Gali Baharav-Miara is hardly a household name outside Israel, where she is the country’s first ever woman attorney-general. But history is likely to judge her the bravest member of Benjamin Netanyahu’s government, facing as she does continual demonisation – “enemy of the people” – by his acolytes.
One reason why they would like to see her sacked is her persistence in calling out the way that a prime minister increasingly characterised by autocracy and cronyism hacks away at the legal checks and balances in the Israeli system. Another is that she sometimes gives him good advice, which he usually ignores.
A good example of the latter was Baharav-Miara’s recent proposal that an independent Israeli commission of inquiry might forestall the International Criminal Court (ICC) from issuing the arrest warrants that its chief prosecutor, Karim Khan, is seeking against Netanyahu and his defence minister, Yoav Gallant, for suspected war crimes in Gaza.
Even if such a commission simply investigated the causes of the dire humanitarian crisis in the Gaza Strip, it might go a long way to stopping the ICC in its tracks, since the court can act only in cases where there is no credible investigation by the country involved. And one of Khan’s central charges is that starvation has been used against Palestinians in Gaza as a “method of warfare”.
What does Netanyahu have to fear?
But for a commission to conform with Israeli law – and present such a credible alternative to the ICC – it would have to be chaired by an eminent senior judge such as Esther Hayut, the independent-minded former president of Israel’s supreme court (and daughter of Holocaust survivors).
In a terse public statement rejecting Baharav-Miara’s suggestion, Netanyahu complained that it was not certain that an inquiry would lift the threat of ICC arrest warrants. He notably did not say whether one might be desirable in itself.
This is striking, given his repeated insistence that Israel’s conduct of the war in Gaza, where the death toll has now passed 40,000, has consistently conformed with international law. If so, what does he have to fear from such an inquiry?
Though quashed by Netanyahu, the commission plan underlines that the threat of ICC prosecution is very much a live issue. Even while Israel lives in daily fear of a possible all-out war with Hezbollah or Iran, or both, its government cannot “move on” from the toll of death and injuries or the spread of hunger and disease – now including the looming threat of polio – inflicted on Palestinians in Gaza.
Plight of Israel’s hostages
Within mainstream Israel, it sometimes seems that this is only understood by some families of the 109 hostages held in Gaza, whose agony has now been intensified by the hitherto dismal failure of negotiations for their release.
The recovery by the Israeli military this week of the bodies of six hostages, with evidence of bullet wounds, suggests that while some of at least 36 dead were almost certainly killed in air strikes, some others may have been murdered by their captors.
As long ago as April, when Netanyahu could have saved many more lives, Rachel Goldberg-Polin, the American-Israeli mother of one young hostage, appealed for a ceasefire, not only for the hostages’ sake but for “the hundreds of thousands of innocent Gaza people who are suffering horribly”.
In his Tel Aviv office this week, Nadav Weiman, who did his own combat service in a sniper team and is the executive director of Breaking the Silence, the anti-occupations veterans’ organisation that has already taken testimonies from dozens of soldiers who have served in Gaza, told me how two principles had informed the military’s operation in Gaza since the Hamas attacks of 7 October.
Why Palestinian casualties are so high
These were minimising the risk to troops to as close to zero as humanly possible; and the “Dahiya” doctrine – named after the Beirut suburb whose civilian infrastructure was deliberately devastated in the 2006 war against Hezbollah, as a means of crushing its operational power and support by the local population.
Both precepts help to explain the colossal toll of death and injury from bombing, shelling and ground fire. The first meant that in areas where the population was ordered to evacuate (often to places no safer than the ones that people were told to leave), the routine order to ground troops, says Weiman, was “to shoot to kill any man of military age”.
But it also reflected a much wider shift in Israeli military thinking dating back more than 15 years, namely that, whereas the safety of civilians had been previously prioritised, that no longer applied in warfare against non-state actors such as Hamas.
Such considerations are no doubt already being taken into account by the ICC as it determines whether to issue arrest warrants – which, of course, are also being sought against the Hamas leader, Yahya Sinwar, for the undoubted war crimes committed in the invasion that he ordered on 7 October.
A changed approach by Labour
That Netanyahu is still preoccupied by this prospect is illustrated by his anger at the British Labour Government’s decision to withdraw the formal case that the previous Tory government had submitted, almost certainly at the instigation of the US, to challenge the ICC investigation.
The practical impact is limited, since the UK’s démarche opened the way for other countries to weigh in on both sides of the argument. But along with the decision to restore funding to the United Nations Refugee and Works Agency (UNWRA), it sharply symbolises a changed approach by Labour. It is certainly the reason that Netanyahu was unwilling to see Foreign Secretary David Lammy on his most recent trip.
Khan’s request for warrants will require more decisions for signatories to the ICC, including Britain. If granted, it creates an obligation to detain Netanyahu or Gallant if they come to the UK.
But Lammy and the UK’s Attorney-General, Lord Hermer, also have to decide on publishing the legal advice relating to Britain’s arms sales to Israel, as Lammy promised he would when he was in opposition. The current review of arms sales is thought to distinguish between offensive and defensive weapons – understandably, since it would be a brave minister who blocked the latter to an Israel threatened with an Iranian-backed onslaught.
Legal advice on the Gaza war
But the publication of the legal advice also matters. Some lawyers may argue that it is difficult to estimate the “proportionality” in international law of what is chillingly called “collateral damage” to civilians in Gaza. Many others would not, seeing it as “collective punishment” in clear violation of the Geneva conventions.
But anyway, it is hard to see how the gruesome conditions in which Gazan prisoners have been detained, or the thwarting of Gazans’ dire humanitarian needs (such as Israel blowing up a Rafah drinking water reservoir three weeks ago) are not also clear breaches of international law.
Meanwhile Western governments, including the UK, cannot indefinitely delay a response to the unequivocal July ruling by the International Court of Justice that Jewish settlements are illegal. No other government has yet gone as far as Canada by announcing sanctions against Amana, the key group funding the relentless growth of settlements in the West Bank.
But the UK is also lagging behind both the EU and the US in the number of individual settlers, including ones behind violence against Palestinians, that it has so far sanctioned.
In Britain at least, movement on these issues no later than mid-September would, if nothing else, help to prevent what might otherwise be – on Israel’s treatment of the Palestinians – a distinctly restive first party conference since Labour took office.
