Image Source: https://www.aa.com.tr/en/middle-east/palestinian-death-toll-from-israeli-attacks-on-gaza-reaches-4-651/3029134
1. Article 8 of the Rome Statute
Article 8 of the Rome Statute of the International Criminal Court[1] governs war crimes committed, as part of a plan or policy or as a part of a large-scale commission of crimes, in an armed conflict of international character or non-international character. These acts, to name a few: wilful killing, torture and extensive destruction of property, constitute serious violations of the 1949 Geneva Conventions[2] against persons or property protected under specific provisions of the Geneva Conventions.
Israel, in its innumerable commissions of atrocities against Palestinians, specifically in Gaza, has violated Article 8 of the Statute and in doing so committed grave breaches of the Geneva Conventions. The International Criminal Court’s (“ICC”) Chamber in November 2024 issued an arrest warrant on Netanyahu (the Prime Minister of Israel at the time of relevant conduct) and Gallant (the defence minister of Israel, as he previously was at the time of relevant conduct) for the commission of, along with other crimes, the war crime of intentionally directing attacks against the civilian population (Art. 8(2)(b)(i) of the Statute) and war crime of intentionally using starvation of civilians as a method of warfare (Art.8(2)(b)(xxv) of the Statute).[3]
Israel is supported by many despite the definitive evidence from victims’ testimonies, substantial audio, video and written reports by journalists, press releases, and monthly reports by the United Nations. It is crucial to analyse how the horrendous acts of Israel, under the leadership of the two individuals, meet the elements of the above-stated crimes and establish the legal framework regarding them for a better understanding of our current affairs, for law is the only resort that protects fundamental rights, defeating all political, moral, religious and national considerations of the oppressors.
2. War Crime of Attacking Civilians
Elements of the war crime of attacking civilians (Art. 8(2)(b)(i)) under serious violations of the law and customs of war (Art. 8(2)(b)) include the following: the perpetrator directed an attack. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities, and, the perpetrator intended such a civilian population or individual civilians to be the object of the attack.Further, the conduct took place in the context of and was associated with an international armed conflict. Lastly, the perpetrator was aware of factual circumstances that established the existence of an armed conflict.[4]
The prohibition of such attacks has also been enforced by the International Court of Justice which stressed that the international humanitarian law outrightly prohibits deliberate attacks on civilians.[5]
As for the first element, there are several instances where Israel directed an attack under the leadership of the two individuals (the perpetrators). Though, the Statute nor the Elements of Crimes define the term ‘attack’, the Court in the case of Katanga,[6] used Article 49(1) of the Geneva Conventions’ Additional Protocol 1,[7] to define an attack as “acts of violence against the adversary, whether in offence or in defence.”
In October 2023, twenty three (23) family members were killed in an Israeli airstrike struck on their home in Al Bureji Camp.[8] In December 2023, two Christian women were shot and killed at the Holy Family Parish, central Gaza City, which had become a refuge for Christian families. Further, shootings were also reported in hospitals such as the Al Awda Hospital.[9]
January 2024 saw intense Israeli bombardment from air, sea and land which continued across the Gaza Strip, resulting in further civilian casualties.[10] In April 2024, Israeli forces engaged in direct strikes, sieges, use of snipers, raids, arbitrary detention, ill-treatment of medical staff and patients and displaced persons taking shelters at hospitals. Due to these attacks, medical workers were killed in great numbers, as of the 11th of April, as per the Palestine Red Crescent Society,[11]at least twenty seven (27) of the hospital’s members had been killed.[12]
From the facts stated above, it is evident that Israel directed multiple attacks constituting acts of violence, thus establishing the first element. Further, attacks were specifically made on civilians’ homes, hospitals and refugee camps, where civilian population resided and rested, causing a significant number of casualties, settling the second element.
As for the third element, in addition to proving intention and knowledge as per Article 30 of the Statute[13], dolus directus of the first degree(perpetrator knows his acts will bring about the material elements of the offence, with the purposeful will to bring about those material elements)[14] needs to be proven.[15] Israeli forces under the authority of the two leaders, perpetrated shootings, airstrikes, ill-treatment and other acts of violence directly at the civilian population in their places of shelter and residence, demonstrating not only the knowledge of the inevitable consequences of their acts but also deliberate intention to specifically harm the civilians. In proving concrete mental elements under dolus directus, standard mental elements of intention and knowledge under Article 30 are also met.
The mental element is further strengthened by the ICC’s finding that despite having the means to prevent or repress the commission of crimes, Netanyahu and Gallant failed to do so.[16]
Concerning the fourth element, the definition of armed conflict shall be outlined. International armed conflict occurs when one or more States resort to armed force against another State, regardless of the reasons or the intensity of this confrontation.[17] Moreover, Additional Protocol I of the 1949 Geneva Conventions extends the definition of international armed conflicts to include armed conflicts where people are fighting against colonial domination, alien occupation or racist regimes in the exercise of their right to self-determination.[18]
Israel has resorted to armed force against the State of Palestine since October 7, 2023. Furthermore, Israel and Palestine are both High Contracting Parties to the 1949 Geneva Conventions and because Israel occupies parts of Palestine including the West Bank and Gaza Strip,[19] Palestinians seek to realise their right to self-determination. Therefore, the situation between Israel and Palestine mirrors an international armed conflict. Consequently, the acts of directing attacks on civilians are associated with the international armed conflict.
Lastly, under Netanyahu’s leadership, Retired Colonel Pnina Sharvit Baruch, former director of the branch of Israel’s military that advises commanders on the law, wrote, in October 2023, on the principle of proportionality during armed conflict, suggesting that extensive civilian harm might be justified if it serves a significant strategic goal.[20] Justifying that Israeli military has not breached the principle of proportionality (although a weak and groundless justification) signals the awareness of obligations under an international armed conflict showcasing how the leaders were aware of the factual circumstances that would establish the existence of an international armed conflict, thus proving the final element.
3. War Crime of Starvation as a Method of Warfare
Regarding the war crime of starvation as a method of warfare (8(2)(b)(xxv)), the elements are as follows: the perpetrator deprived civilians of objects indispensable to their survival and, secondly, intended to starve civilians as a method of warfare. The conduct took place in the context of and was associated with an international armed conflict and, the perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Concerning the first element, Israel has on many occasions deprived Palestinians of objects necessary for their survival. From November 2023 to April 2024, Israel restricted the entry and distribution of goods and services indispensable for the survival of the civilians, for example, denial of water into North Gaza and persistent restrictions on humanitarian assistance. This brought the risk of starvation and famine into Gaza. These intense circumstances were due to the ‘complete siege’ imposed by the Israeli Government on 9 October 2023. At the start of April 2024, over 1.1 million people in the Gaza Strip were facing intense levels of food insecurity. By 25 April, as per the Ministry of Health of the State of Palestine, 28 persons under the age of 12 died from malnutrition and dehydration, though the true number of deaths is likely higher. Further, in late March, as per doctors at Kamal Adwan Hospital, 15 infants suffered daily from acute malnutrition and severe dehydration.[21]
These are clear-cut instances of Israel depriving Palestinians of objects indispensable to their survival, thereby satisfying the first element. As for the second element, the mental requirements under Article 30 of the Statute[22] must be fulfilled and the perpetrator must intend to starve civilians as a method of warfare. Israel’s consistent imposition of restrictions as mentioned above showcases the leaders’ calculated strategy to starve and harm the civilian population, thereby establishing the deliberate intention behind the acts and knowledge of the consequences.
The intention element is further supported by statements from Israeli officials, who expressed concerns that starvation was deliberately inflicted by Israel to punish the civilian population.[23] For example, Itamar Ben-Gvir, a Member of the Israeli Knesset, stated the following in a tweet: ‘For 123 days I oppose the introduction of any humanitarian aid to the killers from Gaza. Gantz remembered this evening to agree in a low voice with my position…’[24] (translated from Google Translate).
Moreover, it has already been proven above that the Israel-Palestine situation comes under an international armed conflict, the third element is also met as in consequence the acts of impeding and restricting the distribution of resources were associated with the international armed conflict.
Lastly, since the mental and material elements of the war crime of starvation as a method of warfare committed under the authority of Netanyahu and Gallant have been proven, the fourth and final element of awareness of the factual circumstances that establish the existence of an armed conflict is satisfied, as also proven above.
4. The Geneva Conventions, 1949
As mentioned above, Article 8 of the ICC Statute relates to the provisions of the 1949 Geneva Conventions. It becomes pertinent to list the explicit provisions that relate to the war crimes explicated above, which have been breached by the two leaders.
Considering the war crime of attacking civilians, the act of making a civilian population or individual civilians the object of an attack, when committed wilfully and causing death or serious injury to body or health is a serious breach of Article 85(3)(a) of the Additional Protocol 1 of the Geneva Conventions, 1949.[25]
Further, regarding the war crime of starvation as a method of warfare, Israel has violated the Article 54 of Additional Protocol 1 of the Geneva Conventions, 1949[26] which explicitly states the prohibition of starvation of civilians as a method of warfare. The Article continues to state that it is forbidden to attack, destroy, remove, or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, whatever the motive, whether to starve out civilians or to cause them to move away.
Apart from these provisions, Israel has also breached foundational principles of International Humanitarian Law, for instance, the principle of distinction which is enshrined in Article 48[27] and Article 51 of Additional Protocol 1 of the Geneva Conventions, 1949.[28]
Article 48 explicitly states that parties to the conflict shall at all times distinguish between the civilian population and combatants, which Israel evidently failed to do so, given the direct attacks on the civilian population and deliberate restrictions on necessities for the livelihood of civilians. Article 51(2) also categorically states ‘The civilian population as such, as well as individual civilians, shall not be the object of attack.’
5. Conclusion
As we have entered 2025, we have realised that there is still a lot that needs to be done for Palestine to become a state of peace and prosperity. The State of Palestine, to this day, is still fighting for its right to self-determination and although the ICC rules against Israel by issuing arrest warrants, the international legal system still owes a great deal to Palestinians. After so much resilience, patience and courage, Palestine still hopes for a better future.
Author:
Huda Fatima
Research Associate, RCIL & HR
[1] War Crimes, Article 8 of the Rome Statute
[2] Geneva Conventions of 1949, International Humanitarian Law
[3] International Criminal Court, Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant (Press Release, 21 November 2024) <https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges>
[4] Elements of Crimes, International Criminal Court
[5] Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, 8 July 1996, (1996) ICJ Rep. 226, at 257 (para. 78)
[6] Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 266)
[7] Definition of attacks and scope of application, Article 49 of the Geneva Conventions’ Additional Protocol 1
[8] United Nations, Human Rights Office of the High Commissioner Update Report, Six-month update report on the human rights situation in Gaza: 1 November 2023 to 30 April 2024 (8 November 2024) 11 <https://www.ohchr.org/sites/default/files/documents/countries/opt/20241106-Gaza-Update-Report-OPT.pdf>
[9] Ibid 14
[10] UN Office for the Coordination of Humanitarian Affairs, Hostilities in Gaza and Israel I Flash Update #104 [EN/AR/HE] (29 January 2024) <https://reliefweb.int/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flash-update-104-enarhe>
[11] Palestine Red Crescent Society <https://www.palestinercs.org/en>
[12] See Six-Month Update Report (n.8) 19
[13] Mental Element, Article 30 of the Rome Statute
[14] ICC Case Law Database, Legal Finding ICC-01/05-01/13-1989-Red_6(ENG) <https://www.legal-tools.org/clddoc/5f117923c0381207d12cfd5e#:~:text=Dolus%20directus%20in%20the%20first%20degree%20requires%20that%20the%20witness,material%20elements%20of%20the%20offence.>
[15] Abu Garda, ICC PT. Ch. I, Redacted Version, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, 8 February 2010, para. 93; Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 271
[16] ICC, Situation in the State of Palestine n.3
[17] International Armed Conflict, International Committee of the Red Cross <https://casebook.icrc.org/a_to_z/glossary/international-armed-conflict>
[18] Article 1, Part 1, General Provisions, Additional Protocol 1 of the 1949 Geneva Conventions, 10
[19] ‘Israel and the Occupied Palestinian Territory’ Global Centre for the Responsibility to Protect (1 December 2024) <https://www.globalr2p.org/countries/israel-and-the-occupied-palestinian-territory/>
[20] Leonard Rubenstein, ‘Israel’s Rewriting of the Law of War’ (Just Security, 21 December 2023) https://www.justsecurity.org/90789/israels-rewriting-of-the-law-of-war/
[21] See Six Month Update Report (n.8) 17
[22] Mental Element n.13
[23] See Six Month Update Report (n.8) 18
[24] Itamar Ben-Gvir (6 February 2024 ) <https://twitter.com/itamarbengvir/status/1754923436881674506>
[25] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 85(3)(a)
[26] Ibid Article 54
[27] Ibid Article 48
[28] Ibid Article 51