Israeli defense may falter at world court as starvation claims dominate global discourse

Yahoo

2 days ago

After the April win for Israel at the ICC, it did not need to be this way.
Israel always had an uphill battle to fight back against war crimes allegations before the International Criminal Court. But after losing a series of those battles in 2019, 2021, and November 2024, it got a rare and important interim win in April of this year.
Despite that interim win, the starvation narrative – now dominating global discourse and acknowledged by top IDF officials, who admit that even without mass starvation, food security in Gaza is at its lowest point of the war – has once again placed Jerusalem on the defensive in the war crimes case.
When the ICC Appeals Court ruled in favor of Israel in April, it was likely that it was not only because Israel's lawyers made a number of strong legal arguments that the ICC lower court's prior rulings had skipped over.
No court is completely immune to political context, and the ICC most definitely is not immune, with judges often connected to their country's policies.
So it was likely that the ICC Appeals Court ruling also came as Europe and other international institutions were trying to find a halfway point with the new and aggressive Trump administration, as well as a belief that a new 60-day ceasefire might not be far off.
It is noteworthy that the ICC Appeals Court issued its ruling on April 24, nearly two months after Israel began blocking new food aid from getting into Gaza.
Had those two months of blocking food aid led to mass starvation, it is unlikely that the ICC Appeals Court would have issued any positive ruling for Israel, interim or otherwise.
But at the time, despite repeated false charges of imminent starvation dating back to late 2023, the ICC Appeals Court could plainly see that no mass starvation had taken place.
This critical political and ideological human rights context may all change now that even top US allies and an increasingly strident UN are calling the Gaza situation a starvation situation.
Just on Friday, Israel filed its latest legal brief to try to convince the ICC lower court to cancel the arrest warrants issued against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant and to drop the entire war crimes case against the Jewish state.
ISRAEL'S LEGAL brief made a number of critical arguments that, if the situation in Gaza were moderately stable, might have a chance of getting Jerusalem out of this jam.
First, Israel asserts that the ICC lower court from 2024 could not ignore Jerusalem's substantive arguments attacking the idea of Palestine as a state, which can give the ICC jurisdiction, simply because an earlier ICC lower court in 2021 had ruled that Palestine was a state, and could do so.
This kind of an argument is called 'res judicata,' meaning a later court can just lean on the ruling of an earlier court if an issue has already been litigated and decided.
But Israel chose not to participate directly in the 2021 legal fight. This was probably a foolish move by the Jewish state, but when major issues are at stake, courts usually let a party, or here a country, make its arguments belatedly, if the court shows up before a final verdict at trial.
Based on that general rule, Israel should get a chance to make its arguments at this stage, even if it had an earlier opportunity to make them and did not.
There are counterpoints to this, where legal jurisdictions apply some version of the 'entire controversy doctrine' – that anytime a party misses a chance to make an argument, it has forfeited that argument.
Palestinians do not control a terrority with set borders
But that is usually a civil law concept, not applicable to criminal cases like this one, and is used against the plaintiff bringing the case, not against the defendant, who might lose something if they do not get to defend themselves. Moreover, as Israeli lawyers argue, the Palestinians do not control a territory with set borders right now, certainly not Gaza.
If that is true, then how can 'Palestine' grant the ICC jurisdiction?
Israel has not granted jurisdiction, so if Palestine cannot grant jurisdiction either, the ICC would need to drop everything.
Next, Israel recognizes a number of potentially strong arguments for the ICC prosecutor and the Palestinians, and tries to disarm them all.
For example, theInternational Court of Justice (ICJ) in a 2024 opinion ruled that Israel's occupation of the West Bank, Gaza, and east Jerusalem is illegal.
From this ruling, the ICC prosecutor contends that these areas are defined as Palestine, even if Israel allegedly illegally occupies them.
Israel hits back that the ruling was a non-binding advisory opinion for the UN General Assembly, which itself also only issued non-binding votes.
MOREOVER, ISRAEL argues that since the whole process was an advisory proceeding, it did not allow a full exploration of the most concrete facts on the ground, which is required in a criminal proceeding, such as the one the ICC is overseeing.
The ICC prosecutor has said that even if Palestine lacks aspects of standard statehood, the inherent principles of self-determination cannot allow Israel to prevent the Palestinians from seeking ICC assistance to protect them from alleged Israeli war crimes.
Jerusalem responds that the Palestinian Authority, which is purporting to try to give jurisdiction (it filed an accession document to the ICC's Rome Statute around a decade ago) only came into existence by virtue of the Oslo Accords agreement between Israel and the Palestinians. This agreement specifically prohibited the PA from trying to invoke criminal jurisdiction against Israelis.
Next, Jerusalem asserts that even if an entity could somehow give jurisdiction to the ICC, even lacking fully set borders, that it at least must control the areas – in this case, Gaza – from which it wants to refer jurisdiction.
The ICC prosecutor then employed a clever tactic and said that even if Israel has some technical points, to allow it to throw out the Palestinians' case based on such formalities would abrogate the whole 'object and purpose' of the ICC and its Rome Statute, which is to 'put an end to impunity.'
Here, Israel quotes precedent that says that pursuing the ICC's object and purpose cannot come at the expense of Article 1 of the Statute, which requires that '[t]he jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.'
This means that the ICC judges cannot just ignore technical rules that apply because they do not like the result.
Next, the ICC prosecutor argues that any finding by the ICC lower court that 'Palestine' is not '[t]he State on the territory of which the conduct in question occurred' under 12(2)(a) – 'would be inconsistent with the principle of effectiveness' because it would 'defeat the effect of Palestine's accession to the Statute'.
In other words, the ICC Assembly of State Parties, which governs the ICC, accepted Palestine as a state. How can that have happened while leaving the Palestinians no recourse to defend themselves against alleged war crimes?
Israel responds, saying, 'The Parties continue to conduct themselves in accordance with the jurisdictional arrangements of the Accords. Moreover, the international community has continuously and steadfastly shown its support for the bilateral negotiation framework as the basis for the resolution of the conflict. This Chamber should not undermine the framework that governs the relations between the Parties and lays the foundation for the resolution of the conflict, as agreed to by the Parties and endorsed by the international community.'
AND THESE high-minded-sounding words might have held the day or won further delays if the 60-day expected ceasefire had transpired. Or if the situation in Gaza was starting to stabilize and Jerusalem's 'only' problem was defending against past war crimes allegations as opposed to ongoing and potential future ones.
But how will Israel have any chance in convincing the ICC to give it a win on technicalities and to ignore the object and purpose of the ICC itself when the judges are witnessing near universal global consensus that there is mass starvation in Gaza?
Will they be more favorable to Israel than Trump's own recent statements on the issue?
When Israeli ministers openly support blocking food to Gaza and remain in office, won't this influence the ICC's decision?
In a situation where the IDF admits that there have been individuals who have starved to death, but is trying to deflect the negative impact of those individual cases by claiming that many or most of them had preexisting conditions, will the ICC give Israel a pass?
Can Israel fight this fight by saying that maybe only dozens have starved, but not hundreds and not thousands?
On legal blogs following the situation, the tone has shifted from summarizing both sides of the issue with some general bias against Israel, to asserting that third-party countries now have a duty to intervene to stop Israel from causing the alleged starvation.
Some legal scholars are arguing that intent to starve does not even need to be proven in standard ways if it can be proven that a foreseeable consequence of certain policies would be to lead to starvation.
It is hard to see how Jerusalem turns this case around.
And yet, after the April win for Israel, it did not need to be this way.
Israel had already been defeating Hamas for around 17 months straight. Pausing, even for an extended period, would not have left Hamas the same as it was in 2023 or even the same as it was in mid-2024.
If Israel had agreed to a ceasefire then and stabilized the humanitarian situation, it might have still lost the war crimes fight, but it also might have capitalized on the interim win to get a total win.
Instead, Israel pulled out all the stops both on the war front and the aid front and ended up having to mostly pause the war and give Hamas much of the aid it wants, receiving no hostages, and probably now teeing up a new low before the ICC.
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