What the ICC’s Fatouh Bensouda Should Know About the Efforts Israel Makes to Minimize Civilian Casualties

by Hugh Fitzgerald

Yesterday, we discussed the first part of the report by Jacob Magid at the Times of Israel about the three-judge panel’s decision giving the full ICC (with 18 judges) the right to exercise jurisdiction over Israel in investigating its putative “war crimes,” despite the fact that Israel is not a member of the ICC.

Magid’s report continues:

If Israel and/or Hamas are ultimately convicted of war crimes, and if senior officials are named in such a verdict, they could be subject to international arrest warrants if they travel. This could lead to a situation where certain member states would recommend that officials specified in the ruling avoid visits in order to not risk being detained.

The ICC doesn’t try countries, but rather individuals. Israeli officials do not currently anticipate any immediate threats to senior Israeli political or military figures.

The three-judge panel was ordered to reach a conclusion on the ICC’s right to exercise jurisdiction in December 2019, after Bensouda determined at the end of her own five-year probe into the “situation in Palestine,” that there was “reasonable basis to believe that war crimes were committed” in the West Bank, Gaza Strip and East Jerusalem regions by both the IDF and terrorist group Hamas, as well as other “Palestinian armed groups.”…

Let’s see. What “war crimes” did Israel commit during Operation Protective Edge? Even Fatouh Bensouda should know the enormous efforts Israel makes to minimize civilian casualties, while Hamas does everything it can to increase civilian casualties, by hiding its weaponry, including missiles and rockets, in civilian areas, in schools, hospitals, mosques, apartment buildings. When Israel attacks those places where it knows these weapons have been hidden, it first makes enormous efforts to warn the inhabitants to leave. It does this using five methods. The first is simply by leafletting areas about to be attacked with tens of thousands of leaflets. The second is to telephone warnings to the residents living close to the intended targets, telling them of an impending attack. The third method is Israel’s “knock-on-the-roof” technique, the IDF’s practice of dropping non-explosive or low-yield devices on the roofs of targeted civilian homes, a way of warning inhabitants in advance of an attack. The fourth method is to send emails to residents with warnings about attacks. The fifth is to broadcast warnings on Israeli radio’s Arabic-language service.

No other army in the world makes such efforts to minimize civilian casualties among the enemy. Colonel Richard Kemp observed from close up the IDF campaign in Gaza in 2014 against the terror group Hamas. He had this to say about the IDF’s conduct in that war:

There are two views of the Israeli Military — what you hear in most of the media, and the truth. I’m going to tell you the truth.

I was the Commander of British Forces in Afghanistan. I have fought in combat zones around the world including Northern Ireland, Bosnia, Macedonia and Iraq. I was also present throughout the conflict in Gaza in 2014.

Based on my experience and on my observations: the Israel Defense Force, the IDF, does more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.

Why is this so?

Firstly, Israel is a decent country with Western values, run on democratic principles. Israel has no more interest in war than Belgium does. In fact, Israel has never started a war. The only reason it ever goes to war is to defend itself. And it has to defend itself because, unlike Belgium, it is surrounded by countries and armed groups that want to destroy it.

Secondly, Judaism, with its unsurpassed moral standards, remains a major influence on the citizens of Israel. I say this as a non-Jew.

Thirdly, the army is composed overwhelmingly of citizen soldiers.

Israel is a small country with a small professional army. To fight a war it depends on its conscripts and its reservists. These are ordinary citizens, from professors to plumbers, called upon to defend their homes. They don’t want to be fighting and they don’t want to harm others.

Nowhere was the essential morality and decency of the IDF more evident than in the Gaza War of 2014. If ever there was a purely defensive war, this was it.

The war was started by Hamas, the terror organization, designated as such by the US State Department, that runs the Gaza strip. In the first six months of 2014, Hamas launched hundreds of rockets at Israeli civilians.

After repeated warnings from Israel to stop, the Israeli Air Force finally conducted precision strikes to halt the rocket-fire. And the IDF advanced into Gaza to destroy a network of terror tunnels that Hamas had constructed to attack Israeli communities near the Gaza border.

The IDF took extraordinary measures to give Gaza civilians notice of targeted areas, dropping millions of leaflets, broadcasting radio messages, sending texts and making tens of thousands of phone calls. Let me repeat that. The Israelis called Gazans on their cell phones and told them to leave their residences and move to safety. Never in the history of warfare has an army phoned its enemy and told them where they are going to drop their bombs.

Many IDF missions that could have taken out Hamas military capabilities were aborted to prevent civilian casualties, increasing the risk to Israeli citizens and soldiers.

Despite all of this, of course innocent civilians were killed. Every war is chaotic and confusing, and mistakes are frequent. But mistakes are not war crimes.

Hamas, on the other hand, committed war crimes as official government policy.

Hamas deliberately positioned its military assets among the civilian population, hiding weapons in schools and hospitals, and placing rocket launchers alongside apartment buildings, then forced those civilians to stay in areas they knew would be attacked. They also instructed their people to report the lie that every Gazan killed was a civilian, even if they were actually fighters.

And if there were no civilian deaths, Hamas made them up! Numerous Internet sites show Palestinians elaborately staging sniper victims and smashed ambulances, among other phony horrors. It’s so common there’s even a term for it — Pallywood, as in Palestinian Hollywood.

Ironically, it’s the leaders of Hamas themselves who best understand the extraordinary measures the IDF will take to protect innocent civilians. They take full advantage of Israel’s decency and adherence to the laws of war.

No army takes such risks in order to protect civilians as the Israeli army does. I say this as a professional soldier. I say it because it’s true.

No doubt if Bensouda persists in her folly, and tries to prosecute Israel for war crimes, and if, further, at some point Israel decides to reply, Colonel Kemp will be a convincing witness for the defense.

Bensouda is not a fast worker. She has been at her investigation of the 2014 Gaza War for the past five years, and only now has the Court’s claim of jurisdiction been been upheld; Bensouda has only five months left to present her case. In June, she will be replaced by someone else who may not, some Israelis believe, want to continue this prosecution – someone who understands that Israel is not subject to the ICC’s jurisdiction. That would be the easiest way to deal with this travesty – just let it die on the vine, run out the clock, with Fatouh Bensouda no longer around to cause such mischief.

There is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza” by the Israel Defense Forces, for allegedly launching disproportionate attacks and “willful killing and willfully causing serious injury to body or health… and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions,” she stated in 2019.

What is a “disproportionate” attack? Apparently Bensouda was swayed because many more Palestinians than Israelis were killed. By itself, this means nothing. Was the American army guilty of “disproportionate attacks” on the Japanese, because so many more of them died than the Americans fighting them during World War II? Was the U.K. guilty of “disproportionate attacks” on Nazi Germany because many more German civilians died in the air raids on Germany ordered by Air Chief Marshall Arthur “Bomber” Harris, head of Bomber Command, than English civilians who were killed in German air raids on England? In the Six-Day War Israel destroyed 450 Arab aircraft, while losing only 46 of its own – should the ICC declare Israel guilty of launching “disproportionate attacks”? Who gets to decide what is “disproportionate”?

She also found a “reasonable basis to believe that members of Hamas and Palestinian armed groups committed… war crimes” by targeting civilians and torturing individuals.

The “war crimes” of Hamas were many and varied. It tortured to extract confessions from 21 Palestinian civilians whom it believed were giving information to the Israelis; once the confessions were obtained, the victims were summarily executed. Hamas fired rockets indiscriminately, and without warning, at civilians living in Israeli cities in southern Israel. It deliberately placed its weapons among civilians, in schools, hospitals, mosques, apartment buildings. The numbers of Israeli civilian casualties were kept down not because the Palestinians refrained from attacking them, but because every Israeli dwelling has a bomb shelter attached.

Bensouda said Israel’s settlement policy in the West Bank could also constitute a war crime, as could its response to weekly protests along Gaza’s border with Israel held since March 2018.

Bensouda was supposed to be investigating a discrete event: the Gaza War of 2014. Instead, she has been guilty of acting ultra vires, greatly expanding the range of her investigation to include other, quite different events. She has taken it upon herself to decide if Israel’s settlement policy – that is, the government’s policy of allowing Israelis to build 230 settlements in the West Bank – is itself a “war crime.” Far from being a war crime, the settlement policy is expressly endorsed by the Mandate for Palestine, Article 6, which calls on the Mandatory authority, Great Britain, to “facilitate Jewish immigration” and “encourage close settlement by Jews on the land.” Perhaps Bensouda has not read, or does not comprehend, the Mandate’s provisions; perhaps she has not looked at the Mandate’s maps. There is still time. It shouldn’t take you more than a day, Ms. Bensouda. Why not give the Mandate for Palestine, and its accompanying maps, a well-deserved perlustration?

First published in Jihad Watch.