Eighteen days ago, Israel enforced a “complete siege” on Gaza, withholding all food, water, fuel, medicines and other basic supplies. Thirty-four trucks were allowed into Gaza in the past few days, but hundreds more are gathering dust at the Egyptian border as Gazan hospitals restrict patients’ water to 300ml a day.
Amid much uncertainty, international humanitarian law is clear on one point: Israel’s siege is a war crime. The recent aid concession does not change this. The Hamas attacks were devastatingly cruel and unlawful. Yet as Ben Saul reminds us: “A war crime is still a war crime, even in retaliation.” Israel’s siege transgresses basic humanitarian laws on the treatment of civilians. Australia, too, has legal obligations to ensure international law is respected, and it is not doing enough.
Withholding food and medicine is a war crime
Starving civilians as a weapon of war is prohibited under international law without exception. It occurs when civilians are intentionally deprived of goods essential for their survival — food, water, medicines. The International Criminal Court (which has jurisdiction over crimes in the occupied Palestinian territory) and Israel’s military manual also prohibit depriving civilians of food and necessities.
Energy Minister Israel Katz said “no electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter” until Hamas frees the hostages. The siege, which intends to deprive all Gazans of basic necessities, is a form of collective punishment and is prohibited in international law without exception.
The trickle of aid through Egypt’s new humanitarian corridor is so insufficient that war crimes of starvation and collective punishment persist. The aid agreement is for “only food, water and medicine for the civilian population located in the southern Gaza strip”, says Prime Minister Benjamin Netanyahu. This has allowed the 34 aid trucks into Gaza, each one being subject to Israeli approval.
The quantity of agreed aid is dwarfed by demand. The UN says 100 to 200 trucks a day are needed to meet demand — 450 trucks entered daily before the war. Excluding fuel from the aid leaves hospitals unable to function.
As Israel maintains its blockade of all aid except through Egypt, civilians in northern Gaza are left to languish. The 24-hour evacuation order of northern Gaza was declared “impossible” by the UN and a “death sentence” for patients in its hospitals — it is fundamentally illegal as attempted forcible transfer (article 49, Geneva Convention IV). The unlawful and impossible order cannot be used to justify depriving aid to the north. International humanitarian law is owed to all civilians in Gaza, not only those who risked the journey south amid continued air strikes.
It is irrelevant in international law what the military motive for starvation is — humanitarian law accepts no justification. The siege fails to distinguish its treatment of civilians and combatants, a “basic rule” of war.
Duties of an occupying state
As the likely occupying power in Gaza, Israel may well have even stronger obligations to guarantee civilian necessities. Geneva Convention IV states an occupying power has a “duty to ensure food and medical supplies of the population … to the fullest extent” available to it. This is a more onerous, active obligation than an enemy army’s duty to allow free passage of humanitarian relief for civilians in need. It would require Israel to take an active role in guaranteeing Gazans have sufficient food, water and necessities, including through its own border.
Whether Israel has these duties to ensure civilian necessities in Gaza rests on whether it exercises “effective control” over Gaza. Many legal scholars argue that the control over all water resources, fuel, border crossings, telecommunications, sanitation, population registry, tax collection, and the population registry, alongside the air and sea blockade, meets this level of control.
Israeli Defence Minister Yoav Gallant recently announced to lawmakers that the the war plan with Hamas would require the “removal of Israel’s responsibility for life in the Gaza Strip”.
Australia’s obligations
International humanitarian law has no bystanders. All states are under an explicit legal duty to not only “respect” but to “ensure respect” for the laws of war. As the illegality of the siege stretches on, the obligation of Australia as a party to the Geneva Convention looms large.
As the International Court of Justice puts it, humanitarian law is so fundamental to “elementary considerations of humanity”, that a breach of law anywhere enlivens the concern of all states everywhere.
So what must Australia do? It cannot aid or assist Israel’s continuation of the siege — which can be an illegal act itself. This includes statements legitimising or supporting the siege, and material assistance.
Australia should also press for expanded humanitarian access, and to end this medieval siege in line with Israel’s legal obligations. Australian diplomatic pressure is particularly important as the UN Security Council sits in deadlock, its resolution for a humanitarian corridor vetoed.
The unthinkable becomes acceptable when we deny people their humanity. International humanitarian law is the last line of defence, and we must enforce it.
