Gaza: Selected IHL Issues Raised by the Siege
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The complete siege enforced by Israel onto the Gaza Strip in the initial days of Operation ‘Swords of Iron’ has raised significant questions about the conformity of this specific method of war with international humanitarian law (IHL).
Sieges have been a feature of modern military operations throughout the last decades, yet remain subject to very limited and generally permissive regulation under IHL. This does not make a siege lawful in and of itself, as the specific circumstances in which it is conducted, and its consequences amongst the civilian population, can lead to violations of IHL norms. This post focuses on two selected aspects of the Gaza siege: incidental starvation onto civilians, and damage from electricity cuts onto hospitals. In our view, these aspects pose challenging questions for the existing IHL framework, and outline gaps in the protection that these regulations afford.
Applicable Framework
On October 9th, Israeli Minister of Defense Yoav Gallant announced the enforcement of a siege on the Gaza Strip, consisting of a complete closure of its borders, as well as severance of food, electricity, and fuel.[1] Subsequent monitoring by external observers and Israeli statements corroborated the implementation of these measures[2] for at least the following two weeks, ranging from October 9th to 23rd. Extensive reports have documented the aggravating effect of scarcities on the civilian population, from food shortages and lack of supplies to deficiency of essential infrastructures due to fuel and electricity cuts.
Sieges are not defined in IHL nor in other instruments of international law. We therefore rely on the definition provided by the Max Planck Encyclopedia, according to which a siege is a ‘lawful method of warfare’ which aims to ‘isolate [a place, such as a city or an area] from relief in the form of supplies or additional defensive forces’.[3] Our post is structured around the key feature of ‘isolation’ of an area, the hermetic seal which is the corollary of a siege. Thus we analyze the two aspects of incidental starvation and electricity cuts as consequences of this seal, and irrespective of correlated attacks, bombardments, armed operations on the ground etc.
The few relevant provisions of IHL applicable to these aspects enjoy customary law status and / or are applicable both during international armed conflicts (IACs) and non-international armed conflicts (NIACs), such that it is not necessary to qualify the conflict to trigger their application. These provisions are : Article 27 of the 1907 Hague Convention IV regarding the protection of specific buildings during sieges; the prohibition of starvation of civilians contained in Article 54(1) of Additional Protocol I to the Geneva Conventions (AP I) and in Article 14 Additional Protocol II to the Geneva Conventions (AP II); rule 53 of the ICRC study on customary rules of IHL; and the rules relating to distinction and proportionality applicable to attacks, as per articles 48 AP I and 51(5) AP I.
The applicability of these provisions to the siege of Gaza is not conditioned to explicit material criteria. It is sufficient that there is a clear factual convergence between the denomination, by the IDF, of the methods it employs[4] and the effective implementation of an isolation of the entire Gaza Strip, to trigger the application of the IHL rules listed above.
Starvation and its “deliberate direction” criterion during a siege
As mentioned, the hermetic closure of the Gaza Strip’s borders presents features that are typical of any siege : all flows of goods and supplies are severed from the besieged area, and civilians are prevented from fleeing these conditions. Starvation thus occurs frequently during sieges but is framed by IHL as a method of warfare independently of siege or any other context.
Starvation is prohibited when it is deliberately[5] directed against civilians, irrespective of any military advantage, per 54(1) AP I, 14(2) AP II, and Rule 53 of the ICRC’s Customary international law (CIHL) study. A contrario, starvation strictly directed against military personnel, rather than civilians, is lawful under IHL. This naturally raises the question of incidental starvation[6], which is particularly relevant to sieges. Several authors consider that incidental starvation is generally permissible[7] as an expected incidental loss, provided it is not excessive in relation to the expected military advantage. Problematically, in the specific context of sieges, a besieging force can always argue that it directs starvation solely against military forces, irrespective of its incidental effects, and this would consequently remain lawful under IHL.
The application of the rules on starvation in this context is thus fraught with doctrinal divergences. Rosa-Lena Lauterbach argues that incidental starvation of civilians which would bring an entire population “to the brink of starvation” would be “an absolute red line” but maintains that this qualification is conditioned on how the besieging party frames its military advantage at any time of the siege.[8] In a different approach, Professor Gloria Gaggioli argues that a siege corresponds to the definition of an “attack” under 49(1) AP I, and thus sieges must be subjected to constraints of proportionality and precautions under IHL[9]. In the same spirit, Maxime Nijs supports an interpretation of attacks based on their (violent) results rather than their means of implementation[10], by analogy with the consequence-based approach used in cyberwarfare to legally define attacks.[11] Once qualified as an attack, a siege would thus be subject to all rules governing hostilities, including the proportionality rule, which would be monitored and implemented at any time during a siege.
These approaches are convincing, but rely on measuring the expected incidental losses in light of the anticipated military advantage as a whole. Thus, an attack (or a siege) would be indiscriminate only if such losses are excessive in relation to the military advantage. But in the case of Operation Swords of Iron, whose stated military objective is to destroy Hamas entirely[12], there is little likelihood that any anticipated number of incidental civilian losses, enormous as it may be, would be sufficient to successfully counterweight such a military objective to which the siege contributes. For this reason, we submit that framing a siege as an attack is not necessarily helpful in such a case.
Since Article 54(1) AP I[13] is placed within the section concerning civilian population and “General protection against effects of hostilities” in AP I, it remains linked to the basic rule of this section and to the customary principle of distinction laid down in Article 48 AP I[14] which reads:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. (Emphasis by authors).
Article 48 uses the wording “at all times”, meaning distinction must be made every time a Party engages in hostilities.[15] This includes a besieging Party when it resorts to siege. Furthermore, and importantly, the term “operations” does not limit the application of distinction only to attacks.[16] The ICRC commentary of AP I follows this interpretation: “[…] the word "operations" should be understood in the context of the whole of the Section; it refers to military operations during which violence is used […]”.[17]
In our view, starvation qualifies as a military operation, because it can be lawfully directed against military personnel. In such situations, a besieging party using starvation is bound by the rule in Article 48 AP I, the underlying principle of the entire section.
Consequently, in times of siege, directing starvation towards military personnel without considering its effects on civilians would violate the basic rule of distinction, as it would amount to an indiscriminate method. In such a case, one could consider that starvation is directed towards civilians as well. We submit that this view is compatible with IHL in general, which perpetually strives to strike a balance between military necessities and the principle of humanity: the use of starvation against militaries only during a siege is not prohibited as such. However, planning and implementing a complete siege (i.e. isolating an area) without taking into account any consequences amongst the civilian population is tantamount to direct starvation against civilian as well, even if one argues that it is directed against military forces, primarily because preventing civilians from fleeing and blocking any humanitarian assistance is likely to amount, inter alia, to the starvation of civilians. In other words, the planning and implementation of a siege without due consideration to civilians would render the siege unlawful from the outset, because it uses starvation as an indiscriminate method of warfare, failing to distinguish between civilians and fighters “at all times” during the military operation, i.e. the siege. As a result, a siege consisting of “encirclement leading to hermetic seal”, under a contextual-based interpretation of Article 54(1) AP I could well be unlawful under modern IHL.
Based on the preceding arguments, it becomes very difficult to argue that the Gaza siege was conducted in conformity with the rules relating to distinction. Although directed towards Hamas fighters, there is no indication that the hermetic seal of Gaza, during the first two weeks of the war, provided any possibility for civilians to be spared from its effects, and in particular from starvation.
Article 27 Hague Regulations in a modern lens
A second issue raised by the Gaza siege has been the impact of fuel and electricity cuts onto hospitals within the Gaza strip. A specific protection in times of siege for these buildings can be construed on the basis of Article 27 of the 1907 Hague Regulations (HRLCW), which applies “in sieges and bombardments” and is the only IHL provision that imposes obligations upon the Parties to a siege. Article 27(1) requires the besieging Party to take “all necessary steps” to spare specific buildings in the besieged area, with the list containing, inter alia, “hospitals, and places where the sick and wounded are collected”. This obligation is not absolute, but rather subject to exceptions which we will analyze below.
Despite its old age, the significant changes in military operations in the last century, and its rarity of application[18], Article 27 HRLCW is worth analyzing because of its customary character[19] and promising wording. We will assess (1) whether Article 27 HRLCW can be considered as applicable to sieges irrespective of any bombardments, i.e. whether the encirclement of an area could suffice to engage application of the provision? And (2) if the answer under (1) is positive, is it possible to derive a special protection for hospitals in times of siege, one that would include the severance of electrical supply?
(1) With regards to the applicability of Article 27 to modern-day sieges, we submit four favorable arguments:
1. As the nature of armed conflict has changed in the last century, so should Article 27 HRLCW be interpreted in an evolutive manner. Modern sieges can deploy harmful effects through mere encirclement, absent or distinct from any bombardment. The 1907 provision naturally framed bombardments as the principal means through which a besieging Party would damage buildings within the besieged area. In modern times, infiltration operations, cyberattacks, and other types of actions can yield similar results.
2. In our view, Article 27 HRLCW’s wording supports the idea that sieges and bombardments can take place simultaneously[20] or distinctively, and that the provision can apply in each of these two situations.
3. The points previously stated also support Article 27 HRLCW’s purpose as affording accrued protection to certain buildings, in the context of a siege, precisely because of their heightened importance for the civilian population.
4. Finally, Article 27(2) HRLCW does list the besieged Party’s obligation to identify specific buildings; this obligation could hardly be interpreted as relating to attacks other than bombardments. However, the position of this obligation in a separate paragraph makes it possible to dissociate it from obligations incumbent upon the besieging Party under paragraph 1, which forms the core provision contained by Article 27.
(2) Can the resulting construction be applied to the Gaza siege, and more specifically to sparing hospitals from electricity cuts?
Firstly, this requires that the term “to spare” be interpreted as prohibiting the besieging party not only from bombarding the buildings listed by Article 27, but also from conducting other actions that would be harmful to the functioning of these buildings.
Secondly, this implies that none of three exceptions contained in Article 27 HRLCW can apply.
1. The besieging Party is only required to “take all necessary steps” to spare the buildings in question. This confirms that the obligation is one of conduct and not one of result.
2. These “necessary steps” are further tempered by the expression “as far as possible”, which, as Sean Watts notes, has come to signify “what can be done with what is immediately on hand and consistent with both the overall and immediate goals of the operation”[21]. In addition to a notion of practical feasibility, the expression also encompasses the principle of military necessity, thus allowing military commanders in charge of a besieging force to balance, on the one hand, the means at their disposal to accomplish a necessary military purpose, and humanitarian exigencies on the other.
3. Finally, the buildings listed by Article 27 lose their protection if they are used for military purposes.
Considering these challenges, we can advance that the duty of the besieging party to refrain from cutting off electricity to hospitals in the besieged area can be construed by relying on the spirit of Article 27 HRLCW and on the absence of other explicit IHL regulation on siege; the practical implementation of this duty, however, suffers from exceptions under the same provision.
Turning to the Gaza siege, we note that the complete severance of electricity supply has affected a large geographical area without differentiation, thus contributing to the devastating humanitarian effect of electricity cuts on hospitals. We argue that, in any case, these cuts could not be justified under the third exception listed above, as the material requirement of proving that all hospitals are used for military purposes would be difficult to satisfy.
The tests related to feasibility and military necessity, however, are significant hurdles. As electricity cuts in a besieged area do weaken the military capacity of the enemy, they are more likely than not to pass the military necessity test. Moreover, the practical feasibility of supplying only certain buildings in the besieged area with electricity is uncertain, and further tempers this fragile duty.[22]
In the very least, the language of Article 27 HRLCW would characterize the besieging Party’s duty to “take all necessary steps” as being continuous through the course of the siege, thus requiring the commander to assess the siege’s effects throughout the course of the operation, rather than solely at its onset.
Conclusion
In the current state of IHL, siege is not unlawful per se. Its use does, however, raise complex problems which, in the absence of new rules, warrant modern interpretation of existing provisions. A number of these are deemed to be applicable to sieges, through more or less direct means and interpretations. We have argued that during a siege, starvation cannot be specifically directed at military forces and that, through the application of the entire body of rules on the conduct of hostilities, hermetic sieges are prohibited under modern IHL.
From another angle, revisiting Article 27 HRLCW through a modern lens offers, at the very least, arguments for a specific duty of the besieging Party, even if the contours and practical implementation of this duty remain to be defined by further practice.
Both these perspectives strengthen the framework of protection to civilians trapped in the area under siege and are particularly relevant in the case of Gaza.
[1]Defense minister announces 'complete siege' of Gaza: No power, food or fuel | The Times of Israel, October 9th 2023, accessed on December 15th 2023.
[2] For example, see Diakonia International Humanitarian Law Centre, Legal Brief : 2023 Hostilities in Israel and Gaza, December 2023, at 20-21. While a day-by-day corroboration of the siege’s implementation is near impossible, several indicators support its continuation. On October 24th 2023, a UN Security Council meeting saw the UN-Secretary General and other speakers address the Security Council while noting the prolonged enforcement of the siege and its humanitarian effects. Other UN agencies, such as UNRWA, whether in reports or public interventions, have attested to this implementation.
[3] James Kraska, 'Siege,' Max Planck Encyclopedias of International Law [MPIL](Oxford Public International Law, 2009).
[4] See n 2.
[5] The condition of “deliberate” starvation is emphasized by the ICRC commentary of 54(1) AP I; see Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1986), at 653, § 2089.
[6] Incidental starvation refers to starvation directed against military personnel, but which also affects civilians.
[7] Maxime Nijs, “Humanizing siege warfare: Applying the principle of proportionality to sieges”, ICRC Review, 102, 2020, at 686-687; Rosa-Lena Lauterbach, “A ‘Complete Siege’ of Gaza in accordance with International Humanitarian Law”: “[…] the first AP’s wording suggests that a violation in an international armed conflict implies purposefully wielding starvation against civilians as such. Consequentially, according to his view, incidental starvation of civilians alone would not suffice to establish a breach of the prohibition.”; Sean Watts, “Under Siege: International Humanitarian Law and Security Council Practice concerning Urban Siege Operations”, at 10. For the counterargument, see Tom Dannenbaum, “Encirclement, Deprivation and Humanity: Revising the San Remo Manual Provisions on Blockade”, International Law Studies, Vol. 97, 2021, pp. 364–365.
[8] Rosa-Lena Lauterbach, “Israel – Hamas 2023 Symposium – A “Complete Siege” of Gaza in accordance with International Humanitarian Law”.
[9] Gloria Gaggioli, “Are sieges prohibited under contemporary IHL?”, European Journal of International Law, 2019.
[10] Nijs (n 7).
[11] Michael N. Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge University Press 2017) (Tallinn Manual 2.0), at 415.
[12] Complete destruction of Hamas was stated as an objective by Israeli Prime Minister Benyamin on X / Twitter and later restated on various occasions (for instance in this interview on November 9th 2023).
[13] Which enjoys customary status, see rule 53 of CIHL study.
[14] Although distinction is only listed in AP I, the principle of distinction is part of customary international law and applicable in both international armed conflicts and non-international armed conflitcs. See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1 : Rules (Cambridge University Press 2009), at 3-8.
[15] Sandoz Swinarski Zimmerman (eds) n 5, at 599, § 1871: “[…] the rule that a distinction must always be made between the civilian population and combatants […]”.
[16] Article 13 AP II uses the same language.
[17] Sandoz Swinarski Zimmerman (eds) n 5, at 600, § 1875.
[20] Other wordings, such as “bombardments conducted during sieges” or a similar terminology, would instead suggest that this provision only applies to bombardments in the specific context of sieges.
[21] Sean Watts (n 18).
[22] In this sense, Israel’s duty of electricity supply towards the Gaza Strip extends even during armed conflict (as recognized by its own domestic case law, with reliance to IHL, in Israeli Supreme Court, Jaber Al-Bassiouni Ahmed and others v. Prime Minister and Minister of Defence, 30 January 2008) and could also provide support for a specific obligation in the present case. Before the siege, the Gaza Strip continued to be recognized as dependent on Israel for its electricity needs (see 2022 Report by U.S. international trade administration)