The attacks of Hamas against Israel were deeply shocking. Israel has a right to defend itself against Hamas and at the same time it is obliged to protect the civilian population of Gaza as far as possible from harm and injury. But Israel is currently facing a true dilemma. While Israeli Defense Forces try to evacuate as many residents as possible, Hamas uses civilians as human shields, including hostages. The humanitarian situation in Gaza is dire and mass evacuations further exacerbate the problem.
On October 18th the Israeli Defense Forces (IDF) called upon the residents of Gaza to evacuate to the area of Al-Mawasi in the South where humanitarian aid would be provided. Israel’s recent request is the latest of a series of requests urging the civilian population to leave northern Gaza. In order to make these requests public, the IDF has dropped leaflets and made several statements on its website. Tragically, internet connectivity in Gaza has fallen from almost 95 % at the beginning of October 2023 to 58 % percent by mid-October. Thus, residents heavily relied on these leaflets. However, spokesman of the UN- Secretary General Stéphane Dujarric has emphasized that “[t]he United Nations considers it impossible for such a movement to take place without devastating humanitarian consequences.”
Israel faces a dilemma for which Hamas is responsible
Approximately 1.1 million people live in the North of Gaza, many of whom are women and children. Relocating to the South means that these people will face tremendous hardship, especially in light of the fact that people have hardly any access to food, water and sanitation. Thus, it might not come as a surprise that various institutions have criticized Israel’s request arguing that such mass evacuations contradict humanitarian law.
To illustrate, the ICRC stated that “[t]he instructions by the Israeli authorities for the population of Gaza City to immediately leave their homes, coupled with the complete siege, explicitly denying them food, water, and electricity, are not compatible with humanitarian law”. Director of Human Rights Watch Kenneth Roth described Israel’s request an “inhuman evacuation order” and the World Health Organization stated on X (formerly Twitter) that the organization “joins the wider UN in appealing to Israel to immediately rescind orders for the evacuation of over 1 million people living north of Wadi Gaza”.
Without doubt, the situation for the civilian population is tragic from every perspective. But at the same time, those criticizing the IDF should also consider what could be the alternatives. The terror organization Hamas, which, as a party to the armed conflict, is also bound by humanitarian law, is known to intentionally use civilian objects for military purposes including schools and hospitals. Furthermore, they have a secret labyrinth of tunnels and are known to use civilians as human shields. Israel, on the other hand, has to defend itself against Hamas as armed attacks are still ongoing. Furthermore, it might be the strategy of Hamas to put Israel in a situation where the probability of Israel violating international law is high. Thus, one cannot help but ask what else should the IDF do to avoid civilian harm while at the same time making use of their right to self-defense within the meaning of Article 51 UN-Charter?
Evacuations can be justified
The ongoing armed conflict between Israel and Hamas qualifies as non-international armed conflict. The legal rules that apply to Israel in this particular case are mostly rules of customary humanitarian law. According to Rule 129 of the ICRC’s study on customary humanitarian law, “[p]arties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand”. By the same token, the Rome-Statute of the International Criminal Court stipulates that “ordering the displacement of the civilian population for reasons related to the conflict” is prohibited “unless the security of the civilians involved or imperative military reasons so demand”. It is important to note that Palestine acceded to the Rome-Statute in 2015. Thus, while enforced displacement – understood as ordering the civilian population to leave a particular region or area in the absence of inter alia imperative military reasons – violates international law, evacuations can be justified. It seems plausible that the request for mass evacuations was issued for imperative military reasons given that Hamas verifiably operates from command centers in the vicinity of civilian infrastructure. Furthermore, Hamas is known for using civilian objects for their military operations. As a party to the armed conflict, Hamas is also bound by humanitarian law and the obligation to protect civilians from attack also applies with regard to Hamas and the residents of Gaza. To complicate things further, the North of Gaza is one of the most densely populated areas in the world.
However, rules on evacuation should not be read in complete isolation. On 9th October 2023, Israel’s Defense Minister Yoav Gallant ordered a complete siege of Gaza by halting supply with water, food, and also fuel. This statement also raises the question of whether Israel by conducting siege warfare against Hamas, which also has significant repercussions for the civilian population, violates international law.
Siege warfare not necessarily a violation of international law
The use of starvation of the civilian population as a method of warfare is prohibited in both international and non-international armed conflict. By the same token, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) Guiding Principles on Enforced Displacement state that internally displaced persons shall be protected from starvation as a method of combat. But that does not imply that siege warfare automatically contradicts humanitarian law. On the contrary, according to Rule 53 of the ICRC Study on Customary Humanitarian Law, siege warfare is allowed “as long as the purpose is to achieve a military objective and not to starve a civilian population”. Furthermore, a party to a conflict engaging in siege warfare “must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need” (for more on siege warfare and starvation in war see here, here and here).
The statement made by Israel’s Defense Minister above is not the decisive (legal) factor, even though it might be an indication of how Israel interprets and applies its legal obligations. Thus, the statement certainly has political repercussion. But in order to undertake a sound legal assessment, one must look on what is happening on the ground. At the current moment it is difficult to determine to what extent Gaza has access to food and water and what role Israel plays in this regard. On 18th of October 2023, US President Joe Biden travelled to Israel talking inter alia about granting humanitarian aid to people in Gaza. And while the UN Security Council Resolution which would have called for a “humanitarian pause” was vetoed by the US because it did not mention Israel’s right to self-defense according to Article 51 UN-Charter, Egypt has declared that it will provide Gaza with humanitarian aid, which is currently amassed at its very own borders. Both the US and Israel have declared that they will not block humanitarian aid entering from Egypt to Gaza. Finally, on 21st October, the Egyptian Red Cross and the UN provided much-needed humanitarian aid when twenty trucks entered Gaza at the Rafah border crossing. These trucks are certainly not enough to accommodate more than two million people living in Gaza, with more than one million displaced from the North. As a party to the conflict, Israel must make sure that the civilian population of Gaza can receive sufficient humanitarian aid including water, food and medical supply.
The international community as a whole is challenged
To conclude, the measures taken by Israel, especially the repeated requests for evacuation of northern Gaza have imperative military reasons and are a way of sparing the civilian population from even more harm and injury. Account should be taken of the fact that especially cruel warfare tactics by Hamas, which has no intention to comply with humanitarian law whatsoever, shift a huge burden on IDF. It goes without saying that the civilian population will face tremendous hardship when moving south and Israel – but also Hamas and the international community as a whole – must ensure that the people of Gaza have sufficient drinking water, food, shelter and sanitation.
Elisabeth Hoffberger-Pippan
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