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Original: English No.: ICC-01/18

Date: 05 August 2024

PRE-TRIAL CHAMBER I

Before: Judge Iulia Motoc, Presiding Judge

Judge Reine Adélaïde Sophie Alapini-Gansou
Judge Nicolas Guillou

SITUATION IN THE STATE OF PALESTINE

Public

Amicus Curiae observation of High Level Military Group pursuant of Rule 103

Source: High Level Military Group

No. ICC-01/18 1/13 5 August 2024

Document to be notified in accordance with regulation 31 of the Regulations of the
Court to:

The Office of the Prosecutor Counsel for the Defence

Mr. Karim A.A. Khan KC

Legal Representatives of Victims Legal Representatives of Applicants

Unrepresented Victims Unrepresented Applicants

(Participation / Reparation)

The Office of Public Counsel for The Office of Public Counsel for the
Victims Defence

States’ Representatives Amicus Curiae

High Level Military Group

REGISTRY
Registrar Counsel Support Section
Mr. Osvaldo Zavala Giler

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Public Information and Outreach

Section Section

No. ICC-01/18 2/13 5 August 2024

 I. INTRODUCTION

1. The High Level Military Group (HLMG) is an independent body of former

chiefs of staff, senior military officers and cabinet ministers from NATO

countries with many decades of expertise at the highest level of land, air and

sea conflict and the legality thereof1. The HLMG conducted an in-country

assessment of the Gaza conflict in July 2024, visiting IDF military HQs from the

top level; humanitarian aid installations and operations; units down to battalion

level of command; and a visit inside Gaza.

2. Should the Court approve the requested arrest warrants, it is our professional

military opinion that this would set standards that are unbearable and

unrealistic with regards to military operations and the facilitation of

humanitarian activities during active hostilities, and standards which would be

unacceptable for other democracies and their armed forces (including our own)

that engage in urban warfare.

II. ALLEGATIONS OF STARVATION

3. The complexities of coordinating movement of humanitarian aid in a highly

dangerous, complex, urban battlespace cannot be overstated. We visited

crossing points built by the IDF since the war began on 7 October specifically to

facilitate increased volumes of aid entering the Gaza Strip. We visited two

crossing points on the border between Israel and Gaza that were attacked by

Hamas on 7 October and since. One of them – the Erez Crossing – was

completely destroyed by Hamas on 7 October and since then two vehicle

crossing points in Erez were established by the IDF. We observed roads inside

the Gaza Strip that were built by the IDF specifically to enable delivery of aid

laterally and south to north. That includes a new route constructed by the IDF

to allow aid that has already entered Gaza to be transported from the south to

the north on Israeli territory. We are aware of the IDF’s considerable efforts to

1
See Appendix 1.

No. ICC-01/18 3/13 5 August 2024

 enable air dropped aid by other countries as well as the US improvised harbour

(JLOTS) for aid delivery. The IDF operates according to a clear chain of

command. The directives and commands we reviewed did not include any

order to starve civilians, or to use issues related to humanitarian assistance as a

method of warfare, and in fact, included clear statements regarding the IDF’s

legal obligations towards the civilian population.

4. When the HLMG questioned IDF commanders there were also clear statements

that the IDF had no policy - not from the start of the war and not today - to

stymie the facilitation of aid into Gaza or interfere with aid distribution inside

Gaza. IDF procedures and capabilities, witnessed by us and used by the IDF to

communicate with international humanitarian organisations and assist with

their work, suggests this is correct.

5. We were also briefed on the efforts to assist private sector aid activities, which

are considerable yet often omitted from UN reports, creating a false picture of

less aid than there actually is. In addition, our study indicates there have been

approx. 16,000 individual coordinations of aid convoys with the UN and NGOs

inside Gaza since the start of the war and only very few incidents of the IDF,

presumably mistakenly, opening fire on humanitarian convoys. This does not

suggest a pattern of deliberately targeting aid entering Gaza but the opposite.

The logistical efforts of the IDF, the infrastructure they have built and

maintained, the resources dedicated by the IDF to these efforts, the directives

and commands we saw, and the commanders we met all suggest that there is a

genuine, ongoing and concerted effort to alleviate the humanitarian situation

in Gaza, in direct contradiction to the claims of the Prosecutor.

6. Our assessment shows that the IDF is operationalising the Israeli government’s

stated policy to ‘flood Gaza with aid’2 and this has substantially contributed to

averting what may have been a situation of famine caused by ongoing violent

2
https://www.timesofisrael.com/gallant-says-israel-plans-to-flood-gaza-with-aid-with-new-crossing-into-strips-
north/third

No. ICC-01/18 4/13 5 August 2024

 belligerence by Hamas. Again, we believe this is counter indicative of and

inconsistent with any plan or intent to employ starvation as a method of warfare

at any stage in this conflict.

7. It is our assessment that whatever food insecurity exists today among the

population of Gaza is not due to Israel impeding entry or distribution of aid

into the territory - either deliberately or arbitrarily - but to the unavoidable

effects of large-scale urban warfare, compounded by Hamas hijacking aid for

their own military purposes, allowing criminal elements to seize aid, and in

some cases confiscating aid and selling it to the civilian population. We have

seen extensive documentary evidence of this firsthand. We were also briefed on

how Hamas hoarded supplies from the start of the war and diverted items such

as fuel for its military purposes, which would have likely contributed to any

shortages in the first few weeks of the conflict.

8. We should note that the situation we observed in July has not been the situation

since the start of the conflict. We were briefed that at the initiation of operations

there was a short period (a matter of days) when entry and egress to and from

Gaza, including aid delivery, could not be feasibly facilitated by the IDF,

compounded by the incapacitated Erez crossing and Egyptian control of the

Rafah crossing.3 This was in the context of an acute military emergency, when

thousands of Hamas terrorists had invaded Israel. For several days fighting

continued inside the country, with the extent of Hamas infiltration unknown.

Constraints on ingress and egress into Gaza were also substantially complicated

by the IDF need to prioritise manoeuvre operations and logistics support for its

forces.

9. Any military force would find immense difficulty in delivering aid to

population in a territory controlled by its enemy whilst simultaneously fighting

in their own territory against thousands of combatants, for several days,

3
https://www.barrons.com/news/israeli-defence-ministry-footage-of-damaged-erez-border-crossing-c30f10b4

No. ICC-01/18 5/13 5 August 2024

 clearing community after community and outpost after outpost, while

simultaneously trying to determine how many civilians were killed and

kidnapped and their identities. This difficulty in diverting forces to provide and

inspect aid is compounded when under attack simultaneously on different

fronts – note the attacks from Syria and Lebanon which began on 8 October as

well as increased violence in the West Bank. We understand that that Hamas

rocket fire caused significant and direct damage to electricity and water lines

running from Israel into Gaza, which could not have quickly or easily been

repaired in the circumstances, with the requirement to locate and fix the

damage while fighting Hamas in that exact area. We are certain that our own

armed forces would prioritise such necessary defensive measures in these

circumstances. This was short-lived before a reasonable extent of border control

was restored, enabling the IDF to inspect and monitor humanitarian supplies

under international law obligations. In any case, our research and briefings

show that it is highly likely that there were sufficient stocks of food and other

essential supplies inside Gaza to weather this immediate situation for at least a

few weeks – by which time Israel had already started to facilitate the entry of

aid.

10. It would be unreasonable to expect any country to go from that start point to an

optimum situation overnight, especially given the intense demands of large-

scale conflict involving the movement of up to 100,000 manoeuvring forces into

a confined area relying on very limited points of access and supply routes. In

that context, it would be expected that the IDF prioritize its own operational

needs and that humanitarian access increased as those operational demands

decreased.

11. We note also that the ICC Prosecutor, in his statement announcing the arrest

warrant application, asserts that Israel imposed “a total siege over Gaza that

involved completely closing the three border crossing points, Rafah, Kerem

Shalom and Erez, from 8 October 2023”. Erez crossing was severely damaged

No. ICC-01/18 6/13 5 August 2024

 in the 7 October attack by Hamas. Kerem Shalom crossing is still, even to this

day, a target for Hamas mortar and rocket attacks. Nonetheless, we observed a

constant IDF commitment to maintain that crossing as an access point for aid.

Importantly, Israel had no control over the Rafah crossing between Egypt and

Gaza until their operation in Rafah in May this year, and therefore did not have

the capability to impose a “total siege” as the Prosecutor alleges. Since 21

October, following needs that arose in Gaza, humanitarian aid constantly

entered the Gaza Strip, after going through necessary and legally permissible

security checks.

12. We were briefed by multiple high ranking IDF commanders and policy makers

that at no stage was there a siege, and Israel monitored the humanitarian

situation on the ground and the use of previously existing supplies of

humanitarian aid in Gaza. We are aware of politicians’ statements that have

been cited as evidence of intent to conduct a siege. In practice there was no such

siege, but as military experts, we understand there is high value in bellicose and

threatening statements towards an adversary during wartime. In no way can

these statements be conclusive evidence of actual policy. Armed forces work on

clear and defined orders and do not take direction from statements by

politicians to the media.

13. Despite the above, it should be noted that siege is a legitimate and lawful

military tactic if it is not directed against civilians. If Israel had enacted a siege

against Hamas military forces, and not against civilians, that would be entirely

lawful and reflect tactics that could legitimately be used by our countries.

Nevertheless, Israel did not impose such a siege: from the end of October there

was already aid entering Gaza freely.

14. We also note the Prosecutor alleges that Israel cut off water pipelines from Israel

into Gaza, “their principal source of water”, for a prolonged period. We

understand that 90% of the water in Gaza does not come from Israel. We were

briefed that on 7 October, Hamas fire damaged 2 out of the 3 pipelines from

No. ICC-01/18 7/13 5 August 2024

 Israel into Gaza. We saw evidence that Israel has facilitated the repairs of water

infrastructure. The Prosecutor further alleges that Israel cut off and hindered

electricity supply. We were briefed that on 7 October Hamas fire hit nine of out

the ten electricity lines from Israel into Gaza; these lines provided only 50% of

Gaza's electricity. Such statements by the Prosecutor are factually inaccurate.

15. Moreover, the Prosecutor's allegations completely absolve Hamas – who

instigated the war – of the responsibility for supplying its own population. As

military experts, we can attest that if states engaged in war are forced to adopt

full responsibility for the enemy's civilian population, especially in a context

where the opposing party deliberately hinders aid efforts, it sets a standard that

will be unacceptable for most states.

16. It is our considered military opinion that the State of Israel and the IDF are and

have been since the inception of this operation complying in good faith with all

international legal obligations to facilitate the provision of humanitarian aid

into Gaza. Based on our experience and knowledge, Israel is facilitating aid to

a level we have not seen in our own militaries and we are not aware of our

forces’ efforts or even capabilities to conduct similar operations. We do not

believe any other armed forces have ever made such efforts, or achieved such

success, in facilitating aid delivery to civilians in enemy territory while still

engaged in active hostilities in that same operational environment.4 It is our

professional view that accusations of an intent to starve civilians by the Israeli

Prime Minister and Minister of Defence are unsupported by all available

evidence, most importantly by the actual conduct of IDF operations in and

around Gaza.

III. ALLEGATIONS OF UNLAWFUL KILLING ETC

4
Price, D. H. (2014). Counterinsurgency by other names: Complicating humanitarian applied anthropology in
current, former, and future war zones. Human Organization, 73(2), 95-105. 2

No. ICC-01/18 8/13 5 August 2024

 17. The ICC Chief Prosecutor also alleges wilful killing, murder, intentionally

directing attacks against civilians and extermination. There may well have been

instances of unlawful killing by IDF forces during this war, as the result of

negligence, by accident or perhaps deliberately. In addition some civilians will

have died as a result of non-negligent military accidents or errors. There has

never been a war where such incidents have not occurred, and not in our

collective experience. But our investigations have confirmed that this does not

reflect any Israeli official policy nor are such incidents a manifestation of an

intent to attack civilians transmitted to the force from the alleged defendants in

this matter. In fact, quite the reverse.

18. We know from experience that civilian casualties are a tragic but inevitable

consequence of war; a consequence that is exacerbated by enemy tactics that

seek to exploit both the presence of civilians and such casualties. This is critical

context in relation to this armed conflict. It is common knowledge that Hamas

consistently and pervasively embeds itself into the civilian population and

complicates the distinction process, endangering civilians by not wearing

uniforms or distinctive emblems. It uses civilians as human shields as a

deliberate strategy. Add to that the holding of hostages, the length and

complexity of the Hamas tunnel system, the number of rockets still being fired

towards Israel (almost 10,000 since the start of the war), and this becomes the

most complex and challenging battlefield of modern times.

19. Ignoring these circumstances when assessing Israeli action means that one side

of the conflict is completely absolved of all responsibility. Civilian harm in and

of itself is not evidence of misconduct, especially when one party to the conflict

deliberately seeks to maximise such harm for tactical and strategic advantage.

Absolving a party to a conflict from its responsibility to protect its own

population would be untenable for states committed to fighting according to

the law.

No. ICC-01/18 9/13 5 August 2024

 20. Based on our observations, we do not believe the evidence of actual operational

practice in any way corroborates the accusation of policies directed from the

alleged defendants to intentionally attack civilians. In our view, the IDF has

developed and implemented innovative procedures to mitigate the risk to

civilians arising from attacks on valid military objectives. These procedures

often result in suspension or cancellation of attacks due to civilian risk

estimates. IDF policy is that every service person adheres to specified Rules of

Engagement, which conform with the Laws of Armed Conflict. We have

conducted limited questioning of IDF commanders and front-line soldiers on

the Rules of Engagement and are convinced that their understanding is fully

coherent with the legally approved policies.

21. One of the most pertinent examples of innovative civilian risk mitigation is the

Civilian Harm Mitigation Cell (CHMC), established prior to the conflict and in

operation during every phase. The CHMC integrates digital map technology,

updated hourly, and intelligence to show population density in each area of

Gaza. Every IDF operations centre has access to this map which is cross-checked

with real-time air surveillance to verify civilian presence.

22. IDF targeting of air strikes is made in conjunction with the CHMC and

influenced by civilian population density in a particular area. Selection of

munition size is based on the nature of the military target, intelligence

regarding enemy presence and the proximity of civilians.

23. It is our professional opinion that such a unit is extremely unusual and we are

not aware of any other military with a comparable risk mitigation methodology.

We assess this is an unprecedented measure, along with millions of leaflet

drops, phone calls, text and voice messages, to help commanders prevent or

minimise risk to civilian life. How such innovative efforts align with an

allegation of the defendants in this matter directing the IDF to intentionally

attack civilians is perplexing.

No. ICC-01/18 10/13 5 August 2024

 IV. COMPLEMENTARITY

24. We believe that pursuing arrest warrants for Israeli national leaders is not only

as a minimum premature, but factually unjustified. IDF legal mechanisms

require time to check the facts and credibility of allegations, and to investigate

and prosecute war crimes allegations against IDF soldiers, sailors and airmen.

It is unrealistic to expect such action during the midst of a military campaign of

this magnitude. It is apparent to us that an essential aspect of proving these

national leaders ordered the offences alleged would be corroboration in the

form of IDF operations that align with these alleged criminal objectives. This is

another reason why the Prosecutor’s request is patently premature.

25. We gained insight into the IDF military justice and accountability mechanism

through meetings and briefings and found them consistent with the highest

standards of our own armed forces.

26. During our assessment we visited the IDF Fact Finding and Assessment

Mechanism which examines any incident that could raise a charge of possible

illegal conduct or military procedural misconduct (except for incidents that

immediately raise suspicion of criminal misconduct, which are sent directly for

criminal investigation). There are currently approximately 300 incidents being

actively investigated by the FFAM, with many more which they have received

initial information about. To our knowledge no other armed forces have

established such a permanent system but would benefit from doing so. In

respect to the speed of the FFAM’s processes, Australia’s Special Advisor, Air

Chief Marshal Binskin, reporting on the World Central Kitchen strike, stated:

‘…the ADF [Australian Defence Force] could not have imposed equivalent

reprimands as quickly as the IDF CGS [Chief of General Staff] was able to.’5

27. By way of comparison, we draw your attention to war crimes investigations by

comparable armed forces in Australia and the UK. The Brereton report was

5
https://www.dfat.gov.au/sites/default/files/special-advisers-public-report-israels-response-wck-strikes-august-
2024.pdf

No. ICC-01/18 11/13 5 August 2024

 commissioned by the Inspector-General of the ADF to investigate war crimes

by Australian forces committed between 2005 and 20166. The investigation

began in 2016 and reported in 2020. Charges were not brought until 2023. The

Haddon-Cave Independent Inquiry was commissioned by the UK Ministry of

Defence to investigate alleged special forces war crimes in Afghanistan

committed between 2010 and 20137. It was established in 2022 and is ongoing.

These two inquiries give a clear parallel to Israeli investigations of war crimes

and demonstrate the length of time required to give an equitable, legal outcome

in such investigations. We recall the OTP's complementarity assessment of the

UK's actions to investigate misconduct via IHAT, SPLI and the SPA and the

timelines involved.

28. We do not believe there is a credible basis to conclude Israel lacks the ability or

will to implement national investigatory and judicial processes that are

comparable to other countries and their militaries. There is no individual, to

include the PM and MOD, immune from this process. The proposed ICC arrest

warrants would deny the investigatory leeway to the State of Israel which was

exercised in the cases we mention above.

Respectfully submitted:

BARDAJI LOPEZ Firmado digitalmente por

BARDAJI LOPEZ RAFAEL LUIS -
RAFAEL LUIS - 08780787P
Fecha: 2024.08.05 14:58:45
08780787P +02'00'

Dr Rafael Bardaji

Dated this 5th day of August 2024.

At Madrid, Spain

6
https://www.defence.gov.au/about/reviews-inquiries/afghanistan-inquiry
7
https://www.iia.independent-inquiry.uk

No. ICC-01/18 12/13 5 August 2024

Appendix 1 – Members of the High Level Military Group8

Dr Rafael Bardaji, Spain.

General (Retired) Vincenzo Camporini, Italy.

Lieutenant Colonel (Retired) Geoffrey S. Corn, USA.

Lieutenant General (Retired) David A. Deptula, USA.

Major (Retired) Andrew Fox KJ, UK (Rapporteur).

Colonel (Retired) Richard Kemp CBE, UK.

Brigadier General (Retired) Alain Lamballe, France.

Brigadier (Retired) Ian Liles OBE, UK.

The Honourable Uri Rosenthal, The Netherlands.

The Honourable Timo Soini, Finland.

Admiral (Retired) Jose Maria Teran, Spain.

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http://www.high-level-military-group.org/biographies.html

No. ICC-01/18 13/13 5 August 2024