Warfare, Impunity and the Legal Limits to Violence

By Jessica Greenberg

I often pose the question to students in my anthropology of law classes: Under what conditions is mass murder legal? It is a useful prompt because it has a completely sensical answer from a legal perspective. And from an anthropological and humanist stance it is utterly perplexing.

It was likewise with one foot inside and one outside the logics of law, that I tried to make sense of International Criminal Court (herein ICC) Prosecutor Karim Khan’s application for arrest warrants issued on May 20, 2024. These sought judicial approval for warrants for five individuals on charges of war crimes and crimes against humanity in the ongoing war in Gaza. I will focus less here on the first group of three warrants. While horrifying from a human perspective, they were neither surprising nor groundbreaking from a legal one.

The charges against Hamas leaders, Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (DIEF), and Ismail Haniyeh cover crimes committed on and after October 7, 2023. They include crimes against humanity (extermination, murder, rape and sexual violence, torture, inhumane acts) and war crimes (hostage-taking, cruel treatment and outrages upon personal dignity).

The second group of warrants are for Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant. These charges include war crimes (starvation of civilians as a method of warfare, willfully causing suffering and cruel treatment, murder, intentional attacks on civilians) and crimes against humanity (extermination, including death by starvation, persecution, inhumane acts).

The case against Israeli officials marks innovations and advances in international humanitarian and criminal law that benefit from a dual legal-anthropological analysis. First, the ICC request is unique as a high-profile case against a Western-allied, democratic state. It serves as a litmus test for the ICC’s legitimacy as an international rule of law institution to which powerful states and their allies are also subject. The application language itself highlights and pushes beyond the longstanding imperial hierarchies (democratic/undemocratic; rule of law/authoritarian, civilization/barbarism) at the heart of international law. As the Prosecutor’s statement notes, the ICC is bound by the doctrine of complementarity, which dictates that the ICC will only prosecute cases when national judiciaries are unable or unwilling to do so. That Israel has been deemed unable or unwilling to hold officials accountable for crimes challenges its claim that it is and can continue to be seen as a functioning rule of law democracy under current political conditions.

The case is also groundbreaking because it is the first time the ICC has held state officials to account for the crime of starvation as a weapon of war. The language of the application is unsparing. It submits expert evidence that “Israel has intentionally and systematically deprived the civilization population in all parts of Gaza of objects indispensable to human survival,” through “a total siege,” and “restricting…essential supplies,” including water and food, inducing “malnutrition, dehydration, profound suffering” and death. These acts, it argues, have been “committed as part of a common plan to use starvation as a method of war.”

There are limits in law to state violence enacted in the name of sovereignty. The weaponization of access to water, electricity, and the delivery of humanitarian assistance is not in itself wholly new. But Israel’s claim that this is justified against a civilian population is a grotesque attempt to rework the very basis of international law. In blurring the distinction between civilian and combatant (ordering a siege on “human animals” justified in the name of collective, civilian culpability) they challenge the central categories of civilian and combatant at the heart of war crimes, crimes against humanity and the affirmative obligations of occupying powers. Within these frameworks there is no such thing as “no innocent civilian.” The analysis of the proportional harms of war on civilians has always proceeded from the premise that starvation, malnutrition, suffering and death is a byproduct of war, but not its means. The military strategies of which Israel stands accused change that calculus altogether.  It is arguably the consequence of taking the slow death and suffering of chronic humanitarian conditions as the very logic of war itself.

The ICC case offers an opportunity for us to analyze and teach in real time how states innovate and found new kinds of warfare with impunity. It reveals a hideous worldmaking project using the language of the law to violate its spirit. The case also offers an opportunity to reflect on why, when, and how international legal institutions are important sites for challenging the active production of impunity. The ICC’s actions means that a new stage in weaponizing humanitarian crisis as a means of war does not pass quietly into the legal record without challenge or comment. That the ICC should step in is not only a question of this particular conflict. It speaks to the ways institutions safeguard the very categories of international law itself. That some weapons are beyond the pale is enshrined in legal treaties against the use of landmines, chemical and nuclear weapons. Prosecuting the weaponization of humanitarian crisis—starvation, dehydration and the denial of necessities for human life—means a similar adaptation to the changing means through which war is being waged.

Finally, in revealing how Israeli officials attempt to redefine the central categories of international law through legal justification, the ICC case is an opportunity to analyze the legal, institutional, and social work that goes into making law legitimate in the first place. As I have written about elsewhere, international legal institutions offer one means of experiencing human agency through the judicialized registers of constraint and restraint. They are simultaneously robust and fragile. They require both critical engagement and nurturing in order to work. It is this history and legacy that is at stake in the ICC’s case. As humans innovate in cruelty, people push the law to catch up – a foundational lesson of Nuremberg and the courts inspired by it. At stake is the very idea of international law as a meaningful field of action, one that must be protected from attempts to subvert it from both without and within.

As an anthropologist I proceed from the basic premise of the sanctity and value of all human life. It is difficult to square that commitment with the idea that mass death can be legal in any instance. At the same time, I am saddened but not always shocked by the depth and creativity of human cruelty found in our written and material record. Reconciling a faith in the humanist project and a realism about humanity’s flaws has been a professional necessity. I have found international law an important avenue to think through this more fundamental anthropological tension. Once we understand (if never truly accept) how war is made legitimate within the parameters of international law, we can better intervene in the conversation as scholars and advocates. And from this position we can offer a critical perspective on law’s relationship to viol