top of page
Search

Tackling Unprecedented Challenges: The ICC Prosecutor’s Pursuit of Starvation as a War Crime in Palestine





Dr Alessandra Cuppini

Alessandra is a Senior Postdoctoral Fellow (FWO) at the Programme for Studies on Human Rights in Context (Ghent University, Belgium) conducting research on victims’ narratives in proceedings before the International Criminal Court. Funded by the Campbell Burns scholarship, she completed her PhD in Law at the University of Strathclyde (UK). Before joining Ghent University, Alessandra worked as an Associate Lecturer at the Faculty of Business and Law of The Open University (UK). She also was a Teaching Assistant and a Lecturer at the University of Strathclyde. Alessandra holds an LLB in Law and LLM in International Law from the University of Bologna (Italy).



Introduction


In international justice, landmark moments often illuminate the evolving landscape of accountability and human rights. This post embarks on such a trajectory, spurred by a historic announcement that reverberates through the corridors of legal scrutiny. On the 20th of May 2024, the Chief Prosecutor of the International Criminal Court (ICC), Karim Khan, announced the application for arrest warrants in the Palestine Situation.

Chief Prosecutor of the International Criminal Court Karim Khan. Source: International Crimnal Court website

These warrants target Israeli Prime Minister Benjamin Netanyahu, Israeli Minister of Defence Yoav Gallant and Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Deif. The request for warrants is groundbreaking due to its unparalleled degree of transparency at this phase of an ICC case, notably supported by a Report authored by a Panel of Experts in International Law (Expert Panel Report), convened by the ICC Prosecutor in January 2024. Additionally, the charges contained in these arrest warrants mark the first instance in the ICC’s history where the Prosecutor has sought to prosecute starvation as a stand-alone war crime. The Prosecutor’s pursuit of Netanyahu and Gallant hinges on their alleged joint responsibility for the war crime of employing starvation as a tactic of warfare, as outlined in Article 8(2)(b)(xxv) of the ICC Rome Statute (RS). According to this article, war crimes are defined as serious breaches of the laws and customs that apply during international armed conflicts, as recognised by international law. This includes actions such as deliberately using starvation of civilians as a warfare tactic by denying them essential resources for survival, and intentionally obstructing relief supplies as outlined in the Geneva Conventions.


The application for arrest warrants in the Situation in the State of Palestine could signify a long-overdue acknowledgement of starvation as a method of warfare and the associated starvation crimes that have frequently occurred with impunity, especially over the past eight years. U.N. investigative bodies have documented similar starvation-related conduct and crimes, such as collective punishment, forced displacement, and crimes against humanity, including persecution and other inhumane acts, in conflicts in Syria, South Sudan, and Ethiopia. These acts have been common, particularly in urban siege warfare. As previously stated, this post will focus on starvation-related conduct during the siege of Gaza, specifically addressing the allegations against Netanyahu and Gallant - not covering, therefore, the overlapping applications for arrest warrants for senior Hamas leadership -  because, if confirmed by the Pre-Trial Chamber, these charges could provide much-needed clarification on the use of starvation as a method of warfare and the unlawful actions commonly associated with it. Building on the incisive analysis presented in the Expert Panel Report, this contribution dissects the foundational pillars and the far-reaching ramifications of the ICC Prosecutor’s unprecedented decision. At its core, this exploration seeks to unravel the significance of the request to prosecute starvation as a war crime and elucidate why this momentous endeavour is not only imperative but also opportune in the pursuit of justice and accountability.



Giving precedence to prosecuting starvation crime


While the warrant applications related to the Palestine situation are expected to continue, the Prosecutor’s decision to prioritise starvation crimes stems from several compelling factors. These include the clarity of the crime base, its direct linkage to high-ranking individuals, and the Prosecutor’s criteria for case selection, which prioritise gravity, address underrepresented crimes, and assess potential impact. In the present context, the fundamental factual components of starvation crimes are relatively straightforward, and the pertinent actions have been occurring since the beginning, albeit in different variations. On multiple occasions, the Prosecutor has reiterated his concern regarding the criminality of these actions and has stressed the imperative to take corrective measures. Although applying a different legal framework (that of the Genocide Convention), the International Court of Justice has similarly placed great weight on this issue.


Despite the potential clarity surrounding crimes such as detainee mistreatment, wanton destruction, or pillage in the present context, facilitated by insider witness testimony and IDF troops’ dissemination of footage on social media, the challenge remains in establishing the responsibility of senior leaders for these actions. While recordings of lower-level IDF troops involved in wanton destruction or pillage in Gaza provide compelling evidence of their criminal responsibility, establishing the accountability of senior leaders for these acts depends on uncovering ‘linkage evidence’ connecting them to the actions on the ground and potentially invoking theories of command responsibility.


The clarity of this connection is particularly strong in the case of starvation carried out as a policy. Senior leaders were candid from the beginning about their roles in the sustenance denial strategy.


From left: Israeli Prime Minister Benjamin Netanyahu and Israeli Minister of Defence Yoav Gallant. Souce: Reuters

For example, on October 9, 2023, Defence Minister Gallant declared, ‘I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.Prime Minister Netanyahu echoed this sentiment ten days later by stating, ‘we will not allow humanitarian assistance, in the form of food and medicines, from our territory to the Gaza Strip.’ Various ministers have also voiced a deliberate policy of sustenance denial or have openly obstructed food delivery. Furthermore, the top-level coordination required for decisions about humanitarian access and the ongoing nature of the crime, which reduces the likelihood of ignorance among senior commanders as conditions worsened, makes it easier to prove high-level responsibility for this crime.


In addition to assessing case viability, the Prosecutor has evaluated several crucial factors when selecting cases, with three key factors strongly supporting the decision to bring starvation charges in this instance. First, the gravity of starvation crimes is unparalleled due to their nature, scale, and impact. In Gaza, mass deprivation affects almost the entire population, causing extraordinary and enduring suffering. This suffering results in severe health degradation, slow and painful deaths, gendered effects, a disproportionate impact on children, and severe socio-economic ramifications. Second, given the ongoing nature of these practices and the disregard for multiple warnings, the Prosecutor likely concludes that a warrant for the ongoing starvation war crime (and other related crimes) is now necessary. This would validate previous warnings and prompt those involved, but not yet named, to reverse their actions immediately. The ongoing escalation of provisional measures at the ICJ can be perceived similarly. Third, starvation as a war crime has yet to be prosecuted on the international stage. Bringing such a case to the ICC would highlight the crime and potentially establish a significant precedent.



The elements of the crime of starvation


The crime of starvation of civilians as a method of warfare involves four key components outlined in the ICC Elements of Crimes (p. 21): the connection to an international armed conflict, the prohibited conduct, the intent to starve civilians and awareness of factual circumstances that established the existence of an armed conflict. Additionally, it is essential to clarify the connection between the prohibition of starvation and the safeguarding of civilians.


Connection to an international armed conflict

Like all war crimes, the starvation of civilians as a method of warfare is applicable only in the context of an armed conflict, where the perpetrator is mindful of the facts of the conflict, and the action in question is influenced by or dependent upon the existence of the armed conflict (known as a nexus requirement). Furthermore, regarding Palestine, the enforcement of the war crime of starvation during warfare is limited to instances where the conflict is categorised as an international armed conflict, given that Palestine has not ratified the 2019 amendment to the Rome Statute, which broadens the scope of the war crime starvation to non-international armed conflicts.


Map of the Gaza Strip. Souce: Aljazeera

With the backing of the Expert Panel Report (para. 13), the Prosecutor has rightly determined that this is not a hindrance in the present scenario, as Israel is obligated to adhere to the rules of international armed conflict in its actions in Gaza for two distinct reasons: firstly, there is compelling evidence that Israel has functioned as the occupying power in the territory throughout this conflict. Moreover, even if this argument were to be contested, there is substantial evidence to suggest that Israel has re-occupied areas of Gaza as it gained control of those regions, a point supported by the Expert Panel Report (para. 27). Secondly, irrespective of the occupation issue, Israel's exertion of force in Gaza without the approval of the Palestinian Authority establishes an international armed conflict between Israel and Palestine. This understanding has received backing in past ICC rulings, such as the Prosecutor v Ntaganda Trial Judgment (para. 728). The Expert Panel Report presents this argument as rooted in either Palestinian statehood or the recognition of Palestine and Israel as High Contracting Parties to the 1949 Geneva Conventions (para. 13).


The prohibited conduct

Concerning the conduct, the starvation war crime stipulates that the perpetrator must have engaged in the deprivation of items indispensable to civilian survival. The denial of essential items crucial for civilian survival can occur through various means and has been witnessed in numerous instances in Gaza, through (a) impeding humanitarian relief efforts, including restrictions on access to Gaza and specifically to northern Gaza, interference with humanitarian convoys, imposition of arbitrary access criteria, and failure to coordinate deconfliction efforts; (b) targeting humanitarian personnel, distribution centres, and convoys; (c) direct attacks or destruction of food and water supplies, along with their supporting infrastructure like agricultural areas and water systems; (d) rendering these vital systems non-functional, e.g., by obstructing fuel or electricity delivery to desalination plants.


Significantly, in evaluating the starvation war crime, the Expert Panel highlighted the affirmative responsibilities of an occupying power, indicating that neglecting these responsibilities could, in some instances, amount to a criminal form of deprivation (para. 27). Under Article 55 of the Geneva Convention IV, among these responsibilities, the occupying power is primarily obligated to ‘ensure the food and medical supplies of the population’,’ to the ‘fullest extent of the means available to it’,’ including by ‘bringing in the necessary foodstuffs, medical stores, and other articles if the resources of the occupied territory are inadequate’. The specific forms of deprivation have changed over time but have been most acutely felt by the population of northern Gaza.


The intent to starve civilian

The main issue for the ICC to determine is whether these acts of deprivation were carried out with criminal intent. The ICC Elements of Crimes specify that the intent behind using starvation as a method of warfare involves the perpetrator deliberately intending to deprive civilians of sustenance. The Prosecutor’s statement reveals that he has gathered evidence ‘including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery, and statements from the alleged perpetrator group’, demonstrating:


that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival. This occurred through the imposition of a total siege over Gaza that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods and then by arbitrarily restricting the transfer of essential supplies – including food and medicine – through the border crossings after they were reopened. The siege also included cutting off cross-border water pipelines from Israel to Gaza – Gazans’ principal source of clean water – for a prolonged period beginning 9 October 2023, and cutting off and hindering electricity supplies from at least 8 October 2023 until today. This took place alongside other attacks on civilians, including those queuing for food; obstruction of aid delivery by humanitarian agencies; and attacks on and killing of aid workers, which forced many agencies to cease or limit their operations in Gaza.

Crucially, the Prosecutor ‘submits that these acts were committed as part of a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.’ This interpretation of intent is largely accurate. However, given the absence of case law regarding the crime of starvation, the interpretation of intent will undoubtedly be a focal point as the case advances. Dannenbaum explored the spectrum of arguments on this issue through a thorough analysis of (a) the international humanitarian law on the starvation of civilians as a method of warfare, as outlined in Article 54 of the Additional Protocol I to the Geneva Conventions, and (b) the definition of ‘intent’ in Article 30 of the ICC Statute. He argued that the intent to starve civilians as a method of warfare encompasses either of the following:

  • intentionally depriving civilians or a civilian population of essential survival items to deny them sustenance. This form of intent can be established even if it is not yet certain that civilians will experience starvation, or

  • intentionally depriving civilians of essential survival items while knowing that this deprivation will almost certainly lead to starvation. This form of intent can be established even if the primary aim is not to deny sustenance to civilians.


Defence Minister Gallan’s initial declaration of the complete siege aligns with the first form of intent, as specifically targeting food and water supplies can only be seen as a deliberate policy of sustenance denial. He was not alone in this approach. For example, the day following Gallant’s statement, another military leader, General Ghassan Alian made a video announcement saying, ‘Hamas became ISIS, and the citizens of Gaza are celebrating instead of being horrified. Human beasts are dealt with accordingly. Israel has imposed a total blockade on Gaza – no electricity, no water, just damage. You wanted hell – you will get hell.’ As independent authorities increasingly reported famine conditions in northern Gaza and severe food insecurity spreading throughout the area, it has become clear that current acts of deprivation (such as destroying agricultural land or blocking humanitarian aid) are almost certain to result in civilian starvation. The situation is critical and has followed a predictable and foreseen trajectory.


Protection of civilians

Two essential considerations arise when examining the deliberate starvation of civilians as a tactic in warfare. First, despite the presence of combatants, a primarily civilian population maintains its civilian status (Protocol I, Article 50(3); ICTY Prosecutor v Karadžić Trial Judgment 2016, paras. 474, 4610 n.5510; ICC Prosecutor v Ongwen Trial Judgment 2021, para. 2759). Gaza’s population is overwhelmingly civilian (including northern Gaza), meaning any operation directed at Gaza, whether overall or in the north, inherently targets civilians. This holds true even if the end goal is to starve civilians as a means to neutralise Hamas combatants, coerce their surrender, or pursue other objectives. War crimes cannot be justified by pursuing legitimate aims. Second, the ICC jurisprudence establishes that an attack aimed without discrimination at ‘civilians and fighters alike’ can legally be deemed an assault on civilians (Prosecutor v Ntaganda, Trial Judgment (2019) paras. 921-923; Prosecutor v Ntaganda, Appeal Judgment (2021) paras. 418, 424, 491; Prosecutor v Katanga, Trial Judgment (2014) paras. 801-802). Likewise, sustenance deprivation indiscriminately imposed on civilians and combatants should be interpreted as sustenance deprivation inflicted upon both civilians and combatants. Article 48 of the Additional Protocol I to the Geneva Conventions set a fundamental principle of contemporary international humanitarian law, as it stipulated that parties engaged in conflict must ‘constantly distinguish between the civilian population and combatants’ and ‘target solely military objectives’.



Conclusion


The application for arrest warrants in the Situation in Palestine stands as a significant milestone in the pursuit of accountability. The Prosecutor’s investigation and allegations of starvation as a war crime mark a strategic departure, underscoring the ICC’s commitment to addressing underrepresented crimes and establishing crucial legal precedents. As the use of sieges to commit starvation crimes has been a hallmark of contemporary armed conflicts, this post’s analysis of the foundational grounds for the application of arrest warrants for starvation as a war crime aimed to highlight that the ICC’s pursuit of accountability could potentially extend beyond the current situation to address systemic injustices and humanitarian crises. By prioritising starvation crimes in the Palestine situation, the ICC not only amplifies the voices of victims but also underscores the gravity of crimes perpetrated against civilian populations in conflict zones.

 


The Human Rights in Context Blog is a platform which provides an academic space for discussion for those interested in human rights, democracy, and the rule of law. We are always interested in well-written and thoughtful comments and analyses on topical events or developments. Scholars from all disciplines, students, researchers, international and national civil servants, legislators and politicians, legal practitioners and judges are welcome to participate in the discussions. We warmly invite those interested in writing a post to send us an e-mail explaining briefly the relevance of the topic and your background as an expert. We will get back to you as quickly as we can. All contributors post in their individual capacity, and their opinions do not necessarily reflect the official position of Human Rights in Context, or any organisation with which the author is affiliated.




Comentários


bottom of page