Humanitarian access to Gaza

Written by

Israel’s siege of Gaza has been analyzed by Dannenbaum and Lauterbach in terms of the prohibition of the starvation of civilians as a method of warfare. Though not their primary objective, each author finds that under international humanitarian law (IHL) rules on humanitarian access, Israel must allow humanitarian relief to reach civilians in Gaza.

The IHL rules on humanitarian access apply not only to mitigate the effects of siege on civilians, but any time civilians in armed conflict are inadequately supplied with items essential to their survival, such as food, water and fuel. This post thus addresses humanitarian access head on. Pomson has done the same, however, the framing and conclusion are different here.

The post begins with an overview of the IHL rules on humanitarian access, then proceeds to address how relevant provisions apply to both conflict parties and to Egypt, particularly as they relate to territorial access to Gaza.

Humanitarian access in IHL

GCIV only address humanitarian relief in two situations: occupation and blockade. An occupying power ‘has the duty of ensuring the food and medical supplies of the population’ and, if it cannot, it must ‘agree to relief schemes’ on their behalf (GCIV arts 55(1) & 59(1)). Article 23 addresses the items that must be allowed through blockades, however, this provision has been superseded by API’s more robust set of rules (Bothe et al. 429; Sandoz et al. paras 2813-2815; Akande & Gillard 128).

API’s article 70 applies in international armed conflict (IAC) whenever the civilian population of ‘any territory under the control of a Party to the conflict … is not adequately provided with’ supplies essential to its survival. It sets out a two-step framework for impartial humanitarian actors to reach civilians in need. At step one, the actor seeks the consent of the conflict party or parties concerned to enter the territory or territories in question. While this consent —often termed strategic consent— is required, it may not be arbitrarily withheld (API art 70(1); Oxford Guidance para 22).

Once strategic consent has been obtained, practical implementation begins. At this second step, conflict parties and any transit states must allow and facilitate the rapid and unimpeded passage of relief supplies, equipment, and personnel through their territory, subject to their right of control (API art 70(2-3)). The right of control —often termed operational consent— in practice involves things like search and serves to verify the humanitarian nature of supplies, prevent convoys from affecting or being affected by military operations and ensure supplies meet health and safety standards (Oxford Guidance para 66).

The framework is essentially the same in non-international armed conflict (NIAC; APII art 18(2)), although the obligation to allow and facilitate is not spelled out. In any case, article 70 is considered customary and the customary rule applies equally in NIAC. According to the ICRC’s articulation of the customary rule, the ‘parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control’ (rule 55). The step two obligation to allow and facilitate is self-evident within rule 55. Less clear from the language of the rule alone, but also part of it, is the step one requirement of consent. In their commentary on rule 55, Henckaerts and Doswald-Beck explain that it is ‘self-evident that a humanitarian organization cannot operate without the consent of the party concerned. However, such consent must not be refused on arbitrary grounds’ (196-197).

IHL also includes specific provisions on medical relief, which is governed by the general rules outlined above plus these specific provisions. In both IAC and NIAC, wounded and sick civilians must be respected and protected and are entitled to be searched for, collected, and evacuated, and to receive the medical care and attention required by their condition to the fullest extent practicable and with the least possible delay (GCIV arts 3 & 16; API art 10; APII arts 7 & 8; rule 110). This absolute entitlement creates, for the relevant conflict party, an obligation to provide strategic consent to medical relief operations if the wounded and sick are not receiving the care required by their condition (Oxford Guidance para 114).

Israel

Whether Israel is occupying Gaza is an unsettled issue beyond the scope of this post. It suffices to note that, if it is, pursuant to GCIV article 59, Israel must allow relief into the enclave.

Even if Israel is not occupying Gaza, it nevertheless has obligations in relation to humanitarian relief. Israel’s High Court of Justice held in Al-Bassiouni that Israel must allow Gaza to receive ‘what is needed in order to provide the essential humanitarian needs of the civilian population’ (para 11). Moreover, rule 55 is now in play because civilians in Gaza are clearly in need (Israel has not ratified the Additional Protocols).

There are several crossings between Israel and Gaza. After the atrocities of 7 October, Israel tightened its control of these points to a complete siege. The Kerem Shalom crossing into southern Gaza is particularly important, as prior to 7 October it was the main entry point for goods. Kerem Shalom remains closed in what amounts to a withholding by Israel of strategic consent. Limited relief has entered Gaza via its border with Egypt at Rafah, the only crossing not controlled by Israel. It does, however, retain control rights (operational consent) over relief entering at Rafah. It is not clear how exactly Israel is exercising these rights; it seems the access challenges at Rafah stem from a combination of factors, including Israeli operational consent, bombardments —which raise security risks and damage roads— and, most recently, a critical shortage of fuel and a related communications shutdown.

Israel is withholding strategic consent to relief in part for military reasons: to prevent supplies, particularly fuel, from being used by Hamas. There are two dominant views regarding whether withholding strategic consent to relief for reasons of military necessity is arbitrary. According to Akande and Gillard, military necessity may be raised at step one as a reason not to consent to relief provided consent is not ‘withheld beyond what military necessity demands’ (499).

The ICRC position is less permissive than even the narrow margin of discretion allowed in Akande and Gillard’s view. According to the ICRC, military necessity can only ‘be invoked in exceptional circumstances in order to regulate —but not prohibit— humanitarian access, and can only temporarily and geographically restrict the freedom of movement of humanitarian personnel’ (364). On this view, Israel may invoke military necessity at step two in the context of its right of control, but not in connection with its strategic consent at step one.

Israel is presumably also withholding strategic consent to maintain its siege. Both of the authorities cited above characterize as arbitrary refusals that violate the prohibition of starving civilians as a method of warfare (Akande & Gillard 771; ICRC 370), a wrong Dannenbaum argues is ongoing. (While Watts has argued for broader discretion to refuse strategic consent in the context of sieges, this is hard to reconcile with the prohibition of starvation of civilians as a method of warfare.)

Regarding medical relief, it is clear the wounded and sick in Gaza are not receiving the care required by their condition. Israel must allow medical supplies into Gaza ‘to the fullest extent practicable’ (rule 110).

Hamas and Egypt

While designated a terrorist organization by the EU, US and others, as a party to the conflict, under IHL Hamas is bound by rule 55. As it controls the Gaza side of the Rafah crossing, Hamas’s consent to relief actions is required and may not be arbitrarily withheld. Hamas must also allow and facilitate the rapid and unimpeded passage of impartial humanitarian relief for civilians in need, subject to its right of control. Hamas must not exercise this right of control as cover to divert relief from civilians to its military effort, and it must ensure relief reaches all civilians in need, including the hostages in Gaza.

If Gaza is occupied by Israel, Egypt must ‘permit the free passage of … consignments’ en route to Gaza and ‘guarantee their protection’ (GCIV art 59(3)). Rule 55 applies only to the ‘parties to the conflict’ so does not bind Egypt, but the UN General Assembly has urged states near emergencies to facilitate the transit of humanitarian assistance.

Conclusion

Humanitarian relief can alleviate, to a degree, the suffering of civilians in Gaza, many of whom are children. The conflict parties must comply with their IHL obligations not to arbitrarily withhold consent to relief and to ensure it quickly reaches civilians in need.

This means Israel must provide strategic consent to humanitarian relief by re-opening Kerem Shalom to impartial humanitarian organizations operating in or wishing to operate from Israel. Israel can address its concern about the diversion of supplies to Hamas via its right of control, though not to the point of an abuse of rights; the obligation to allow and facilitate is not an obligation of means, but rather one of result. In practice, Israel could fulfil its obligations under IHL without foregoing its military concerns by entrusting the distribution of relief to an impartial humanitarian actor such as the ICRC.

Image: ‘Damage in Gaza Strip during the October 2023 by Al Araby (Creative Commons Attribution-ShareAlike 3.0 Unported).

Print Friendly, PDF & Email

Leave a Comment

Comments for this post are closed

Comments

Raphaël van Steenberghe says

November 20, 2023

Dear Marina,

Many thanks for this post.

One issue that is often neglected in the posts on humanitarian assistance in Gaza is the forced displacement of the civilian population by Israel. In my view, the obligation to humanitarian assistance might be relevant in relation to that issue. If one agrees with the view that Israel ‘ordered’ the evacuation of the civilian population in Gaza in accordance with Rule 129(B) of the ICRC Study on Customary IHL, Israel must comply with the obligation provided under Rule 131 : “all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety and nutrition and that members of the same family are not separated.”

It is clear that, when evacuating from northern Gaza, the civilian population was not ‘received under [the] satisfactory conditions’ mentioned in Rule 131. Israel had therefore to take the necessary measures to establish such conditions. However, if it was not able to do so by itself, it had the obligation to allow others to provide humanitarian assistance to the displaced civilian population. This obligation could be interpreted in two ways.

1 - it is an absolute obligation: Israel cannot even temporarily oppose the delivery of humanitarian assistance to the displaced civilian population. Refusing to allow such humanitarian assistance would be ‘arbitrary’, in the terms of the Oxford Guidance, as it would ‘violate a state’s obligations under international law with respect to the civilian population in question’.

2 – it is an obligation that might be subject to potential restrictions based on military necessity, like the ordinary obligation to allow and facilitate humanitarian assistance. Israel could refuse to allow such humanitarian assistance on the ground that this assistance would be diverted and would benefit to the Hamas and/or controls would be ineffective. In such case, Israel could oppose the delivery of humanitarian assistance, at least until such opposition provokes disproportionate consequences for the civilian population. Israel’s withholding of consent would then become ‘arbitrary’, in the terms of the Oxford Guidance, as it would be a ‘violation of the principles of necessity and proportionality’. However, this approach would be less protective: the civilian population could be subject to certain damaging consequences until those consequences become disproportionate in relation to the military gain sought by Israel.

I would be happy to have your view on this.

Raphaël

Marina Sharpe says

November 22, 2023

Dear Raphaël,

Thank you for your comments.

I agree with your point about rule 129B and the rule 131 obligation it can give rise to. Indeed, ‘all possible measures’ in rule 131 would, if Israel cannot provide for civilians, give rise to its obligations under rule 55. Put another way, like the prohibition of starvation of civilians as a method of warfare (which I relied on in my analysis), the obligation at rule 131 is another one that, if violated, would make the withholding of strategic consent arbitrary.

So if Israel cannot discharge its obligation under rule 131 on its own, then rule 55 kicks in. From there, I have comments on each of your interpretations (1 and 2). Before I turn to these, I note that it seems to me that interpretation 1 is based on the ICRC view (in their Lexicon, which I link to) and interpretation 2 is based on Akande & Gillard’s approach (in the ILS article I link to; see also para 52 of the Oxford Guidance, though interestingly it does not mention ‘military necessity’).

1 – It is only an absolute obligation on the ICRC view (on Akande & Gillard’s approach military necessity can be invoked at step one). Additionally, on both views military necessity can be invoked at step two (implementation) in the context of Israel’s right of control.

2 – You raise an interesting point towards the end of your comment: how long relief can be impeded at step one on the approach that permits military necessity to be invoked there. There is an obligation to provide strategic consent because otherwise rule 131 would be violated, but then Israel can still withhold strategic consent for reasons of military necessity until another threshold of arbitrariness is reached: violating necessity and proportionality. I didn’t get into this in my post, but it seems to me that if there is an obligation at step one to provide strategic consent, then that obligation moves us on to step two, to the obligation to allow and facilitate, and military necessity may only be raised there. In other words, I favour the ICRC approach. In other (not yet published) work, I consider why we have these two contrasting approaches to military necessity (in short, I think it relates to the broader ongoing debate about how IHRL applies during armed conflict).

As an aside on rule 129B, if you have not read it already I recommend Yousuf Syed Khan’s post on Just Security: https://www.justsecurity.org/89617/the-directive-to-evacuate-northern-gaza-advance-warning-or-forced-displacement/.

Thank you again for your feedback.

All the best,
Marina

Marina Sharpe says

November 23, 2023

Hi again Raphaël,

This is my second response, because I think I initially misunderstood your question: whether military necessity can be invoked at step one in circumstances where there is already an obligation to provide strategic consent to relief (whether pursuant to rule 53 or rule 131).

My answer, in short, is no. As soon as there are circumstances that would make the refusal of strategic consent arbitrary, consent must be provided (on both approaches to military necessity). In other words, I think the correct interpretation is the one you describe at 1.

What your question reveals is that if I had structured my post differently (put the siege/starvation issue (A) prior to the military necessity issue (B)), the answer to A would have rendered B moot!

Sorry if I missed the nub of your question in my initial response. If ever you want to discuss this directly, feel free to reach out by email.

All the best,
Marina