How did the Israeli Supreme Court Legitimise Starvation as a Weapon of War? An Autopsy of a Ruling (Part 2)

[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. Over a year after it had been submitted, three Supreme Court justices unanimously rejected the petition. In Part 1 we described the petition and the kinds of acrobatics the Court deployed to restrict the legal framework to the Laws of Armed Conflict and how it interpreted this body of law in an overly narrow manner, dramatically limiting Israel’s legal obligations and the protections it must guarantee the civilian population in Gaza. In what follows we describe how the Court disregarded the evidence submitted by the petitioners and then turn to analyse how it used ‘time’, both in the judicial process and in the ruling itself, as a tool for legitimising starvation.   

Factual Hierarchies 

After confining the sphere of assessment to a narrow interpretation of LOAC, Amit turned to examine the charges levelled against the government. He continuously repeated the defendant’s claim that it did not impose limitations on the volume of aid entering Gaza (paras 50-51) and that it had actually devoted considerable resources to ease and coordinate relief efforts during intense hostilities (add 58). Lack of aid, when it occurred, was, in Amit’s view, a result of Hamas launching attacks from within civilian areas and diverting aid from those in need, alongside internal operational difficulties faced by relief organizations in collecting and distributing vital supplies (paras 3 and 61). Amit simply ignored most of the restrictions and impediments to the delivery of aid outlined in the petition and sweepingly concluded that the obstacles ‘cannot be attributed to the respondents’ (para 58).

The most notable aspect in this part of the ruling is that Amit fails to meaningfully engage with the factual basis underlying the petitioner’s allegations. Not unlike past Supreme Court rulings, he relied almost entirely on information provided by the government, accepting it as true. However, diverging from the past, he did not endeavour to use the government’s claims to counter concrete accusations about how the military obstructed and restricted the delivery of aid. He produced a clear hierarchy between the classified and unclassified information provided by the government and the information provided by the petitioners, hardly giving any weight to the latter while misleadingly asserting that the disagreement about factual basis is ‘narrower than initially thought’ (para 51).  

Not a single criticism of the government’s conduct appears in the judgment, despite scores of pages in the petitioners’ submissions outlining detailed accounts documenting Israel’s violations as manifested in testimonies from people on the ground as well as publications circulated by UN agencies, international organisations, and media outlets. Instead, the Chief Justice stressed how the government ‘improved’ the crossings’ infrastructure (paras 59, 66), ‘increased’ the hours the crossings operated (para 60), established a new crossing to ‘ease’ the transfer of aid to northern Gaza (para 63), and ‘opened’ additional crossings in other locations (para 64). All of these are cast as signs of Israel’s goodwill instead of measures that had been put in place because aid was being illegally obstructed. Moreover, Amit never provides evidence that these measures actually led to an increase in aid. 

One fascinating moment in the ruling involves northern Gaza and the petitioners’ October 14, 2024 request to issue an immediate interim injunction against Israel’s decision to cut-off the delivery of all aid to the region for two weeks at the beginning of the month. The petitioners argued that the prevention of aid coincided with the Israeli military’s issuance of evacuation orders to the civilian population remaining in northern Gaza — estimated at around 400,000 people — emphasising that it is forbidden to force the population to choose between displacement and starvation.

The government submitted its response on October 23, after it had re-authorised the entry of aid into northern Gaza, claiming that based on its calculations of the number of people who remained in the region there was sufficient food and that the two-week total blockade did not have a detrimental impact on the civilian population. The Court accordingly rejected the petitioners’ request for an injunction. On December 17, however, the government admitted that it had miscalculated the number of people who remained in north Gaza, thereby indirectly acknowledging that there was not enough food and medical supplies in the region. Theoretically, this revelation could have led the Chief Justice to question the evidence provided by the government, and perhaps even to shift, at least partially, the hierarchy of credence that the Court established between the evidence provided by the petitioners and the evidence provided by the government. Ironically, however, Amit used the ‘miscalculation’ to bolster the hierarchy. First, he argued that the petitioners’ criticism against the government’s ‘miscalculation’ includes a dimension of ‘hindsight wisdom’ (para. 74), an argument he could only introduce by disavowing the factual basis of the petition itself and the October interim injunction more specifically, where the petitioners had already argued that, in stark contrast to the government’s claims, Israel was not allowing enough aid to enter Gaza and therefore depriving the population from supplies needed for their survival. Second, he uses the ‘miscalculation’ to conclude that all the other evidence the military provides must be robust. 

The errors that led to the gap in the respondents’ factual assessment of such a fundamental issue should be regretted, and it must be assumed that the relevant elements in the IDF are working as much as possible to ensure that such an oversight does not occur again. At the same time, I would emphasize that the respondents did well to bring this issue to our attention, and in my opinion, this is indicative of the degree of seriousness with which they take their duty to work to formulate a factual basis that is as up-to-date and reliable as possible regarding the situation and needs of the civilian population in the Gaza Strip.

para. 55

Notwithstanding the State’s ‘miscalculation’ regarding the number of civilians remaining in north Gaza, Amit still attempted to frame the blocking of aid for two whole weeks within the framework of the law. He repeatedly asserted that ‘the relevant legal provisions permit the respondents to take military and operational considerations into account in fulfilling their obligations, including the need to prevent humanitarian aid from reaching terrorist organisations’ (para. 12) and later expanded the exceptions on aid delivery to include ‘the need to prevent risk to military forces’ (para. 74). He consistently treated any evidence that the military was preventing the free passage of aid or not facilitating its rapid and unimpeded passage as arising from circumstances or constraints (para. 74) that fall within the law. Amit even goes so far as to accept as sufficient the only 30 trucks — a grossly insufficient amount — that had entered Gaza the day before Israel completely closed the borders for four full days due to the Jewish New Year holidays. He thus failed to acknowledge that holidays are not, and cannot be, an excuse for depriving civilians of objects necessary for their survival.

Subsequently, on March 2, 2025, after the government decided to completely block aid and suspend the allocation of electricity to Gaza, Amit contrasted this blockade from the one in October 2024. He claimed that in October 2024, aid was prevented ‘not as a result of a deliberate political or operational decision,’ but rather due to circumstances and constraints that can be subjected to LOAC. By contrast, he argued that Israel’s decision of March 2 rested entirely on ‘new circumstances’ that ‘substantially alter the factual and legal framework that underpinned the parties’ arguments throughout the months of proceedings in this petition’ (para 96). Beyond these laconic remarks, Amit fails to mention that the petitioners considered the two obstructions as part of the same pattern and on March 10, more than two weeks before the ruling, had requested an urgent interim order against the March 2 suspension of aid due to its catastrophic implications. The move Amit makes is based on two false assumptions. First, he assumes that aid was blocked in October due to military operational reasons and fails to consider the possibility that the suspension of aid was part of a political decision to ‘encourage’ the civilian population to leave north Gaza. Second, he assumes that political decisions to block aid do not fall under the remit of LOAC, intimating that political decisions are outside the framework of humanitarian law, even if the government wields starvation as a political weapon against Gaza’s civilian population.

Before the Law

The time of law and its relation to justice are among the key themes in Kafka’s parable ‘Before the Law’, and there is a certain resemblance between Kafka’s gatekeeper and the actions of the Israeli Supreme Court. As noted above, on March 18, 2024, five human rights organisations submitted an urgent petition against the obstruction of the delivery of humanitarian aid to and in Gaza, claiming, inter alia, that Israel was depriving the civilian population of objects necessary for its survival. On April 4, after the defendants responded to the allegations, the Court issued a decision, asking the government to explain, inter alia, what steps were currently being taken to increase the scope of essential humanitarian aid entering the Gaza Strip in general, and the northern Gaza Strip in particular. The Court also requested that the respondents provide their perspective on the scope of aid required to address the humanitarian situation in the Gaza Strip (by geographic segmentation). In this context, it asked the respondents to refer to the IPC report on acute malnutrition in Gaza which was presented at the hearing.  In addition, the government was required to respond to the following questions: What steps did it plan to take to increase the capacity to introduce and distribute goods? How many requests for coordination and introduction of humanitarian aid have been refused? And what was the current status of the supply and transfer of water to the Strip?

One would have hoped that these urgent questions would have set the stage for the judicial process, but this was the Court’s most daring intervention. An analysis of the process suggests that the Judges decided to become babysitters of sorts or a Nanny Court, to use Yuval Shany and Amichai Cohen’s words, requesting the government to respond to the petitioners’ charges, while consistently approving the government’s requests for extensions and rescheduling; this occurred over the course of one year and over five hearings in total. While usually when thinking of Nanny Courts, we think of a process where the court does not issue a ruling based on the factual evidence submitted in the petition but aims to eliminate or at least reduce legal breaches by asking the defendants to change the facts on the ground and the policies that informed them so that they comply with the existing legal framework. By extending the timeframe, the court had hoped the facts on the ground would change in a way that would render the petition void. The logic of Nanny Courts is straightforward: the Court extends the time of law in an effort to bring about a solution that in its mind is just.

Indeed, despite the urgency, it took the Court over three months to issue an order nisi — instructing the State to respond to the petitioners’ claims regarding the need to allow and supply humanitarian aid — all ‘without taking a position’ and merely ‘to allow the Court to receive a full and comprehensive factual basis’. The case then dragged on, even as the humanitarian situation in Gaza deteriorated: malnutrition deepened, the amount of drinking water decreased, medical supplies were running out, and the conditions necessary for the survival of civilians collapsed, not unlike the aging protagonist in Kafka’s parable who, as time passes, approaches death.

Attuned to the deterioration on the ground, the petitioners urged the Court to rule during the two hearings following the order nisi and in submissions, including those on September 29 and November 11, 2024. They underscored that the pertinent legal clauses stress the significance of time, and that the warring party is obligated to ‘allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel’. In their November 11 request, for example, the human rights organisations highlighted the catastrophic, inhumane conditions in Gaza and warned that the Court’s inaction was unreasonable and threatened the wellbeing and lives of the civilian population in Gaza.  Nonetheless, the Justices dismissed the request in a single sentence, blaming the delay on ‘dynamic developments on the factual level’ that required further attention, choosing instead to hold another hearing a few weeks later. One would have thought that the legal requirement to act swiftly would also impact the way the Court orchestrated the judicial process—namely to expedite a ruling—but the Justices decided the opposite, namely, to dramatically extend the time of law. The extension of time suggests that the Nanny Court’s objective was not so much to alleviate the civilian population’s suffering or to uphold their rights under the law; rather, it was to claim that Israel’s practices were firmly within the law.

On March 2, 2025, however, when Israel once again blocked all aid in clear contravention of the law, Amit could no longer sustain this blinkered notion of justice. Not long after the imposition of the new blockade — the complete halt of all supplies and aid to Gaza — the Court ruled that these developments fell outside the temporal scope of the case and would have to be dealt with elsewhere. Time, in other words, was extended when it served to support the Court’s efforts to legitimise Israel’s actions in Gaza and abruptly arrested when all evidence risked undermining these efforts. The Court thus halted the judicial process and unlike Kafka’s parable upended the extension of time, claiming that the most recent suspension of aid belongs to a different story. Indeed, it was by then impossible to deny that Gaza was being deliberately starved and so the gatekeepers, in effect, decided to close the Court’s doors.