Mia Swart is a visiting professor in the School of Law at the University of the Witwatersrand, in Johannesburg, South Africa.
In late August, the Integrated Food Security Phase Classification (IPC), a United Nations organization that classifies the severity of food insecurity around the globe, formally determined that the situation in Gaza constitutes a famine. Hardly surprising to those tracking the conflict, Israel-induced starvation has reared its head amid the catastrophic humanitarian conditions in Gaza today. But what does that mean for accountability efforts?
The United Nations Children's Fund (UNICEF) has reported that Israel kills a child in Gaza every hour. Increasingly, such killing occurs amid and through deliberate starvation. United Nations agencies have repeatedly called for an immediate ceasefire to allow unimpeded humanitarian aid to reach Gaza, renewing those calls after the IPC report. As of this writing, Israeli operations have resulted in nearly 64,000 confirmed deaths, with nearly 400 Palestinians in Gaza reportedly dying of starvation since Oct. 3, 2023—mostly in recent months.
Although deliberate starvation has long been recognized as a war crime, the effort to codify the crime of starvation is still at a relatively early stage. Although the crime of starvation is criminalized in Additional Protocol II of the Geneva Conventions and international customary law, in approximately 20 cases, there has never been an instance of a successful international prosecution for starvation.
Still, some efforts are underway to test this approach. As South Africa's application to the International Court of Justice (South Africa v. Israel) details: "[Israel failed] to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people" amid its sustained bombardment of the Strip.
Although the crime of starvation is criminalized in Additional Protocol II of the Geneva Conventions and international customary law, in approximately 20 cases, there has never been an instance of a successful international prosecution for starvation.
- Mia Swart
Consequently, the crime of starvation remains underexplored legally, just as the intersection between it and other international crimes remains similarly nebulous. Starvation overlaps with international crimes like collective punishment, persecution and inhumane treatment. Since international criminal law is considered the "enforcement arm" of international humanitarian law, one would look to the International Criminal Court (ICC) to prosecute this crime.
The recommended May 2024 ICC arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant included the crime of starvation. The court issued those warrants in November 2024. The court's prosecutor, Karim Khan, and his team found "reasonable grounds" to believe that Netanyahu and Gallant "intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity," beginning on Oct. 8, 2023.
The fact that starvation is mentioned as a distinct crime in this case represents significant progress from a legal perspective. For various reasons, not limited to its untested nature, starvation has not often appeared in ICC charge sheets. Along these lines and given technical difficulties in proving the crime of starvation, accountability remains remote but possible.
As in the case of genocide, the perception exists that prosecutions for starvation are too difficult, largely because of the requirement of "specific intent." Specific intent in the case of genocide refers to the intent to destroy a national, ethnic, racial or religious group. The concern becomes one of practicality to achieve accountability—a focus harmed by seemingly lofty legal efforts that initially appear as low-hanging fruit.
To be sure, there are legal avenues for prosecuting starvation. Article 8(2)(b)(xxv) of the ICC's founding document—the Rome Statute—covers the issue of starvation, defining it as, "Intentionally using starvation as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Convention." The definition is expansive enough to encompass a situation where starvation is used to gain military advantage, such as utilizing starvation to achieve an expeditious surrender.
As in the case of the crime of genocide, proving the specific intent required can present a major obstacle to prosecution. The same issue applies to starvation. In theory, it is not clear whether the perpetrator must have desired the starvation of civilians as a method of warfare or whether it suffices that the perpetrator merely pursued a course of action that would ordinarily lead to starvation—a crucial difference under the law.
Starvation has re-emerged as a significant feature in modern wars. Apart from Gaza, man-made starvation continues to constitute a crisis in Sudan, South Sudan, Yemen and Syria. Almost all instances of starvation today can be described as man-made.
- Mia Swart
To prove the crime of starvation under the ICC Statute, a court must show that a perpetrator is "intentionally using starvation as a method of warfare." In the context of Gaza, Israel has inhibited judicial action by limiting investigator access to the Strip. Similarly, political will within the ICC has inhibited judicial action, given the sensitivity of the Israel-Palestine conflict, just as a lack of clarity as to how this critical element of the crime of starvation should be interpreted or will operate has as well.
However, whereas the term "starvation" in ordinary language conjures up connotations of death by hunger, the ICC definition is broader, including a range of illnesses and diseases resulting from a lack of food and other essential commodities, such as medicine. The definition also includes willfully impeding relief supplies. The ICC definition further accommodates not only the deprivation of food and water but also objects indispensable for survival, again including medication.
Considering this broad definition, and as in the case of the crime of genocide, starvation does not need proof of actual result. It is therefore not necessary that people must have died from starvation. Proof is required only of the intention to starve, not of the fact that people did starve. In the case of Gaza, it will not be difficult to produce proof of individuals who have died because of deliberate starvation, given numerous statements from Israeli officials in support of restricting supplies they deemed would reach Hamas and other armed Palestinian factions.
Rather, proof that the perpetrator pursued a course of action knowing that starvation would occur in the ordinary course of events is required—not proof that actual starvation has occurred. Therefore, ambivalence regarding a successful prosecution is warranted. Technical loopholes make the crime of starvation difficult to prove relative to other "low-hanging fruit" crimes associated with the war in Gaza.
Starvation has re-emerged as a significant feature in modern wars. Apart from Gaza, man-made starvation continues to constitute a crisis in Sudan, South Sudan, Yemen and Syria. Almost all instances of starvation today can be described as man-made.
In the popular imagination, for example, the Ethiopian famine of the 1980s was considered a mere "disaster." Media attribution of the famine to a drought in Ethiopia at the time played a major part in downplaying the human role in the widespread starvation. As the causes leading to the starvation of Tigrayans in northern Ethiopia were not publicly probed, the world accepted that famine was simply a natural disaster.
But the famine in Tigray, largely untelevised, was as man-made as that of Gaza. The Ethiopian government deliberately blocked food from reaching Tigray. Parallels exist between the two contexts that prosecutors and rights groups can and should utilize today.
Ultimately, prosecuting the crime of starvation is urgently necessary. United Nations Humanitarian Chief Tom Fletcher has described the current famine in Gaza as one "caused by cruelty, justified by revenge, enabled by indifference and sustained by complicity." As is often the case in the prosecution of international crimes, technical issues and interpretational disagreements are likely to obstruct progress in the courts. That leaves diplomatic pressure as the most effective way of staving off starvation in Gaza amid slow-moving legal processes that are necessary but flawed.
