Russian actions in Ukraine to pave way for Gaza war crimes case in ICC

Lawyer leading investigation draws parallels between crises facing Ukrainians and Palestinians

People in Ukraine have faced food and electricity shortages after attacks by Russian forces. Getty Images
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Allegations that Russia committed a war crime by attacking Ukraine’s water and food supplies could lead the International Criminal Court (ICC) to hear its first starvation case, the lawyer leading the investigation told The National.

Catriona Murdoch, a legal consultant to Global Rights Compliance which is examining Russian attacks on Ukrainian civilian infrastructure, said the situation in the country had been mirrored in Gaza, where the ICC could also pass judgment on Israel's tactics in the enclave, which is facing famine.

Since Hamas launched its October 7 attack on Israel, more than 32,300 Palestinians have been killed. A quarter of Gaza's population is starving, the UN warned.

Aid groups say it is nearly impossible to deliver aid to much of Gaza because of Israeli restrictions, continued fighting and the breakdown of law and order.

"The plan by Russian forces, as far as we can see, is that there were three phases: the encirclement, then the attacks on critical infrastructure, and simultaneously going into the third phase of withholding aid, withholding evacuation and the start of the filtration process," Ms Murdoch said.

"The patterns appear similar in Gaza. You have encirclement and siege, you have attack on critical infrastructure, you have attack on shelter, and you have the withholding of aid and display the forcible displacement of people. These are the typical elements of a starvation case.

“The crime itself talks about the destruction, deprivation or rendering useless of anything essential to survive, which is context specific. What a Gazan mother will need in summer is different to what an elderly Ukrainian man will need in Mariupol in winter, but it is anything that’s essential to survival and we are certainly seeing those essential items being destroyed and deprived.

"The other component is the withholding of aid. We are seeing that on a really significant level in Gaza.”

Starvation as a form of warfare

Human Rights Watch said it had reviewed satellite imagery of Gaza since Israel began its ground offensive and the group found indications that orchards, greenhouses and farmland in the north of the enclave were razed, apparently by Israeli forces. That has compounded concerns over dire food insecurity.

Omar Shakir, Israel and Palestine director for the rights group, said Israel was using starvation as a method of warfare. “For over two months, Israel has been depriving Gaza's population of food and water, a policy spurred on or endorsed by high-ranking Israeli officials and reflecting an intent to starve civilians as a method of warfare,” he said.

“The Israeli government is compounding its collective punishment of Palestinian civilians and the blocking of humanitarian aid by its cruel use of starvation as a weapon of war. World leaders should be speaking out against this abhorrent war crime, which has devastating effects on Gaza’s population."

War leaves Gazans hopeless during Ramadan

War leaves Gazans hopeless during Ramadan

Ms Murdoch's team have conducted an 18-month investigation into Russia’s actions in Ukraine.

The ICC has issued arrest warrants for two senior Russian commanders, Lt Gen Sergei Kobylash and Admiral Viktor Sokolov, over allegations of war crimes. The pair are alleged to have been behind attacks on Ukraine’s energy infrastructure in a bid to leave civilians to suffer through freezing temperatures during the winter months.

“There is a clear pattern of Russian forces deliberately attacking infrastructure [that has been] delivering objects indispensable to the civilian population,” she said.

“Russian forces’ sustained focus on critical infrastructure – water and energy, in particular – followed by attacks on distribution points where people gathered for shelter, to receive food and medicine, and as evacuation meeting points, reveal a strategy to target and terrorise helpless civilians.

“In the aggregate, and particularly due to the foreseeability of the consequences of these types of attacks, these patterns of conduct leave no realistic alternative interpretation than to conclude that pro-Russian forces used starvation as a method of warfare against civilians in areas across Ukraine.

“The legacy of the ICC will be tested by both its agility and ability to meet current conflict patterns of criminality. There can be little doubt that we are seeing a playbook of starvation tactics in many recent and current conflicts, including Ukraine, and their usage is no doubt emboldened by the impunity with which they have been allowed to operate in. The war crime of starvation has never been prosecuted before an international court. Ukraine may well be the situation for the first test case of such a prosecution.”

In March last year, the ICC issued warrants for the arrest of Russian President Vladimir Putin and the country's children's rights commissioner, Maria Lvova-Belova, on charges of war crimes related to the abduction of Ukrainian children. Russia denies war crimes in Ukraine and dismissed previous arrest warrants issued by the ICC.

Russian officials say such warrants have little effect because Moscow is not a member of the court. Major powers including the US and China are not ICC members either.

Ms Murdoch said the latest arrest warrants were just the beginning. “In the early part of this year, there has been a steep increase in reported civilian casualties as Russia has intensified its missile and drone attacks across Ukraine,” she said.

"Many of these deaths are the result of targeted attacks on civilian populations and civilian objects, such as the attacks against the energy infrastructure underpinning the ICC arrest warrants. With a sobering 125,000 registered war crimes in Ukraine, according to latest statistics, the conduct of these commanders is the tip of the iceberg and just one facet in the full spectrum of violations and crimes that rages across Ukraine.

“We should only expect these numbers to continue increasing as soldiers, commanders, and higher-ranking officials inevitably become emboldened by perceived waning international support and the United States has begun to drag its feet on committing to a long-term aid package for Ukraine.”

ICC Prosecutor Karim Khan visited Ukraine in March last year to investigate Russia's campaign of missile and drone attacks on power plants and other infrastructure. The strikes killed hundreds of civilians and left millions without electricity and water.

The Geneva Conventions, as well as additional protocols shaped by international courts, say that parties involved in a military conflict must distinguish between "civilian objects and military objectives" and that attacks on civilian sites are forbidden.

ICC prosecutors also want the charges to describe the strikes as crimes against humanity, saying they were part of a state policy of widespread attacks on the civilian population.

In the latest warrants, Lt Gen Kobylash, 58, is accused of leading the so-called long-range aviation of the Russian air force at the time of the alleged crimes. Ukrainian military intelligence said Russian strikes on the city of Mariupol were conducted under his command. Admiral Sokolov, 61, commanded the Black Sea Fleet, the ICC said.

The attacks on Ukraine's electrical grid caused civilian harm and damage that would have been clearly excessive to any expected military advantage, the court added.

Updated: March 28, 2024, 12:51 PM