The IPC Report on Food Insecurtiy in the Gaza Strip: an International Law Perspective
Di Ludovida Di Lullo
Food Insecurity in the Gaza Strip
In December 2023, the Integrated Food Security Phase Classification (hereafter IPC) report on the food security situation in the Gaza Strip was published. It is a multi-stakeholders analysis aimed at qualifying the severity and characteristics of acute food and nutrition crises and food insecurity, based on international standards.
According to the IPC, the current conflict in the Gaza Strip is causing a catastrophic impact on the already existing food insecurity, caused by the damage and/or destruction of agricultural land and infrastructure essential for food production and distribution (agriculture, livestock and fisheries). Moreover, the daily deterioration of the situation leads many observers to believe that the risk of famine is imminent. In addition, humanitarian food aid and the amount of products that can enter the Gaza Strip, limited by import restrictions imposed by the Israeli government, are extremely inadequate to meet the needs of a population whose existence is at risk.
According to the IPC, more than 90 per cent of the population of the Gaza Strip (approximately 2.8 million people) is facing high levels of acute food insecurity and, of these, with more than 40 per cent are in emergency conditions and more than 15 per cent are in a real catastrophe. While the inextricable nexus between the lack of access to food and armed conflict is well known, the numbers in Gaza represent the highest percentage of people experiencing high levels of food insecurity that IPC reports have ever classified for any given area or country, and, according to experts, this is unprecedented in terms of the scale, severity and speed of the crisis.
Against this background, it may be useful to consider which norms of international law are relevant in this case and, should there be a finding of violation, what legal consequences would arise in terms of responsibilities of the actors involved and international disputes settlement.
International humanitarian law: access to food in armed conflicts
International humanitarian law, the body of rules designed to protect the human beings in armed conflicts, whether internal or international, does not provide a precise definition of terms such as food insecurity or famine. However, the term starvation is found in Article 54 of Additional Protocol I (AP I) and Article 14 of Additional Protocol II (AP II). The two provisions, which are almost identical in content, concern the protection of goods indispensable for the survival of the civilian population, but their respective fields of application are different: international conflicts in the first case, and non-international conflicts in the second.
Specifically, it is forbidden, on the one hand, to use starvation as a method of warfare and, on the other hand, to attack, destroy, remove or damage in any way, with the deliberate intention of depriving the civilian population of goods essential to its survival, such as foodstuffs and the agricultural land on which they are produced, crops, livestock, drinking water installations and reserves, and irrigation works, with the deliberate intention of depriving the civilian population of them.
More specifically, the commentary to the articles of the two Protocols states that the term “starvation” is generally understood to mean the act of starving or subjecting the civilian population to starvation, i.e. to extreme shortage and/or deprivation of food, as well as starvation to death.
The prohibition of the use of starvation as a method of warfare is nothing more than a specification of the more general principle of humanity, consolidated in international humanitarian law, which prohibits the use of any method of warfare that is designed to cause unnecessary harm and suffering. This is supplemented by the principles of necessity, proportionality and distinction, which together seek to ensure, inter alia, the effective protection of those not taking part in the conflict, primarily the civilian population, is guaranteed.
The international law of armed conflict also contains rules for the deployment of humanitarian aid operations. Although the consent of the State exercising effective control over the population is always required, states do not have the option of withholding consent to relief operations in two situations: when an occupying power, in the course of an occupation, is unable to ensure the adequate supply of goods essential for the survival of the civilian population; and when the UN Security Council has adopted binding measures requiring the parties to consent to humanitarian relief operations. Otherwise, consent is required, cannot be arbitrarily withheld and, once obtained, the parties to the conflict must allow and facilitate the rapid and unimpeded passage of humanitarian relief operations (Art. 59 IV Geneva Convention).
The right to food in the interaction between human rights and humanitarian law
The “dichotomous” view of the relationship between international humanitarian law and “law of peace”, according to which only the norms pertaining to the former category are applicable in the event of conflict, has long since been considered outdated. Rather, it is now generally accepted that there is a need for coordination between the provisions of human rights and humanitarian law provisions applicable in the time and place of armed conflict. This therefore also applies to the protection of the human right to food.
Although already present in the Universal Declaration of 1948, in Article 25, as an integral part of the right to a standard of living adequate for the health of every person and family, since the adoption of the Covenant on Economic, Social and Cultural Rights (the Covenant or ICESCR), the right to food, provided for in Article 11, has found its own autonomous formulation in the human rights system. According to this provision, the right to food has, indeed, a dual dimension: the right to have access to adequate, available and affordable food, but also the “fundamental” right to be free from hunger.
The content of the right to food is now consolidated in international law, supported by the authoritative interpretation offered by the Committee on Economic, Social and Cultural Rights (the Committee or ICESCR), not only in its 1999 General Comment No.12 on the right to food, but also in its general comments on other rights related to the right to food.
Nowadays, the right to food is also included in numerous international instruments: from the Declaration on the New International Economic Order to the Convention on the Elimination of All Forms of Discrimination against Women, from the UN Declaration on the Rights of Peasants and Other Persons Working in Rural Areas to the Convention on the Rights of the Child, as well as in the many regional human rights instruments. Consider also that reducing the world hunger is one of the main goals of the UN Agenda 2030 (Goal 2 Zero Hunger).
As stated by the Committee on Economic, Social and Cultural Rights, in General Comment No. 3 on the nature of the obligations of the States parties, adopted in 1990, the Covenant imposes, first and foremost, an obligation to take all appropriate measures to ensure the progressive realization and non-regression of rights set forth in the Covenant. With regard to the right to food, the relevant General Comment specifies that this is in turn expressed in the obligation of States parties not to adopt measures that impede to access to food (respect), to protect individuals from possible restrictions (protect) and to promote activities that strengthen guarantees of food security (fulfil). As there are no clauses limiting the application of the Covenant to the exclusive territorial jurisdiction of each State party, the added value of the ICESCR lies in its extraterritorial application, thus the duty to guarantee the rights established in the Covenant in respect of each individual who is in any way subject to the jurisdiction or control of the State party.
The Covenant, therefore, can be considered a guarantee for the maintenance of global food security, if it is respected.
The legal consequences of lack of access to food
The normative framework described above highlights what can be considered as erga omnes obligations, the violation of which, according to customary norms on international responsibility, allows even States other than the directly injured one to invoke the responsibility of the responsible State, and to take lawful measures against the latter, as provided for in the 2001 Draft Articles on the Responsibility of States for International Wrongful Acts (Art. 48 and 54). From a procedural point of view, then, it would thus be possible to resort to the classical instruments of inter-States disputes settlement, diplomatic or jurisdictional, in case of such violations.
However, it is also possible to extend the considerations on access to food to the field of individual criminal responsibility, bearing in mind that, according to Article 7(2)(b) of the Statute of the International Criminal Court, the intentional infliction of inhumane living conditions, including the deprivation of access to food, falls under the heading of crimes against humanity. On the other hand, violations of the rules of international humanitarian law fall under the heading of war crimes, according to Article 8 of the same Statute. This provision, as reworded following an amendment, proposed by Switzerland and adopted in 2019, provides for a specific war crime of “starvation”, in which the “intentional starvation of civilians is used as a method of warfare, depriving them of objects essential to their survival, including the intentional obstruction of relief supplies provided for in the Geneva Conventions” (Art. 8(2)(b)(xxv)).
However, in order to bring such conduct within the jurisdiction of the International Criminal Court, international law requires the existence of other material and psychological elements. With regard to the crime of war, it is necessary that there be a connection between the conduct committed and the existence of an armed conflict, and that such conduct be committed, intentionally and knowingly, as part of a plan or policy or a large-scale perpetration of such a crime.
The crime against humanity, in turn, requires that the conduct be part of a widespread and systematic attack directed against the civilian population, by any form of mistreatment of the civilian population. Also in this case, the mens rea, i.e. the intent to commit a specific act, accompanied by the knowledge that the conduct is part of an attack directed against the population, must be proven.
Finally, the crime of genocide occurs when acts such as killing, causing physical or mental harm, and inflicting conditions of life leading to physical destruction are committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such (Art. 6).
The path of international justice takes a long time. But while the emergency continues, the first legal channels have already been activated.
With regard to criminal proceedings, following the referral of the situation in the Gaza Strip to the International Criminal Court by Bangladesh, Bolivia, Comoros, Djibouti, South Africa and, then, Chile and Mexico, the Prosecutor affirmed to extend his investigation of the situation in Palestine, which started in March 2021, to cover the hostilities and violence that have taken place since 7 October 2023.
With respect to inter-State proceedings, the application filed by South Africa to the International Court of Justice, regarding possible violations by Israel of the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide, has already led to the adoption of an interim measures order on 26 January.
The measures outlined by the Court, concerning Israel's obligation to take immediate and effective measures to prevent incitement and the commission of acts of genocide, and to enable the provision of urgent basic services and humanitarian assistance for the survival of the Palestinian population, are in turn based on important considerations regarding access to food.
It is worth noting that in motivating its decision, the Court cites several sources on the food situation in the Gaza Strip, provided by, among others, the World Health Organisation (para. 48), the United Nations Office for Humanitarian Affairs and Emergency Relief (para. 47), the United Nations Commissioner-General for Relief and Works for Palestine Refugees in the Near East (para. 49), according to which: “They lack everything, from food to hygiene to privacy. People live in inhumane conditions, where diseases are spreading, including among children. They live through the unlivable, with the clock ticking fast towards famine”.