Israel-Hamas War: What happened on day 95?

Nine IDF soldiers were killed in three incidents in Gaza on Monday, with eight soldiers wounded.

Six of the killed soldiers and most of the wounded came from an incident with explosive material near the partially underground and partially above-ground Hamas rocket manufacturing factory uncovered by the IDF at al-Bureij in central Gaza.

Israeli fire on a Gaza utility pole caused the blast inside a terror tunnel that led to the death of six IDF fighters on Tuesday, as per new details published on Tuesday evening by Israeli media.

A truck was bringing explosive material to soldiers operating near the partially underground and partially above-ground Hamas rocket manufacturing factory uncovered by the IDF at al-Bureij in central Gaza.

Israeli forces were going to use it to explode and destroy aspects of the Hamas manufacturing facility.

The incident, in which six soldiers were killed and a number wounded, occurred after an Israeli tank fired at what it identified as a suspicious terrorist target during operations across the Strip.

The tank fired two shells, one hitting its target and the other landing on the utility pole, causing an explosion around thirty minutes before planned and killing the soldiers.

There was another incident in Khan Yunis in which two soldiers died and a third incident elsewhere in which another soldier died.

The Prime Minister's Office announced Israel would temporarily halt the evacuation and demolition of Jewish West Bank outposts on Tuesday.

The office announced that "Netanyahu has instructed that as long as the war continues, the evacuation and demolition of the homes of soldiers and reservists of settlers in Judea and Samaria must be stopped."

According to the bureau, this is "to prevent a recurrence of events like what happened today in Gush Etzion."

The announcement comes against the background of the demolition of illegal buildings on Tuesday in outposts near the settlement of Pnei Kedem.

Former IDF international law division head Col. (res.) Daniel Reisner told the Jerusalem Post in an interview on Tuesday that it is unclear how the International Court of Justice will rule on genocide charges against Israel due to politicization against the Jewish state.

He noted that there are 15 judges who all receive joint approval from the UN Security Council and the UN General Assembly, but that there is also a quota system where each region: Western countries, eastern Europe, North Africa and the Middle East, Asia, Latin America, and others – get a set number of judges, who serve one set nine-year term.

“Some are among the best international legal scholars in the world. Some are not the best. There is inconsistency in the level of legal expertise of the ICJ judges, but generally speaking it is the most respected international forum in the world,” said Reisner, who currently is a partner at the huge Herzog, Fox & Neeman law firm.

He said that, “Because the judges are all political appointees, one from each country, they are all political appointees in the truest sense of word. As a result, regarding ICJ rulings historically, if there is a dispute in which the countries [from which the judges come from] don’t have a strong agenda, the court comes up with ultra professional and ultra exacting, high level, sophisticated rulings.”

“However, if the judges’ [home] countries have strong feelings, suddenly the judges come up with made-up legal rules,” he warned.

IDF troops on operation in al-Boreij, Gaza, January 8, 2024 (credit: IDF SPOKESPERSON'S UNIT)

One example, Reisner gave was the ICJ’s 2004 advisory ruling in which it declared Israel’s West Bank security barrier illegal.

“The majority of the court said that Israel doesn’t have the right to self-defense because there is no right of self-defense” for a party which is occupying another’s territory, he recalled.

Next, he said, “The general position of respectable international lawyers was this was at best a laughable legal statement, if not worse, but an ICJ ruling is not something you can laugh away.”

Reisner said there were three separate components to what the court is being asked to rule on.

“This week there will be oral discussions concerning the provisional measures requirements which South Africa requested, the most important of which is the cessation of Israel’s military activities,” he stated.

Moreover, “this discussion is without getting to the legal merits. There is no assumption that there is a genocide,” but rather only that South Africa must try to convince the court that if it does not order a cessation of military activities, that additional irreversible harm will be caused which are connected to the genocide allegations.

Decision set to take weeks

After Thursday and Friday’s hearings, he said “it will take a few weeks to issue the decision. Then we come to the second stage, which should take a few months, probably including Israeli preliminary arguments, usually about jurisdiction, where Israel will claim the court has no jurisdiction.”

Finally, the third part of the proceedings in which the court gets into the merits of both parties; claims would probably take 18 months to three years, he estimated based on past cases.

In deciding whether to order Israel to cease its military actions, he said, “there are lots of different considerations which judges could have in mind, in addition to the strict legal questions such as whether or not ordering a country fighting in self-defense to stop fighting makes any sense. That is a big question, assuming the judges understand the basis of self-defense.”

Unlike some cases where Israel has used an interpretation of international law which allows preemptive self-defense to prevent an “imminent armed attack” by an enemy force, in this case, Hamas’s October 7 invasion of Israel constituted an actual “armed attack,” which all parties agree would allow a counter-response in self-defense. The only debate could be how far the counter-response might go while still being considered “self-defense.”

In addition “to the complicated substantive discussion…there is also the political component. Last week, Russian Foreign Minister Sergei Lavrov said that Israel’s fight against Hamas is exactly the same as Russia’s fight against Ukraine. I have never heard any Russians make this analogy at this level.”

“There is an ongoing case in the ICJ filed by Ukraine against Russia saying Russia violated the Genocide Convention. That is exactly how politics could play a role in this proceeding,” noting other countries might also have perceived interests in how the ruling plays out fot them beyond the specific legal and factual arguments involved.

Reisner said he did not want to make a prediction about how the judges would rule because of the mix of politics with legal considerations.

IDF soldiers operate in the Gaza's Khan Yunis on January 9, 2024 (credit: IDF SPOKESPERSON'S UNIT)

Regarding the parallel International Criminal Court alleged war crimes probe, Reisner said there were two reasons why he was not sure what Chief Prosecutor Karim Khan would do.

“One is that when addressing these types of allegations, the ICC has two options. It can focus on the specific incidents with a high civilian casualty rate, and analyze level them to a granular level of detail,” he said.

The other approach is to take a bird’s eye view and look at the general level of destruction. For example, the Wall Street Journal has claimed that 300,000 out of 490,000 residences in Gaza have been destroyed by the IDF during the war.

Reisner was not presented with these or any specific statistics, but knowing of the general news reports , he said that the court could try to say “the evidence needed to justify the level of destruction is very high,” in terms of the IDF proving all acts were militarily necessary.

“From an international law perspective, the first approach is supposed to be taken in criminal cases because the rules of proportionality and distinction apply” in each individual attack, meaning he said, “there is no strategic rule, they are tactical rules.”

Despite that perspective, he acknowledged “it is very difficult to apply such a rule to individual cases when there are tens of thousands of individual attacks, so the prosecution has a challenge to decide what approach they take.”

“In that respect, the real question is will the prosecution focus on specific cases or” try to take a global view, adding “I don’t know and I’m not sure the prosecutor knows.”

He added, “Probably they will take a combination - which is what the ICTY [International Criminal Court for the Former Yugoslavia] did in several cases. They will look at the big picture to set the threshold, but dive into specific cases and try to apply that threshold.”

Confronted with incidents where the IDF killed large volumes of Palestinian civilians by mistake, Reisner said the bottom line was that the IDF “only targets buildings because there is some military advantage. The crime should only be applied if there is no military advantage or if it is significantly underwhelming as opposed to the potential damage to the civilian population.”

“Civilian deaths follow the same rule, but I assume the court will require a higher level military advantage,” he stated.

He said that the rule as he interprets it and as the US interprets it I - but recognizing that other international law experts interpret differently – is that the legal test looks at the timing of “when you carry out the attack, what was the anticipated military advantage.”

Further, he explained, “The legality of the attack is calculated based on the information available to the commander at the time of the attack. There is no retroactive assessment on the basis of the information afterwards.”

For example, Reisner said that if at the time of the attack, estimates were that five senior enemy combatants would be killed, along with four innocent civilians, that would be a lawful attack, even if unexpectedly the attack led to one hundred or two hundred dead civilians.

“The crime is launching the attack when you know you are doing disproportionate harm, it is not about, after the fact, what someone thinks you should have known,” he said.

Also, “If you can show a pattern of negligence of wilful disregard, then you have a bigger problem. I don’t think they will be able to show such a pattern because I don’t think it exists…The opposite is true. All of the commander instructed all of their forces to fully comply with the rules, including proportionality and distinction.”

“In wars, people make mistakes, no one has fully accurate information on the battlefield. To dive into specific incidents and say [foe example that for] attack 3,472 we don’t think it complied will the rule of proportionality. No one can do that. No one can comply 100% of the time,” he said.

Questioned about the government’s decision to prevent the transfer of water in the war’s early days, he said, “I don’t know what the considerations are on the legal side. It is a very strange situation. That the territory which attacked us is partially dependant on us for essentials is unprecedented. It’s also unprecedented” for Gaza to be reliant on Israel for essentials as the war has dragged on.

“Usually, international law discusses that you have to enable humanitarian supplies to come in - no one expects them to come from you,” but rather from a third party.

He said anyone analyzing current humanitarian issues, “needs to realize Israel’s level of responsibility is now different in different parts of Gaza. Parts of Gaza are now technically occupied by Israel. I don’t think Gaza was occupied at all by Israel on October 7, but significant parts of Gaza are now fully occupied.”

“That also brings with it ensuring the safety and basic requirements” of the reported couple hundred thousand Palestinians who are still there.

He called this a “new situation. This is no longer a question of enabling humanitarian aid to enter Hamas- controlled territory. This is to ensure Israel supplies [the aid] within Israeli controlled territory.”

“There are also areas where our control is being contested. That is a combat zone, like Khan Younis. It is unclear who is responsible for what there. There is a third zone: where Hamas is nominally in control. There, the focus is still on the general rule to enable humanitarian support to the civil population even in enemy-controlled areas under certain circumstances. The Gaza Strip is no longer a uniform area,” he concluded.

“In every war you have a military campaign, an international political campaign for public opinion and on the media and legal front. Usually the legal front lags behind the others…but lasts for much longer. This is the first war I remember where the actual fighting and legal campaign coincided because the war is going to be much longer,” than in the past.

He noted that besides the South Africa case, the UN General Assembly also previously asked the ICJ to decide whether Israel is illegally occupying the West Bank and Gaza, including requiring an immediate withdrawal.

Further, he said that Norway and other countries are also pursuing war crimes allegations against Israel in their national courts – “with nothing against Hamas of course.”

“We’re seeing the legal arena erupting on multiple fronts and I think it’s only going to get worse.”

The IDF has released footage of the 101st Battalion of the Paratrooper Brigade engaging in combat in Khan Yunis, Gaza, on Tuesday.

In the footage, The paratroopers can be seen fighting in the heart of Khan Yunis, eliminating terrorists in face-to-face combat and sniper fire, and locating many weapons, including guns, grenades, and ammunition.

A joint effort

During an offensive operation of the 101st Battalion Combat Team, terrorists opened fire from buildings in the area. The fighters coordinated airstrikes and tank cover-fire to eliminate the terrorists.

Once the fighting subsided, the soldiers carried out scans in the area in order to rule out the presence of additional terrorists.

During the clearing of one of the buildings, the soldiers of the 101st Battalion encountered terrorists barricaded in the building. The fighters immediately engaged and eliminated the remaining terrorists.

During the combat, a dog from the Oketz K-9 unit was killed, and seven soldiers suffered various degrees of injury.

After a merciful pause of a few days, it started again on Tuesday morning: the heartbreaking recitation of the names “cleared for publication” of IDF soldiers killed in action the day before.

Sgt.-Maj. (res.) Gavriel Bloom, 27, of Beit Shemesh; Sgt.-Maj. (res.) David Schwartz, 27, of Elazar; Sgt. Roi Tal, 19, of Kfar Yehoshua; Sgt.-Maj. (res.) Yakir Hexter, 26, of Jerusalem.

For a few blessed mornings in early January, the country did not wake up to the crushing news of more fallen soldiers in Gaza.

After over two months of the daily fear of turning on the morning news and hearing of more bereaved families, there was a temporary respite – as if the sun was just barely peeking out from behind very dark clouds. And then, on Tuesday, the dark clouds blocked out the sun once more, and the grim morning recitation of the names reappeared with the report of four killed and six critically wounded in three different incidents in Gaza.

Publishing the names of more fallen soldiers only creates more pain

The pain of the return of that awful wartime ritual was made worse when, a few hours later, the IDF released for publication the names of five more soldiers who were killed in the same incidents. All told, nine soldiers were killed in one horrible day, a devastating toll.

As if that were not enough to batter the country, The Daily Mail, a British tabloid, published photos of four Israeli teenaged girls in Hamas captivity. The paper published “before and after” photos of smiling, hopeful young women and their bloody, beaten faces taken from a Hamas propaganda video filmed a few hours after they were kidnapped on October 7. The pictures ran alongside an interview with the girls’ families – Liri Albag, 18, Karina Ariev, 19, Daniella Gilboa, 19, and Agam Berger, 19 – under a headline that read, “Don’t forget them! Faces of girls STILL held by Hamas.”

A RALLY is held, Saturday night in Tel Aviv, for the release of Israelis held hostage in Gaza. (credit: MIRIAM ALSTER/FLASH90)

And in between the publication of the photos and the cleared-for-publication recitation of the names of additional IDF fallen, more rockets and missiles were fired indiscriminately from Gaza toward Israel with the intent to murder and maim.

That is Israel’s current reality: waging a war, with frightful losses, against a cruel terrorist organization holding 136 Israelis hostage, trying to kill as many civilians as possible.

And here’s the kicker: on Thursday, it is Israel that will be dragged to the International Court of Justice (ICJ) in The Hague, accused of committing genocide.

That’s right: It will be Israel on the defense, and not Hamas, a brutal terrorist organization that has the destruction of Israel as the cardinal tenet of its founding charter and which started the war by attacking the Jewish State and going on an orgy of murder, rape, arson, and mutilation that led to 1,200 people killed, some 240 taken hostage, and entire communities destroyed.

And therein lies the dissonance between what Israelis are feeling and the perspective from the outside. Israelis, traumatized and embattled, feel that they are fighting a quintessential war of no choice, one of – if not the most – just and justifiable wars the country has ever fought. The pictures in The Daily Mail were a small reminder of that.

Yet, part of the world – as evidenced by South Africa’s case against Israel, as witnessed by disruptive pro-Hamas protests in major US cities – sees the victims of Hamas’s aggressions as the aggressors. It’s as if part of the world’s moral compass has gone haywire, as if we live in parallel universes.

This dissonance would, indeed, be unbearable were it not for the sense of justice that most Israelis feel in their country waging this war and the way it is waging this war – regardless of what judges from those beacons-of-light countries such as Russia, China, Somalia, Lebanon, Morocco, South African, and Uganda – all among the 15-judge ICJ panel – may determine at The Hague.

Britain's foreign minister David Cameron said on Tuesday he was worried that Israel might have breached international law in Gaza, and that the advice he had received so far was that Israel was compliant but there were questions to answer.

Asked during a question-and-answer session with lawmakers if Israel could be vulnerable to a challenge at the International Criminal Court (ICC) in the Hague over whether their actions were proportionate, Cameron said the stance was "close to that."

Britain has backed Israel's right to defend itself against Hamas attacks but also called on its military to show restraint and act within international law in its offensive in Gaza that has laid waste to much of the Palestinian enclave.

Cameron did not directly answer lawmakers about whether he had received legal advice that Israel might have broken international law, but said some incidents had raised questions over whether there had been breaches.

"Am I worried that Israel has taken action that might be in breach of international law, because this particular premises has been bombed, or whatever? Yes, of course," Cameron said as he took questions from parliament's foreign affairs committee.

Cameron said that there was always a "question mark" over whether a given incident broke international law, which lawyers would examine and then advise him over.

"The advice has been so far, that they (Israel) have the commitment, the capability and the compliance (with international law), but on lots of occasions that is under question."

Amid growing international concern over the huge Palestinian death toll from the Israeli assault, as well as a deepening humanitarian crisis, US Secretary of State Antony Blinken on Tuesday urged Israeli leaders to do more to avoid further harm to non-combatants and to protect civilian infrastructure.

IDF fighter Sgt.-Maj. (res.) Elkana Newlander fell in battle in the Gaza Strip, the Efrat regional council announced on Sunday evening.

This is a developing story.

Israel will allow a UN delegation to enter the northern Gaza Strip to assess the state of the infrastructure and examine the needs on the ground for the return of Palestinian residents to the area, senior Israeli and American officials said on Tuesday.

The issue was addressed during the meeting between US Secretary of State Anthony Blinken, Prime Minister Netanyahu, and the members of the war cabinet.

The Israeli side clarified that it will not be possible for Palestinians to return to the north of the Strip at this stage, both due to the situation on the ground and the lack of development in the hostage situation.

Israeli Air Force aircraft attacked several military infrastructures of the terrorist organization Hezbollah in the area of the village of Kila in southern Lebanon, the IDF announced on Tuesday evening.

In addition, an Air Force fighter jet attacked terror infrastructure belonging to the organization near the village of Yaron in southern Lebanon.

IDF artillery has also fired at various areas in southern Lebanon.

11 of the security prisoners who were released in the kidnapping deal returned to their respective university studies on Tuesday morning, Israeli media reported.

The decision was made in accordance with the decision of the Education Ministry. 

In the last month, the students went through preparatory workshops for returning to school, as well as individual and group therapy sessions by social workers and educational consultants.