Avraham Shalev at the Kohelet Forum makes a very good point:
Since Prosecutor Khan has re-entered the fray, he has made several statements indicating that he intends to put the burden of proof on Israelis to demonstrate their innocence against any allegations. Speaking in Cairo on October 30, 2023, Khan claimed it is the responsibility of Israel – which as he knows does not accept the Court’s jurisdiction to
“demonstrate that any attack, any attack that impacts innocent civilians or protected objects, must be conducted in accordance with the laws and customs of war, in accordance with the laws of armed conflict.They need to demonstrate the proper application of the principles of distinction, precaution and of proportionality. And I want to be quite clear so there’s no misunderstanding: In relation to every dwelling house, in relation to any school, any hospital, any church, any mosque – those places are protected, unless the protective status has been lost. And I want to be equally clear that the burden of proving that the protective status is lost rests with those who fire the gun, the missile, or the rocket in question.”
Khan’s statement implies that Israel is guilty until proven innocent. It also flies in the face of the principle that decisions by military commanders are evaluated based on the (often-limited) information available to them at the time of decision. Due to the difficult circumstances and intense pressure (“fog of war”), courts worldwide are reluctant to second guess the decisions taken by commanders.
In the same speech, Khan noted that Israel has “military advocate generals and a system that is intended to ensure their compliance with international humanitarian law. They have lawyers advising on targeting decisions.” Given that Khan acknowledges that the Israeli army has built-in mechanisms to protect civilians, it is unclear why Khan ascribes to Israel malicious intent until proven innocent. Khan has not demanded such a standard in any other conflict.
This is exactly right. The standard of determining proportionality, to calculate whether an attack would justify the expected amount of collateral damage, is whatever a "reasonable military commander" would do given the information available to him or her at that point in time (not in hindsight.) That standard was originally noted by the International Criminal Tribunal for the Former Yugoslavia and has been used by sources as disparate as Israel's High Court and Human Rights Watch as normative law.
The principle of distinction between military and civilian objects is similar. As I wrote in 2014:
It is ultimately up to the commander to determine the nature of the specific, fluid situation. Everything hinges on his or her intent - not on the judgment of other observers and not on finding out better information in hindsight. As stated by Rüdiger Wolfrum and Dieter Fleck in The Handbook of International Humanitarian Law, "The prerequisite for a grave breach (of IHL) is intent; the attack must be intentionally directed at the civilian population or individual civilians, and the intent must embrace physical consequences."
In order to find that the commander has committed a war crime, the bar is set quite high. ICRC commentary on art 85 of the Additional Protocol states:The accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing the ("criminal intent" or "malice aforethought"); this encompasses the concepts of "wrongful intent" or "recklessness"....As long as the IDF did not deliberately attack civilians, and the local commander had a military purpose for each target based on the best information available at the time, there is no violation of the principle of distinction.
The ICC prosecution turns these well known legal concepts on their heads. Israel is assumed to be targeting civilians unless proven otherwise, it is assumed not to be concerned about civilian casualties unless proven otherwise.
It is assumed guilty and must prove its innocence, a much, much higher standard for the law than is applied anywhere else.
One can assume Hamas' malicious intent and desire to attack civilians. It admits it (ironically, by claiming that every Israeli man, woman and child is a military target.) No one can roam through the devastation of the Nova music festival and think otherwise.
But as even Khan admits, "Israel has a professional and well-trained military. They have, I know, military advocate generals and a system that is intended to ensure their compliance with international humanitarian law. " But instead of using this as a reason to assume that Israel's army regulates itself to adhere to international law, he uses Israel's professionalism as a liability, requiring it to prove each individual attack out of thousands of them adhere to its own policies - something that no army has ever been required to do.
It is hard to escape the conclusion that he's looking for reasons to find Israel guilty. If Israel proves its military decisions were proper 99.9% of the time, that remaining 0.1% will be enough to convict the prime minister and defense minister.
Based on his own words, Khan is showing that the ICC has turned into a kangaroo court.
