How did the Israeli Supreme Court Legitimise Starvation as a Weapon of War? An Autopsy of a Ruling
(Part 1)
By Neve Gordon
May 23, 2025
Source: Opiniojuris
LONG READ
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.
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.
(Part 2)
May 24, 2025
Source: Opiniojuris
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.
Neve Gordon
During the first intifada Neve Gordon was the director of Physicians for Human Rights - Israel. He is the co-editor of Torture: Human Rights, Medical Ethics and the Case of Israel, the editor of From the Margins of Globalization: Critical Perspectives on Human Rights and the author of Israel's Occupation, .
Source: Opiniojuris
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.
Neve Gordon
During the first intifada Neve Gordon was the director of Physicians for Human Rights - Israel. He is the co-editor of Torture: Human Rights, Medical Ethics and the Case of Israel, the editor of From the Margins of Globalization: Critical Perspectives on Human Rights and the author of Israel's Occupation, .
No comments:
Post a Comment