ICC Prosecutor’s central charge is likely based on a lie

Karim Khan announces application for arrest warrants against Netanyahu and Gallant, May 20, 2024. (Source: Screenshot/Youtube)
Karim Khan announces application for arrest warrants against Netanyahu and Gallant, May 20, 2024. (Source: Screenshot/Youtube)

International Criminal Court (ICC) Prosecutor Karim Khan has submitted applications for the arrest of Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for using starvation as a method of warfare (Rome Statute Art. 8(2)(b)(xxv)), among other crimes. There are two main elements of the crime (the others have to do with the alleged acts taking place in the context of an armed conflict and the perpetrators being aware of that fact):

  1. Actus Reus: The perpetrator deprived civilians of objects indispensable for their survival, and
  2. Mens Rea: The perpetrator intended to starve civilians as a method of warfare.

The evidence submitted by Mr. Khan in support of his application has not been made public. But it most likely references reports published and statements made by various UN agencies, who themselves seem to rely mostly on anecdotal evidence, information disseminated by Hamas-run organizations and occasionally original analyses like the mid-March report by the Integrated Food Security Phase Classification (IPC).

The Office for the Coordination of Humanitarian Affairs (OCHA) only recently rescinded its unqualified regurgitation of the Hamas-published Gaza death toll of 35,000 to now reflect only 24,000 “identified” casualties, meaning reported by health institutions. The remaining 11,000 – almost a third of the claimed – are inferred from what Hamas calls “reliable media sources”, in other words hearsay. While it is not uncommon for many casualties in armed conflicts to remain unidentified (estimates are almost always higher than just the verified individuals), the truly spectacular admission regards the composition of casualties. Where before the UN claimed 70% of the casualties had been women and children it has now revised that estimate down to 50% after several mathematical analyses demonstrated the statistical impossibility of the former contention.

But prior to rigorous independent challenge the figure of 70% was treated as gospel by humanitarian organizations and cited without attribution to its dubious origin. The obfuscation of sources of information is so rampant that at one point OCHA pretended to be citing UN Women who was claiming to cite OCHA, both were in fact citing the Hamas-run Government Media Office. In early May, the World Food Program (WFP) declared a “full-blown famine” in northern Gaza without pointing to any data. It now appears that the proclamation was based not on new information but on the same IPC report from March which projected famine any time between its publication and May.

The assessment has been called into question by a recent academic study by Isakov et al. based on COGAT data on quantity and nutritional composition of humanitarian aid transferred to Gaza between January and April. By assigning caloric and macronutrient (protein and fat) values to each food item according to food databases the study concluded that more than enough food had entered Gaza in that time. But not unlike Mr. Khan whose team had one foot on a plane to hear the Israeli telling of the story when he made his televised announcement, the UN agencies have shown no interest at all in what one side of the conflict has to say. Citing Israeli sources or even just using Israeli data to round out analyses is practically unheard of.

So why did the IPC report nevertheless conclude that “famine is imminent as 1.1 million people experience catastrophic food insecurity”?

What is famine anyway?

The IPC defines famine by three criteria, all of which must be satisfied:

  1. Food security: at least 20% of households face an extreme lack of food,
  2. Nutrition: at least 30% of children suffer from acute malnutrition,
  3. Mortality: the crude death rate from starvation or the interaction of disease with malnutrition exceeds 2 per 10,000 per day or 4 children per 10,000 per day

The most damning pieces of evidence

According to the report over 80% of households in the northern governorates (North Gaza and Gaza City) had experienced very severe hunger in the preceding month and had a poor consumption score with as many as 36% unable to consume cereals (flour, rice, etc.) daily. For the central and southern governorates (Deir Al-Balah, Khan Younis and Rafah) the IPC reported prevalence of severe hunger and poor consumption closer to 50-60%. This would indicate that the 20% threshold for food insecurity is likely met.

It should be noted, however, that the IPC relied on survey data which entails issues of representativeness and selection bias – surveys are conducted remotely, so at minimum respondents need access to a working telephone. For example, the sample for the northern governorates included only 104 respondents. Consequently, it is not clear that the report meets even the lowered evidentiary requirements for areas with limited humanitarian access as set out in the IPC technical manual. The authors merely state: “Quality concerns regarding the use of this methodology including the representativeness, and potential biases associated with mobile network coverage and ownership were discussed at length during the previous round of IPC analysis (for data collected in November 2023). The Analysis Team concluded that the data meets the requirements set by the IPC and were the same for this analysis, especially considering the number of observations.”

The report also presented an analysis of daily calorie availability by region using UNRWA data on aid transfers which showed a severe shortfall for the months of January and February in northern Gaza (less than 500 kcal per person per day) and Rafah (around 1000 kcal per person per day) compared to the required 2100 kcal per person per day. This stands in stark contrast to Isakov et al. which found a sizeable caloric surplus for January and only a slight shortfall for February.

The prevalence of acute malnutrition measured by mid-upper arm circumference (MUAC) was assessed to be “Critical to Extremely Critical” in the north, “Serious to Critical” in Khan Younis and “Acceptable to Alert” in Deir Al-Balah and Rafah. Here it should be noted that the data sample in the northern governorates included almost no children between 2 and 5 years of age, which make up a much larger share of preschool children and have significantly lower prevalence of acute malnutrition than children aged 2 and younger. The Khan Younis sample which also included children between 2 and 5 had a similar prevalence of acute malnutrition as the northern governorates in the younger age group but was not given an overall assessment of “Extremely Critical” because the prevalence in the older age group was so much lower (28% for children aged 2 and younger versus only 4% for children aged 2-5).

The analysis corrects for the shortcoming by imputing the prevalence for the older age group from samples elsewhere in the Gaza strip, but the result is an estimate (ranging from 11.8% to 16.1%) with limited reliability and not a measurement.

While the famine threshold of 30% malnutrition is not exceeded in any of the samples, a region could still be classified as IPC Phase 5 indicative of famine. This is because the preferred measurement of acute malnutrition is the ratio of weight to height, but in areas with limited humanitarian access MUAC is used as proxy, for which the critical value is 15%. However, the manual states that where possible this should be accompanied by evidence comparing weight-for-height with MUAC. There is not much data comparing these two anthropometric measurements (most scientific literature only includes weight-for-height), but one study conducted in 2021 found a significantly higher prevalence of below-threshold MUAC scores than weight-for-height scores in Gazan children. Therefore, it is entirely possible that the lower Phase classifications apply to the measurements. This would have meant a classification of “Serious to Critical” in the northern governorates, “Serious” in Khan Younis, and “Acceptable” in Rafah and Deir Al-Balah, where 80-85% of the population was sheltering at the time.

Since publication of the report humanitarian organizations have scaled up child MUAC screenings. As of May 26, out of 93,409 screened children 7280 (7.8%) were diagnosed with acute malnutrition corresponding to IPC Phase 2-3 (“Alert” to “Serious”).

Regarding mortality, a 2 per 10,000 per day crude death rate would amount to 460 starvation deaths every day. The average daily number of deaths claimed by the Gaza Ministry of Health (MoH) including all the “unidentified” deaths since the beginning of the war is 156 with a clearly declining trend (the average in April was 57). Contained within that number are all the killed Hamas operatives – 15,000 according to the IDF – and all the civilians killed in the crossfire including by Hamas rockets aimed at Israel. The last time Hamas claimed more than 200 casualties in a single day was in January. In fact, in 8 months of war, there have been only 9 days where Hamas claimed a number of casualties exceeding 460 and these coincide with days of intense fighting (like the aerial campaign in late October leading up to the beginning of the ground invasion or heavy fighting in Khan Younis in early December), days following a period of no MoH updates (indicating measurement errors or backlogs from previous days) and mass casualty events like the Al-Ahli Hospital explosion which was the result of a misfired Palestinian missile.

Daily Palestinian death toll according to Gaza MoH. (Source: WHO Health Cluster)

The IPC report states: “The analysis could not benefit from representative evidence of non-trauma mortality as intended by IPC Protocols. […] The mortality data collected by the Ministry of Health […] appears to only be those attributable to conflict related violence. […] The absence of usable mortality data in [northern Gaza] leaves a high degree of uncertainty on the translation of these acute malnutrition rate into children and adult mortality in the current period […] It is likely that these extreme levels of malnutrition have not yet translated into 2/10,000/day Crude Death Rate.” (emphasis added)

In other words, the authors were assuming without evidence that MoH numbers included only violence-related deaths and that in addition there were probably soon and possibly already more than twice as many dying from starvation. To date the maximum number of reported deaths “due to malnutrition and dehydration” (without listing potential comorbidities) was 32 total (not per day) as claimed by a Human Rights Watch report from April incorrectly citing an OCHA report which reported 31 citing the Gaza MoH.

Shocking levels of dishonesty

The Coordination of Government Activities in the Territories (COGAT) has pointed out several factual inaccuracies and misleading statements in the IPC report, some of them almost certainly intentional. A particularly persistent lie is the myth of the 500 trucks a day “required to meet the basic humanitarian needs in Gaza”, a massive increase from the initial UN estimate of 100 trucks per day. This number is not the result of an in-depth analysis of the basic humanitarian needs but appears to be based on the pre-war number of average daily imports.

“Basically, our estimate is we need about 500 trucks, which is what was happening pre-7 October, going into the area and if we can get it up to that level, we could still avert a famine […]”, said Farhan Haq, the Deputy Spokesman for the UN Secretary General in a press briefing in March. This number is completely misleading for several reasons.

First, 500 was the total number of trucks (not just food trucks) entering Gaza per day carrying many commodities that are most certainly not needed in the current crisis. More than half of it was construction materials and equipment according to OCHA data. The IPC report acknowledges this: “From a pre-escalation average of 500 trucks a day of which 150 carrying food, in the period between 7 October 2023 to 24 February 2024, only 90 trucks per day, of which only 60 carrying food, entered the Gaza Strip.”

Second, both the 500 and 150 pre-war levels are calculated on a workday basis (5-day week) whereas the 90 and 60 post-war levels are calculated on a weekday basis (7-day week). That alone demonstrates a shocking level of dishonesty.

Finally, the 150 trucks carrying “food” includes some 35 trucks carrying animal feed and livestock rather than human food products and some 5-15 trucks invented by the authors for good measure. In reality, from January to September 2023, a period of 272 days, 20,562 trucks carrying human food products entered the strip, which is an average of 76 trucks per (week-)day.

How many trucks are required to feed Gaza?

Isakov et al. estimate that on average food transferred to Gaza has a calorie density of about 340 kcal/100g after accounting for losses in distribution. This is to be expected seeing as the vast majority (over 80%) of food aid consists of flour (370 kcal/100g) and food parcels which in turn consist of highly energy dense foods like cereals (flour, rice, pasta, bulgur, etc.), legumes (beans, chickpeas, lentils), oil and sugar.

Reducing this by 10% to account for the share of water shipments, which UNRWA lists as a food item, we may assume about 307 kcal/100g of food aid. Then assuming the average truck carries about 15 metric tons (the lowest estimate of the average consignment weight) of food and that each person requires 2100 kcal daily intake implies one truck feeds around 22,000 people for one day. Thus, it takes about 100 trucks (much closer to the original UN estimate) of food aid per day to feed the population of Gaza assuming no reserves and no domestic production whatsoever, which is highly improbable at least for the first few months of the war.

The flow of aid has increased continually, and the 100-truck-requirement has been surpassed every month since the beginning of the year except in February. But contrary to what many believe – including Mr. Khan apparently –, the February lull in aid shipments was not the result of increased IDF border restrictions. Nor was it some kind of retaliatory subversion of UNRWA after it was revealed that 14 staffers participated in the October 7 massacres and abductions, hundreds more were affiliated with Hamas and Palestinian Islamic Jihad, and UNRWA was housing a massive Hamas data centre directly beneath its headquarters and supplying it with electricity. Quite the opposite, UNRWA nearly doubled its distribution activity from January to February. Rather, it was the WFP – which Israel had been pushing to replace UNRWA as the main distributor of aid – suspending operations due to security concerns and a breakdown of law and order which caused the sharp drop in aid shipments.

Daily availability of food based on entry of aid data for Rafah and Kerem Shalom crossings. (Source: UNRWA, own calculations)

Mens Rea

None of this is to diminish the severity of the humanitarian situation in Gaza. By all indications, the supply of food in February was borderline at best and insufficient at worst particularly in the north. Pictures of wasting infants have been gut-wrenching. It is quite possible that the Israeli response to challenges in the distribution of aid were insufficiently swift and resolute. But the strength of the evidence stands in no relation to the strength of the accusations of deliberate starvation being hurled at the Israeli leadership. Mr. Khan wants to claim that starvation was so ubiquitous and so obvious to the naked eye that it could only have been intentional.

To support the claim he will almost certainly cite Yoav Gallant’s declaration of a ”complete siege” of Gaza at the beginning of the war. The border crossings remained closed for two weeks until a 20-truck aid convoy, of which 7 carrying food, entered through Rafah crossing on October 21. But the Israeli intentions were very clear: to keep aid from getting into the hands of Hamas in order to force the release of the hostages. (The strategy was to some extent vindicated by the November hostage deal.)

Such sanctions regimes are not new. In 2008 the US listed Al-Shabaab, the Somali wing of Al-Qaeda, as an international terrorist group. This led most aid organizations to suspend operations in the Al-Shabaab controlled southern regions of Somalia and greatly exacerbated the famine in 2011 which killed 260,000 people, half of them children under the age of 5. Like Israel the US eventually eased its sanctions to allow increased entry of humanitarian aid, but unlike Israel it only did so weeks after a famine had been formally declared by the UN – not months before “the risk of imminent famine” had been informally proclaimed.

Prosecutor gone rogue

On Mr. Khan’s account Israel is solely responsible for all that has happened in Gaza. One need not look any further than his application for arrest warrants to see this: He is charging the Hamas leadership with crimes committed against Israelis but not for any of the crimes committed against Palestinians.

No criminal charges have been filed against Hamas for the use of human shields (Rome Statute Art. 8(2)(b)(xxiii)) or the improper use of UN insignia (Art. 8(2)(b)(vii)). There is a legal technicality – demonstrating powerfully the woeful shortcomings of international humanitarian law – which prevents the application of this paragraph in that apparently Israel is engaged in an international armed conflict against the State of Palestine (hence why Netanyahu and Gallant can be charged with using starvation as a weapon of war) while Hamas as a non-state actor is engaged in an armed conflict “not of an international character” and so different laws apply to each side. But nothing was to stop Mr. Khan from charging Hamas with holding the Palestinian people hostage (Art. 8(2)(c)(iii)).

There are also no criminal charges against any members of Hamas for their role in the breakdown of food supply. We can be certain that only Israel will be held responsible for the reduction of aid shipments in May but neither Hamas for attacking the US pier, calling for an end to aerial aid drops and firing rockets at Kerem Shalom crossing 4 times, nor Egypt for refusing to coordinate aid shipments through Rafah while under Israeli control, nor the Palestinian Authority for refusing to take control of Rafah crossing in order for Egypt to resume the flow of aid.

In fact, the International Court of Justice has essentially said as much in its May 24 ruling: “[The State of Israel shall] maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance.” In other, words Israel is ordered to care for the people of Gaza at any cost – regardless of the military necessities of a war it did not want – while Hamas, the PA and Egypt are free to continue instrumentalizing them to exert political pressure on Israel.

In Mr. Khan’s telling of the story all the suffering is avoidable and therefore intentional. It features what must be the most convoluted cartoon villain plan in the entire history of fiction: Step 1, announce your plan to starve Gaza, but then allow the entry of aid almost immediately. Step 2, evacuate the north and keep open evacuation corridors to the south throughout the war so that only those unable to flee will starve. Step 3, keep repairing water infrastructure so Gazans do not die of thirst before they can die of hunger. Step 4, continue increasing the supply of humanitarian aid – through airdrops, new border crossings in the north, the maritime corridor, etc. – to give Gazans false hope before crushing them entirely… Step 17, no more Gazans. I have to admit, it is compelling confabulation on the part of Mr. Khan, but confabulation nonetheless.

Thus, we are left hoping against better judgement, that the ICC Prosecutor is in possession of some incredibly convincing pieces of evidence incriminating Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, which no one else has yet seen. For if things are as they seem, and Mr. Khan is simply intervening so injudiciously in matters of geopolitical import in a grotesque abuse of power, then he will have inflicted irreparable damage to the ICC’s reputation once the world has overcome the collective psychosis it is currently suffering from.

About the Author
Raffael Singer is an Austrian financial risk consultant and economic researcher at the Vienna University of Economics and Business. He holds a master's degree in Mathematics & Philosophy from the University of Oxford and a PhD in Mathematics from Imperial College London.
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