It was December 2023, and Israel was facing the most important legal warfare (lawfare) battle of its existence: whether the International Court of Justice would order the Jewish state to end the war before the IDF had defeated Hamas in Khan Yunis, let alone move on to Rafah.
To say that the dozens of Israeli diplomats, legal officials, and political officials involved in preparing for fighting the genocide allegations against Israel before the ICJ did not have a simple job would be the understatement of the year.
Although all Israelis had a traumatic three months at the opening of the war, The Jerusalem Post understands that these officials, with one of the leaders being Deputy Attorney-General for International Affairs Dr. Gilad Noam, experienced a special level of difficulty given their responsibility to protect the country from genocide recriminations.
Probably the most important “win” of Noam’s career to date was convincing the ICJ in December 2023-January 2024 to stay out of the Israel-Hamas War in any imminent sense.
Yes, the court harshly lectured Israel, and yes, it seemed to participate in a dialogue of absurd relativism and hypocrisy by putting Israel on trial at all for defending itself after Hamas’s October 7, 2023 massacre.
But the bottom line was that the ICJ did not issue an operative court order demanding that Israel cease the war.
Whether Jerusalem would have abided by such an order or not had it been put into such a position, it would have at the minimum significantly reduced how hard Israel might have fought.
This means that by keeping the ICJ at bay – so that all it did was make declarative statements that Israel should not commit war crimes, with no concrete limits – Noam, his Justice Ministry team, and related lawyers in the IDF and the Foreign Ministry helped to accomplish no less than free Israel up to keep fighting the war as it thought necessary.
Gilad Noam's history
In June 2022, a government committee appointed Noam to a six-year term as the next powerful Deputy Attorney-General for International Affairs, with responsibility for handling the ICJ, the International Criminal Court, other foreign-court war crimes controversies, and a variety of other international legal issues.
The 50-year-old lawyer has served in the Justice Ministry’s International Law Division since 2012 and was most directly involved in informal contacts with the ICC over war crimes issues before he took over the department from his predecessor, Dr. Roy Schondorf, who founded the department following the 2009 Goldstone war crimes report regarding the First Gaza War (Operation Cast Lead), which had been fought for three weeks from the end of 2008 through the middle of January 2009.
To obtain the post, he had to beat out two other top candidates, both of whom had led the IDF’s prestigious international law department and reached the high rank of colonel.
Previously, Noam had worked in IDF intelligence unit 8200, with then-justice minister Gideon Sa’ar saying that his experience defending Israel’s legitimacy was a huge advantage.
Win or loss versus ICC?
Unfortunately, saving Israel before the ICJ was probably the high point for Noam.
The rest of Israel’s record in the lawfare battles during his term is very complicated.
One could blame Noam and his team for being Israel’s top litigators versus the ICC who failed to prevent its prosecutor and then its lower court, known as the Pretrial Chamber, from issuing arrest warrants against Prime Minister Benjamin Netanyahu and then-defense minister Yoav Gallant.
This was a major new legal low for Israel, which stigmatized its government, military, and legal system as being one that orders and allows war crimes (however unfair that stigma might be.)
It was a far greater blow than even earlier blows in which the prosecutor in 2019 and the lower court in 2021 decided that Palestine was a state for ICC purposes and that a full war crimes probe should be opened against Israel.
Those were procedural and preliminary losses, whereas an arrest warrant means that Netanyahu and Gallant potentially cannot travel in around 125 countries that are parties to of the ICC without being arrested (though some of the court’s member states have said they would not arrest Netanyahu.)
And yet, from a nuanced lawyer’s perspective who understands how much worse Israel’s situation could have been, even here Noam achieved some “victories” of sorts.
GOING BACK in time, Noam kept ICC Prosecutor Karim Khan from going after Israel from June 2022–October 2023 when the war started. Schondorf, Noam’s predecessor, had kept Khan from going after Israel from June 2021 to June 2022 as well.
Next, Khan was already repeatedly threatening Israel with war crimes in late October 2023, not long after the October 7 massacre, including trying to gain access to Gaza.
From October 2023–May 10, 2024, the Hamas Health Ministry said that the IDF had killed around 35,000 Palestinians, without distinguishing between fighters and civilians.
During that same period, the IDF killed between 10,000-14,000 Hamas force members.
Besides those Hamas terrorists, some of the Palestinians killed came from “friendly fire” – a 12% Hamas rocket misfire rate striking other Gazans, and some of those categorized as civilians were likely 16- and 17-year-old minors who were involved in fighting.
But even after subtracting those numbers from 35,000 and even if that number was somewhat exaggerated, the IDF had likely killed at least 20,000 Palestinian civilians by early May, if not more.
Arguing that Hamas was responsible for using its population as one giant human shield, that the IDF spent vast resources to evacuate Palestinian civilians from war zones, and making numerous other arguments, Noam succeeded in keeping Khan from issuing arrest warrants for seven months of war, in which large numbers of Palestinian civilians were killed.
This period in which Noam held Khan off also included the completion of the full battles of northern Gaza and Khan Yunis.
Arrest warrants after the Rafah invasion
Noam and his team only lost the fight to stop Khan from issuing war crimes arrest warrants after all of the prior killings of Palestinians and after the Rafah invasion had been running for two full weeks.
Also, that loss was actually nowhere near the worst case scenario that could have happened at that point.
Khan could have gone after not “only” Netanyahu and Gallant, but also the entire IDF.
In fact, a number of countries, including Brazil, have been more aggressive, allowing their local law enforcement to try to arrest low ranking Israeli soldiers for alleged war crimes from serving in Gaza.
This is a whole separate front which Noam and his team only started to have to defend against more aggressively in recent months.
They have a network of local law firms representing Israelis across the planet and regularly coach them about the smarter way to travel overseas, including keeping a low profile, especially on social media.
Convincing PM, cabinet to show up to fight ICC arrests
The Post understands that a major policy shift which Noam, along with others, had a leading role to bring about was to convince the political level to officially intervene and file legal briefs in two separate rounds before the ICC.
One round was against the court’s prosecutor trying to get the lower court to approve arrests against Netanyahu and Gallant. A second round was to appeal to the ICC Appeals Court over the lower court’s eventual decision in favor of the prosecutor.
This was not simple convincing, especially since Noam himself is no naïve ideologue, but absolutely a realist about the bias that Israel can expect to be up against in some of these international forums.
Then again, maybe it is the fact that Noam is a pragmatist that helped him and others convince the political level, led by Netanyahu, that it was worth investing some time in joining the ICC legal proceedings and directly defending against the specific arrest warrants.
Netanyahu, like most in the political level, is on the extreme end of skepticism regarding the merit of engaging with international forums that have shown a long history of anti-Israel bias.
He has often publicly asked why give such bodies even the half-legitimacy they might gain when Israel decides to show up and treat them as if they are a potentially fair and unbiased court.
Israel has mostly boycotted the UN Human Rights Council for years and had only spoken to ICC officials on an informal basis, never formally joining any of the court’s proceedings.
Also, some would argue that by showing up to fight about jurisdictional issues, Jerusalem has essentially said it recognizes the ICC’s jurisdiction de facto. This could be true even if, as a technical matter, Israel still says it has not recognized ICC jurisdiction and is just showing up to try to convince the court of the error of its ways.
ISRAEL MAINTAINS the ICC lacks jurisdiction because it says the UN Security Council has not recognized “Palestine” as a state, due to provisions of the Oslo Accords, along with other arguments.
And yet, Noam and other lawyers, the Post has learned, convinced them that even if there might only be a remote chance of convincing its lower court to drop its prosecutor’s arrest warrant request, this was worth the risk.
Likewise, Noam and the legal establishment convinced Netanyahu and the political level that the same low probability of winning was still worth trying to appeal for the ICC’s highest judicial body to overturn its lower court.
In fact, the ICC Appeals Court has overturned the lower court for being too aggressive about allowing the pursuit of certain cases, so Noam does likely feel that there is a slightly better chance of winning on appeal, even if the general outlook is still not great.
Finally, the deputy attorney-general for international affairs likely believes there is value in confronting the ICC Appeals Court with what Israel has called in its legal briefs the “arbitrariness of the proceedings against Israel,” as well as for them having to address this arbitrariness before the world.
The fact that he and the legal establishment were able to move Israel along this path, in spite of the very public intense acrimony over many domestic political issues between the prime minister and Noam’s boss, Attorney-General Gali Baharav-Miara, is another testament to the seriousness with which Noam and the government’s lawyers are regarded by the political echelon.
The missed opportunity of more, faster IDF probe status reports
In late January, the Post learned that the IDF was planning to roll out a major legal update on its probes into alleged war crimes – the first such update since August 2024.
If Noam was pressed about the failure to put out more updates about the status of the IDF’s probes and how this may have weakened Israel’s war crimes defense globally, he would likely demur.
In his view, it is generally ideal for Israel to be as transparent as possible, but since the Jewish state’s legal briefs have framed Khan as taking an extreme stance and a rushed pace against Jerusalem, transparency may not have stopped the ICC prosecution train from going forward full speed.
Despite this view expressed by a wide number of Israeli legal, defense, and political officials, Israel’s failure to put out more of such reports and faster will always leave an open question about what might have been.
So how will all of this turn out?
Israel has a strong chance to continue winning at the ICJ, including in July when it will file a detailed response to South Africa’s claims against it for genocide.
Further, Israelis have a strong chance to avoid arrests and certainly any convictions from the shabby allegations being assembled against them in dozens of foreign countries, like Brazil, especially if they travel on a low profile.
But the ICC remains a serious problem. Noam and Israel’s legal team may be hopeful that on appeal, their complementarity arguments under Article 18 (that Israel’s legal system to probe itself precludes an indictment by the ICC) or other jurisdiction arguments under Article 19 (that there is no Palestine to send the case to the ICC and that the Oslo Accords preclude any referral or intervention by the court) will freeze the arrest warrants against Netanyahu and Gallant.
They may hope that democracies worldwide will realize that if Israel is put on trial for defending itself against a terror entity that turned its territory into one big booby-trapped tunnel and human-shield trap, that they could be next.
But even if the appeals slow the process down, it is hard to imagine that the Jewish state will come out of the war without serious long-term legal baggage, since so much of Europe and even large segments of the US (as of now) are still against Israel regarding its conduct of the Gaza war – even if they also condemn Hamas.
While diplomatic pressure from the Trump administration might make a difference, given that the ICC receives no US funding anyway, it seems that an international law and war state inquiry, as well as faster and more frequent publication of IDF probes into the war, are Israel’s main shields in its legal toolbox to hold back the lawfare tsunami.