Why Israel's siege of Gaza is legal under international law

As the saying goes, in war, truth is the first casualty. When it comes to the public’s understanding of Israel’s siege of Gaza, the maxim has certainly held up.

In the wake of Hamas’ macabre rampage across southern Israel, Israeli defense minister Yoav Gallant ordered a “complete siege” of Gaza, cutting off Gaza’s access to basic utilities, including electricity, fuel, food and even water. Compounding the issue, Egypt has refused entry into the Sinai Peninsula to those fleeing Gaza.

As the siege’s humanitarian cost materializes, it has drawn the ire of many, including lawmakers in the United States and abroad.

But Israel’s siege of Gaza does not violate the law of armed conflict or international law.

Although the term of “siege” is not consistently defined in international law, generally speaking, it is understood as the act of encircling and isolating access to a population center to gain a military advantage through the effects of attrition and repeated assault, such as a bombing campaign. Sieges are not prohibited under either the law of armed conflict or public international law, but as one might expect, the devil is in the details.

Article 27 of the Hague Conventions places important limitations on siege warfare, demanding belligerents take “all necessary steps … to spare as far as possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes.”

In this respect, Article 27 also places requirements on the besieged, requiring them to identify such edifices, places and buildings “by some particular and visible signs, which should be previously notified to the assailants.”

Far and away from “protecting edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected,” Hamas − described as the “the de facto governing body in the Gaza Strip since 2007” − is widely reputed to use civilians as human shields, placing legitimate military targets in and around residential and commercial centers as a way to either deter Hamas’ adversaries from attacking in the first place or to deflect blame if such an attack results in collateral damage. The use of human shields is a war crime.

Hamas has used civilians as human shields

To be sure, the extent of Hamas’ willingness to use civilians as human shields is not always easy to prove. But according to a 2019 NATO report, “the practice of using human shields is common to most violent extremists operating in the Gaza Strip,” giving “every reason to believe Hamas will continue resorting to the use of civilians as human shields.” (For its part, the Israeli Defense Force has outlawed the use of civilian human shields, even going so far as to court-martial those who engage in the practice).

Indeed, where Israel has ordered Gaza to evacuate, Hamas has called for Gaza residents to remain in the crossfire, even as Israeli shelling continues and Israeli tanks roll toward the border in anticipation of a ground offensive.

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But what about starvation as a method of warfare?  Article 54(1) of the 1977 Additional Protocol I, Article 14 of the 1977 Additional Protocol II, and Article 8(2)(b)(xxv) of the 1998 ICC Statute all prohibit starving civilians as a method of war. And, indeed, Israel is preventing the flow of food and water into Gaza, which is certainly affecting civilians therein.

However, a few distinctions are worth noting. First, Israel is not bound by any of these sources of law. But even if it were, context matters. Where some have construed the foregoing prohibitions on starvation as being all-encompassing − that is, prohibiting any and all starvation of civilians as a method of war, even incidental starvation − others, such as the United States, recognize that it is “permissible to seek to starve enemy forces into submission," even if that means incidentally starving civilians, as long as the incidental starvation is not “excessive in relation to the military advantage anticipated to be gained.”

To interpret the law to categorically outlaw even incidental civilian starvation would be to create an exception that swallows the rule, which “could well render siege impossible as it has historically been known,” as one scholar at the Lieber Institute put it.

Civilians are not Israel's primary target in Gaza

In Israel’s case, civilians were never the primary target of its current siege (if they were, why order an evacuation?). Moreover, the ends of Israel’s siege have been clearly communicated to Hamas and are just on their own terms. Israel is not engaging in a war of genocide, illicit territorial conquest or unprovoked harassment; all Hamas must do to end its people’s suffering is return the Israeli hostages it kidnapped.

Israel might consider allowing for safe passage corridors for civilians in Gaza to access humanitarian relief. But there is no hard requirement under international law for it to do so. Indeed, isolation is the very point of a siege.

The world has witnessed Hamas’ depravity. Entire Israeli families have been murdered. Israeli babies have been ripped from their mothers’ arms and burned alive. Israeli women have been raped and kidnapped. Such horrors are, tragically, not unfamiliar to war. But they have never enjoyed the sanction of law.

The same can’t be said of Israel’s response. Israel has acted swiftly. It has acted effectively. And yes, even brutally. But it has acted lawfully.

Thomas Wheatley is an assistant professor in the Department of Law at the U.S. Military Academy at West Point. The views expressed herein belong solely to the author and do not necessarily reflect the views of the United States Military Academy, the United States Army, or the Department of Defense.

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This article originally appeared on USA TODAY: Israel siege targeting Hamas in Gaza is legal under international law