city” would conform to none of those standards.
Mr Netanyahu seems to have shifted, at least temporarily, towards a proposal to wage an all-out campaign to occupy nearly every part of the Gaza Strip not yet under Israeli control.
The IDF seems to be no more enthusiastic about this plan than the last.
Mr Netanyahu may believe in the hardline approach, as some of his aides suggest.
It could equally have been raised as a lever to press Hamas to accept Israeli demands of disarmament and exile of its surviving commanders.
Mr Netanyahu is certainly using the proposals to try to convince his far-right coalition partners (several of whom advocate the annexation of all Palestinian territory) to remain part of his embattled government.
The buck stops nowhere
In other words, rather than hastening Mr Netanyahu’s political demise, the more radical plans may delay it.
The prime minister is also unlikely to be hauled in front of the ICC in The Hague any time soon.
For now, he cannot visit countries which are members of the court, but those do not include America, where Donald Trump’s administration has proclaimed its own war on the international justice system.
The ICC’s chief prosecutor and four of its judges have been subjected to American sanctions and America’s aid to South Africa, which brought the genocide case to the ICJ, has been cut.
Not surprisingly, the procedures in both international courts seem to have slowed down.
Other Western countries which are signed up to the ICC may not be hosting Mr Netanyahu soon but are unlikely to push for sanctions on Israel.
As they embark on an expensive process of rearmament against a resurgent Russian threat, many are looking to Israel for battle-tested weapons systems.
In 2024 Israel’s arms firms signed $14.7bn-worth of export deals, 13% more than in 2023.
Over half of these were with European countries.
The cost of the war to Israel’s reputation is immense.
Israeli companies are battling to avoid divestment from funds with rules against dealing with entities linked to war crimes.
Israeli academics and artists are being shunned by colleagues, universities and festivals around the world.
But in the short term, unless Mr Trump changes his position, it is hard to see how Mr Netanyahu’s government or the IDF will be held accountable, at home or abroad.
“For years we warned the IDF that if they don’t abide by international law they would be hauled to The Hague,” says Amichai Cohen, a legal expert at the Israel Democracy Institute, a research organisation.
Now he is concerned that it was the wrong tactic.
“It’s looking unlikely any politician or general will be hauled before the ICC and I think that our message should have been different: abide by international law because it’s the right thing to do.”
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