By: Brigit Toebes, Professor of Health Law in a Global Context at the Faculty of Law of the University of Groningen (b.c.a.toebes rug.nl). and Lisa Reijersen van Buuren, student in the Master’s Programme “International Human Rights Law” at the same Faculty (lisarvb25 gmail.com).

On 21 November 2024, the Pre-Trial Chamber of the International Criminal Court (ICC) issued warrants of arrest against Mr Benjamin Netanyahu and Mr Yoav Gallant, for crimes against humanity and war crimes committed from 8 October 2023 until at least 20 May 2024. This blog post argues that some of the alleged crimes under international criminal law (ICL) also qualify as violations of economic, social and cultural rights, and in particular the right to health, as recognized under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Considering the applicability of yet another regime – international humanitarian law (IHL) – we contend that precisely this regime interaction between ICL, international human rights law (HRL) and IHL contributes to a renewed understanding of addressing atrocity crimes.

Quoting from the Court’s website:

“The Chamber found that there are reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration. On the basis of material presented by the Prosecution covering the period until 20 May 2024, the Chamber could not determine that all elements of the crime against humanity of extermination were met. However, the Chamber did find that there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims.”

Whilst these acts are qualified as crimes against humanity, the inadequate conditions of life and the lack of adequate nutrition also qualify as human rights violations; civil and political rights as well as economic, social and cultural rights. Specifically, they qualify as violations of Article 11 ICESCR, which stipulates the rights to adequate food, clothing, housing and the continuous improvement of living conditions. In addition, the lack of medical supplies and the death of  civilians are at tension with the right to the highest attainable standard of health which is recognized in, for example, Articles 12 ICESCR and 24 of the Convention on the Rights of the Child (CRC). The right to health is also very present in the following observation from the Chamber:

“In addition, by intentionally limiting or preventing medical supplies and medicine from getting into Gaza, in particular anaesthetics and anaesthesia machines, the two individuals are also responsible for inflicting great suffering by means of inhumane acts on persons in need of treatment. Doctors were forced to operate on wounded persons and carry out amputations, including on children, without anaesthetics, and/or were forced to use inadequate and unsafe means to sedate patients, causing these persons extreme pain and suffering. This amounts to the crime against humanity of other inhumane acts.”

In addition to being classified as a crime against humanity, the lack of medical equipment constitutes a violation of the right to health. In a previous publication, which dealt with the interaction between IHL and HRL, Toebes contended that during all types of armed conflicts and other emergencies, State parties have a duty to secure access to, inter alia, minimum health services and basic health conditions (provided that they exercise jurisdiction – more on this below). This leads to the important observation that during armed conflicts and emergencies of all natures, the affected individuals have a minimum right to a limited set of health-related services, based on the internationally guaranteed ‘right to health’. Intentionally limiting such access is a clear violation of the obligation to provide minimum health services, as also stressed in the Committee on Economic Social and Cultural Rights’ General Comment 14 (Paras 43-44). Hampering access to available medical services and resources is also a violation of the obligation to ‘respect’ the right to health under HRL (paragraphs 33-34, General Comment 14).

Still pending is the question whether Israel has obligations under the right to health on occupied territories, complementing existing obligations under IHL (Articles 55-57 Geneva Convention IV). In the Wall Opinion (2004), the International Court of Justice (ICJ) observed that the ICESCR does not have a provision on its scope of application, and that this may be explained by the fact that the Covenant guarantees rights which are “essentially territorial” (para 112). However, the Court proceeds, “(…) it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction. (…)”. The Court concluded:

“(…) the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power.  In the exercise of the powers available to it on this basis, Israel is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights.  Furthermore, it is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities.”

Clearly, the Court established that Israel is bound by the provisions of the ICESCR and that the rights guaranteed also apply to individuals in the occupied territories.  Israel used the distinction between HRL and IHL to argue that the rights laid down in the ICESCR did not apply, but the Court affirmed, (as did, later, the CESCR,) the extraterritorial application of State obligations under the Covenant and that the applicability of humanitarian law does not disqualify the provisions of the Covenant.

There is, thus, an interaction between HRL, IHL, and ICL. But why would it be important to establish this interaction, now that it is clear that the acts amount to crimes against humanity? Doesn’t that suffice? Why bother with the right to health? We contend that it is important to study the interaction between the various regimes under international law. Regime interaction is a valuable way of addressing the discrepancies and overlaps of different areas of law to understand a single set of facts.  

From a normative perspective, regimes may reinforce one another, for example where the right to health norm specifies the standards under IHL and ICL. Regime interaction is also of importance when it comes to the enforcement of standards under international law. Crimes committed during conflicts are often analyzed through the lens of humanitarian law, yet it’s important to acknowledge that economic, social, and cultural rights—like the right to health—are also systematically threatened and violated. In this context, it is evident that vulnerable groups receive stronger protection and are better protected under HRL than under IHL.

The applicability of the right to health brings this case in the realm of the human rights enforcement mechanisms. The right to health violations in occupied territories can be addressed in the state reporting procedures of the UN treaty bodies, or they could be the subject of an individual or collective complaint before one of the treaty bodies, such as the Committee on Economic, Social and Cultural Rights, or the Committee on the Rights of the Child. Examples of UN mechanisms that have addressed human rights are the UN Special Rapporteur on the human rights situation in the Occupied Palestinian Territory; and the CEDAW. It would be valuable for such mechanisms to explicitly address the relationship between HRL and ICL/IHL, and to clarify how HRL complements both ICL and IHL.

Vice versa, looking beyond the human rights regime to address violations creates the opportunity to hold individuals accountable for violations under ICL. This can be observed in the case at hand, where Netanyahu and Gallant are issued for arrest under ICL, while the violation of the right to health plays an implicit role in the criminal allegations  included in the arrest warrant.

The authors thank Dominique Mollet and Kilian Roithmaier for their excellent feedback.

Cross-posted from Human Rights Here where it was originally published on 25 February 2025.