Why Is Israel the Only State Ever Charged With the War Crime of Starvation?

Last week in The Hague, the International Court of Justice (ICJ) began hearing a case against Israel brought by South Africa, accusing Israel of genocide and trying to force Israel to renew cooperation with United Nations agencies and restart aid into Gaza. In addition, two Israeli leaders, prime minister Benjamin Netanyahu and former defense minister Yoav Gallant, are currently being investigated by the International Criminal Court (ICC) for the war crime of starvation in Gaza. Netanyahu and Gallant are the first people ever to be accused of the war crime of starvation by the International Criminal Court, although that case has been postponed over the question of jurisdiction. 

Why is Israel the only state ever charged with causing starvation? This seems odd since firstly, suffering and hunger are inevitable consequences of war—often as a result of deliberate policies—and secondly, one place in the world where there is no starvation is Gaza. 

Nevertheless, human rights lawyers are making a special case of Israel in their drive to prove that starvation can be prosecuted as a war crime. As Boyd Van Dijk, author of Preparing For War: The Making of the Geneva Convention, puts it, “public declarations by Israel’s political leadership have turned starvation from a war crime that was never prosecuted into what some scholars of international law have called ‘low-hanging fruit’”.

Through the centuries of warfare, blockading and laying siege to enemy cities and states has been a central component of wars. Until the end of the Second World War, the tactic of blockading food supplies to a country that you are at war with would not have been considered contentious on any side. As Boyd Van Dijk says in Israel, Gaza, and the Starvation Weapon

.. beginning in 1914, the United Kingdom imposed a naval blockade on all the Central Powers that eventually resulted in hundreds of thousands of deaths. Indeed, so terrifyingly effective was the tactic, known in German as the Hungerblockade, that both victors and vanquished viewed it as a war-winning weapon that had caused the societal collapse of Germany and Austria-Hungary in 1918.

In World War II, starvation campaigns became, if anything, even more important, and both the Allied and Axis powers explicitly acknowledged that their aim was to kill enemy civilians. As part of its all-out war against Japan, for example, the United States launched Operation Starvation, a submarine and air blockade cutting off food and raw materials. 

As recently as the 1960s, US strategy in Vietnam included burning rice fields to inflict hardship and hunger on the Vietnamese who supported the insurgent Viet Cong fighters. Even today, Western sanctions against Russia over Ukraine aim to disrupt trade and cripple the Russian economy (that is, reduce its GDP). This will have an impoverishing effect on the Russian people. 

Beginning with the 1949 Geneva Convention and extended by new protocols in 1977, the description of starvation as a specific war crime has been defined and extended, but until 2024, nobody had been charged with this crime.

There is widespread hunger and starvation in the world. In Sudan and other war-torn parts of the world, many millions of people are facing starvation due to the dislocations caused by war. Oxfam estimates that globally, nearly a billion people go to bed hungry. 

In fact, one place where there is no starvation is in Gaza. Israel has indeed periodically blocked food and other aid from going into Gaza as part of its campaign against Hamas and to free the hostages held by Hamas since October 7, 2023. And since the breakdown in the latest ceasefire in March, Israel has blocked all aid going into Gaza. Israel’s case is that UN aid is exploited by Hamas and goes to support the terror campaign against Israel. 

However, even this blockade has not led to starvation in Gaza. This has not stopped Hamas claiming that what Israel is doing is a starvation war, or prevented the global media from reporting the genocidal Islamists’ claim as fact—despite their coverage showing Hamas fighters and supporters appearing conspicuously well fed during the filmed hostage releases earlier this year.

Undoubtedly, Gazans have suffered badly during the war, as populations always do. But despite the periodic claims of aid agencies that starvation is imminent, Israel has been lifting its blockade to allow enough food and medicine into Gaza to prevent starvation from happening. Israel is currently negotiating with aid agencies to renew the flow of aid into Gaza, but under Israeli control so Hamas cannot take control of and benefit from its distribution. 

So, if there is no starvation in Gaza, how can there be a case against Israel and its leaders? And why is Israel considered ‘low-hanging fruit’ by human rights lawyers and others who are looking for opportunities to prosecute the starvation case against Israel at the ICC and ICJ?

One reason given is that some Israeli leaders, including Gallant after the massacre of October 7, 2023, have stated publicly that Gazans should suffer privations as a result. Two days after October 7, Gallant said, “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals, and we are acting accordingly.” 

Intemperate words from a man whose country had just suffered a terrible orgy of rape and murder and seen a hundred or more hostages taken. This statement is seen by ICC prosecutors as a statement of genocidal intent. Intent is the key word in the indictment because even the lawyers at the ICC have to accept that hunger is a byproduct of all wars. For a successful prosecution, there has to be intent to kill the population, to commit genocide. Unfortunately for the ICC’s case, Gallant’s statement, born of fury, has not translated into a deliberate policy of starvation.

The second reason that Israel is seen as ‘low-hanging fruit’ is because it has already been convicted in the court of Western opinion and elsewhere as the guilty party in the war against Hamas. The case against Israel and its leaders only makes sense in the wider context of widespread hostility towards Israel at the UN and in the wider international community. Israel, the only democracy in the Middle East and the only Jewish state on earth, the country that was invaded and its citizens butchered and raped, has little international sympathy. Israel is the lowest common denominator for international outrage. This is the bigger picture that has emboldened the ICC to pursue its case against Israel.

The crisis of international institutions

There is a third reason behind the ICC’s case against Israel. The period of relative peace in the West since World War II enabled the growth of an international lobby of progressive lawyers, non-governmental organisations, and other activist forces, centred around the UN, which has been pushing for a universalist approach to the rules of war and is opposed to the sovereignty of states. However, in recent years, the post-war global consensus that fostered the ICJ and later the ICC has been fragmenting. So much so that the U.S., under whose global dominance the UN was founded, has started sanctions against the ICC itself on the basis that it is prejudiced against the U.S. and Israel. 

The globalist attack on sovereignty is deeply undemocratic, as Melanie Phillips has argued

At a deeper level, the notion that developed after the Holocaust that international laws and institutions would deliver justice was fundamentally flawed. Law derives its authority from being passed by parliaments representing the will of the people. International laws and tribunals, which have no such inherent jurisdiction, lack that legitimacy and therefore inescapably become instruments of politics rather than law.

The ICC and institutions like it are on the back foot. Even at its formation, countries representing more than half the world’s population refused to ratify membership of the ICC, including the U.S., China, India, and Russia. Hungary has just welcomed a visit from Netanyahu and announced that it is leaving the ICC. In our world of fragmenting alliances, it is unlikely that the postwar institutions can continue to carry much clout. 

In this context, the prosecution of Israel has become a test case for the credibility of the ICC/ICJ. This was made clear at the ICJ hearings against Israel at The Hague last week when, the Guardian reports, Blinne Ní Ghrálaigh, the counsel for the Palestinian state, described Israel’s actions as 

“antithetical to a peace-loving state”. She said the restrictions on “the fundamental rights of the Palestinian people, [Israel’s] attacks on the United Nations and on UN officials, property and premises, its deliberate obstruction of the organisation’s work and its attempt to destroy an entire UN subsidiary organ” were “unprecedented in the history of the organisation”… Warning that the international order was crumbling and expressing “the continuing desperate hope that international law might finally prevail”, Ní Ghrálaigh urged the court to reset the moral compass enshrined in the UN charter by ordering Israel to permit aid to enter Gaza, and by restoring cooperation with UNRWA.

The writ of the ICC and ICJ has never run far, and successful prosecutions have been few and far between. Let us hope that it will shrink further so that it cannot credibly condemn the sovereign state of Israel for defending itself.