On May 20, the Prosecutor of the International Criminal Court (ICC) filed applications for arrest warrants in the Situation in the State of Palestine. Notably, the Prosecutor convened a Panel of Experts in International Law (Expert Panel) to advise on whether the applications met the standard of proof of “reasonable grounds to believe” that the persons named committed crimes within the Court’s jurisdiction (ICC Statute, Article 58). The same day, the Expert Panel released a report which provides a limited, yet informative overview of the charges sought, particularly on the starvation-related crimes alleged.

Regarding Israeli leadership, the Prosecutor’s allegations, with which the Expert Panel unanimously concurred, include the war crime of “intentionally using starvation of civilians as a method of warfare” under Article 8(2)(b)(xxv) of the Rome Statute. They found reasonable grounds to believe that Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant, made an essential contribution to a common plan to use starvation and other acts of violence against Gazan civilians.

The starvation-related conduct charged by the Prosecutor resembles patterns of previous starvation crimes, which United Nations investigative bodies have documented over the past eight years. These situations, which I helped investigate and determine, include the conflicts in Syria, South Sudan, and Ethiopia. My analysis here is limited to a consideration of starvation-related conduct and crimes during the siege of Gaza, and therefore focuses on the allegations against Israeli officials and not on the overlapping applications for arrest warrants of senior Hamas leadership.

The laying of sieges to effect starvation crimes has been a hallmark feature of contemporary armed conflicts, including in Madaya  (2015-17), Aleppo (2012-16), eastern Ghouta (2013-18) (Syria), Tigray (2020-22) (Ethiopia), and Mariupol (2022-23) (Ukraine), among others. The Prosecutor’s recent application for arrest warrants, however, represents a pivotal moment: the war crime of starvation has never been prosecuted at the international level. Moreover, for the first time, the ICC has brought to the fore the increasingly common overlapping fact-bases of (urban) siege warfare and concomitant starvation crimes that have been documented by independent fact-finding bodies.

In addition to the Prosecutor’s statement on the application for arrest warrants, the Expert Panel’s report brings numerous welcome avenues of exploration and highlights the longstanding need to resolve certain unanswered questions surrounding starvation as a method of warfare and associated starvation crimes. Through both the statement and Expert Panel report, which together offer a level of transparency at this stage in the proceedings that is entirely uncommon, we receive a preliminary assessment of how starvation crimes are being viewed by the Office of the Prosecutor (OTP), including through associated starvation-related conduct and crimes comprising war crimes and crimes against humanity, such as collective punishment, forced displacement (which was not charged), and the crimes against humanity of persecution and other inhumane acts.

Starvation as a Method of Warfare

In his statement, the Prosecutor assessed that the conflict in Gaza and Israel that began on October 7, 2023 comprises both an international armed conflict (IAC) between Israel and Palestine and a non-international armed conflict (NIAC) between Israel and Hamas (together with other Palestinian armed groups). The IAC between Israel and Palestine is due to Israel’s use of force and belligerent occupation in parts of Gaza (Expert Panel Report, paras. 13 and 27). Notably, under the Rome Statute, arrest warrants for the war crime of starvation may only be brought in the IAC context (Article 8(2)(b)(xxv)). While the Rome Statute was amended in 2019 to incorporate starvation as a war crime in NIACs (Article 8(2)(e)(xix)), Palestine has not ratified the amendment.

Based on the determination of an IAC between Israel and Palestine, Netanyahu and Gallant are accused of committing the war crime of intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies, acts which the Rome Statute explicitly prohibits (ICC Statute, Article 8(2)(b)(xxv)). According to the Prosecutor, the charge is supported by statements from the perpetrator group and the systematic nature of the deprivation. The Expert Panel’s report elaborated that Netanyahu and Gallant as superiors had effective authority and control over their subordinates, were aware of the crimes, and took no active steps to prevent or repress them (Expert Panel Report, para. 23).

The war crime of starvation involves intentionally depriving civilians of objects indispensable to their survival (OIS). Under international humanitarian law (IHL) applicable in both IACs and NIACs, it is prohibited to attack, destroy, remove, or render useless OIS (Additional Protocol I, Article 54; Additional Protocol II, Article 14, which are both considered customary IHL and therefore applicable irrespective of whether a State has ratified them). While the term “objects indispensable to survival” is not defined in IHL instruments, relevant provisions including Additional Protocol I, Article 54 – upon which the Rome Statute’s IAC crime is derived – provide a non-exhaustive list of examples to guide interpretation. These include foodstuffs, agricultural areasfor the production of foodstuffs, crops, livestock, drinking water installations and supplies, and irrigation works. Due to weather conditions or other circumstances, items such as shelter or clothing must be regarded as essential for survival in a specific context  (ICRC Additional Protocol I Commentary of 1987, para. 2103).

The Prosecutor found that water, fuel and medicine, specifically, constitute OIS in the Gaza context, which may be telling of forthcoming factual findings by the Court, some of which could be made available publicly by the Pre-Trial Chamber, which must now determine whether to grant the Prosecutor’s request for arrest warrants. Despite being afforded their own protective regime (e.g., ICC Statute, Articles 8(2)(b)(ix) and 8(2)(b)(xxiv)), hospitals and other medical units in Gaza may also be said to have constituted OIS. The denial of fuel, in particular, may be said to have rendered useless healthcare facilities (e.g., the Turkish-Palestinian Friendship hospital south of Gaza City) as well as desalination plants, which are critical given Gaza’s lack of access to potable water.

Notably, the Prosecutor’s statement itself does not mention belligerent occupation. The Expert Panel, however, noted that there is a belligerent occupation by Israel of at least some Palestinian territory, which it seems to indicate is the case at least in northern Gaza since Oct. 7, 2023 (paras. 13 and 27). It also cited a legal opinion by academics and other experts that emphasizes how the situation may be one of belligerent occupation, “even if some hostilities continue” (Expert Panel Report, footnote 9). Questions currently exist surrounding starvation “as a method of warfare” and the meaning ascribed to it: can intentionally starving civilians “as a method of warfare” occur in occupied territory where active hostilities are sporadic, i.e, in the occupied parts of Gaza where isolated battles are being waged? This is an unsettled aspect of the contours of the crime. Moreover, under Geneva Convention IV, Article 55, an Occupying Power has the duty of ensuring to the fullest extent the food and medical supplies of the population, and should bring in the necessary foodstuffs, medical stores, and other articles if resources of the occupied territory are inadequate. Does an Occupying Power willfully neglecting these obligations constitute deprivation of OIS for purposes of Article 54?

Though starvation as a method of warfare has been interpreted as “a weapon to annihilate or weaken the population” (ICRC Additional Protocol I Commentary of 1987, para. 2090), it is a crime of intent and not of result. There is no requirement that anyone should have died of starvation or that any military advantage was gained. Rather, the war crime only involves the deprivation of OIS and requires two elements of intent: the intent to deprive civilians of OIS and the intent to starve civilians as a method of warfare. In my work I have agreed with scholars who view both can be established through indirect or oblique intent, meaning that if the perpetrator knew or should have known with virtual certainty that their actions would likely result in starvation in the ordinary course of events, they may be held accountable. In other words, if the deprivation of essential objects and/or the starvation of civilians is a predictable outcome of their actions, the intent may be proven.

Without parsing out divergent views on the requisite threshold of intent, it is worth highlighting that the statements made by Israeli leadership far exceed any examples documented by U.N. investigative bodies that have found starvation as a method of warfare to have been perpetrated, including among the most glaring examples such as in Syria, Yemen, South Sudan, and Ethiopia. Such statements include that of Oct. 9, 2023, where Gallant declared on video, “We are putting a complete siege on Gaza … No electricity, no food, no water, no gas – everything is closed.” Similarly, on Oct. 18, 2023, Netanyahu stated that Israel would not allow humanitarian assistance from Israel’s border crossing points “in the form of food and medicines” into Gaza, “as long as our hostages are not returned.” The conditioning of humanitarian aid on hostage release is antithetical to international humanitarian law.

War Crimes

The Prosecutor identified several acts through which it is alleged that the IAC war crime of starvation is being committed. First, through the imposition of a total siege over Gaza and the closure of the Rafah, Kerem Shalom, and Erez border crossing pointsfrom Oct. 8, 2023, and the arbitrary restriction of essential supplies; the restriction of the transfer of essential supplies, including food and medicine, through the border crossings after they were reopened; and the cutting off of cross-border water pipelines from Israel to Gaza (the main source of potable water) for a prolonged period beginning Oct. 9, 2023. This conduct occurred alongside other attacks against civilians, including the killing of aid workers, which compelled many agencies to halt or reduce their operations in Gaza. Additional war crimes charged include willfully causing great suffering, or serious injury to body or health (ICC Statute, Article 8(2)(a)(iii)), or cruel treatment (Article 8(2)(c)(i)); willful killing (Article 8(2)(a)(i)) or murder (Article 8(2)(c)(i)); and intentionally directing attacks against the civilian population (Article 8(2)(b)(i) or 8(2)(e)(i)).

While Geneva Conventions I, II, and IV refer to “besieged” or “encircled” areas (Articles 15, 18, and 17, respectively), IHL does not define the term “siege.” Rather, the Geneva Conventions foresee that parties to armed conflicts may lay siege, including ostensibly to densely populated urban areas. Sieges must, however, comport with relevant rules, which poses a challenge when both belligerents and civilians rely on the same necessities, because – unlike civilians – starving belligerents or combatants is not unlawful. These rules include respecting and protecting humanitarian relief personnel and objects; ensuring access to humanitarian relief for civilians in need; ensuring the freedom of movement of humanitarian relief personnel; and the overarching prohibition of the starvation of civilians as a method of warfare (e.g., ICRC Rules 31, 32, 53, 54, and 55).

In his statement, the Prosecutor noted attacks against civilians, including the killing of aid workers, which compelled many agencies to halt or reduce their operations in Gaza. Human Rights Watch recently reported on eight incidents of attacks against humanitarian aid workers’ convoys and premises, which killed at least 15 people, including 2 children, and injured at least 16 others. The affected assets were deconflicted, as aid groups had provided the coordinates to Israeli authorities. Several similar examples have been documented, including the Apr. 1 incident in which seven members of the World Central Kitchen were killed. Such incidents beg the question as to why the Prosecutor chose to charge murder alone, and not alongside “Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance” (ICC Statute, Article 8(2)(b)(iii)).

Before turning to the associated starvation crimes alleged, it deserves mentioning that the Prosecutor noted that Israeli forces engaged in collective punishment, which he hints as almost offering some motive for (some of) the starvation-related conduct. The Prosecutor submitted that:

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 (emphasis added).

The prohibition of collective punishment under IHL is not a war crime under the Rome Statute, meaning it cannot be prosecuted by the ICC.

Regardless, collective punishment in the context of starvation crimes is unfortunately not infrequent. Over the past eight years, findings of the war crime of starvation have often been characterized by concomitant collective punishment, forced displacement, and/or persecution. The U.N. Commissions for Syria and South Sudan as well as the Group of Eminent Experts on Yemen have all documented how the deliberate starvation of civilians constituted a war crime and amounted to collective punishment in NIACs. These three mechanisms found that belligerents had intentionally deprived communities living under opposition control of critical resources, for their perceived support to the opposition, thereby violating the IHL prohibition (ICRC Rule 103). Additionally, the South Sudan Commission found that State forces used arbitrary (or forced) displacement as a form of collective punishment (para. 149(a)). What separates the Prosecutor’s statement from the findings of these U.N. mechanisms is that the collective punishment of Gazan civilians is being alleged not only for their (perceived) loyalty to or support for Hamas, but also for the destabilizing effect of that support which amounts to an evident “threat” posed to the State of Israel (such as providing Hamas forces with shelter; see Fofana and Kondewa, at para. 223).

Particularly in the siege context, the nexus between starvation as a method of warfare and forced displacement has also been all too common, as I have previously assessed here. Repeated directives to evacuate parts of Gaza, which I have also assessed may constitute forced displacement as has been deemed by the U.N., its independent experts, and others, have reportedly affected at least some 67 percent of the territory, forcing the abandonment of cultivated land and other food production means.

While not part of the Prosecutor’s charges, such conduct can amount to grave breaches and war crimes (ICC Statute, Articles 8(2)(vii) and 8(b)(viii))). Forced displacement, deportations, transfers, and evacuations – whether justified by military necessity or otherwise – entail a duty on the treatment of affected populations, including to ensure access to adequate food: “all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety and nutrition and that members of the same family are not separated” (emphasis added. ICRC Rule 131 and GC IV, Article 49).

Associated Starvation Crimes

Crimes Against Humanity

Unlike war crimes, crimes against humanity do not require a nexus to an armed conflict though they must be committed as part of a “widespread or systematic attack directed against any civilian population,” with a specific contextual element in the Rome Statute that the attack be pursuant to a State or organizational policy. The Panel concurred with the Prosecutor that these elements were met (Expert Panel Report, para. 15), including for the crimes against humanity of murder, extermination, other inhumane acts, and persecution regarding deaths and injuries resulting from or associated with the systematic deprivation of OIS in Gaza (Expert Panel Report, para. 22).

The Prosecutor found reasonable grounds to believe that Netanyahu and Gallant committed these crimes against humanity associated with the starvation of civilians, finding both a “widespread and systematic attack against the Palestinian civilian population pursuant to State policy” (Expert Panel Report, para. 30). Specifically, the crimes against humanity alleged include “murder, extermination, other inhumane acts [of a similar character], and persecution with respect to deaths and injuries resulting from or associated with the systematic deprivation of objects indispensable to the survival of Palestinian civilians in Gaza” (Expert Panel Report, para. 22). The “attack” (underlying crime) against a civilian population is deemed to be murder or extermination, in connection with the starvation-related deaths.

1. Extermination and/or Murder

Netanyahu and Gallant are charged with the crimes against humanity of extermination and/or murder, in the alternative, contrary to ICC Statute Articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation. As formulated in the Rome Statute, the actus reus of the crime against humanity of extermination covers not only “a mass killing of members of a civilian population” or conduct constituting a part thereof, but also “the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.” The mass killings may be perpetrated directly or through indirect methods. As I have written elsewhere with respect to starvation, beyond constituting a war crime, the explicit mention of the deprivation of access to food and medicine renders it such that the intentional starvation of civilians can constitute the crime against humanity of extermination, when other requisite elements are present.

Thus far, the Gaza Health Ministry estimates that at least 28 children have perished due to starvation-related causes (malnutrition and dehydration), with the Expert Panel noting that such deaths are “only likely to rise” (Expert Panel Report, para. 31). While the crime against humanity of extermination requires a “mass killing,” the Expert Panel cites to a judgment saying that extermination can involve killing some 60 or more civilians, a standard which would appear to be much easier to meet, at least based on what is currently in the public domain regarding deaths attributed to hunger-related causes (Expert Panel Report, para. 31 (citing ICTY, Prosecutor v Lukić and Lukić, para. 537).

2. Persecution

Israeli leaders were also charged with persecution as a crime against humanity under ICC Statute Article 7(1)(h), which entails the severe deprivation of fundamental rights based on the victims’ identity (political, racial, national, ethnic, cultural, religious, gender), in this case their identity as Palestinians. As with collective punishment and forced displacement, previous U.N. investigative mechanisms have similarly found persecution as a crime against humanity applicable in the context of starvation as a method of warfare. The South Sudan Commission, for example, found that the targeted nature of attacks by State forces (including the starvation of civilians) occurred along ethnic lines, due to their perceived support for the opposition, which it concluded can amount to the crime against humanity of persecution along political and/or ethnic grounds (paras. 92-94).

3. Other Inhumane Acts and Cruel Treatment

Finally, the Prosecutor charged Netanyahu and Gallant with the crime against humanity of other inhumane acts contrary to ICC Statute Article 7(1)(k). The expert Panel elaborated that the crime against humanity of other inhumane acts concerned the non-lethal suffering inflicted through starvation of Gazan civilians (Expert Panel Report, para. 32). In the context of the siege of eastern Ghouta (2013-18), the Syria Commission similarly found that a continued denial of food and medicine to besieged civilians constituted reasonable grounds to believe that pro-government forces perpetrated the crime against humanity of inhumane acts causing serious mental and physical suffering (para. 72).

Prior to the current conflict, the Gaza Strip was already vulnerable to food insecurity and the Prosecutor’s statement underscores Gaza’s reliance on Israel for essential supplies. It highlights that, even before Oct. 7, 2023, Gaza was heavily dependent on Israel due to restrictions imposed by Israel on the movement of goods and people which hindered greatly Gaza’s capacity to obtain resources. Similarly, in a televised interview on May 20, the Prosecutor highlighted that:

we see a population, large numbers of children and women, that have already endured more than 17 years of a very rigid regime of allowing goods into Gaza. I think even in 2022 the United Nations said that 80 percent of the population live on humanitarian supplies and that’s just become even more pernicious since the 8 Oct. with all the other restrictions.

Interestingly, the Expert Panel noted that additional crimes are under investigation and may be expected to lead to additional applications for arrest warrants in the future. It also noted specifically that other alleged crimes in connection with large-scale bombing in Gaza were under active investigation (Expert Panel Report, para. 22). Concerning other inhumane acts as a crime against humanity, the arrest warrants issued on Mar. 5, 2024, by Pre-Trial Chamber II against two Russian officials may be indicative. There, the Chamber had found reasonable grounds to believe that strikes were directed against civilian objects, and for those installations that may have qualified as military objectives at the relevant time, the expected incidental civilian harm and damage would have been clearly excessive to the anticipated military advantage.

Pre-Trial Chamber II found reasonable grounds to believe that the alleged campaign of strikes qualifies as the crime against humanity of “other inhumane acts […] intentionally causing great suffering, or serious injury to body or to mental or physical health.” Notably, this was the first time that the ICC had issued arrest warrants for the crime against humanity of other inhumane acts as it concerned critical infrastructure. In relation to starvation-related conduct and crimes, it remains to be seen whether on-going investigations into large-scale bombing in Gaza will also incorporate allegations of other inhumane acts and whether the further investigations underway by the OTP may lead to similar charges brought regarding critical infrastructure as a crime against humanity of other inhumane acts. This is particularly so as the prosecutor mentioned in his statement the pernicious effect of the cutting off and hindering of electricity supplies from at least Oct. 8, 2023 until today. While this was mentioned in the context of the siege and not for attacks against critical infrastructure, allegations of the latter have been widely documented and reported, with the World Bank estimating that some 62 percent of Gaza’s electricity feeder lines are either damaged or destroyed.

Seeking Accountability

The application for arrest warrants in the Situation in the State of Palestine has brought with it a long overdue degree of recognition for starvation as a method of warfare and associated starvation crimes that have, particularly over the past eight years, been regularly perpetrated with impunity. As documented by U.N. investigative mechanisms, associated starvation-related conduct and crimes, such as collective punishment, forced displacement, and the crimes against humanity of persecution and other inhumane acts have not been an infrequent part of the story, particularly in the context of (urban) siege warfare. While U.N. investigative bodies including Syria, South Sudan, Yemen, and Ethiopia operate to a “reasonable grounds to believe” standard of proof, and not the elevated standard of a confirmation of charges hearing (“substantial grounds to believe that the person committed each of the crimes charged”) or the “beyond a reasonable doubt” standard required for securing a criminal conviction, the “reasonable grounds to believe” standard is the same as required to issue arrest warrants. It is quite notable that the Prosecutor has mentioned that the Court’s Gaza investigation and application for arrest warrants is operating to a higher standard of proof that exceeds “reasonable grounds to believe,” which he refers to as a standard of  “realistic prospect of conviction.”

The Panel of Experts convened by the Prosecutor agreed unanimously that there are reasonable grounds to believe Netanyahu and Gallant committed the war crime of using starvation as a method of warfare, along with associated starvation crimes comprising war crimes and crimes against humanity. The widespread and systematic nature of the conduct found, coupled with the high-level involvement and authority of Netanyahu and Gallant who are alleged to have operated pursuant to a common plan, form a powerful basis for the potential arrest warrants to be issued. The OTP’s investigation and allegations underscore the importance of accountability for starvation as a method of warfare and associated starvation crimes. Irrespective of whether a trial ultimately takes place, if confirmed by the Pre-Trial Chamber, the foregoing charges have the potential to bring with them long-awaited clarification around some of the contours of starvation as a method of warfare and the unlawful conduct commonly associated with it.

IMAGE: International Criminal Court Prosecutor Karim Khan poses during an interview with AFP at the Cour d’Honneur of the Palais Royal in Paris, France, on Feb. 7, 2024. (Photo by DIMITAR DILKOFF/AFP via Getty Images)