Israel is committing war crimes – and its legal heads remain silent

Close to twenty experts in international law and legal theory from law faculties in Israel’s universities sent a letter on Wednesday to Prime Minister Benjamin Netanyahu, in light of Israel’s plans to expand the fighting in the Gaza Strip, conquer it entirely or in part, and carry out what is described as “encouraging voluntary migration.”

The experts’ conclusion is unequivocal: the continuation of the war in the Gaza Strip – and certainly its expansion – has become illegal and may even be considered an “act of aggression” that entails criminal liability for senior Israeli officials.

“After nearly two years of fighting, when most of Gaza’s infrastructure has been destroyed, hundreds of thousands of people have been repeatedly displaced from their homes, medical services have collapsed, and tens of thousands are suffering from malnutrition and hunger, the marginal addition to state security that could be gained, if at all, from continuing the fighting – let alone expanding it – is not proportionate,” the legal scholars wrote.

“The use of force that exceeds the bounds of proportionality and cannot achieve the aim of self-defense is unlawful, and in certain circumstances even a crime, under the most severe categories of the laws governing the use of force and international criminal law,” they added.

This is a harsh legal opinion, certainly not one that will be embraced by the prime minister, the heads of the military, and members of the security cabinet. But the letter’s signatories see it as their duty to state the matter plainly and reflect Israel’s true position under the rules of international law.

But the sad fact is that it should not have been law professors who placed this legal opinion on the decision-makers’ desks. That they are compelled to do so is the result of a grave and ongoing failure, in which the three most senior legal officials in public service responsible for this field are conspicuously absent: The Israel Defense Forces’ chief military advocate general, Maj. Gen. Yifat Tomer-Yerushalmi, the deputy attorney general for international law, Dr. Gilad Noam, and above them all – the attorney general, Gali Baharav-Miara.

The silence of Israel’s three senior legal officials charged with ensuring that Israel’s military operations comply with the rules of international law is indefensible.

Baharav-Miara, Noam, and Tomer-Yerushalmi can no longer be considered passive bystanders turning a blind eye to Israel’s violations of international law in Gaza – they are active partners, who under certain circumstances may themselves bear responsibility for what is happening. They are de facto enabling Israel’s violations.

The role of government legal advisers is not to curry favor with the politicians in power, but to explain to them the legal boundaries of permissible actions.

The ethos that developed in the Justice Ministry – especially in the departments dealing with international law – has always been that legal opinions provided to the government should be clear, unequivocal and courageous, even if this provokes political displeasure.

That is sadly no longer the case. The Times of Israel has learned that the Justice Ministry is refraining from putting such positions in writing, and that harsh legal opinions – which could be deemed extreme – have been shelved and not passed upward. Instead, a permissive, willfully blind approach is being adopted.

First and foremost, this stems from Baharav-Miara’s standing vis-à-vis the government, which has culminated in the cabinet voting unanimously this week to oust her from her role as AG after more than two years of confrontations with her. In her view, the situation has apparently left her no room for maneuver to change Israel’s military policy in Gaza.

But the central reason is professional cowardice and an unwillingness to open another front of confrontation with the political leadership.

The Military Advocate General’s Corps has an international law department; the Justice Ministry has a department of legal counseling and legislation for international law. Opinions from both these bodies should have shaken – or at least significantly influenced – the IDF’s actions in Gaza.

Yet critical voices within these departments are silenced, and the result is that Israel is in grave violation of the laws of armed conflict, human rights law, and even international criminal law. In plain terms: Israel is committing serious war crimes, which at this stage of the fighting cannot be defended under the provisions of international law.

This is not only about the two proceedings currently underway in international courts in The Hague. South Africa’s case against Israel at the International Court of Justice (ICJ), which was first brought in front of the ICJ in January 2024, is in a sort of extended pause, with Israel required to submit its evidence only at the start of 2026.

At the International Criminal Court (ICC) in The Hague, Prosecutor Karim Khan’s office was successfully able to issue arrest warrants against Prime Minister Netanyahu and former Defense Minister Yoav Gallant. But Khan is now mired in his own troubles, while Israel wages a procedural trench war over the court’s jurisdiction over Israel and Israelis.

Israel’s position in The Hague is that any violations are investigated by the Israeli legal system, whether military or civilian. This is a micro-level approach, focusing on individual acts in the field – for example, the unlawful demolition of a single house in Gaza City.

But the massive violations of international law now at issue concern macro-level decisions – ones that place not only soldiers and officers in the field in real danger of arrest, but also government officials. The issuance of arrest warrants against Netanyahu and Gallant may be only the beginning.

Beyond the actions of international courts and Israel’s dispute with the ICC over its jurisdiction, several Western legal systems have universal jurisdiction. This means these countries can initiate criminal proceedings on their territory against Israelis for participation in or responsibility for war crimes, even if the victims have no connection to the enforcing country.

Some Israeli legal experts believe that, in addition to the known arrest warrants for Netanyahu and Gallant, there are already other warrants against Israeli officials that have been issued secretly – whether by the ICC or by countries waiting for these Israelis to set foot on their soil so they can arrest them.

At this stage of the Gaza war, when Israel cannot coherently define its war aims or even create the appearance of legitimacy for its actions, the silence of the military advocate general, the attorney general, and the deputy for international law is deafening. At the moment of truth, their voices fell silent.