ISTANBUL

While Israel already faces a genocide case at the International Court of Justice (ICJ), experts say the mass starvation it has enforced on millions of Palestinians in Gaza provides grounds for separate legal proceedings against the country and its leaders.

A new report this week by the Famine Review Committee said Gaza is facing “imminent famine,” with 1.1 million – or half its population – at “catastrophic levels of hunger and starvation.” It warned that if Israel keeps up its deadly blockade and actions, the number of Gazans facing these conditions will nearly double by July.

International law specialist Michael Becker and famine expert Alex De Waal both believe the starvation in Gaza can lead to prosecution of Israeli individuals at the International Criminal Court (ICC).

As Becker explained, starvation in international armed conflict “can constitute a war crime under Article 8(2)(b)(xxv) of the Rome Statute,” referring to the founding treaty and legal basis of the ICC.

The provision he mentioned relates to “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies.”

Starvation also provides “the basis for certain crimes against humanity under the Rome Statute,” he said.

“Importantly, any evidence that Israel has impeded the delivery of humanitarian assistance with the goal of starving the civilian population – for whatever broader purpose – can also give rise to individual criminal liability under the Rome Statute,” Becker told Anadolu.

“It will not be surprising if allegations of starvation feature prominently in any future action that the ICC prosecutor may take.”

De Waal shared a similar assessment, saying any ICC action against Israeli individuals can be expected to rely on the enforcement of starvation in Gaza.

“If the ICC does identify individuals in Israel it wants to have arrested for war crimes, it’s quite likely they will be for starvation,” he told Anadolu.

‘No question war crime of starvation being committed’

De Waal also referred to the same Rome Statute article and pointed out its three key elements – intent, objects indispensable to survival, and willfully impeding relief supplies.

Regarding Israel’s intent, De Waal said the “majority opinion is they’re just deliberately committing certain acts knowing that starvation will be the outcome.”

“Clearly in a case like Gaza, where there’s been a very clear warning that starvation is going to happen, if you carry on committing these acts, you are then committing an act of starvation,” he asserted.

“The second key point is objects indispensable to survival. That’s not just food, that’s also medicine, water, cooking fuel, shelter … anything that is necessary for survival.”

On relief supplies being blocked, he said there is ample reporting on Israel’s obstruction of humanitarian aid.

“In my view, there’s no question the war crime of starvation has been committed,” said De Waal, the executive director of the World Peace Foundation at Tufts University in the US.

Israel’s starvation intent ‘easiest’ to prove

Ahmed Benchemsi, an official of Human Rights Watch (HRW), one of the many global institutions to condemn Israel’s ongoing assault on Gaza, concurred with Becker and De Waal’s analysis.

He said Israeli forces are willfully and deliberately impeding humanitarian supplies to Gaza, including the delivery of water, food and fuel, while also “razing agricultural areas.”

“Basically, what they are doing is depriving the civilian population of everything that is indispensable to their survival,” Benchemsi, advocacy and communications director for HRW’s MENA Division, told Anadolu.

“That is why we are saying that Israel is using starvation of civilians as a method of warfare in Gaza, and that is a textbook definition of a war crime.”

This is something that is “forbidden explicitly by the international laws of war,” he said.

“So, Israel, by doing this, is committing a war crime of epic proportion against the full population of 2 million people,” he said.

There is also the element of collective punishment in Israel’s actions as it is starving “2 million people as a means of retaliation against … Hamas, which is a small minority of combatants,” Benchemsi added.

The ongoing Israeli war on Gaza has now killed nearly 32,000 Palestinians, mostly women and children, and injured over 74,200, while 85% of the population has been displaced.

“Collective punishment, willfully impeding access to lifesaving humanitarian aid, and starvation as a weapon of war. These are three distinct war crimes and Israel is committing all three of them,” he said.

Regarding the question of intent, the HRW official said there is no room for doubt as “Israeli high-ranking officials have said it very clearly and transparently.”

“Even worse, they have said it before time. They have announced it in advance,” he said.

“Intent is usually the hardest part to prove, but in this case it’s the easiest.”

As an example, he cited Defense Minister Yoav Gallant’s Oct. 9 statement vowing a complete siege of Gaza.

“Everybody saw those images on TV. No electricity, no food, no water, no fuel. He mentioned that they are fighting what he called ‘human animals.’ That is an official of a state saying live on TV that we are preparing to commit a war crime,” said Benchemsi.

Another example, he added, is Itamar Ben-Gvir, the far-right figure serving as Israel’s national security minister, saying only hundreds of tons of explosives, and not one ounce of humanitarian aid, will enter Gaza as long as Hamas did not release the hostages.

“That’s a clear call to collective punishment,” said Benchemsi.

‘Starvation a new area for prosecution’

According to legal expert Becker, a separate starvation case could also be brought against the state of Israel at the ICJ, but it would face the issue of jurisdiction.

Starvation in Gaza can be encompassed by South Africa’s pending case at the ICJ under the Genocide Convention, but “in principle, a different set of claims could be brought against Israel under international humanitarian law (IHL), as opposed to the Genocide Convention,” he said.

That is because “the use of starvation as a method of warfare violates IHL … (and) if Israel is considered the occupying power, the imminent famine may also strongly support an allegation that Israel is in breach of its IHL obligations,” he said.

However, a potential hurdle is that there are “no clear means to bring a new ICJ case on this basis,” he explained.

“There is no obvious jurisdictional basis on which a case invoking Israel’s alleged violations of international humanitarian law could be brought,” said Becker, an assistant professor of international human rights law at Trinity College Dublin.

One of the reasons why South Africa filed its case under the Genocide Convention, and not with respect to other rules of international law that Israel may be violating, is that the Genocide Convention provides jurisdiction, he added.

De Waal said Israel as a state could be held accountable through the ICJ, but “the proceedings there will take a long time.”

He also emphasized that there “hasn’t been a charge against a country for using starvation systematically.”

“So, this is a new area for prosecution,” he added.

As for a starvation case at the ICC, both experts again pointed to a lack of precedent.

“There has not been a prosecution for starvation at the ICC up to now. In various other tribunals, in Yugoslavia, Cambodia and others … there were opportunities but they didn’t take them,” said De Waal.

Becker also said there have “not been ICC prosecutions that included starvation as the basis for war crimes or crimes against humanity.”

“I believe that starvation did feature in some prosecutions at the ICTY (International Criminal Tribunal for the Former Yugoslavia). It was also unsuccessfully part of certain charges brought at Nuremberg after World War II, but the law has developed considerably since then,” he said.

Benchemsi, the HRW official, stressed that Israel’s actions in Gaza are “under the jurisdiction of the International Criminal Court, which is currently conducting an investigation on Palestine and Israel because it has a mandate to do so since 2021.”

“We really encourage the ICC prosecutor Karim Khan and the people in charge of the investigation to focus on all the war crimes committed, including this one (starvation),” he said.​​​​​​​