Israel-Hamas: advanced warning vs forced displacement?

On October 13, the IDF warned the Gaza population to “evacuate […] Gaza City […] southwards for their own safety and protection”.

Additionally, it dropped leaflets. Then on October 14, the IDF announced a six-hour window in which it would refrain from conducting air strikes on two routes to facilitate the movement of residents to the South.

The warnings have been highly criticized; called a ‘crime against humanity’ or a violation of international humanitarian law, i.e., a war crime. Even the ICRC, which usually addresses possible violations of IHL through confidential dialogue, has issued a public statement. Hamas has requested for everyone to “remain steadfast in your homes and to stand firm in the face of this disgusting psychological war waged by the occupation”. Lately, it has been called a ‘new nakba’, in reference to 1948 when Israel was founded.

Under IHL, the two rules relevant are the following:

Rule 20: “Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit.”

Rule 129.B: “Parties 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”

Note that a violation of Article 8 (2)(e)viii of the Rome Statute constitutes a war crime: “Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand”.

Two disagreements among scholars and jurists complicate the legal analysis: whether the conflict is international or non-international and whether the Gaza Strip is under occupation. I have taken the stance that it is non-international and not occupied.

First and foremost, Israel’s action is not an order as Israel has no authority over Gaza’s population. Hamas controls the area and could issue and enforce such order. Instead, Israel’s action qualifies as a warning per Rule 20, applying the principle of precaution. When it comes to the effectiveness of the warning, there is no guidance to what is required on that warning. The success of the mission and the protection of the attacking forces are two considerations that are relevant in determining the feasibility of warnings.

Additionally, there is no requirement to tell the population what to do to avoid the harm from the attack. Regardless of legal intricacies, these warnings are proving somewhat effective, as many residents from northern Gaza have now moved towards the southern regions.

Struggling to understand how warnings of an imminent attack on Gaza City, urging civilians to evacuate, can be seen as anything other than measures aimed at minimizing loss of life and injury. While there will be considerable challenges in the area they are relocating to, the risks there are outweighed by those posed by high-intensity combat. Some analysts note the impossibility of evacuating all residents of the northern Gaza Strip, acknowledging the operational reality that delaying IDF action will make the fight more difficult. Time is critical, but at least those who have managed to leave the combat zone will be safer than if they had stayed.

More importantly, Rule 22 imposes on Hamas, the de facto government, to “take all feasible precautions to protect the civilian population and civilian objects”. This rule is complemented by two specific obligations contained in Rule 23 and 24. Under the principle of precautions imposed on Hamas, the latter musts “avoid locating military objectives within or near densely populated areas” (Rule 23) and “remove civilian persons and objects under its control from the vicinity of military objectives” (Rule 24). The obligation under Rule 24 is particularly important when military objectives cannot be separated from densely populated areas. The very least would be that Hamas encourages civilians’ departure, not urging against it. By doing so, Hamas is consistent with its tactic of ‘human shields’ – which is prohibited.

The situation is undoubtedly tragic from every angle. The commendable work of the humanitarian organizations and their field personnel is nothing short of humanitarian heroism. Importantly, the evacuation to clear a combat zone is lawful. Israel, under the right to self-defense against Hamas, is justified in taking action in northern Gaza. While this operation poses inevitable risks for the civilians who remain, it is equally certain that heeding Israeli warnings and relocating south, although challenging, is undeniably less risky than staying in place.