Since the beginning of October 2024, the Israeli military has imposed a siege on significant parts of the North Gaza governorate amidst continued attacks and catastrophic humanitarian conditions. More than 100,000 Palestinians have been displaced as a result, while those unwilling or unable to leave have been deprived of water, food, and other indispensable means of survival. This has prompted concerns that Israel has implemented the so-called “Generals’ Plan,” devised by retired Israeli generals, to empty North Gaza of its inhabitants and put the area under tight siege allegedly for purposes of compelling the surrender of remaining Hamas fighters.
Building upon a recent publication by the Diakonia IHL Centre, this post assesses the lawfulness of the siege of North Gaza and related patterns of conduct according to the law of occupation and the rules governing siege warfare as well as their broader implications.
The law of occupation
The prevailing view, recently affirmed by the International Court of Justice (ICJ) in its Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, is that Israel has remained bound by the law of occupation with respect to Gaza despite the withdrawal of its ground troops and dismantling of settlements in 2005. This view is further reinforced by the significant presence of Israeli forces and a corresponding increase in the degree of control that Israel exerts over conditions of life in Gaza since the beginning of its ground invasion over a year ago. The fact that hostilities have been ongoing in Gaza since 7 October 2023 does not negate Israel’s obligations under the law of occupation, although certain conduct may have to be analysed through the lens of the IHL rules on the conduct of hostilities (on the relationship between the rules on the conduct of hostilities and the law of occupation, see, e.g., Dinstein, p. 111).
Pursuant to Article 43 of the Hague Regulations, Israel has a basic obligation to restore and ensure, as far as possible, public order and civil life in Gaza. It also has a number of other obligations vis-à-vis the population, such as ensuring food and medical supplies, and ensuring and maintaining medical and hospital establishments and services as well as public health and hygiene in cooperation with the local authorities.
For the siege of North Gaza to be considered lawful under the law of occupation, Israel would have to demonstrate that it constitutes a security measure that is “necessary as a result of the war” within the meaning of Article 27(4) of the Fourth Geneva Convention (GC IV). Several factors strongly point against such a conclusion. First, Israel is bound by the law of occupation precisely because it already exerts effective control over Gaza, including the north; any security imperative allegedly justifying the imposition of a siege would thus have to be very considerable. Second, and relatedly, Israel has several positive obligations towards protected persons in occupied territory; cutting tens of thousands of Palestinians off from resources essential for their survival can hardly be reconciled with these duties (Lieblich and Benvenisti, p. 166 and the references cited therein). Third, any security measures taken pursuant to Article 27(4) of GC IV must respect the fundamental rights of the population in the occupied territory (Article 27(1) of GC IV and Commentary); at the most, an occupying power may subject protected persons to internment and assigned residence (Article 78(1) of GC IV).
Another provision of the law of occupation merits separate consideration. As noted, Israel’s siege of North Gaza has led to the displacement of more than 100,000 Palestinians. Pursuant to Article 49(1) of GC IV, an occupying power may not, under any circumstances, deport protected persons from occupied territory to the territory of another State, including its own territory, or forcibly transfer them within the occupied territory. The occupying power may partially or fully evacuate certain areas on a temporary basis for imperative military reasons or to ensure the safety of the occupied population (Article 49(2) of GC IV). In any event, the occupying power would have to ensure that evacuations take place under adequate conditions of safety, health, hygiene, food, and shelter (Article 49(3) of GC IV). These conditions have not been satisfied by Israel; the situation has been catastrophic for those remaining in besieged North Gaza as well as for those attempting to flee in accordance with instructions by the Israeli military. As one UNRWA official recently reaffirmed after more than a year of hostilities, “[t]here’s nowhere safe in Gaza.”
The rules on siege warfare
Even if Israel’s siege of North Gaza were analysed not pursuant to the law of occupation but rather the rules on siege warfare, it would nonetheless have to be considered illegal.
While IHL does not outright prohibit sieges, it does set out numerous rules and conditions that a besieging party must comply with for a siege to be lawful. As a general principle, “[s]ieges may only be directed exclusively against the enemy’s armed forces” and not against the civilian population in the besieged area.
This is further reinforced by Article 54(1) of Additional Protocol I to the Geneva Conventions (AP I), which reflects customary IHL and prohibits the starvation of civilians as a method of warfare. It has been argued that a besieging party’s failure to either allow civilians to safely depart from the besieged area or to ensure their access to sufficient humanitarian supplies suggests an intention to starve the civilian population (see, e.g., Gaggioli and Melzer, p. 96). As noted, there is nowhere safe for civilians from North Gaza to go, and those remaining have been cut off from humanitarian relief efforts.
A further condition is for the besieging party not to attack, destroy, remove, or render useless objects indispensable for the survival of the civilian population, such as foodstuffs, livestock, crops, agricultural areas, as well as water installations and supplies and irrigation works “for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse [p]arty, whatever the motive” (Article 54(2) of AP I; see also customary IHL Rule 54). In November, the Food and Agriculture Organization of the United Nations (FAO) reported that “nearly 70 percent of croplands … have been destroyed; over 70 percent of olive trees and orchards have been burned to the ground; agricultural infrastructure has been decimated; and 95 percent of cattle and more than half of sheep and goat herds … have died” in Gaza, including in the north.
It has also been suggested that the concrete and direct military advantage of a siege must be proportionate to the anticipated incidental harm to civilians and damage to civilian objects (e.g., Nijs and Gaggioli). Given the scale of displacement, destruction, and humanitarian catastrophe brought about by Israel’s siege of North Gaza for the civilian population, it is very unlikely that the siege complies with the principle of proportionality.
Finally, the “Generals’ Plan” reportedly advances the proposition that all those who stay in North Gaza can be classified as fighters and thus lawful targets pursuant to the rules on conduct of hostilities – which if implemented would be a blatant violation of the principle of distinction, one of the fundamental rules of IHL.
Broader implications
A few weeks ago, a brigadier general in the Israeli military indicated during a briefing that Palestinians in North Gaza will not be allowed to return to their homes. Taken together with the extensive destruction inflicted on North Gaza, which has left the area uninhabitable for the foreseeable future, this reinforces grave concerns that the Israeli military is effecting the permanent displacement and ethnic cleansing of Palestinians from North Gaza, paving the way for annexation. Israel’s invocation of ostensibly humanitarian provisions – such as the IHL rules on evacuations – for such manifestly unlawful objectives is distressing, devoid of credibility, and ineffectual.
The catastrophic humanitarian conditions prevailing in North Gaza – from the destruction of homes and agricultural land as well as the denial of food and water to hospitals under attack and persons dying under the rubble – also raise serious questions about the commission of crimes against humanity (qua a widespread or systematic attack directed against a civilian population) and genocide. One of the inhumane acts constitutive of genocide is “[d]eliberately inflicting on the [protected] group conditions of life calculated to bring about its physical destruction in whole or in part” (Article II(c) of the Genocide Convention), provided that these conditions were put in place with the specific intent to destroy the group as such in whole or in part.
Alleged violations of the Genocide Convention in Gaza – including in relation to the denial of humanitarian assistance – were already invoked in the proceedings instituted by South Africa against Israel before the ICJ in December 2023; the Court issued several orders on provisional measures and affirmed that the rights invoked by South Africa are plausible. While it may take years for the ICJ to make a final determination as to whether Israel’s conduct in Gaza amounts to genocide, national and international human rights and humanitarian organisations seem to increasingly take this view (for example, most recently, Amnesty International), and Israel’s patterns of conduct in North Gaza over the last three months underscore the gravity of these concerns.
Regardless, the obligation of third States to employ all means reasonably available to them to prevent the commission of genocide is engaged irrespective of such a determination since, as per the ICJ’s 2007 judgment in Bosnia v. Serbia, it “arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed” (para. 431). In the case of Israel’s conduct in Gaza, such a serious risk was evident at the latest with the ICJ’s first order on provisional measures of 26 January 2024 in South Africa v. Israel. Third States have also been alerted to the commission of serious violations of IHL, including those amounting to war crimes, and crimes against humanity by Israel, thus triggering their duties to ensure respect for IHL and to prevent crimes against humanity. They must use their leverage and positions of influence vis-à-vis Israel – for example, political, military, and economic ties – for purposes of preventing and halting ongoing violations, including by ensuring that humanitarian organisations are not unduly prevented from delivering crucial humanitarian assistance.
Third States must likewise refrain from assisting Israel in the commission of such serious violations of IHL, crimes against humanity, or genocide. In this regard, the ICJ clarified in Bosnia v. Serbia that once third States become “aware that genocide was about to be committed or was under way,” they must not be complicit in the commission thereof, including by “the provision of means to enable or facilitate the commission of the crime” (paras. 419, 432).
Legal consequences also follow for third States under the general law of State responsibility since the norms concerned are peremptory in nature, and the breaches attributed to Israel are serious given their nature, scale, and gravity (Article 40 of the ARSIWA). Accordingly, third States have a duty not to recognise as lawful a situation created by such a serious breach; not to render aid or assistance in maintaining the situation; and to cooperate by lawful means to bring any serious breaches to an end (Article 41 of the ARSIWA). Furthermore, because all peremptory norms of international law also give rise to obligations erga omnes, third States are entitled to invoke Israel’s international responsibility for these violations. Finally, third States have broad obligations under treaty and customary international law to investigate and prosecute individual perpetrators of alleged international crimes, or to extradite them to another State for this purpose. States that are party to the International Criminal Court (ICC) must fully cooperate with the Court’s investigation into the Situation in Palestine, including by complying with any requests for the extradition of Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant pursuant to the arrest warrants issued on 21 November 2024.
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