How did the Israeli Supreme Court Legitimise Starvation as a Weapon of War? An Autopsy of a Ruling (Part 1)

[Neve Gordon is a professor at the School of Law, Queen Mary University of London, a Fellow of the British Academy of Social Sciences and the former Chair of the British Society of Middle Eastern Studies’ Committee on Academic Freedom. He is the author of Israel’s Occupation (University of California Press 2008) and co-author of The Human Right to Dominate (Oxford University Press, 2015), Human Shields: A History of People in the Line of Fire (University of California Press, 2020).

Muna Haddad is a Palestinian human rights lawyer and a PhD candidate at the School of Law, Queen Mary University of London. She has published on Israel’s control of food to produce famine and is currently working on a manuscript about Israel’s use and abuse of the Palestinian corpse.]

On March 18, 2024, five Israeli human rights organisations submitted an urgent petition challenging Israel’s severe restrictions on humanitarian aid to the Gaza Strip. They requested that the Supreme Court instruct the government to allow the rapid and unimpeded access of humanitarian aid, equipment and staff, to increase the volume of aid, and to  provide essential supplies to the civilian population. The petition consisted of two main parts: the first provided evidence of the humanitarian catastrophe in Gaza and the restrictions Israel was imposing on the access of aid since the start of the war on October 7, 2024; the second laid out the relevant bodies of law regulating Israel’s actions in Gaza. The human rights organisations added that the severe restrictions on the entry and distribution of humanitarian aid, compounded by direct attacks on indispensable civilian infrastructures, breached the prohibition on the use of starvation as a method of warfare and constituted a form of egregious collective punishment. At the time, over 31,000 people in Gaza had been killed and more than 73,000 injured (paras 13–14); over one million displaced; and more than 60% of Gaza’s buildings had been damaged or destroyed, including two-thirds of its hospitals. The majority of the population faced severe shortages of food, clean water, medical supplies, and basic hygiene, while at least 27 civilians —23 of whom were children — had reportedly died from malnutrition in north Gaza (paras 2, 49).

On March 27, 2025, over a year after it had been submitted and over three weeks after Israel imposed a complete blockade on the Gaza Strip, three Supreme Court justices unanimously rejected the petition. Chief Justice Yitzhak Amit, who is associated with the Court’s liberal camp, authored the leading opinion, and deputy Chief Justice Noam Solberg and Justice David Mintz, both associated with the conservative camp, concurred and added a few observations. An autopsy of the ruling lays bare how the Court deployed three major strategies to legitimise Israel’s deprivation of supplies necessary for the survival of the population in Gaza: (1) restricting the legal framework, (2) disregarding the evidence submitted by the petitioners, and (3) using ‘time’, both in the judicial process and in the ruling itself, as a tool of legitimisation.   

Restricting the Legal Framework

After providing a stark portrayal of the humanitarian catastrophe in Gaza and the harm caused to the civilian population, the five human rights groups accused Israel of blatantly violating its obligations under three major bodies of international law (para. 77-146): the laws of armed conflict (LOAC), the laws of belligerent occupation, and international human rights law (IHRL). These bodies of law, the petitioners argued, entail two kinds of obligations: negative obligations to refrain from harming the civilian population by obstructing the delivery of supplies necessary for their survival, alongside positive obligations guaranteeing that the population’s humanitarian needs are met. 

The Court’s first move was to limit Israel’s legal obligations towards Gaza’s civilian population to negative duties ‘to allow and facilitate’ aid, by claiming that LOAC serves as the primary and exclusive normative framework and the one it would, de facto, work with (para. 15, 18). The Court accepted the government’s position that the law of belligerent occupation, which imposes a positive duty on Israel to ensure and provide food and medical supplies necessary for the population’s wellbeing, does not apply to Gaza. Chief Justice Amit explained that he used three factual criteria, which serve as cumulative auxiliary tests for examining the existence of a belligerent occupation in a given territory: (a) the physical presence of the foreign power; (b) the ability of the foreign power to exercise governmental authority; and (c) the loss of the ability of the previous sovereign to exercise governmental authority (para. 21).  

At the outset, Amit stressed that ‘a significant part of the facts that served as the basis for the decision on the matter originated from classified information presented by the respondents in an ex parte capacity’ (para 23). Amit then turns to the first criterion. Since 2005 the Court had insisted that Israel is not an occupying power because Israel did not have ‘boots on the ground’ in the Gaza Strip. Here Amit decided not to address this criterion and noted instead that even though the parties disagreed about the nature and extent of Israel’s presence in Gaza, there was no need rule on the matter due to his conclusion regarding the second and third criteria (para. 24). The justifications and rhetoric he employed to claim that the two other criteria are not satisfied shed light on his underlying ideological commitments.  

Regarding Israel’s ability to exercise governmental authority in Gaza, Amit rightly noted, that the accepted understanding concerns the ‘ability to exert authority’ and not the actual exercise of authority over a specific area. Yet, in examining Israel’s ability to exercise this authority, Amit focused on Article 43 of the 1907 Hague Regulations, which places the basic obligation on an occupying power to ‘restore, and ensure, as far as possible, public order and safety’ , and interprets this obligation as requiring the operation of a proper government across ‘all’ its branches, ‘as is customary today in a well-ordered country’, including ‘security, health, education, welfare, and, among other things, quality of life and transportation’ (para 26). The Chief Justice then asserted that the Israeli military is not in a position to provide these services (omitting the military’s role in their destruction) and concluded that it does not have the ‘ability to exert authority’ over life sustaining and lifesaving services. He thus emphasises the idea that in order for authority to exist it does not need to be exercised but then argues that Israel does not have authority because it does not exercise it. 

Amit further rejected the petitioner’s claim that Israel’s control of Gaza’s entry and exit routes and its displacement of the population from various areas reflect its ability to control the movement of people and goods and, therefore, of life, within the Strip. For example, he cast Israel’s evacuation orders that led to the displacement of 1.7 million people—or 85% of Gaza’s population—as emanating from humanitarian concerns, asserting that they do not constitute  ‘forced displacement’ or ‘expulsion’, and accordingly do not signify Israeli control, but are merely ‘recommendations intended to maintain the security of civilians in the Gaza Strip’ (para. 30).

The Chief Justice went on to claim that the third criterion is not satisfied either since Hamas still exercises government authority in the Strip. Interestingly, the word ‘terrorism’ which he used throughout the petition as an adjective to characterise Hamas disappears specifically in the section where Amit argued that Hamas still has governmental authority (para. 31-36). Amit accepted the petitioners’ claim that there is no need to demonstrate a ‘complete collapse’ of the previous government and that occupying powers often use local organisations to control the area (para. 31), but claims that based on classified information, Hamas still retains the ability to exercise significant military force (which is irrelevant to this examination) and governmental powers (para 33).  He also ignored the petitioners’ alternative claim, substantiated by Israeli legal experts, that the military was exercising powers as an occupying force in specific areas within Gaza—a form of partial occupation as recognised under Article 2 of the Geneva Conventions—such as north Gaza and Rafah, where the government itself admitted it had gained control, and concluded that there is no reason for attributing to Israel the obligations that apply to an occupying power in a territory. 

Amit did acknowledge that in the ‘Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem’, (Jul. 19, 2024) the International Court of Justice (ICJ) reached a different conclusion (paras 38-44). Citing former Chief Justice Aharon Barak, he explained that the normative framework informing the Israeli Supreme Court and the ICJ are the same and that the difference stems because the Supreme Court had detailed information provided by the government, including classified information, to which the ICJ was not privy. Amit thus used the ‘factual bases’ provided by the party accused of abuse and illegality to determine the relevant legal bodies and, consequently, Israel’s obligations under the law.

Regarding IHRL, the petitioners had, for example, highlighted the relevance of the Convention on Economic and Social Rights (1966) which enshrines the right of every person to adequate food, clothing and housing and the basic rights of every person to be free from hunger and enjoy the right to health (art. 11, 12). They emphasised the Convention on the Rights of the Child (1989) and the obligation to ensure that the children are provided with protection and care to ensure life, survival and development (Art. 2, 6, 23). Amit did not explicitly reject IHRL’s applicability but claimed that it applies only if there are gaps in LOAC (para. 18), a position held by the Court for decades, citing the doctrine of lex specialis (HCJ 769/02 Public Committee Against Torture v. Government of Israel (December 14, 200), para 18; CrimA 6659/06 A. and B. v. State of Israel (June 11, 2008), para 9). The problem here is not that the Court distinguishes between the two bodies of law, but that in its rulings never the twain shall meet. Even in those decisions addressing the West Bank outside periods of active hostilities, the Court has consistently resolved legal questions exclusively through LOAC, without subjecting the alleged violations brought before the Court to IHRL. The Court, in other words, has been willing to acknowledge the protentional use of IHRL as a legal framework, but it has rarely, if ever, applied it to the territories Israel had occupied in 1967.

And as to the application of LOAC, Amit interpreted the obligations and protections as stemming from this body of law in a very narrow way, accepting the government’s position that Israel is bound only by the ‘core’ of Article 70 of Additional Protocol I—the main provision regulating humanitarian relief— without scrutinising what this limitation to the ‘core’ entails or what obligations are thereby excluded (para 17).  He omits from his analysis that the article subtly sets positive obligations by ‘recogniz[ing] the entitlement of a civilian population in need to receive humanitarian relief’, requiring that ‘relief actions “shall be undertaken” whenever a population is in need’. Amit’s interpretation also fails to take into account the distinction LOAC advances between obligations aimed at securing ‘general protections’ and those aimed at securing ‘special protections’.  The International Committee of the Red Cross (ICRC) explains that special protections, which are applicable to certain objects indispensable to the civilian population’s survival, such as medical units, call on warring parties to not only ‘protect’ but also ‘respect’ these people and sites. ‘It is not enough’, according to the official interpretation of Article 12 of Additional Protocol I dealing with the protections afforded to medical units, ‘for the enemy simply to refrain from taking action against them; he [sic] must also allow them to continue to give treatment to the wounded in their care, as long as this is necessary…. It also means coming to their help in case of need’. Thus, satisfying the law’s obligations, according to the ICRC, ‘is no longer only a matter of not preventing supplies from reaching [medical] units… ‘but, if necessary, to help to ensure the delivery of these supplies (for example, by providing a vehicle) or even to make sure that they are not jeopardized by third parties (looting etc.)’. Hence, even the body of law that the Court agreed was applicable to the situation was partially defanged through a narrow interpretation of the obligations that it entails. 

Finally, when subjecting the factual basis to LOAC, Amit failed to highlight the protections this body of law affords civilians and focuses instead on the legal exceptions. Amit’s repeated claim that the restrictions Israel imposed on the movement of aid are within the framework of its legal rights (paras 6, 16, 74, and 90) and that its military was operating within the law’s parameters, wittingly or not, weaken the humanitarian norms that LOAC aims to protect. Put differently, through the constant invocation of legal exceptions, the Chief Justice ends up sowing doubt over the validity and solidity of the moral norm outlawing the deprivation of Gaza’s civilian population of objects indispensable to their survival. 

This pattern is reinforced by the language of rights deployed throughout the decision. Amit adopted the defendant’s logic and used LOAC to establish the rights and protections bestowed on Israel as a warring party, while relegating the rights of the civilian population in Gaza to the margins. Searching the ruling for the term ‘right/s’ reveals that it appears only to affirm Israel’s ‘right’ to impose technical arrangements that, in practice, often impeded the delivery of humanitarian aid necessary for the survival of the population, or to assert that IHRL and Israel’s constitutional protections of human rights do not apply to Gaza’s population. The rights of the civilian population—the very subject of the petition—are not mentioned once. Even their suffering due to the lack of aid is acknowledged only to claim that it was not the result of Israel’s violations of its legal obligations (para 58(c)).

In this context one might add that Amit emphasised the obligations set in Article 23 of the Geneva Convention, including permitting ‘the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers, and maternity cases.’ He details the exceptions within this article but fails to acknowledge the rights of the three vulnerable groups that the article seeks to protect.  Israeli children appear in the ruling when the Court describes the 7 October attacks, while Palestinian children appear only once throughout the 64-pages, when the Court repeats the government’s claims about the number of children vaccinated against polio. The Court, in other words, fails to recognise the rights of women and children in Gaza, and in addition does not acknowledge that Article 70 of Additional Protocol I expanded these protections to the civilian population at large and narrowed the scope of exceptions to those obligations. 

In Part 2 of this analysis, we turn to examine how the Court produces a hierarchy between the evidence provided by the petitioners and the evidence provided by the Israeli government and military and uses the hierarchy to conclude that any obstacles to the distribution of aid ‘cannot be attributed to the respondents’ (para 58). Finally, we show how the judges continuously use and abuse the time of law both in the judicial process and the ruling to enable the Israeli government to continue its starvation policies.