Droptping sexual abuse and rape charges against Israeli soldiers proves that the Israeli legal system will never hold Israelis to account for their war crimes against Palestinians.
Peter Oborne’s new book, Complicit: Britain’s Role in the Destruction of Gaza, was recently published by Or Books.
Irfan Chowdhury is a freelance writer and PhD student at the University of Brighton.
Cross-posted from Middle East Eye
Last week, Israel suddenly dropped charges against five soldiers accused of the sexual abuse and rape of a male Palestinian prisoner.
This development was grotesque – all the more so, since there is no shortage of evidence.
The soldiers were filmed as the atrocity was allegedly committed. As for the victim, the Israeli newspaper Haaretz has cited medical records showing that his injuries included a ruptured bowel, a severe injury to his anus, lung damage and broken ribs.
In this article, however, we will not dwell on the moral squalor of the decision by Military Advocate General Itai Ofir to abandon the case. We will examine instead the consequences for Israel’s ongoing defence against genocide charges at the Hague.
At the heart of the Israeli position is the claim that the country already boasts a robust and non-partisan legal system, and that there is thus no need for a body such as the International Court of Justice (ICJ) to interfere in its domestic affairs.
British lawyer Malcolm Shaw set out this argument with admirable clarity when he defended Israel against South Africa’s charges of genocide at the Hague in January 2024.
He told the ICJ: “Were it the case – which we deny – that Israeli forces have transgressed some of the rules of conflict, then the matter would be tackled at the appropriate time by Israel’s robust and independent legal system.”
The implications of this statement from one of Britain’s most eminent lawyers are straightforward. If Israel possesses a “robust and independent” judicial framework, then there is no need for South Africa to ask the ICJ to uphold international lawand redress the injustice of Israel’s persecution of the Palestinian people; Israel can be trusted to take matters into its own hands.
If the claim is false, on the other hand, then such an international intervention is required as a matter of urgency.
‘Heroic warriors’
Yet even at the time it was made, Shaw’s claim about the independence of Israeli justice was open to question.
The internationally respected Israeli human rights group B’Tselem had already found that Israel possesses nothing more than a “semblance of law enforcement”, and that “those responsible for harming Palestinians go unpunished, and the victims receive no compensation for the harm they suffer”.
And consider this: 10 years ago, B’Tselem announced that it would cease filing complaints with Israel’s military law enforcement arm, since “there is no longer any point in pursuing justice and defending human rights by working with a system whose real function is measured by its ability to continue to successfully cover up unlawful acts and protect perpetrators”.
Perhaps Shaw was assuming that Israeli justice would regain its equilibrium during the war on Gaza. If so, he has reason to feel betrayed.
It is not as if Ofir has made a rogue judgment. On the contrary, his depraved adjudication was instantly welcomed by Prime Minister Benjamin Netanyahu, who denounced the prosecution as a “blood libel” before hailing the accused as “heroic warriors”.
Israel Katz, Israel’s defence minister, went further. He welcomed the decision; metthe accused, took a picture with them, and apologised for how the system had treated them; and directed the Israeli army to take immediate action to return them to active service.
It is inconceivable that any impartial judicial apparatus would reprieve soldiers charged with such abominable crimes.
As Sari Bashi, executive director of the Public Committee Against Torture in Israel, stated: “Israel’s military advocate general just gave his soldiers license to rape – so long as the victim is Palestinian.”
Ofir’s decision cannot be reconciled with Israel’s boast at the Hague that it possesses a “robust and independent” legal system. It also makes nonsense of Israel’s concluding argument to the ICJ that it has a “long-standing commitment to law and morality” – and it shatters Israel’s claim to “fully respect” the “rules and principles of international humanitarian law”.
Arguments collapsed
Israel and its supporters, among them Britain and the US, have repeatedly rejected the argument made by the majority of human rights experts and scholars that Israel is committing a genocide in Gaza. Yet the fact remains that almost all of its arguments made in its defence in January 2024 have collapsed.
Firstly, there are the casualty figures. At the Hague, Israel trashed the numbersproduced by the Gaza health ministry as “unverified statistics provided by Hamas itself – hardly a reliable source”.
But the Israeli army itself has since accepted that these figures are pretty accurate, while a peer-reviewed study published in the Lancet Global Health medical journal has found that they might be a significant undercount of the true overall death toll.
Secondly, there is Israel’s claim of Hamas weaponising hospitals. At the Hague, Israel asserted that there is “overwhelming evidence of Hamas’ military use of … hospitals” in Gaza.
Unfortunately for Israel, very little serious evidence has emerged to support this claim. In December 2024, the UN Office of the High Commissioner for Human Rights found that “insufficient information has so far been made publicly available to substantiate these allegations, which have remained vague and broad, and in some cases appear contradicted by publicly available information”.
Thirdly, there’s the issue of humanitarian aid. At the Hague, Israel asserted that it “has publicly stated repeatedly that there is no limit on the amount of food, water, shelter or medical supplies that can be brought into Gaza”.
Yet Human Rights Watch, Amnesty International and B’Tselem have all confirmed that Israel has used starvation as a weapon of war in Gaza. A year ago, amid a previous “ceasefire”, Netanyahu’s office announced that all goods and supplies to Gaza would be blocked, leading the UN in August to officially declare a famine.
Finally, Israel denied genocidal intent, telling the court in January 2024 of its “consistent and relentless commitment” to “mitigate civilian harm and alleviate civilian suffering in Gaza”.
By then, however, this claim had already been undermined by former Defence Minister Yoav Gallant’s statement that: “We are imposing a complete siege on [Gaza]. No electricity, no food, no water, no fuel – everything is closed. We are fighting human animals and we must act accordingly.”
Genocidal rhetoric
Colonel Yogev Bar-Shesht, then the deputy head of Israel’s Civil Administration, drove home this message in an interview from inside Gaza in November 2023: “Whoever returns here, if they return here after, will find scorched earth. No houses, no agriculture, no nothing. They have no future.”
Israeli leaders have since continued to deploy such genocidal rhetoric, with Katz stating last December: “We are deep inside Gaza, and we will never leave Gaza … When the time comes, God willing, we will establish in northern Gaza, Nahal [military] outposts in place of the communities that were uprooted.”
After coming under criticism by former army chief Gadi Eisenkot for the timing of this statement, Katz later attempted to backtrack.
Now, after charges in the Palestinian prisoner case were dropped last week, Katz has actually stated outright that the purpose of Israel’s legal system is to shield soldiers.
“Justice has been done,” he noted in a statement on social media, in which he welcomed Ofir’s decision to cancel the indictment against the accused. “This trial was born in sin by the previous military advocate general, using a blood libel against IDF [Israeli army] soldiers and criminal investigation methods, and I am glad that justice has been done and the trial has been cancelled.”
Katz added: “The role of the IDF’s legal system is to protect and safeguard IDF soldiers who engage heroically in war against cruel monsters, and not the rights of the terrorists of Hamas. I am convinced that the decision will lead to a new path.”
Whether or not he realised it, Katz was thus driving a coach and horses through Shaw’s claim at the Hague that any abuse would be dealt with by Israel’s “robust and independent legal system”.
A final verdict from the ICJ is not expected until next year at the earliest. It would be foolish to second-guess the decision of the court, but it is possible to state with confidence that the defence against genocide charges put up by Israel’s lawyers at the ICJ in January 2024 has disintegrated.
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