Israel-Hamas: Safe Zones and Humanitarian Relief

Amidst the complexities of the Gaza conflict, several critical aspects, including safe zones and humanitarian relief, stand at the forefront. Understanding these facets involves delving into the intricate legal framework and international agreements that shape their application and effectiveness.

Safe Zones and Legal Realities

One contentious issue revolves around the establishment and breach of ‘safe zones’ in Gaza. Accusations against Israel for bombing previously designated safe areas highlight the complexities within the legal sphere. Legally, safe zones (‘demilitarised zones’) necessitate an agreement between the Parties to the conflict, as per the provisions in AP I to the 1949 Geneva Conventions (art. 60). However, without mutual agreement, the declaration of these zones lacks legal legitimacy. Notably, the absence of agreement between Hamas and Israel renders any unilateral declarations ineffective.

However, Israel’s advisories for civilians to relocate to the southern strip due to perceived safety concerns in the northern region exemplify efforts to mitigate civilian casualties during military operations. This advisory aligns with guidelines emphasising ‘Effective Advance Warning’ to safeguard civilians.

Triggering Humanitarian Obligations

In armed conflicts, determining when obligations for humanitarian relief arise involves multifaceted considerations, primarily centring around the responsible authority for providing essential resources to the civilian population. The contention over Gaza’s status as an occupied territory significantly influences interpretations of such obligations, especially concerning Israel’s duties. First and foremost, Hamas must provide humanitarian resources to its population. Yet, what happens when the territorial authorities are not meeting their obligations? Is there an Israeli obligation to allow and facilitate humanitarian relief?

Article 70(1): "If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Article 69, [i.e., clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship], relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. [...]"

According to Article 70(1) of AP I, if a civilian population lacks essential supplies under a party’s control, relief actions of a humanitarian and impartial nature should ensue, contingent upon the concerned parties’ agreement. Similarly, Article 18(2) of AP II triggers obligations when civilians face undue hardship due to essential shortages. The "not adequately provided" criteria under these articles remain somewhat ambiguous. Historical perspectives, including ICRC’s 1972 draft, initially cited inadequate domestic resources as triggering obligations. However, subsequent omissions in later drafts suggest nuances in defining this condition. The need for external aid becomes apparent when responsible authorities fail to meet civilian necessities, jeopardising their survival, as indicated by the ICRC's 1987 Commentary on AP II. Nevertheless, this commentary serves as a supplementary guideline rather than a definitive legal directive.

Moreover, Article 70 of AP I is a two-step framework. In step one, the actor seeks the consent of the conflict party or parties involved to enter the designated territory or territories. Although this consent, commonly called strategic consent, is necessary, it cannot be denied without a valid reason. In step two, conflict parties and any transit states must permit and expedite the swift and unobstructed conveyance of relief supplies, equipment, and personnel through their territory, subject to their right of control. The right of control, also known as operational consent, involves procedures such as an inspection to confirm the humanitarian nature of supplies, prevent convoys from interfering with or being impacted by military operations, and ensure that the supplies meet health and safety standards. Israel's operational consent over relief entering Gaza is legal.

Humanitarian Relief: Striking a Balance

Another contentious issue involves the creation of humanitarian corridors, as requested by the EU. It represents a crucial method for mitigating the suffering of civilians. Nevertheless, the distribution of humanitarian aid must adhere strictly to the principles of impartiality and absence of discrimination (AP II, art. 18), “relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned”. The 200+ hostages shall receive this humanitarian relief, and Israel can rightfully condition. Israel asserts its right to ensure impartial distribution, even extending aid to hostages taken from its territory, on the condition that authorised international bodies gain access to these individuals. Israel’s argument against allowing excess fuel supplies, alleging diversion for military purposes by Hamas, underscores the complexity of ensuring aid is channelled for civilian welfare. Judging the basic humanitarian needs of the civilian population is complex.

Navigating Obligations in Conflict Zones and Terminology

Debates surrounding Israel’s obligations to provide resources to Gaza stem from International Humanitarian Law. The provision of resources often falls under the responsibility of occupying powers, yet the dispute over Gaza’s classification significantly influences interpretations of Israel’s duties. Criticisms of Israel’s discontinuation of resource supply post-October 7 massacre are grounded in complex legal debates within armed conflict scenarios. While the Israeli Supreme Court held in 2008 that Israel had an obligation to supply basic humanitarian needs, the current status of these obligations remains uncertain. It is not clear whether these obligations still hold 15 years later. This ambiguity casts doubt on Israel’s present obligations toward Gaza.

The term ‘collective punishment’, referred to by the UN Secretary-General, carries prohibition (Rule 103). However, it appears to be a wrongful use of legal terminology. Indeed, we are talking here about the termination of the direct supply of utilities from Israel, northern evacuation orders, and the targeting of civilian objects (potentially dual-use). In armed conflict scenarios, lawful measures impacting civilian populations can (unfortunately) be taken and may not necessarily fall under ‘collective punishment’. Legally permissible actions might include imperative military necessities such as advance evacuation warnings and targeting dual-use objectives under the principles of proportionality and precautions. In every armed conflict, actions often adversely affect civilian populations, resulting in individual and collective hardships. However, it's crucial to note that the mere occurrence of these impacts does not necessarily classify them as prohibited collective punishments under international law. The legal understanding of collective punishment requires specific criteria to be met beyond the mere occurrence of adverse effects on civilians.

The Israel-Gaza conflict highlights intricate legal challenges in safe zone establishment, humanitarian relief, and obligations during armed conflicts. Disagreements arise over safe zones’ legality without mutual consent and the complexities of humanitarian corridors’ impartial distribution. Determining responsibilities in conflict zones, especially in Gaza, presents ambiguities due to unclear triggers for aid actions and disagreements on territorial status. Interpretations of Israel’s obligations in Gaza remain complex, with uncertainties over its duties in resource supply post-massacre. Legal debates concerning ‘collective punishment’ also lack clarity, indicating a need for specific criteria beyond mere impacts to categorise actions under international law. In summary, navigating legal complexities in Gaza’s conflict zones requires clarity on safe zone legality, impartial aid distribution, and clear triggers for aid obligations. Resolving ambiguities in interpreting Israel's responsibilities and defining collective punishment under international law remains imperative to uphold humanitarian principles amid armed conflicts.