Anna Oriolo (Università degli Studi di Salerno)

Introduction

On 21 November 2024, Pre-Trial Chamber I of the International criminal Court (ICC) issued arrest warrants for war crimes and crimes against humanity allegedly committed on the territory of the State of Palestine, specifically in the Gaza Strip. The warrants name Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, for, inter alia, starving civilians as a method of warfare, which constitutes a war crime under Article 8(2)(b)(xxv) of the ICC Statute.

The arrest warrants were kept confidential to protect the identities of victims and witnesses, but in the applications filed on 20 May 2024, the ICC Prosecutor sought to indict Netanyahu and Gallant as “two of those most responsible” for the alleged crimes, both as co-perpetrators and superiors under Articles 25 and 28 of the Rome Statute.

The Israeli-Palestinian crisis has also posed significant challenges to the International Court of Justice (ICJ), both in a contentious case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), which resulted in the issuance of three orders (on 26 January 2024, 28 March 2024, and 24 May 2024) imposing provisional measures, and in the Advisory Opinion of 19 July 2024, requested by the UN General Assembly on the Legal consequences of Israel’s policies and practices in the Occupied Palestinian Territories, including East Jerusalem.

The political and scholarly responses to the intervention of these two leading international courts have been remarkable inconsistent, raising significant concerns and prompting several reflections on the international protection of the right to food and the responsibility of States and individuals involved in the starvation of civilians, which are worth sharing.

Starvation of the Palestinian People as a “Manmade” Catastrophe

“On 9 October 2023, Israel announced its starvation campaign against Gaza”. This statement opens the Report of Michael Fakhri, United Nations Special Rapporteur on the Right to Food, presented to the UN General Assembly on 24 July 2024. The Report establishes the relationship between the right to food and the prevention of hunger, emphasizes the importance of Palestinian food sovereignty, and underscores starvation as a profound human rights violation. The Special Rapporteur also remarked, “Never in post-war history had a population been made to go hungry so quickly and so completely as was the case for the 2.3 million Palestinians living in Gaza”.

According to the Integrated Food Security Phase Classification (IPC) – a multilateral global initiative aimed at improving food security and analyzing global nutrition – the level of hunger reached in Gaza has reached phase 5, the highest level, signifying a catastrophe.

This worrying state of affairs was also underlined on 15 March 2024 by UN Secretary-General António Guterres, who warned, “1.1 million people in Gaza are facing catastrophic hunger – the highest number of people ever recorded – anywhere, anytime. This is an entirely manmade disaster”. EU High Representative Josep Borrell also addressed the disaster and famine in a statement on 24 March 2024, remarking “Gaza is already facing famine … Hunger cannot be used as a weapon of war. What we are seeing is not a natural hazard but a manmade disaster … The situation has gone beyond catastrophic”.

These considerations underscore that armed conflict, whether national or international, is one of the greatest threats to the enjoyment of the right to food, along with health emergencies and environmental hazards. However, unlike the latter two risk factors, armed conflicts are characterized by the fact that the starvation of civilians is not only a “physiological” consequence of hostilities, but is also “deliberately” and increasingly used as a method of warfare by warring parties. The Israeli-Palestinian conflict exemplifies this troubling dynamic and illustrates the intersection between the right of civilians to food, the use of starvation as a weapon of war, and the corresponding accountability of States and individuals for violations of human rights and international humanitarian law which, as noted above, has recently led to calls for both the ICJ and the ICC to address responsibility for violations of the right to food and other crimes committed in Gaza.

3. Individual Criminal Responsibility for Starvation of Civilians under ICC Arrest Warrants

The legal basis for the ICC’s jurisdiction over the situation in Palestine began with a declaration made on 1 January 2015, when the State of Palestine accepted the Court’s jurisdiction over crimes committed on Palestinian territory pursuant to Article 12(3) of the Rome Statute. On 22 May 2018, Palestine referred the situation to the ICC Prosecutor, requesting an investigation into crimes committed since 13 June 2014, with no fixed end date. In its decision on the territorial scope of its jurisdiction, Pre-Trial Chamber I ruled by a majority on 5 February 2021 that the ICC’s jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza, the West Bank, and East Jerusalem.

As to the applicable law, international humanitarian law, particularly the 1977 Additional Protocols to the 1949 Geneva Conventions, explicitly prohibits the use of starvation as a method of warfare. Article 54 of Protocol I (for international armed conflicts) and Article 14 of Protocol II (for non-international armed conflicts) proscribe the deliberate destruction of food, crops, livestock, drinking water, and other essential goods necessary for the survival of the civilian population.

Similarly, Article 8(2)(b)(xxv) of the ICC Statute explicitly criminalizes the act of “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival”, including food, water, fuel, and medicine, as well as intentionally obstructing humanitarian relief efforts as defined in the Geneva Conventions.

In addition, such acts may constitute crimes against humanity if they are part of a widespread or systematic attack directed against a civilian population (Article 7 of the ICC Statute), or even genocide if they are committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group (Article 6 of the ICC Statute and Article II of the 1948 Genocide Convention).

As to starvation as a war crime outlined in the ICC arrest warrants of 21 November 2024, a potential issue could arise from the fact that Article 8(2) of the ICC Statute specifies that war crimes include “violations of the laws and customs applicable in international armed conflict” (i.e., between two or more States).

However, international criminal tribunals have attempted to address this issue through judicial interpretation, such as the Tadic test of the internationalization of conflicts, which treats internal armed conflicts as international if a State intervenes or controls one of the warring parties.

In order to overcome the limitation imposed by Article 8(2) of the ICC Statute, the ICC Office of the Prosecutor (OTP) argued that the alleged war crimes occurred within the context of both an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas (along with other Palestinian armed groups), “running in parallel”. 

The OTP presented evidence, including interviews with survivors, eyewitness testimony, authenticated videos, photographs, satellite imagery, and statements by the alleged perpetrator group, to show that Israel deliberately and systematically deprived the civilian population in Gaza of indispensable goods for survival, thereby also highlighting the potential constitutive elements of genocide (the specific intent to destroy, or dolus specialis) and crimes against humanity (the systematic targeting of civilians).

Turning to the acts by which this war crime was committed, the Panel of Experts on International Law, convened to assist in the review of evidence and legal analysis for the requested arrest warrants, identified a number of actions that constitute starvation under Article 8(2) of the ICC Statute, including: the siege of Gaza and the closure of border crossings; arbitrary restrictions on the entry and distribution of essential goods; disruption of electricity and water supplies; severe restrictions on access to food, medicine, and fuel; attacks on facilities that produce food and clean water; attacks on civilians attempting to obtain relief supplies; and attacks on humanitarian workers and convoys delivering aid. Based on the Panel Report, the OTP argued that these actions were part of a coordinated plan to use starvation as a method of warfare in order to: (i) eliminate Hamas, (ii) secure the release of hostages held by Hamas, and (iii) collectively punish the civilian population of Gaza, which Israel “perceived as a threat”.

According to the Prosecutor, the effects of the use of starvation as a method of warfare, in combination with other attacks and collective punishment against the civilian population of Gaza, are “acute, visible, and widely known”. These effects have been confirmed by numerous witnesses interviewed by the OTP, including local and international medical professionals, and have resulted in malnutrition, dehydration, profound suffering, and an increasing number of deaths among the Palestinian population, particularly infants, children, and women.

The element of specific intent emphasized by the Prosecutor is crucial to the commission of the crime of genocide, as set forth in Article II(c) of the 1948 Genocide Convention, which prohibits “deliberately inflicting on the [protected] group conditions of life calculated to bring about its physical destruction in whole or in part”. Nevertheless, while genocide is not explicitly listed in the ICC Prosecutor’s application for arrest warrants in the case concerning the Palestinian situation, the notion of genocide appears directly in ICJ’s advisory and precautionary rulings concerning the Occupied Palestinian Territories, as discussed below.

4. ICJ Rulings on Israeli Responsibility for Starvation as Genocide

In its Application instituting proceedings against Israel, South Africa contended that at least some, if not all, of the acts committed by Israel in Gaza in the aftermath of the attack of 7 October 2023 fall within the provisions of the 1948 Genocide Convention and asked the ICJ to take urgent interim measures to prevent an acute worsening of the already “catastrophic” levels of hunger affecting Palestinians in Gaza (para. 142).

First, the Court concluded that it had prima facie jurisdiction to hear the case under Article IX of the Genocide Convention, which provides that all disputes between the parties concerning the interpretation, application, or fulfillment of the Convention shall be submitted to the ICJ.

Turning to the issue of starvation, the ICJ found a “plausible” risk of genocide against the Palestinian population in Gaza (Order of 26 January 2024, paras. 54, 66, 74) and deemed the adoption of provisional measures necessary to avoid “irreparable prejudice” (id., para. 74). Specifically, the ICJ’s orders required Israel, inter alia, to comply with its obligation to prevent genocide under the 1948 Convention, to ensure the provision of basic services and humanitarian assistance, including food, water and electricity, and to report to the ICJ on the measures taken.

In determining whether it had jurisdiction under Article 96 of the UN Charter and Article 65 of the ICJ Statute to issue an Advisory Opinion on Israel’s presence in the Occupied Palestinian Territories, the ICJ found that the question on which it is was requested to render an opinion was a “legal question” and that there were no compelling reasons for refusing the General Assembly’s request (paras. 22-50). In its Opinion, the ICJ found that all of Israel’s policies and practices, as well as its continued presence in the Occupied Palestinian Territory, are contrary to international law (paras. 103-243).

However, the Opinion does not explicitly refer to the right to food of the affected civilian population. Nevertheless, it is particularly relevant to our current analysis for two reasons.

First, the Advisory Opinion contains an interesting reference to the food sovereignty of the Palestinian people through its ruling on the exploitation of natural resources by the occupying power. Specifically, the Court found that Israel’s exploitation of natural resources in the Occupied Palestinian Territory violated its obligation to respect the Palestinian people’s right to permanent sovereignty over those resources (para. 133).

Second, the Advisory Opinion addressed the legal consequences of Israel’s internationally wrongful acts with respect to UN member States (paras. 280-283) and other nations (paras. 273-279). In particular, in view of the illegality of Israel’s continued presence in the Occupied Palestinian Territory and the nature and significance of the rights and obligations involved, the Court emphasized that “all States” are under an obligation to refrain from recognizing as legal the situation resulting from Israel’s unlawful presence (para. 279). States must also refrain from engaging in economic or commercial transactions with Israel in relation to the Occupied Palestinian Territory or parts thereof, as such activities could entrench its unlawful presence. Furthermore, States are required to avoid actions that imply recognition of Israel’s illegal presence, such as establishing or maintaining diplomatic missions in a manner that supports its claims, and to take measures to prevent trade or investment relations that contribute to the maintenance of this illegal situation (para. 278). Furthermore, in the Court’s Opinion, all States parties to the Fourth Geneva Convention have an obligation, in accordance with the Charter of the United Nations and international law, to ensure Israel’s compliance with international humanitarian law as set forth in the Convention (para. 279). This includes, as mentioned above, the prohibition to attack, destroy, remove or render useless objects and goods essential for the enjoyment of the right to food and, more generally, for the survival of the civilian population.

Concluding Remarks: International Courts as the “Conscience of Humanity”

States have reacted differently to the ICJ and ICC rulings, sometimes even changing their initial positions over time. The EU is a clear example of this dissonance in the international community.

In particular, on 18 September 2024, 12 out of 27 EU member states abstained and 2 even voted against the UN General Assembly resolution, which was generally in line with the ICJ’s Advisory Opinion.

Regarding the ICJ’s precautionary measures, in the European Council conclusions of 17 October 2024, EU leaders reaffirmed Israel’s right to defend itself and the EU’s commitment to Israel’s security and regional stability (para. 18), while deploring the unacceptable number of civilian casualties in Gaza and the West Bank, as well as the catastrophic levels of hunger and imminent risk of famine caused by the insufficient flow of aid to Gaza, recalling “the need to fully implement the International Court of Justice orders” (para. 22).

On the ICC arrest warrants, despite Josep Borrell’s declaration that ICC decisions “have to be respected and implemented” by member States, European leaders showed mixed reactions. These include Hungary’s explicit opposition to the Court’s decision, Germany’s dilemma over the appropriate response, Belgium’s “full” support of the ICC statutes, Italy’s “formal” respect of the obligation to cooperate with the Court while considering its decision “wrong”, and France’s initial position “in line with the ICC’s statutes” that was later undermined by its offer of immunity to Netanyahu from the ICC arrest warrant.

However, the ICC cannot proceed in absentia and requires the cooperation of States in arresting and surrendering suspects. To date, most of these suspects are heads of State or Government at large, including Russian President Vladimir Vladimirovich Putin, against whom the ICC issued an arrest warrant  on 7 March 2023.

In light of these considerations, what is the actual outcome of these international judicial decisions regarding starvation and other violations in Gaza?

In our view, the role of international judges in stigmatizing the crime of starvation is crucial to ensuring that war crimes and other catastrophic abuses that offend the “human conscience” are not justified in the name of raison d’État.

The legal obligation to enforce international rulings undoubtedly exerts pressure on most States, which may feel “legitimately” entitled to withdraw, reduce, or even “barter” their political support for the States involved (whether as the State responsible for the violations or as the State of nationality of the accused). This trend seems to be reflected, for example, in France’s backtracking on Netanyahu’s arrest warrant, which some commentators have suggested was aimed at securing a ceasefire between Israel and Lebanon. As a result, the risk of losing political consensus could become a motivating factor for the States involved not only to implement the judicial decisions, but also to address the underlying causes by putting an end to the violations complained of or, in some cases, by “directly” prosecuting the suspects in a fair and impartial manner. This approach is consistent with the principle of complementarity, which allows the ICC to exercise its jurisdiction only when national legal systems are unwilling or unable to “genuinely” conduct proceedings.

Therefore, despite the lack of unanimous consensus on the ICJ and ICC pronouncements examined, which risks undermining the effectiveness of international justice, we believe that these judicial decisions can contribute to the consolidation of the prosecution of intentional starvation as an international crime and, more broadly, to the fight against immunity for jus cogens violations. Indeed, the “legal” assessments entrusted to the world’s two highest courts are an indispensable tool to help States calibrate their “political” positions (and alliances) with regard to international crises, serious violations of international humanitarian law and human rights committed during armed conflicts against civilians, in this case, the Palestinian people in Gaza. From this perspective, by calling on States to respect international law and bring criminals to justice, the ICJ and ICC position themselves as the “conscience” of all humanity, affirming the “primacy of the raison d’humanité over raison d’État” (see Cancado Trindade, 2010), thereby legitimizing the removal of political and procedural barriers to the enforcement of international law.