Pearls and Irritations

With the ICJ  ordering a cessation of Rafah hostilities there is now close to a certainty Netanyahu and defence minister Gallant will be charged with a war crime.

At the heart of the ICJ’s decision is that Israel all but ignored its previous order and fell far short of “all necessary and effective measures” to ensure the “unhindered provision at scale” of aid to Palestinians “throughout Gaza”.

The problem for Netanyahu and Gallant is that the ICC’s prosecutor Karim Khan has put starvation of civilians and deprivation of humanitarian assistance at the centre of the war crimes case against them.

They are the first two of six accusations listed and have by far the most detailed supporting evidence. It is noted that, as yet, no one has been prosecuted by the ICC for using starvation as a weapon of war. Why that is so tells us why Netanyahu and Gallant are in this case so vulnerable to prosecution for this crime.

The problem for Netanyahu and Gallant is the unique way in which the Gaza war is being fought. Israel is effectively attacking its own quasi subjugated province over which it exercises control, and critically, control over the two thirds of imported food consumed by Gaza’s Palestinians. In a ‘normal’ war – Ukrainian – human assistance is free flowing on each side of battle lines so that starvation is not usable as weapon of war.

In the past the prosecutory problem has been that, unlike direct forms of war, starvation is less specific in its manifestation and less tangible in legal terms. Determining intent has therefore been challenging in terms of deciding whether it was a deliberate tactic or an unintended consequence of broader policies.

But no such ambiguities surround the Gaza war. The IDF’s invasion of Gaza was formidable and methodical in its organisation and clearly organised well in advance. The way in which food supplies were dramatically reduced – from 500 trucks to 113 in the early days of the war – shows up as an integrated highly planned element of this invasion. Deliberateness has incontestably been in full view – as has been the outcome of starvation. Recognition of this is visible in the ICJ’s warning that Israel will be in violation of its modified order unless and until it opens additional land crossing points, the volume of goods entering Gaza increases substantially, and distribution can occur safely, without threat of IDF fire.

Netanyahu and Gallant’s vulnerability extends to starvation in terms of medical, water and fuel supplies. Khan’s charge sheet includes to “Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i)”. According to UNICEF’s head Catherine Russell, all of the 600,000 children in Rafah are currently either injured, or sick, or malnourished. The UN points to a ‘full-blown famine’ in northern Gaza a product of the IDF denying or impeding 60% of aid deliveries between 27 April and 2 May. Meanwhile UNRWA has been forced to temporarily close its headquarters in East Jerusalem after it was set on fire following weeks of attacks by Israeli residents.

Such incontrovertible evidence has led to some extraordinary verbal gymnastics and absurd reasoning by the US administration when required to express a view on the possibility of war crimes being committed. All recipients of U.S. military aid engaged in conflict are required to provide the United States administration a report to Congress of evidence of complying with international law and the use of established best practices for mitigating civilian harm. Problematically the report recently produced does not– it would seem wilfully –define what best practices are. Still, as one Democrat Senator opined “If this conduct (of the IDF in Gaza) complies with standards, then God help us all,”

The administration’s report goes on to tie itself in contradictory knots. It does admit that Israel “has the knowledge, experience and tools to implement best practices for mitigating civilian harm in its military operations.” But in another part it admits that by both “action and inaction by Israel” there was a slowing of aid into Gaza. Incredibly, the report goes on to claim proof could not be found that Israel had intentionally obstructed humanitarian aid into Gaza given the difficulty of collecting reliable information.

Khan (and now the ICJ) states the obvious: plentiful proof was there for anyone who cared to look. “My Office submits that the evidence we have collected, including interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group, shows that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival”.

Such a gathering of compelling evidence of war crimes has forced Netanyahu and his spokesmen into a deeply worrying denigration of the UN’s aid agencies and legal arms – the ICJ and the ICC. What Netanyahu says are ‘outrageous’ charges by the ICC is rather an outrageous frontal assault on the ICC the advisors of which are a who’s who of the international law legal fraternity. Shamefully, a compliant Biden now also portrays the ICC as acting in an ‘outrageous’ manner and rejects the ICJ’s ruling. So much for the rules based order.

An equally appropriate use of the word outrageous is surely the outright denials by the Israelis of impeding humanitarian assistance into Gaza. Witness the claims of Col. Elad Goren, the head of the Israeli agency that oversees policy for the Palestinian territories that “Israel has not, and will not, stand in the way of providing humanitarian aid to the people of Gaza that are not a part of terror….We have not refused a single shipment of food, water, medical supplies or shelter equipment.” Elsewhere Goran has made the even more absurd claim that Gazans did not have access to food, due to failures by humanitarian organizations. Israel’s own judge nominated to sit at the international court of justice, Aharon Barak – an Israeli ICJ judge – was anything but of this view when he voted with the court’s majority in favour of “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance”.

On another tack Netanyahu centres his objections – for quite mystifying reasons – to the charges being laid against a leader of a democratic country, the implication being it was only appropriate that a terrorist organisation be so charged with war crimes. It takes no deep reasoning to conclude that if war crimes are committed by a democracy (and how is that not possible?) the sin is all the greater – the more so where starvation is involved. If not more irrelevant and illogical has been his claim that, somehow, the charges could not be legitimate given his claim that Israel’s actions have been in self defence. Even if this palpably flawed claim were given some credibility how it would apply to the deliberate creation of famine is beyond reason.

Yet another culpability smokescreen has been the rustling up of the anti semitic claim based on the irrelevant assertion that the charges against Hamas’s leaders had not been laid previously. However, Netanyahu’s assertion that the simultaneous laying of charges against Hamas and Israel produces a flawed moral equivalence, does ring true. There is indeed a gross lack of equivalence (with Hamas) in the mass slaughter of Gaza civilians, creation of starvation and wholesale destruction of Gaza’s infrastructure.

Whether Netanyahu and Gallant, if charged, could be found guilty of genocide because of the creation of famine within Gaza is a further intriguing albeit unlikely outcome. Students of war crimes point out that genocidal intent needs to be shown through deliberate actions to eradicate the Palestinian population. That presents a high bar of proof and a need to clearly define the Israeli government’s motives in the strangulation of food supplies. That has not just occurred post October 7. Prior to this date Israel was, according to its own analysis, limiting the supply of food to Gaza just on the right side of the international laws prohibiting starvation.

It is clear that starvation has done little or nothing to aid the IDF’s attempt to ‘win’ the conflict through the capturing and/or killing of Hamas soldiers and leaders. Short of an unthinkable total embargo of humanitarian assistance, Hamas was always going to ensure it had the food supplies it needed to prosecute its battle with the IDF. But as Khan points out, there is bountiful evidence of the arbitrary and deliberate way in which legitimate supplies – often medicines water and fuel – have either been continuously held up or rejected outright for no apparent military advantage. Such concentrated motivation might suggest darker motives are at play. Eking out of Israel’s far right is the view that the annihilation – or at least expulsion – of the Palestinian population of Gaza is a legitimate war aim.

Whatever the motives, the ICJ and Khan are clearly signalling that the deliberateness with which Netanyahu and Gallant have created the conditions of famine in Gaza is sufficient to be charged if not with genocide then a war crime.

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