Case Explained:This article breaks down the legal background, charges, and implications of Case Explained: Why Israel abandoned defense against war-crime charges – Legal Perspective
If you want to be on Israel’s side and debunk or respond to individual alleged war crimes claims by critics about specific attacks the IDF undertook during the war, with a few exceptions, Israel has left you hanging.
Sure, Israel has made its broad generic case: Hamas committed mass atrocities on October 7, 2023; Hezbollah proactively joined the next day; Hamas systematically used human shields; and around 25,000 or more of the Gazans killed were Hamas fighters or were killed by Hamas.
But that does not help to respond to claims about specific attacks when CNN, BBC, The New York Times, and others provide detailed analysis of a particular attack they say killed dozens or more civilians.
Has Israel abandoned the legal playing field?
So, nearly 27 months after Israel started to counterattack, two years after Israeli legal sources told The Jerusalem Post that IDF legal officers first started to try to secretly fast-track certain cases for publication to the world, 19 months after Israel announced it had opened over 70 criminal probes of its own soldiers, 16 months after the IDF’s last public update on its probes, one year after Israeli legal sources told the Post that a major update was only weeks away, and three months after the war ended, why has Israel left the legal playing field primarily to its critics?
While the record is problematic, it should be noted that Israel is far from having abandoned the playing field entirely.
Already in December 2023-January 2024, Israeli legal officials successfully held back a move to try to get the International Court of Justice to order an end to the war.
Since May 2024, Israeli legal officials have been fighting International Criminal Court arrest warrants for Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant.
Both fights have entailed intensive legal campaigns, including dozens or even hundreds of Israeli lawyers working on a wide variety of issues to sometimes attempt to go on the legal attack and sometimes provide legal defenses.
Israeli legal officials managed to get the ICJ to delay its substantive evidence-gathering round multiple times, including from July 2025 to January 12, 2026, and relatively recently to grant another delay until March 12, 2026.
They also filed several motions to try to cancel the arrest warrants against Netanyahu and Gallant before the ICC, with at least one partial victory in April 2025, when the ICC Appeals Chamber told the ICC lower court it had to more carefully review some of Israel’s jurisdiction arguments before rejecting its broader requests.
Even in multiple decisions where Israel has lost, it managed split decisions, with some ICC judges writing dissenting opinions in support of Jerusalem’s position.
And yet, after all of that, Israel has kept classified much of the details it is giving the ICJ in order to defend itself.
Even more, the Post understands that when Israel files its enormous upcoming brief in March 2026 to defend itself from a wide range of alleged war crimes charges, that response will also likely remain secret for at least another year.
Incidentally, the ICJ is where Israel has the best chance, compared to the ICC.
That is because the charge against Israel in the ICJ, the genocide charge, is even more preposterous than the more generic war crimes charges before the ICC, and the burden of proof is much heavier.
ICC Prosecutor Karim Khan decided not to go after Israel, Netanyahu, and Gallant for the corresponding ICC crime of genocide, making narrower claims.
Though the ICC could theoretically indict and convict an Israeli official for a specific war crime from a specific attack, even if most other attacks were legal, the ICJ cannot rule against Israel regarding a genocide charge unless there is proof of deliberate and systematic killing across the board.
Even Israel’s worst critics, doing their best to mischaracterize facts, have not been able to assemble any proof resembling that.
Rather, those who accuse Israel of genocide use it more as a tag word for their objection to the general total of Palestinians who have been killed, without analyzing most of the circumstances of their deaths.
In that sense, the Post has learned that Israeli officials are far more optimistic about winning before the ICJ than at the ICC.
On the other hand, the Post understands that Israeli officials are concerned by a parallel ICJ case of Gambia against Myanmar, where Gambia is trying to lower the burden of proof for proving genocide.
Some Israeli officials worry that such a lowered burden of proof could be turned against Israel. Along with the false starvation charges, which Israel was labeled with by much of the world in August 2025, the ICJ could then conceivably rule against Israel on genocide.
The hope is that the ICJ will stick to decades of legal precedent from the 1990s, awful wars in the former Yugoslavian states, which maintained the traditional high standard for a genocide ruling. Or that the ICJ will note a recent UN report which corrected the earlier August 2025 report, recognizing that mass starvation did not in fact occur, despite repeated warnings.
Why Israel is set to keep its ICJ defenses secret
In any event, why would Israel keep its defenses secret? Why has Israel not issued updates since August 2024 on its more than 100 criminal probes against its own soldiers, as well as likely thousands of disciplinary probes?
In contrast, after the 2014 Gaza conflict, Israel was issuing updates every few months and would eventually issue five major updates.
The reasons are numerous and have also evolved over time.
From the start of the war until May 2024, the primary reason was that the legal system was just overwhelmed. There were simply too many case files and too few lawyers.
The war started with Hamas’s surprise invasion, and it took several months for Israel to bring in enough qualified lawyers to start catching up with the huge number of alleged war crimes violations.
As such, Israeli officials have told the Post that their record of publicizing updates on war crimes charges from much shorter previous conflicts is completely irrelevant to this infinitely larger war.
However, the Post learned that a process had started already in early 2024 to try to streamline certain cases ahead of others in order to publicize information about them, including potentially filing cases.
There were also attempts during this time period by multiple current and former Israeli lawyers to convince Netanyahu to initiate a narrowly focused state inquiry into the legality of the security cabinet’s war-making decisions.
This would not be the broader state inquiry into the failures of October 7. Instead, it would be a razor-focused inquiry into legal issues in the model of a similar inquiry following the 2009 Gaza conflict, known as the Turkel Commission. This would be to try to head-off attempts to prosecute Israeli political officials.
Conceptually, the idea would be that while the IDF was probing its soldiers, no one had been probing political officials’ war-decisions. The ICC cannot probe or issue arrest warrants for individuals who are being probed by their own country.
If Netanyahu had listened to his legal advisers, there might never have been ICC arrest warrants, or they might have been delayed by years, but he vetoed the idea.
Then, the decision to publicize that there were already over 70 criminal probes against IDF soldiers came within days of the ICC Prosecution’s May 2024 announcement that it would seek arrest warrants against Netanyahu and Gallant.
By June, after months of criticism from CNN, the New York Times and human rights groups, the Israeli Supreme Court and the IDF legal division were paying far more attention to controversial allegations of mistreatment of detainees at the Sdei Teiman IDF detention facility for Gazans.
This led to a relatively quick probe of allegations in both the “small” and “large” Sdei Teiman cases.
Going along with the same spirit of greater disclosure, in August 2024, the IDF issued a major update regarding how many criminal probes and disciplinary probes it had opened.
However, in a sign that Israeli legal officials were terrified of domestic Israeli political reaction, they posted the update with zero fanfare, to the extent that most of the media missed the publication entirely.
This also negated any boost the IDF and Israel could have received worldwide by showing transparency. No one gives you credit for being transparent if no one notices that you have publicized anything. This dynamic of concern about Israeli domestic criticism for openness about prosecuting Israeli soldiers would hamper efforts throughout the war for Israel to show the world how seriously it was taking that duty.
In the “small” Sdei Teiman abuse case, a soldier admitted to his actions and cut a plea deal regarding repeatedly punching detainees and hitting them with his weapons, while they were bound and blindfolded.
On June 5, 2024, alone, he beat two different detainees 15 times.
The military further noted that the defendant beat the Palestinian detainees despite other soldiers nearby calling on him to stop. In fact, the soldier even recorded some of his beatings of Palestinian detainees on his cellphone.
In July, an investigation was opened into the soldier for abuse of Palestinian detainees in the Sde Teiman facility.
He was convicted and sentenced in February 2025 to seven months in prison.
Only a few media outlets, including the Post, reported on the case, which again was given very little boost toward the media.
The “large” Sdei Teiman abuse case was different.
It involved 10 soldiers initially, eventually vetted down to five soldier defendants, at least one of whom was charged with sexual assault dating back to July 2024.
In that case, masses of right-wing activists, including some Knesset members, broke into an IDF facility to interfere with the arrests of the soldiers accused of abusing Palestinian detainees.
That event made the case one of the most widely covered legal events of the year in Israel and drew global media attention.
Pre-indictment hearings were held in the “large” case in November 2024, and sources told the Post at the time that final decisions about whether to indict and on what charges might be issued by then IDF military advocate general Maj. Gen. Yifat Tomer Yerushalmi in late 2024.
Sources denied there were delays in deciding that case due to fears of political fallout from the right-wing coalition government. Yet, seeming to contradict those claims, ultimately the indictment was only issued in February 2025 – just as the small Sdei Teiman case was concluding.
If politics were playing no role, the cases were certainly moving at radically different speeds. The fact that one case ended in a plea deal did not seem to account for the disparity fully.
Further, the large Sdei Teiman case has basically remained frozen ever since. It turned out this was at least partially because Tomer Yerushalmi and other prosecutors involved in the case illegally leaked a video of the defendants allegedly beating a Palestinian detainee, and they were trying to cover-up their transgression.
In any event, there were, at this point, at least three pressures slowing down publicizing more details about probes into alleged war crimes.
First, the IDF legal division was newly overwhelmed with additional cases when the war kicked back into high gear with the invasion of Rafah in May 2024, the re-invasions of northern Gaza in fall 2024, an invasion of Lebanon in fall 2024, and major military exchanges with Iran in October 2024.
Second, the ICJ and ICC proceedings spooked many Israeli officials into worrying that any details they used would be misused and mischaracterized by international legal officials to be turned against Israel. And third, the Israeli domestic political situation, which was always fraught with skepticism of proceedings against Israeli soldiers, became far more aggressive against then-military advocate-general Yifat Tomer-Yerushalmi and any IDF prosecutions following the Sde Teiman prosecutions.
Previously, some Israeli legal officials had claimed that the main source of delaying announcing at least some high-profile case decisions was simply that the war kept reigniting before they had sufficient time to catch up with all of the prior cases they were behind on.
However, in November 2025, the Post learned from an Israeli official that at least one large case had been quietly closed without any publicity because the reigning assumption among Israeli officials was that given that there was no indictment, international officials would not respect the decision and would misuse it against Israel.
The assumption was that there were probably some other cases that had also been quietly closed for the same reason.
This meant that even if the immense size of the war and the tremendous number of files had delayed publicizing results in various cases for part of the war, at some later stage, the fear of misuse by the ICJ and ICC became the more dominant reason for delaying publication.
Karim Khan’s sexual assault allegations come into play
Another reason for potential delay came up in October 2024 when ICC Prosecutor Karim Khan voluntarily suspended himself indefinitely due to sexual assault allegations filed against him by one of his employees.
It seems some Israeli officials at that point thought maybe the case would fall apart without Khan.
But his deputies quickly replaced him and have kept the probes and arrest warrants against Netanyahu and Gallant on track. It should be noted that it is not even clear how hard Israeli legal officials have pressed Israeli political officials to be more transparent on this issue.
Then, in January 2025, the Post revealed that there was a move to issue a major update regarding war crimes probes within weeks.
Over the next several months, the Post was told repeatedly by IDF legal officials that the major update was still just around the corner and that there was no plan for a more substantial delay.
This readiness to publish an update continued despite the fact that US President Donald Trump had taken office and quickly started sanctioning the ICC. Sanctioning the court could have led to an Israeli decision to hold off sharing more updates based on the hope that the diplomatic pressure campaign would get The Hague to back down entirely, but it did not.
However, in the ongoing zigzag of Israeli officials’ views on the issue, the readiness to publish an update may have paused in March 2025 when Eyal Zamir took over from Herzi Halevi as the IDF’s chief of staff.
The IDF legal division may not have wanted to issue a major, controversial update about war crimes probes just as Zamir took office.
Shortly after he took the reins, he ordered a new invasion of Gaza and started planning to attack Iran, which would take place in June 2025.
Further, in April 2025, Israel obtained a temporary delay when the ICC Appeals Court ruled that the ICC lower court needed to more carefully review Israel’s jurisdictional objections to the ICC’s involvement.
But all of that was more than six months; the war ended nearly three months ago, and Israel has lost multiple ICC motions and an appeal in recent months.
So why hasn’t the Israeli legal establishment rushed out its case to try to turn the tide?
It seems that Israeli officials (it is currently unclear how much disagreement there is between the political echelon and the legal echelon) regard the ICC and ICJ threat as larger than the potential gain of public transparency.
Some Israeli officials note that when Israel was more transparent after the 2009 and 2014 conflicts, Israel only faced preliminary international reviews, and now it faces a full criminal probe and arrest warrants.
If they believe much of the world is already (wrongly) set on viewing Israel as having committed genocide, then they may see little benefit to greater transparency until the ICC and ICJ proceedings have concluded.
This is certainly the tone of many recent Foreign Ministry statements lecturing Western Europe, Canada, and Japan about their various positions on Israel.
Strangely, Jerusalem also keeps harping on the idea of tossing the case because Khan may have tried to use announcing the arrest warrants to distract people from the sexual assault probe against him.
While the allegations against Khan may all be true, he has been off the case now for 15 months, and an ICC lower court has endorsed the warrants. Since he is no longer a factor, continuing to raise allegations against Khan just makes Israel look desperate.
Also, the concerns about the ICC and ICJ mischaracterizing Israeli evidence may be poor reasons to hold back the country’s specific defenses.
Israel’s battle for hearts and minds in US and Europe
In fact, the most important battle over these issues for the next decade is likely the new battle for hearts and minds in both the Democratic and Republican parties in the US and among fair-minded Western Europeans.
True, winning them over will require a lot more than just dry data on controversial cases. But at a minimum, it will require a transparent reckoning so that fair-minded persons at least have a full Israeli narrative to potentially rest their support on.
One would think that, if not at a much earlier point, immediately after having ended the war would have been an ideal time period to “come clean” and grab the open-minded public’s attention by presenting Israel’s narrative.
Do Israeli officials really think that much of the public will pay attention to Israel’s narrative if it only starts to come out around March 2027? (one year after the upcoming major submission to the ICJ)
Further, in the minority of cases where Israel or individual Israeli soldiers may have broken the rules, a reckoning will help ensure avoiding such actions in the future.
As long as Israeli officials are so afraid of either domestic or international criticism that they do not even “show up on the field” with a fully detailed narrative, they leave setting the narrative to critics.
There is, of course, one last twist.
On October 31, Tomer-Yerushalmi shocked the world when she resigned, as she admitted to illegally leaking the video of the defendants in the Sde Teiman case allegedly beating a Palestinian detainee.
Her resignation no doubt froze many legal processes within the IDF and for Israel more generally regarding combating war crimes charges.
But her replacement, Itay Offir, was sworn into office on November 27, less than a month later.
Unlike Tomer-Yerushalmi, who was respected in the legal community but did not have the backing of the political echelon, the Post understands that Offir, at least for now, has strong backing from the political echelon.
Really, Israel could have put out updates before Tomer-Yerushalmi’s sudden October resignation. For example, the Post has heard from officials that all the details are known about a mistaken IDF strike on Reuters’ reporters in Lebanon in 2023 and that all the details are known about combatants versus civilians in the attack on Hamas military chief Mohammed Deif in July 2024, and for a handful of other cases.
But even after her resignation, with the end of the war and so much constant coverage framing Israel as having committed genocide, it is long past time for the Jewish state to show up on the legal playing field.