Case Explained: Starvation Crimes and International Law: A New Era – Legal Perspective

International Humanitarian Law in Practice

Generally speaking, international humanitarian law applies to the actions of parties during wartime and international human rights law applies to peacetime. However, since there is considerable overlap between the positive and negative rights to food, the ICC can technically prosecute violations of both legal frameworks (and it is generally understood that human rights law still applies in wartime). Starvation has appeared peripherally in approximately 20 cases before international courts and the UN Security Council, but those indictments centered on charges of crimes against humanity, genocide, or other higher crimes, not starvation. The Security Council has also issued sanctions for the obstruction of humanitarian assistance against Al Shabab in Somalia (1992), government or military officials in the Central African Republic (2013), and the President of the Humanitarian Commission of the Bureau Regional d’Administration et Gestion de Kidal in Mali (2017). However, as of late 2024, the ICC has not convicted any individual for the specific crime of starvation.

The ICC has, however, issued its first ever arrest warrants citing Article 8(2)(b)(xxv). On May 20, 2024, ICC prosecutor Karim Khan applied for arrest warrants for three now deceased (or presumed so) Hamas leaders (Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh) as well as both Israeli defense minister (Yoav Gallant) and the prime minister (Benjamin Netanyahu) for their roles in “causing extermination, causing starvation as a method of war, including the denial of humanitarian relief supplies, deliberately targeting civilians in conflict.” Khan alleges that “Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival,” acts in violation of Article 8(2)(b)(xxv) of the Rome Statute (see Figure 2). Further, “This occurred through the imposition of a total siege over Gaza that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods and then by arbitrarily restricting the transfer of essential supplies—including food and medicine—through the border crossings after they were reopened.”³

On November 21, 2024 the ICC issued arrest warrants for Israeli prime minister Netanyahu and former defense minister Gallant, with the pretrial chamber of judges (a body required to deliberate a ICC prosecutor’s warrant application) finding “that there are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration.”

Israel has vehemently denied Prosecutor Khan’s claims of intentional civilian starvation and questioning the ICC’s jurisdiction. On the same day as the applications were submitted in May 2024, U.S. president Joe Biden issued a statement calling the prosecutor’s actions “outrageous,” particulary the equivalence implied between the Hamas and Israeli leaders. Two weeks later, the U.S. House of Representatives, for its part, passed H.R. 8282 seeking to impose sanctions against the ICC for actions that, according to one representative, “cheapened the court’s reputation.” Following the issuance of the warrants almost six months later, a spokesperson for the U.S. National Security Council, John Kirby, reiterated that “We [the United States] remain deeply concerned by the prosecutor’s rush to seek arrest warrants and the troubling process errors that led to this decision.”

The issue of warrants comes just a month after Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin issued a letter in October 2024 to their Israeli counterparts demanding improvements in humanitarian assistance to Gaza at the risk of the suspension of U.S. military aid to Israel. This should not be read, however, as an implicit endorsement of the ICC prosecutor’s actions. The United States did not ultimately take action to withhold military support to Israel as the deadline for aid access improvements expired, citing that “Israel has taken a number of steps” to improve conditions. Ultimately, neither Israel nor the United States is a state party to the ICC and therefore both have no legal obligation to arrest and transfer suspects to the Hague for criminal proceedings. Enforcement of issued warrants would require suspects to travel to ICC member states or a non-member state party to take voluntary action to arrest and turn over the suspect.

Without a precedent in place, commentators have questioned whether this first issuance of arrest warrants specifically citing starvation crimes will hold up in court, for three central reasons.

First, perpetrators of starvation crimes rarely make clear their intent. With a few notable exceptions—including Hitler’s Hunger Plan (a written policy of mass starvation of Soviet civilians)—prosecuting, or even obtaining warrants for, a crime of starvation under Article 8(2)(b)(xxv) of the Rome Statute has proven elusive. In some senses, the statutes are clear and even far-reaching: the mere deprivation, after all, of objects indispensable for survival is the crime, not the harm that follows the deprivation. But the inverse is also true: starvation may well be the result of actions taken by the accused, but the accused may not be criminally responsible for starvation. The court is concerned with the conduct of the perpetrator, yet the ICC cannot convict on the result alone, however grotesque. The guilty hand does not necessarily mean the guilty mind, and mere recklessness resulting in starvation, in the end, does not seem to meet the material threshold for the prosecution of starvation crimes.

Second, determining whether humanitarian relief operations have been “impeded” in a way that would violate international law is the subject of debate. The movement of humanitarian personnel, for example, can be legally restricted (albeit temporarily) when belligerents are engaging in military operations of necessity. Additionally, combatants are allowed to impose administrative requirements on humanitarian agencies and cargo to ensure that they do not contain weapons or military objects, prescribe designated routes for humanitarian convoys, and even require third-party monitoring of relief operations. This is to say nothing at all of the sanctioning of regimes and counterterrorism measures that prohibit material support to certain designated groups, either by the UN Security Council or bilaterally by major humanitarian donor countries.

Finally, the question of whether foreseeable civilian starvation (Geneva Convention Article 54, Paragraph 3) resulting from attacks, sieges, and blockades of legitimate military targets is criminal remains contested. This is due, in part, to the vague language in Paragraph 3 (Figure 4), which is intended to create an exception for armies starving other armies. The paragraph, however, also seems to extend the protections offered to civilians in Paragraph 2 (Figure 4), such that “no event shall actions against these objects [i.e., the intention to starve combatants of an adverse party] be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.” Given the relative uncertainty created by the relationship between Paragraph 2 and 3 of Article 54 of AP1 (both an exception and expansion of the responsibilies of warring parties), the question of foreseeability does not appear in the ICC’s Elements of Crimes.