Days, Not Weeks: Gaza, Starvation, and the Imperative to Act Now - Audio Posts

Why Gaza is (Again) on the Brink of Famine

The FRC noted several key factors in the most recent deterioration of the situation in Gaza:

Israel’s decision to designate the northern Gaza Strip a combat zone and preclude access has eliminated the viability of humanitarian missions to the area.
Humanitarian access to Gaza as a whole has plummeted.
Prices for food and other essentials have soared, while the livelihoods necessary to obtain those goods have suffered a “total collapse.”
Widespread attacks have decimated health, nutrition, and water, sanitation, and hygiene (WASH) infrastructure.

These current conditions follow a year of the destruction of agricultural areas, water systems, and health infrastructure, in addition to prolonged and profound restrictions on humanitarian access.

Throughout, Israeli officials have sought to deny responsibility for the crisis (as well as denying the extent of the crisis). However, humanitarian actors have testified consistently that Israeli impediments and actions have been a critical obstacle to delivering aid to Palestinians (p.19-28).

Moreover, contrary to moments of heightened message discipline, the prior and new Ministers of Defense, the Prime Minister, and the head of Israel’s agency for the Coordination of Government Activities in the Territories (COGAT) have all spoken openly or deliberated at various moments about the imperative to cut Palestinians in Gaza off from the supply of objects indispensable to their survival. Those perspectives have clear support elsewhere in the government.

Although it has not been linear, the overall trajectory of food, water, and medical deprivation has been devastating. Israel’s severe restrictions on humanitarian access began immediately after Hamas’s October 7 attacks. It took more than 70 days before an Israeli crossing into Gaza was opened. Improvements in humanitarian access in March and April were important (FRC p.9; Refugees International pp.17-18), but they proved to be the exception. The Rafah offensive in early May precipitated a further period of deprivation (Refugees International, pp.19-23).

On the basis of this pattern, the International Court of Justice has on three occasions issued orders (“provisional measures”) in an effort to protect Palestinians’ rights under the Genocide Convention. Israel has clearly violated the orders, including through:

pushing Gaza to the brink of famine in early 2024 (contrary to para. 86(4) of the first order, see also para. 4 of Judge Nolte’s separate opinion attached to the second order),
pursuing the Rafah offensive and shutting down the Rafah crossing into Gaza (in breach of para. 57(2)(a, b) of the third order),
and passing legislation banning the United Nations Relief and Works Agency for Palestine Refugees (UNRWA), the backbone of humanitarian relief operations in the Palestinian territories, (in breach of para. 51(2)(a) of the second order),

The most recent deterioration has been accelerated by intensified impediments to humanitarian access. In mid-October, James Elder, spokesperson for UNICEF, described “probably the worst restrictions we’ve seen on humanitarian aid, ever.” In issuing its current alert, the FRC reported that, according to UN Office for Coordination of Humanitarian Affairs (OCHA) data, “the number of aid shipments being let into the Gaza Strip (data up to Oct. 27, 2024) is lower now than at any time since October 2023.” As the FRC emphasized, this trend is reflected also in COGAT’s data. Just over a week ago, German Foreign Minister Annalena Baerbock stated, “At no time in the past 12 months has so little help reached the Gaza Strip as is the case at the moment.”

One month ago, the United States demanded that Israel act to ensure that 350 trucks per day were entering Gaza in order to avert a deeper crisis. However, according to UN figures, the number of humanitarian trucks entering Gaza last month (October) was in single figures on multiple occasions, often below 40, and very rarely over 100. A similar pattern has continued into November. This level of restriction replicates that of late 2023. However, after a year of war, deprivation, and displacement, the pre-existing vulnerability of Palestinians in Gaza is far greater now than it was then. The FRC was careful to emphasize this point when assessing the improved food security data released in June (p.3).

The situation is worst in North Gaza. Whether operations there have formally implemented the so-called “Generals’ Plan” reportedly presented to the Israeli government in October is beside the point. Its key components are manifest in current conduct. The plan, provided to the Associated Press, recommended the use of evacuation orders that would create a zone allowing killing and starvation, on the legally spurious basis that those who remain following the orders could be considered combatants. This proposal was followed by Israel cutting off humanitarian access to North Gaza, engaging in a process of mass evacuation, and expressing an intention not to allow Palestinians to return to their homes there. An estimated 100,000 civilians have been forcibly displaced from northern Gaza—itself implicating war crimes and crimes against humanity (ICC Statute, articles 8(2)(b)(viii), 8(2)(e)(viii), and 7(1)(d)) on forcible population transfer). Meanwhile, “between 75,000 and 95,000 people remain besieged in North Gaza without medical or food supplies.”

All of this is set to be exacerbated by Israel’s UNRWA ban, the implementation of which will deepen the crisis and contribute further to the starvation of Palestinians in Gaza. The agency is recognized to be the “backbone” of humanitarian distribution and provision in Gaza. In March, the International Court of Justice (ICJ) was unanimous in requiring that Israel act “in full co-operation with the United Nations” to ensure, without delay, “the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance” in Gaza. No UN actor is more important in that respect than UNRWA.

The Intensification of an Alleged Criminal Strategy

In combination, this marks an intensification of the practice that underpins the ICC Prosecutor’s request for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. The central crime alleged in those requests is starvation of civilians as a method of warfare. The other war crimes and crimes against humanity detailed in the request relate to the same underlying facts, while focusing on specific components or consequences of the starvation strategy, such as killing, inflicting great suffering, and engaging in the discriminatory violation of fundamental human rights.

Mass deprivation is also at the heart of South Africa’s ICJ case against Israel under the Genocide Convention, there in the form of the underlying act of inflicting conditions of life calculated to bring about the destruction of Palestinians in Gaza. The centrality of that underlying act to the case is reflected in the Court’s provisional measures orders, each of which includes a strong emphasis on humanitarian access.

I have argued previously that the ICC Prosecutor’s requests were well-founded at the time they were announced. Indeed, the evidence of criminality in Israel’s starvation tactics have, in my view, been identifiable for over a year. Instead of replicating prior arguments, three points relating to the situation today are worth emphasizing in relation to the criminal case. First, the viability of contesting criminal intent in relation to the starvation war crime has diminished to the vanishing point. Second, the Generals’ Plan was predicated in part on a legal distortion that must be debunked and rejected forcefully if presented to the ICC. Third, the evidence base for the Prosecutor’s extermination allegation is strengthening.

In my view, the war crime of starvation of civilians as a method of warfare occurs in one of two alternative situations, reflecting the criminal law distinction between direct and oblique intent and the underlying structure of the international humanitarian law (IHL) rules on objects indispensable to civilian survival.

Either:

The perpetrator(s) engaged in the deliberate deprivation of objects indispensable to survival for the purpose of denying the sustenance value of those objects to civilians or to a civilian population. This form of intent can attach before it is certain that civilians will be reduced to a state of starvation.

Or:

The perpetrator(s) engaged in the deliberate deprivation of objects indispensable to survival in the knowledge that this deprivation was virtually certain to leave civilians in a state of starvation. This form of intent can attach even if civilian sustenance denial is not the purpose.

Today, there is reason to believe that both of these alternative thresholds are applicable. The Generals’ Plan was an overt proposal to deny sustenance to all who refuse to evacuate North Gaza, where tens of thousands of civilians remain. The conduct that has followed provides a strong indication that at least that component of the plan has been implemented in some form. Meanwhile, the FRC’s warning indicates in the clearest possible terms that continuing this policy entails the virtual certainty of causing civilian starvation. In short, even if a heightened criminal threshold were applied, such that both purposive denial of sustenance and a virtual certainty of civilian starvation had to coincide (rather than offering alternative bases of criminal liability), the current practice would almost certainly satisfy that elevated requirement.

More generally, and whether or not it has been formally implemented, the Generals’ Plan is predicated on a profound and indefensible legal distortion—namely that civilians can lose their protection by not evacuating an area when ordered to do so. If this is argued at the ICC, it must be rejected without equivocation. Civilians lose their protections as such under IHL only for such time as they directly participate in hostilities. (Additional Protocol I [AP I], article 51(3)) Whether by choice or ability, not leaving one’s home or otherwise evacuating an area is nowhere near the threshold of direct participation in hostilities. In other words, civilians who have remained in the besieged areas of North Gaza are no less civilian for having done so. They must be treated as such, whether in relation to the rules on starvation or those on kinetic attack. In a context of doubt as to their status, individuals must be presumed civilian. (AP I, article 50(1)) With 75,000-90,000 people still in the besieged zone (a number several times higher than plausible estimates of Hamas’s entire fighting force across the Strip), the population in that area remains predominantly civilian, and thus civilian at the aggregate level. It cannot lose its status as such in virtue of the presence of a minority of combatants (AP I, article 50(3)). Taking these points together, any military operation that has been directed against that population, including an operation of mass deprivation, is an operation targeted at civilians, regardless of whether the ultimate goal is to starve or kill the combatants within the besieged zone. To invoke evacuation “warnings” to authorize killing or starving those who would otherwise be protected would be to distort a protective feature of law to eviscerate the very framework of protections it is supposed to safeguard. Far from relieving the attacking force of its other obligations, the requirement to issue warnings supplements and augments other obligations under IHL (AP I, article 57, paragraphs (2)(c) and (5)).

One of the crimes against humanity alleged by the Prosecutor is extermination—the crime of mass-killing. The Panel of Experts in International Law that reviewed the Prosecutor’s warrant request noted that the extermination allegation attached to “deaths … resulting from or associated with the systematic deprivation of objects indispensable to the survival of Palestinian civilians in Gaza” (emphasis added), including both “deaths resulting from the use of starvation” and from “attacks on civilians gathering to obtain food and on humanitarian workers.” (paras. 22, 29) The latter entails the more evidentiarily straightforward component of this allegation. In contrast, proving extermination through starvation can be complicated due to the difficulty of establishing cause of death in a temporally stretched and multivariate context (see, for example, here p.146). However, the spate of warnings from humanitarian experts and the urgency of the identified threat in the current moment make it increasingly undeniable that impeding humanitarian aid entails a virtual certainty of lethal consequences. That strengthens the prosecutor’s case in relation to extermination.

There are several reasons for the slow progress at the ICC. In addition to the Court’s decision to allow a significant number of amicus curiae observations on issues of jurisdiction and complementarity, Judge Iulia Motoc was recently replaced by Judge Beti Hohler for medical reasons. Israel is now questioning the latter’s impartiality, which could further delay matters. It is likely that the Chamber will affirm ICC jurisdiction (as did a prior iteration of Pre-Trial Chamber I in 2021) and that it will follow past precedent on complementarity, thus allowing the case to proceed on those fronts. Assuming it does, for the reasons outlined above, the substantive allegations are only strengthening with time.

Time, however, is precisely what is lacking. And in that respect, the criminal process will be of little help. Even if the arrest warrants were issued today, criminal accountability will occur, if at all, on a schedule far removed from the urgency of the moment.

Urgency and Real-Time Legal Response

For that reason, in a recent piece, Janina Dill and I argue against focusing exclusively on criminal and other ex post accountability in assessing Israel’s conduct in Gaza. As we discuss, third states have a responsibility to exercise leverage to ensure respect for IHL in real time. Plainly, if that duty is to mean anything at all, it cannot wait for the final adjudication of the criminal responsibility of Netanyahu and Gallant at the ICC or of Israel’s state responsibility at the ICJ.

It is appropriate, then, that the legal and epistemic thresholds for such action are different from those applicable in the evaluation of ex post criminal accountability. Whereas the latter requires establishing criminal intent and meeting a high evidentiary threshold—namely, proof beyond reasonable doubt (ICC Statute, article 66(3))—states must refrain from supplying arms whenever there is an “expectation” of IHL violation and must act with due diligence to “prevent violations when there is a foreseeable risk that they will be committed” (ICRC Commentary to GC I, paras. 162, 164). The International Court of Justice recently reaffirmed IHL’s third-party requirements in this regard (para. 279). Additionally, those states that are party to the Arms Trade Treaty (ATT)—including, for example, Germany and the United Kingdom—must cease their supply of arms if such support “could facilitate” serious violations of IHL and, despite mitigating measures, an “overriding risk” of such violation remains (ATT, article 7).

These responsibilities are not limited to war crimes. The ICJ determined in July that the law of belligerent occupation applies to Israel’s operations in Gaza, at least to the extent “commensurate” with its degree of effective control (para. 94). Among the occupation-specific obligations that would appear to be most obviously commensurate with Israel’s control are those related to the delivery of food, water, and medicine to Gaza (Cleveland sep. op., para 24). On that point, the IHL rule (as distinct from the starvation war crime) is that Israel must “to the fullest extent of the means available to it … ensur[e] the food and medical supplies of the population” of Gaza, including by bringing “in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.” (Geneva Convention IV [GC IV], article 55) Moreover, when the occupied population is inadequately supplied notwithstanding those efforts, Israel “shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.” (GC IV, article 59). For third states determining whether their duty to ensure compliance is implicated, it could hardly be more apparent, given the information summarized above, that there is a clear and overriding risk that Israel is violating and will continue to violate these rules.

In a similar vein, whereas the ICJ has determined that genocide can be ascertained (as a matter of state responsibility) only when genocidal intent can be “convincingly” established, such as through a pattern of conduct that “could only point to [its] existence” (ICJ, Bosnian Genocide, para. 373), the duty to prevent genocide attaches whenever a state “learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” (ICJ, Bosnian Genocide, para. 431) A strong case can be made that existing ICJ provisional measures orders are themselves indicative of the risk necessary to trigger such preventive action, particularly in relation to Israel’s restrictions on humanitarian access (pp.678-680).

In what might have appeared to be its most significant effort to fulfil its real-time preventive duties, one month ago, the United States expressed “deep concern over the deteriorating humanitarian situation in Gaza” and demanded “urgent and sustained action” to reverse that trajectory through several concrete actions to be achieved within the following 30 days. The prospect of U.S. action on military support appears to have played a key role in precipitating Israel’s expansion of humanitarian access in March and April (pp.17-18). This time, U.S. requirements were more specific and thus, in principle, harder to evade. Included among its numerous concrete demands to Israel were:

Surging all forms of humanitarian assistance throughout Gaza by enabling a minimum of 350 trucks per day to enter through all four major crossings, while opening a fifth,
Instituting adequate humanitarian pauses to enable humanitarian activities,
Rescinding evacuation orders when there is no operational need, and
Ending the isolation of northern Gaza by reaffirming there will be no forced evacuation of civilians from the north to the south and ensuring continued humanitarian access to the north.

Days after the FRC issued its warning, the 30-day period specified in the United States’ letter expired. As is apparent from the FRC’s clarion call and as observed by a coalition of humanitarian NGOs, Israel clearly failed to comply with these demands. It was not close:

Israel’s actions failed to meet any of the specific criteria set out in the U.S. letter. Israel not only failed to meet the U.S. criteria that would indicate support to the humanitarian response, but concurrently took actions that dramatically worsened the situation on the ground, particularly in Northern Gaza. That situation is in an even more dire state today than a month ago.

To take just one metric, per United Nations assessments, the number of trucks entering Gaza per day was in double digits on almost every day during the 30-day period. On some days, it slipped into single digits. Even according to Israel’s numbers, the threshold of 350 per day was never reached. Northern Gaza remains isolated and besieged.

The duty to ensure respect for IHL does not include providing a 30-day grace period for compliance to those over whom one has influence, particularly in relation to a continuing violation that has been ongoing for months. And yet, even this tepid effort proved to be a false dawn in the application of the American influence that is, in the FRC’s assessment, needed immediately.

Upon the expiration of the 30-day period, State Department deputy spokesperson Vedant Patel stated, “I certainly don’t have a change in U.S. policy to announce today.” Describing the humanitarian situation in Gaza as not “pristine,” Patel noted “some steps being taken” by Israeli authorities, while indicating that there also “need to be some additional steps.” In short, in response to the FRC’s overtly desperate plea to those with “influence” to exercise it now, the United States has decided that now is not the time. It never is. This shocking, and yet infuriatingly familiar, failure caps a year of squandered leverage. The same day, U.S. Ambassador to the United Nations, Linda Thomas-Greenfield addressed the Security Council declaring, “we continue to reiterate there must be no forcible displacement, nor policy of starvation in Gaza, which would have grave implications under U.S. and international law” and insisting that Israel must “immediately surge humanitarian aid to civilians throughout Gaza.” This mirrored almost identical remarks made in mid-October. But the “grave implications” have never materialized.

Israel’s second most important military supplier is Germany. Last week, German Foreign Minister Annalena Baerbock stated, “Time and again, promises have been made and not kept. As a result of strong insistence by us and on the orders of the International Court of Justice, the Israeli Government wanted ‘to flood Gaza with humanitarian assistance’ in spring. That has to happen, without any excuses. The Israeli Government must be held to this assurance.” But the FRC did not call for strongly worded public declarations. The world’s leading experts on famine have identified an urgent imperative for “immediate action” by those with influence. Nothing short of that will suffice.

The warnings could not be any clearer. It could not be more obvious that those with the capacity to act are abdicating their legal and moral responsibility to do so.

Could Arrest Warrants Make a Difference?

For the reasons noted above, action at the ICC cannot fill the gap left by the inaction of states with influence. However, there is one aspect of the issuance of warrants that should not be overlooked. Criminal exposure does not end with Netanyahu and Gallant. Warrants for either or both of them could have meaningful reverberations for others involved in the actions that underpin the criminal case.

Having emphasized that disobedience should be reserved for “the most extreme and distinct ‘black flag’ cases of a manifestly illegal order,” former deputy head of Israel’s National Security Council, Eran Etzion, commented on October 22:

we have reached this point. Netanyahu and the cabinet passed a decision, which is hidden from the public, to implement the ‘[Generals’] Plan.’ This plan is a war crime … if you are a soldier or an officer, regular, permanent or reserve, it is your duty to refuse to take part in any action that constitutes a war crime. [translated by Google]

Whether or not there was in fact a secret cabinet decision to pursue the Generals’ Plan, Etzion is plainly correct about the criminality of the starvation siege that seems to reflect the implementation of that element of the plan. Of course, the imperative to refuse to participate in the mechanisms of starvation in Gaza predated his statement, and it will have long predated warrants if they are issued. But the fact of the latter may concretize the risk of individual criminal exposure.

Among others, Gallant’s replacement, Israel Katz—who himself appears to be an open advocate of starvation methods—should take note. So, too, should anyone who implements the policy or otherwise makes a substantial contribution through knowingly facilitating it, whether in Israel or beyond.

If the actions of the first Trump administration and campaign statements regarding Israel are a guide, the incoming U.S. administration is likely to do what it can to impede the enforcement of ICC warrants against Israeli officials. However, war crimes and crimes against humanity are not subject to statutes of limitations (ICC Statute, article 29). They are generally thought not to be subject to amnesty. The political likelihood of being shielded in the short-term is no guarantee of perpetual impunity. The mark of international fugitive status will linger. The choice now must be to refuse to contribute to this destructive path.

Editors’ note: For other recent analysis, see Yael Ronen’s In ICJ Advisory Opinion on Israel in the Occupied Palestinian Territory, Separate Opinions Obscure Legal Rationale (November 15, 2024)