Up to 130 int’l lawyers protected IDF from war crimes charges as it fought in Gaza

The ILD had to guide and provide varied rules of engagement while as many as 50,000 IDF infantry and tanks were invading all over Gaza

Whether Israel and the IDF made the right and legal choices, and how to deal with the errors that were made, will only become clear when the military completes its probes and releases the results to the public.

But until then, what has been made clear to The Jerusalem Post in multiple conversations throughout the Israel-Hamas War and recently is that the IDF commanders received the operational legal advice they had asked for throughout the war – despite the incredible challenge of providing that advice while fighting on seven different fronts over two full years.

This enabled them to function and may yet save countless IDF soldiers from alleged war-crimes charges.

They received advice from as many as three dozen full-time IDF International Law Department (ILD) lawyers, together with about 100 reservist legal advisers, some of who were stationed with the IDF’s high command, some at various IDF regional headquarters, and some near the front lines at various division headquarters.

Part of the ILD’s ability to stay on top of the vast number of legal questions regularly coming up was this spike in staff volume, which far exceeded any prior peacetime or wartime.

During the October 7 massacre in 2023, while reservists were rushing to their bases all over the country, ILD lawyers participated in drills and were essentially in positions at headquarters and in the field across the country by 11:30 a.m., the Post has learned.

For comparison, while some special forces and nearby units got to the Gaza border villages earlier, the majority of IDF forces did not reach the Gaza arena until 1 p.m. or later.

No one had ever fought a war with an enemy so deeply entrenched in their civilian population, and who so systematically abused international law, as the IDF faced with Hamas, a senior IDF legal official told the Post earlier in the war.

Fighting Hamas as it topped even its prior use of civilians and civilian locations as human shields was “incredibly complex” and “a new kind of case study” for the challenge of winning a war while limiting harm to civilians, the official said.

A major distinction between this much larger-scale war and the other “rounds” of conflict, according to the official, was that Israel’s military goals in the past were more modest, along with the approach to the military advantage needed to achieve those goals.

All of this reframes the question of whether an attack meets the proportionality legal test, which requires balancing the military advantage against expected civilian harm.

DURING THE war, the government set much broader goals of destroying the military and ruling capacity of Hamas. This required deploying force at levels of greater magnitude, along with viewing military advantage from a new perspective, the senior IDF legal official said.

Furthermore, military targets that might have been categorized as less crucial in past rounds became more critical. This made the legal challenges far more diverse than before.

During other wars, the ILD had dealt with some hard questions of what to do when Hamas fighters mixed in with Gazan civilians. But the scenarios were usually limited to one house at a time in different areas, or one school at a time in disparate parts of Gaza. Evacuations usually involved one building at a time or, at most, one neighborhood of some hundreds of Palestinians.

Suddenly, the Post understands, the ILD was helping the IDF manage the evacuation of more than one million Palestinian civilians at a time multiple times throughout the war, including to areas that were not set up as much for absorbing refugees and for longer periods.

Previously, most of the rules of engagement focused on a limited number of airstrikes and a couple thousand soldiers invading a select number of northern Gaza neighborhoods.

Suddenly, the ILD had to guide and provide varied rules of engagement simultaneously to as many as 50,000 IDF infantry soldiers and tank crews who were invading all over Gaza in different terrain and with different kinds of military challenges both in coping with fighters and civilians, the Post has learned.

In prior wars, Israel had dealt with dozens of tunnels, getting a taste of tunnel warfare.

Suddenly, the ILD had to give instructions for how to fight and maneuver through thousands of tunnels, which changed as often as the aboveground terrain to constantly create new unexpected legal and operational challenges.

Throughout all of the debates over where the law would come into play for operational issues, the ILD also had to compete for commanders’ attention with the IDF hostage intelligence representatives, who would often disrupt operational plans to avoid potentially harming Israeli hostages nearby even if the attack was permitted legally.

The war also highlighted far more special issues for the ILD to deal with, regarding mass arrests, mass detention, and general large-scale rules for interacting with the Gazan civilian population in real time and unpredictable situations.

Throughout the war, the ILD was led by Brig.-Gen. Roni Katzir, who recently retired.

Katzir’s designated replacement was swept up in the Sdei Teiman detention facility video-leak probe. The ILD is currently being co-run by Col. Nadav Minkovsky, who handles the Strategic Affairs wing, including advice regarding investigations and handling global war-crimes probes, and Col. Guy Keinan, who handles operational advice.

Gaza humanitarian issues

Even once the ILD had helped advise IDF fighters about how they could battle Hamas and how to evacuate civilians, it later needed to advise COGAT (Coordinator of Government Activities in the Territories) and the government regarding humanitarian obligations to Gazan civilians post-evacuation, the Post understands.

The ILD had to interact with countless international organizations, many of which had side agendas beyond providing aid.

According to the ILD, Israel did not, as a rule, provide the aid to the Palestinians, but rather was the facilitator of third parties providing that aid, something that many Israelis do not understand.

Foreign country arrest threat

The extent of ILD efforts, along with the Justice Ministry, Foreign Ministry, and foreign law firms that work with Israel in the various foreign jurisdictions, has been “insane,” the Post has learned.

Besides the 10 to 20 instances in which soldiers were almost arrested, the ILD has dealt with a much larger number of instances in which there was a lower level risk that was avoided, the Post understands.

This has been potentially the most publicly recorded war in history due to technological advancements and the failure of many soldiers, especially reservists, to follow information security protocols of avoiding posting messages about themselves online and in public.

Many foreign actors are constantly working on building potential case files for IDF soldiers who posted their names and faces on social media.

All it takes is one photo or video posted on Instagram or TikTok, and these groups have the soldiers’ details.

When the soldiers also post on social media that they are traveling and mention their destination, all these foreign groups need to do is to inform the local authorities, and Israel and the individual Israeli soldier can have an instant crisis on their hands.

It does not help that there is no rule to require reservists to even update the IDF about foreign travel plans – let alone ask permission regarding such plans, the Post understands.

The Foreign Ministry and the Counterterrorism Bureau of the Prime Minister’s Office have assisted with some aspects of this challenge regarding reservists.

There have been some tense situations in England, Spain, and many other countries.

In the Netherlands, a soldier was questioned by the authorities, although he was not jailed, the Post understands.

There is a team of ILD lawyers whose job is to stay focused on this issue at all times. In addition, there is a lawyer-style command center to follow all such cases and jump into more intense defensive legal and diplomatic action in real time if necessary.

If someone does have a legal problem relating to their role as an IDF soldier while traveling, the government will pay for their defense, including providing experienced local counsel.

Nevertheless, the ILD hopes to avoid incidents of arrest. It’s true that a detained soldier would likely be released and not convicted of anything in a foreign country based merely on social-media posts.

But the arrest itself would be a public-relations coup for these anti-Israel forces. It would also further harm Israel’s name globally and cause increased fear for Israelis flying abroad.