It is impossible to observe the events of the last several days in Israel and Palestine with anything other than horror. Multiple reports and video footage indicate that the Hamas assault inside Israel involved shocking massacres, abductions, physical abuse, and sexual violence. These acts implicate multiple war crimes, including the prohibition on killing civilians or persons hors de combat (ICC Statute, articles 8(2)(c)(i), 8(2)(e)(i)), the taking of hostages (8(2)(c)(iii)), rape and other forms of sexual violence (8(2)(e)(vi)), torture (8(2)(c)(i)), and outrages upon personal dignity (8(2)(c)(ii)). What is more, given the attacks’ widespread nature and systematicity (only one of which is legally necessary), they almost certainly constitute crimes against humanity. Within that category, murder (7(1)(a)), extermination (mass murder) (7(1)(b)), imprisonment (7(1)(e)), torture (7(1)(f)), and sexual violence (7(1)(g)) are all implicated. These are not close calls; international criminal law was designed to outlaw such atrocities.
Israel’s response also raises significant questions relating to war crimes. Here, I focus exclusively on the issue of siege starvation. This is not to diminish any of the other crimes (on either side), but because the law here requires some unpacking and because there is a still a chance for the Israeli government to reverse course and reduce the impact of this grave wrong.
Gaza Under Starvation Siege
On Monday, Minister of Defense Yoav Gallant announced, “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed.” Chillingly, he continued, “We are fighting human animals and we are acting accordingly.” Reports indicate that Israeli Air Force strikes at the Rafah crossing and Israeli government warnings to Egypt not to allow aid in are preventing the delivery of essentials through the only land border not controlled by Israel.
This order commands the starvation of civilians as a method of warfare, which is a violation of international humanitarian law and a war crime (ICC Statute, article 8(2)(b)(xxv)). It may also satisfy the legal threshold for the crime against humanity of inhumane acts (7(1)(K)) and, depending on what happens from here, other crimes against humanity, such as those relating to killing (murder and extermination) (7(1)(a-b)). I will focus here on the war crime.
International Criminal Court’s Jurisdiction
Regarding jurisdiction and applicable law, a few preliminary remarks are in order. Due to Palestine’s accession to the Rome Statute in 2015, the International Criminal Court (ICC) has jurisdiction over any crimes either perpetrated by Palestinian nationals (ICC Statute, article 12(2)(b)) or occurring in whole or in part on Palestinian territory (12(2)(a)). Gaza is Palestinian territory in this respect (ICC Palestine Article 19(3) Decision 2021, paras. 114-131). As such, the Court’s jurisdiction applies to all Hamas atrocities, whether during the assault in Israel that began on the 7th of October or as part of the continued holding and treatment of hostages in Gaza. It also applies to Israeli military actions inside or impacting Gaza. The Court has emphasized that territorial jurisdiction attaches as long as a “part” of the crime occurs on the territory of an ICC State Party (ICC Myanmar Authorization 2019, paras. 56-61).
Applicable Law Inside Gaza
Notwithstanding Israel’s unilateral withdrawal from Gaza in 2005, a strong case can be made that it remains the occupying power there, because it never relinquished effective control, as manifest through its extensive and impactful perimeter control and repeated unilateral military forays back into the area (Dinstein 2019, pp. 298-301). Whether or not that level of perimeter control and sporadic internal force would be sufficient to initiate a belligerent occupation, it is more than plausible that it has at least been sufficient to maintain a legal state of occupation, given that one existed prior to 2005 (e.g. Dinstein 2019, pp. 298-301; RULAC). The Israeli government, to be clear, does not accept this view and it is not a point on which there is international consensus.
Israel’s status as an occupying power would entail the applicability of the law of international armed conflict — including its war crimes provisions — to Israel’s conduct in the current situation. It would also entail the application of the special rules of belligerent occupation.
Even if it is not the occupying power, a powerful case can be made that Israel is bound by the law of international armed conflict (and not only the law of non-international armed conflict) in its fight with Hamas due to the absence of Palestinian consent to Israel’s operations in Gaza (ICRC 2016, paras. 257-263). This would be consistent with past analysis of the classification of conflicts at the ICC (Prosecutor v. Ntaganda Trial Judgment 2019, para. 728).
Israel being bound by the law of international armed conflict would entail that civilians are protected by the lengthier ICC code of war crimes applicable under that conflict classification, as compared to the list of war crimes applicable in non-international armed conflict. The former includes the war crime of starvation of civilians as a method of warfare (ICC Statute, article 8(2)(b)(xxv). In non-international armed conflict, that crime was incorporated into the ICC Statute by amendment in 2019, but the amendment has not yet been ratified by Palestine. Regardless, Israel is bound by the customary prohibition of starvation of civilians as a method of warfare, which the government itself has recognized, as I explain below. Moreover, the 2019 ICC amendment reflects recognition that it is a customary war crime in both forms of conflict (here pp. 687, 701-710).
The War Crime of Starvation of Civilians
I have written at length elsewhere (and in shorter form on these pages) about my view on the proper interpretation of the prohibition and the criminalization of starvation of civilians as a method of warfare. I have also written more recently about the applicability of relevant crimes against humanity (particularly under the category of other inhumane acts). Rather than offering a recitation of that analysis, here are the key components that underpin my assessment that the starvation siege as articulated in Minister Gallant’s statement is a war crime. The same analysis would lead to the conclusion that it could qualify as the crime against humanity of inhumane acts, given its scale and systematicity, for the reasons I have elaborated elsewhere (pp.145-145).
First, the population of Gaza is a civilian population. Clearly, there are Hamas fighters in Gaza and, equally clearly, those individuals are combatants or direct participants in hostilities. They lack civilian protections. However, the presence of those persons does not change the civilian character of the population as a whole, given that the latter is overwhelmingly comprised of civilians, including about 1 million children (e.g. Protocol I, article 50(3); ICTY Prosecutor v. Karadžić Trial Judgment 2016, paras. 474, 4610 n.5510 ). Moreover, civilians do not lose their protected civilian status by declining to leave their homes or their homeland, because such a declination does not amount to participating directly in hostilities (Protocol I article 51(3)). As such, any operation targeted at the population of Gaza as a whole is an operation targeted at a civilian population, regardless of whether warnings are provided.
Second, even assuming that Israel is not the occupying power, it is nevertheless bound by the customary prohibition of starvation of civilians as a method of warfare, as codified in article 54 of Additional Protocol I, including as it pertains to allowing the passage of essentials, such as food and water, into the besieged area. Indeed, Israel has itself recognized the applicability of that rule to its control over the delivery of fuel and electricity to Gaza (items not even explicitly identified in article 54, unlike food and water) (Jaber Al-Bassiouni Ahmed 2008, paras. 13-15).
Third, the publicly declared siege involves the intentional deprivation of food, water, and other essentials to the population of Gaza—a civilian population on the whole—for the reason of denying those items for their sustenance value. Whether the ultimate goal is to coerce (or starve out) Hamas combatants or to inflict suffering on the civilians of Gaza, it is, in either case, an operation that fails to distinguish between civilians and combatants, pursuant to “the basic rule” of the conduct of hostilities (Protocol I, article 48). More than that, even assuming the ultimate goal is solely to starve out or coerce Hamas combatants, that objective is being pursued through an operation that purposively denies sustenance to the civilian population. In other words, the deprivation is targeted in the first instance at the civilian population. This, on the most reasonable understanding of the law, is a clear case of starvation of civilians as a method of warfare. Notably, article 54(3)(b) of Protocol I precludes the use of starvation methods to force the civilian population’s movement (on the broader significance of that prohibition, see here pp. 739, 745).
Fourth, although rejecting Israel’s status as an occupying power in Gaza, the Israeli High Court of Justice has itself emphasized that the state is nonetheless required under international humanitarian law to allow Gaza to receive “what is needed in order to provide the essential humanitarian needs of the civilian population” (Jaber Al-Bassiouni Ahmed 2008, para. 11). Commending the government for supplying sufficient fuel and electricity in that respect, the Court found in that case, “the State of Israel accepts and respects the rules prescribed in the laws of war, and it is committed to continuing to supply the amount of fuel and electricity needed for the essential humanitarian needs of the civilian population in the Gaza Strip” (para. 21). Whatever one makes of the Court’s approval of Israel’s posture in 2008, one thing is clear: Israel is now rejecting even the limited obligations recognized as binding in that case.
Fifth, article 8(2)(b)(xxv) of the ICC Statute is explicit in affirming that the war crime of starvation of civilians as a method of warfare can be perpetrated through the denial of relief supplies. Criminal liability attaches when a perpetrator deprives civilians of objects indispensable to their survival with the intent to starve civilians as a method of warfare (ICC Elements, p.21). The deprivation of objects to a civilian population is clearly underway.
In assessing intent, it is important not to confuse mens rea with motive. Even assuming the ultimate goal is to coerce or starve out Hamas, those undertaking this siege are pursuing that goal through purposively starving the civilian population as a whole. As such, they are intending to engage in the starvation of civilians as a method of warfare, whether they desire or lament the civilian suffering that will ensue.
Finally, if, as I and others believe to be the case, Israel is the occupying power in Gaza, the illegality of this act only becomes clearer. The occupying power has a primary duty to “ensur[e] the food and medical supplies of the population,” to the fullest extent of the means available to it (Geneva Convention IV, article 55). But even assuming the demands of that specific obligation to have been reduced by Israel’s more limited control following the withdrawal: “If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.” (article 59). Pursuant to the same provision, “All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection.” It cannot be the case that an occupying power could avoid these obligations by withdrawing to the perimeter of occupied territory, and thereby ceasing to “exercise the functions of the government in such territory” (article 6), while never relinquishing effective control over the supply of essentials into that territory. The moral hazard of such an interpretation is obvious. In this respect, the rules codified in Protocol I regarding the scope of the occupying power’s obligations are instructive (articles 3(b), 69, 71).
Ultimately, the law here is defined by the basic imperative to distinguish civilians from combatants—a principle that applies with equal force to both sides. The atrocities perpetrated by Hamas actors beginning on the 7th of October were and remain horrifying. However, they cannot justify the starvation of a civilian population. The Israeli government must let food, water, and other essentials into Gaza. Governments friendly to Israel should use whatever leverage they can to insist that it do so.