Girl walking to get food in Gaza. Jaber Jehad Badwan/Wikimedia Commons.

In August, an Integrated Food Security Phase Classification analysis confirmed famine in Gaza’s largest city and surrounding areas. The World Health Organization recorded 63 malnutrition-related deaths in Gaza in July alone. It blames the ‘deliberate blocking and delay of large-scale food, health, and humanitarian aid’.

A consensus among UN agencies and aid organisations about famine in Gaza has emerged. Human Rights Watch, Amnesty International and Doctors Without Borders have all condemned what they allege is Israel’s intentional use of starvation as a weapon of war, describing it as a direct cause of Gaza’s humanitarian crisis. The IBA’s Human Rights Institute (IBAHRI) has condemned the ‘deliberate starvation’ of Gaza’s population as breaching international law.

Catriona Murdoch, an international criminal barrister, says that Israel, by wielding aid as a bargaining chip, is flouting core humanitarian duties to provide aid unconditionally. The strategy has exacerbated the pre-existing humanitarian crisis and has contributed to the staggeringly quick impact of food insecurity, she says. ‘The conduct of Israel in routinely blocking [aid] for extended periods or making the conditions of delivery so dangerous or logistically impossible, would fall within the set of rules which prohibits this type of conduct,’ she says, referring to international humanitarian law (IHL). ‘Starvation is the process of deprivation that occurs when actors impede the capacity of civilians to access the means of sustaining life.’

Israeli officials reject these accusations and deny any deliberate famine policy. They defend aid limits by pointing to security risks to Israeli citizens and blame Hamas for siphoning off supplies to its fighters. Israel says it only bars ‘dual-use’ items – which could serve military ends – from aid.

Commentators say that some statements and actions by Israeli officials indicate criminal intent. In January, for example, Israeli media outlet Haaretz reported that members of a Knesset committee had advocated the destruction of northern Gaza’s food, water and power supplies as a military tactic against Hamas. Despite Israel’s 2005 withdrawal from Gaza to the Strip’s outside borders, experts say Israel remains the occupying power, controlling the territory’s borders and resources. Under international law, this obliges it to provide civilians with basic necessities – a duty, critics say, it hasn’t upheld.

‘In the case of Israel, given the repeated and public statements made indicating a specific intent to seal off areas [and] restrict food and water, coupled with the dehumanising language and strong rhetoric of starvation tactics, it would be difficult to run a defence based on denial that civilians were not the intended target of this siege and starve campaign,’ says Murdoch.

Analysts argue that Israel’s 11-week complete blockade on food deliveries to Gaza, which lasted from March to May, could form the backbone of a powerful war crimes prosecution, with starvation as a central charge. Stephen Rapp, IBAHRI Council Member and former US Ambassador-at-large for War Crimes Issues, says that intent – a critical element in such cases – may be legally inferred from the predictable consequences of sealing off the enclave while destroying its lifelines. Israel controlled all access points after its military operations rendered the Rafah Border Crossing inoperable and crippled local food production.

‘Even if it was reasonable to presume that the civilian population could control Hamas’ decisions, it is well settled that a party cannot commit IHL violations in order to force another party to comply with its obligations,’ Rapp says.

‘Starvation of civilians as a method of warfare as a war crime contrary to Article 8(2)(b)(xxv) of the [Rome] Statute’ was one of the charges laid against Israeli Prime Minister Benjamin Netanyahu alongside Yoav Gallant, the former Minister of Defense of Israel, by the International Criminal Court (ICC) when it issued arrest warrants for both in November 2024. Israel denies the charges.

‘I think that a prosecution case alleging starvation as a war crime is a strong one,’ Rapp says. ‘The full blockade and tighter restrictions of 2025 will make cases stronger, and harder to defend against, at the ICC and in national systems exercising universal jurisdiction.’

The IBAHRI, while condemning the attacks by Hamas against Israel that took place on 7 October 2023, dismisses Israel’s aid-diversion claims as unsubstantiated, citing an internal USAID (US Agency for International Development) study. As such, the claims ‘in no way justify bypassing international humanitarian norms,’ the IBAHRI says. Officials from bodies such as the UN World Food Programme have denied Israeli claims of large-scale, organised theft by Hamas but have said some aid was stolen ‘by criminal gangs, under the watch of Israeli forces’.

In January 2024, and again in May of the same year, the International Court of Justice demanded that Israel allow full, unhindered humanitarian access to Gaza, including by ensuring aid delivery. Despite this, Israel has failed to comply.

Alex de Waal, Executive Director of the World Peace Foundation at Tufts University, highlights the duration during which aid has been prevented as grounds for accusations of criminal conduct. ‘A military commander cannot starve a population by accident,’ he says. ‘It takes weeks to starve. During this time, information is available about the outcome. In Gaza, authoritative warnings have been repeatedly issued [eg] by the UN. Failing to act on these warnings should be taken as evidence for criminal intent.’

A recent judgment from the Court of Justice of the European Union (CJEU) on Italy’s plan to process asylum applications offshore has provided migrants with crucial legal protection. 

The judgment, published in August, concerns the principle of ‘safe countries of origin’ and affects Italian Prime Minister Giorgia Meloni’s agreement with Albania, a non-EU country. Italy’s scheme is designed to repatriate migrants who have been picked up in the Mediterranean. ‘The CJEU judgment is the natural consequence of this latest attempt by a national government to outsource asylum processing and decide for itself – without the right to challenge – what is a “safe” country,’ says Alex Stojicevic, an officer of the IBA Immigration and Nationality Law Committee.

The case concerned two asylum seekers from Bangladesh, a country that Italy deemed ‘safe’ in the context of its immigration rules. Pursuant to the Italy-Albania agreement, the two individuals were being held in a detention centre in the latter country designed for those with limited chances of a successful asylum application and were to be repatriated through a fast-track procedure. 

There were three strands to the Court’s conclusions. The first was to endorse the original orders of the Italian immigration judges who found that the migrants had to be sent back to Italy from Albania on the grounds that a country can only be deemed ‘safe’ by an EU Member State if it offers 'adequate protection for its entire population'.

However, new rules are coming into effect that will supersede this finding. The EU’s Pact On Migration and Asylum, which was adopted in summer 2024 and becomes applicable from June 2026, changes the notion of what’s considered a ‘safe’ country of origin. Under the Pact, a country of origin may be designated safe even if, for an individual applicant, there could be a threat posed to that person based on, for example, their religion or sexuality, or because they’re from a certain region.

It’s the second and third elements of the CJEU’s judgment that appear set to provide legal protection for migrants, and in part explain why 16 EU Member States intervened in the case. The CJEU found that schemes such as that put in place by Italy will only be lawful to the extent that the process, and the designation by a Member State as to what is and isn’t a ‘safe’ country, can be properly and effectively challenged in the courts. Further, the sources of information, the data and evidence relied upon to reach any decision around the safety of a country must be accessible.
  
The immediate consequence for Italy is that the Albanian detention centre will be, for now, under-used. Ultimately, the new EU Pact will substantially increase the parameters of what might be considered a safe country for repatriating irregular migrants and thus provides Member States with greater room for manoeuvre to do so. 

However, the CJEU judgment ensures these parameters will probably be subject to considerable challenge in the courts. ‘The buried treasure in the [CJEU judgment] is the effectiveness of a challenge, and access to documents,’ says Steve Peers, a professor of EU and human rights law at Royal Holloway, University of London. ‘With the new EU Pact, it might be easier to say a country is safe but it will be easier to challenge this in individual cases.’ 

Peers believes those challenges will probably turn into a debate about, for instance, the client’s religion or sexuality and a country’s treatment of this category. This is exactly what the 16 Member States that intervened in the CJEU case were afraid of, he believes. ‘As they see it, their internal procedures will be clogged up with legal challenges,’ says Peers. 

According to Meloni, the CJEU is ‘claiming jurisdiction that does not belong to it […] The European Court of Justice has decided to delegate to any national judge the decision […] on the part of migration policy relating to the repatriation and expulsion of illegal immigrants.’ 

In the UK in August, a local council was successful in its application to the High Court to have a hotel in Epping, near to London, banned from housing irregular immigrants. The ruling was however overturned at the Court of Appeal. What followed was criticism, including by a senior lawmaker, of the judges involved in this and other immigration cases. The suggestion was that their backgrounds and personal views were influencing their rulings.

A major concern is that this rhetoric against the judiciary undermines the rule of law. ‘Over time, this position erodes the view that the courts are legitimate,’ says Stojicevic, who’s also Managing Partner at MKS Immigration Lawyers in Vancouver.

Despite the CJEU judgment, the combination of the new EU Pact coming into effect and a European Parliament that’s more hardline in its attitude to immigration means the EU appears set to take an increasingly restrictive approach on the issue. ‘We could see the Pact develop such that whole countries are declared safe and the rules being re-written to make it difficult to challenge that,’ says Stojicevic. The EU might even consider deportations, which ‘are a feature of the Canadian and Australian systems and, as we well know, are looked on favourably in the US right now,’ he adds.

Header image credit: 'Angels unawares' sculpture, by Timothy Schmalz. The sculpture sits in St Peter's Square, Vatican City, and depicts a group of migrants and refugees on a boat wearing clothes from diverse cultures and historical moments. Real_Life/AdobeStock.com