Humanitarian access to Gaza

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 Article 23 addresses the items that must be allowed through blockades, however, this provision has been superseded by API’s more robust set of rules (Bothe et al. 429; Sandoz et al.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).