With war-battered Gaza wracked by hunger, the move by the International Criminal Court to charge Israel’s highest officials with the crime of starvation has become a closely watched test case for international law.
Legal scholars and aid officials say Khan’s move is a testament to the strength of the case, though he will face practical and procedural hurdles as the process unfolds.
A three-judge panel, known as the Pre-Trial Chamber, is considering whether to grant arrest warrants on each charge. To address the starvation charge, which legal experts say is probably the strongest, the judges must weigh whether there is enough evidence to conclude that the factors driving Gaza’s hunger crisis amount to official Israeli government policy or a series of independent events.
If arrest warrants are issued, the court would rely on its 124 member states, or cooperative nonmember states, to enforce them. It is unclear which countries would be willing to arrest Netanyahu or Gallant, and there can be no trial in absentia.
Israel, like the United States, is not an ICC member state, and experts expect the country will challenge any warrants on jurisdictional grounds.
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“The problem is that the ICC has been very unclear about the grounds for its jurisdiction over sitting heads of state from non-state parties, despite having had the opportunity to deal with this question before,” said Monique Cormier, a senior lecturer in the Monash University Faculty of Law in Melbourne, Australia.
The only sitting heads of state to be indicted by the ICC are former Sudanese president Omar Hassan al-Bashir, who was never arrested by a member state, and Russian President Vladmir Putin, who remains at large. The court has convicted five men of war crimes and crimes against humanity, all African militia leaders.
Israel rejects accusations that it is carrying out a policy of starvation, saying its war is against only Hamas militants and not Palestinian civilians.
Asked to comment, a spokesman for the Israeli prime minister’s office forwarded remarks Netanyahu gave last month to the French newspaper Le Figaro: “The allegation of a deliberate starvation policy is totally baseless,” he said. “We enabled over 25,500 trucks since the beginning of the war to enter Gaza, bringing over half a million tons of food and medicine. … We’ve enabled so much food into Gaza that the price of food plummeted by 80%.”
A spokesman for Gallant did not respond to a request for comment.
Washington has cooperated with the ICC on past cases and applauded its efforts to hold Russian officials accountable for the war in Ukraine but has been highly critical of its approach to the war in Gaza.
“Whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas,” President Biden said in a statement on May 20, when Khan announced he was also pursuing arrest warrants for war crimes committed by Palestinian militant leaders. “We will always stand with Israel against threats to its security.”
But U.S. officials have also repeatedly criticized Israel for failing to facilitate aid deliveries and protect humanitarian workers: “This conflict has been one of the worst in recent memory in terms of how many aid workers have been killed,” Biden said in early April after a deadly strike on a World Central Kitchen convoy. “This is a major reason why distributing humanitarian aid in Gaza has been so difficult.”
In legal terms, “the fact base of the case is quite tight,” said Yousuf Syed Khan of the Atlantic Council, who led the drafting of the first report by a U.N.-mandated panel on starvation as a method of warfare.
What makes this case stand out, Khan said, is not just the rapidly deteriorating situation on the ground in Gaza, but also “official statements by the two individuals being charged.”
The ICC’s founding statute lists “intentionally using starvation of civilians as a method of warfare” as a potential war crime, meaning that a prosecutor must establish that food and other staples are being deliberately withheld from the civilian population. Statements from senior Israeli officials articulating a plan to seal off Gaza from the outside world, despite the dependence of its 2.2 million people on international aid, date back to the earliest weeks of the war.
The conflict began on Oct. 7 after Hamas-led militants burst into southern Israel and killed some 1,200 people, most of them civilians.
Two days later, Gallant declared on video that he had ordered a “full siege” of Gaza. “No electricity, no food, no fuel,” he said. “We are fighting animals, and we will act accordingly.”
On Oct. 18, Netanyahu said Israel would not allow humanitarian assistance into Gaza until Hamas released the more than 250 hostages they had taken during their attack. Israel eventually relented under U.S. pressure, but aid deliveries have remained far below prewar levels.
“Intent is a mental state and is never really on its own visible,” said Janina Dill, professor of global security at the University of Oxford’s Blavatnik School of Government. But the comments by Netanyahu and Gallant suggest “there is an official policy, a plan, to deprive the people of Gaza of sustenance.”
“The strongest link now between intent in these statements and the notion of a policy is the continued impediment of humanitarian aid,” she said.
On June 25, the world’s leading experts on hunger said that almost half a million Gazans — about a quarter of the population — were on the brink of starvation. In the worst-hit northern region, 56 percent of families surveyed said they had exchanged items of clothing for food. Half said they had searched the debris for something to eat.
In a document published alongside ICC Chief Prosecutor Khan’s May 20 statement, a panel of independent experts who reviewed the case files agreed with his assessment on all charges, including starvation.
“There are reasonable grounds to believe that Netanyahu and Gallant formed a common plan, together with others, to jointly perpetrate the crime of using starvation of civilians as a method of warfare,” it said.
In addition to aid shortfalls, Israeli airstrikes and bulldozers have destroyed farms, greenhouses and orchards, devastating the enclave’s ability to grow its own food. Military operations have also heavily damaged Gaza’s water grid, electricity network and health-care system.
Children began dying from complications of malnutrition as early as February, doctors told The Post at the time. There were improvements in the delivery of aid in March and April, as the pace of fighting subsided, but aid officials say Israel’s invasion of Rafah — and the closure of the most vital crossing into the Strip — has made it effectively impossible to deliver supplies.
Humanitarian groups have said Gaza needs about 500 trucks per day to meet its basic needs, a figure that was never reached in 270 days of war, according to U.N. figures. On some days, it has fallen to single digits.
COGAT, the arm of Israel’s military in charge of facilitating aid deliveries, referred questions about what it was doing to increase the flow to the National Security Council, which did not comment for this article.
Relief workers say Israeli regulations on access to crossings and freedom of movement severely constrain their operations — often they do not have permission to reach supplies that await them at the border, they say. When aid convoys are ready, the Israeli military frequently denies them permission to move through the enclave. And looting has become a growing problem as civil order collapses.
The war itself remains the greatest barrier to humanitarian relief. Gaza is now the deadliest place in the world for aid workers, the U.N. said this month; at least 250 have been killed since the conflict began.
“We are running out of languages in which to convey to the government of Israel the needs that we have,” George Petropoulos, head of the U.N. humanitarian affairs agency’s Gaza office, said last month. “I have no fuel. I’m running out of warehouses. You’re killing my staff.”
“The challenge in evaluating any individual attack is assessing what was targeted, what information was known and what consequences were expected,” said Tom Dannenbaum, an associate professor of international law at the Fletcher School of Law and Diplomacy.
Rather than focusing on individual incidents, Khan will try to build a “wall of evidence” to make his case. Public statements will form bricks in that wall, Dannenbaum said, but Khan will need to connect those with a pattern of conduct.
“The question is whether those involved deprived civilians of objects indispensable to their survival, either with the purpose of denying sustenance or in the knowledge that civilians would starve as a result,” he said.
Miriam Berger in Jerusalem and Hajar Harb in London contributed to this report
