46

Reading this from BBC:

On Monday, Israel declared a "complete siege" on the territory, saying electricity, food, fuel and water would be cut off.

Is this a war crime or illegal in any way under international laws?

Philipp
  • 76,766
  • 22
  • 234
  • 272
Mocas
  • 7,164
  • 4
  • 35
  • 68
  • 16
    A neutral comment for adding context. International law is kinda like the pirate code. They are more like guidelines than actual rules. A further complication to what is or isn't a war crime or running afoul of international law is who are signatories on which treaties. Given the Gaza Strip is internationally recognized as territory of Israel, it would largely depend on which treaties Israel has signed. There is also a difference between Israel ceasing to provide the Gaza Strip with its own supplies versus blocking international humanitarian aid. This is quite a complex question. – David S Oct 11 '23 at 17:40
  • 23
    @DavidS "Given the Gaza Strip is internationally recognized as territory of Israel ..." Who recognizes the Gaza Strip as territory of Israel? I don't even think Israel has any official claims on Gaza. – jkej Oct 11 '23 at 18:55
  • all laws are statements of what we wish people would do and only effective when enough people agree to follow them. That is not unique to statements of "international law" and not a reason to discount it. It is up to each of us to decide to support it or not – Mike M Oct 12 '23 at 11:47
  • 14
    @DavidS The international community consider Gaza a territory occupied by Israel, not a territory of Israel. – gerrit Oct 12 '23 at 12:59
  • @MikeM While you are in a certain sense literally correct, I don't think this is a very useful way to think about international vs domestic law. There is typically a much stronger, more formalised, and less internally contradictory foundation for domestic law than international law, which arises by convention and is organised by no-one. – preferred_anon Oct 12 '23 at 13:21
  • 1
    @preferred_anon International law and human rights declarations do not appear on their own as conventions. They represent the consensus of people coming together to create something - sometimes fewer people and sometimes very many. They don't have the same threat of punishment today as a local law might, but that, again, is the current state of human choices and not a law of nature. – Mike M Oct 12 '23 at 13:55
  • 1
    @jkej There isn't succinct method of describing the political situation in a manner that is either accurate or satisfactory to everyone. I was speaking more in a manner of how the situation is viewed from an international law perspective. The Gaza Strip doesn't belong to another state actor, leaving Israel the only state actor bound by any law. The Gaza Strip, to my knowledge, is not a signatory to any international treaties that we would consider part of international law. I wanted to stress the complexity of this highly charged topic as the question is able to be asked rather simply. – David S Oct 12 '23 at 14:57
  • 4
    A more geographical question: given the strip shares a border with Egypt, how can Israel institute a "complete" siege? – rivu Oct 12 '23 at 19:45
  • 1
    All these talks of "War crimes this, and War crimes that..." always fail to recognize the most important bit. Who's gonna do what about it? A war crime is only a war crime if any nation cares to do something about it - which would involve a lot of military action and lots of lost lives. ie - ain't gonna happen. – SnakeDoc Oct 12 '23 at 23:29
  • 1
    @DavidS Maybe there is no description satisfactory to everyone, but "the Gaza Strip is internationally recognized as territory of Israel" is probably not satisfactory to anyone. It's a very clear and simple statement and I don't see how it can be construed to mean any of the other things you describe. – jkej Oct 12 '23 at 23:56
  • @SnakeDoc - Also: Is this a war? (Technically speaking.) That will not be relevant to all points, but presumably is partially relevant over all. – MikeB Oct 13 '23 at 11:07
  • @jkej Its a distinction without a difference in this context. If there is a difference, please, educate me. Keep in mind, we're speaking in regards to international law and war crimes, not of the political situation in general. – David S Oct 13 '23 at 14:29
  • 5
    @MikeB There's an unfortunate amount of people out there that seem to believe if something is illegal than nobody will do it. They fail to realize the only thing that makes laws effective is the ability to enforce. Consequences for breaking the law is what makes the laws effective. Therefore, the only thing that makes "War Crimes" actual crimes are another nation's ability to enforce them. There is no reality where Israel (or Russia for the matter) turns over their leaders willingly. Therefore, any conversation regarding War Crimes is moot unless someone is willing to invade and kill. – SnakeDoc Oct 13 '23 at 22:48
  • 1
    As a thought experiment: What if the roles were swapped: Would anybody consider it not to be a crime? Specifically considering what is phrased "collateral damage" (hurting the "innocent"). – U. Windl Oct 16 '23 at 10:37
  • 1
    There is this thing about theoretical morality, and realistic morality. The former bases on principles--if principle A says it is right, it is right; if it says it is wrong, it is wrong. Basically an if-else loop. The latter is based on punishments--if everyone, especially the most powerful, does this and is punished, then it is wrong, if it isn't punished, it is right. Basically a learning curve feed-back loop. The world runs on realistic morality. So...yeah. – Faito Dayo Oct 16 '23 at 19:37

6 Answers6

61

Yes, completely cutting off food and water is a war crime. For example, we have the following quote by John Kerry, then US foreign secretary:

People are dying; children are suffering not as a result of an accident of war, but as the consequence of an intentional tactic – surrender or starve. And that tactic is directly contrary to the law of war.

Or by Ban Ki-Moon, then Secretary General of the UN:

Let me be clear: The use of starvation as a weapon of war is a war crime.

[Both were said regarding a siege taking place as part of the Syrian civil war.]

If rather than completely cutting off food the IDF would insitute a comprehensive inspection regime which makes smuggling in military supplies almost impossible, but inadvertently also limit throughput so much that no enough food reaches Gaza, the situation would be more complicated to judge.

Arno
  • 13,675
  • 4
  • 37
  • 60
  • You may want to include - As I said, some of their actions, and the United Nations have already said that, like cutting water, cutting electricity and food to a mass of civilian people, is against international law. So yes, there are some actions that are not in accordance with international law. - Press remarks by High Representative Josep Borrell – sfxedit Oct 10 '23 at 19:55
  • 13
    What are these quotes based on? Exact wording, paragraph etc. – d-b Oct 11 '23 at 05:57
  • 5
    I think this answer is insufficient, because it refers to no laws, but some random people "saying so". – Semo Oct 12 '23 at 08:04
  • 6
    @Semo *Article 54 — Protection of objects indispensable to the survival of the civilian population
    1. Starvation of civilians as a method of warfare is prohibited.
    2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works,

    for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party,*

     – Italian Philosophers 4 Monica Oct 12 '23 at 16:15
  • 1
    whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive. Geneva Convention, protocol I. There's a lot more like that there. – Italian Philosophers 4 Monica Oct 12 '23 at 16:16
  • 2
    @ItalianPhilosophers4Monica 3) "The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse Party"

    If Hamas are using those supplies as well, it is no longer a war crime.

     – Questor Oct 13 '23 at 16:25
  • 2
    @Questor So.... no electricity and no food for 2m people because 20k Hamas militants access it as well? Not acceptable. – Italian Philosophers 4 Monica Oct 13 '23 at 18:20
  • 1
    @ItalianPhilosophers4Monica But could be considered legal by the rules of war. You have confused the word 'legal' with the word 'moral'... – Questor Oct 13 '23 at 18:23
  • @Questor No, you are confusing the words proportionate in these texts. Now, I don't think the siege, at this point, is truly that war crime-y. I can see people dying in hospitals due to no power, for example. Which is horrible, but so are the circumstances that brought Israel to this point, so if they can prove real military necessity and goals, maybe (I am not supportive, but I accept the argument). But a few weeks down the line of no power and no food? That would be unacceptable, immoral, behavior from a civilized state. Israel is not, and should not, become that kind of state. – Italian Philosophers 4 Monica Oct 13 '23 at 18:29
  • 3
    @Questor Did you intentionally leave out the conditions from your quote? Full quote (shortened for clarity, see link for full text): "The prohibitions in paragraph 2 shall not apply to [actions against critical civilian infrastructure] used by an adverse Party: a) as sustenance solely for the members of its armed forces; or b) [...] in direct support of military action, provided [that the action is not] expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.". Leaving out conditions a) and b) seems extremely dishonest. – JHR Oct 16 '23 at 09:48
  • But the reason why I didn't is because motive matters, according to the ICRC Commentary to APs, para 2089. This only applies if the starvation of the civilian population is deliberate. Or in other words the goal of preventing food/water supplies is to starve the civilian population. That is not Isreals stated purpose behind the blockade. Which is to starve out Hamas (who are valid combatants). – Questor Oct 16 '23 at 15:17
  • According to the US Department of Defense Law of War Manual, starvation is considered excessive, depending on the anticipated military advantage. For example, if you expect the starvation to provide no military advantage. Then even a tiny bit of starvation is excessive. If you expect the starvation to wipe out the opposing enemy combatants then it depends on how badly the civilian population suffers. SO if Israel believes that they could win the war by starving hamas out. Then there is room for debate as to how excessive the starvation is. – Questor Oct 16 '23 at 15:25
  • 2
    In recent historical examples. The starvation of Leningrad civilians by Germans during the siege of Leningrad was found to be lawful. Even more poignant, German forces firing on unarmed starving Russian civilians as they attempted to flee Leningrad (because they were starving to death) was found to be lawful. – Questor Oct 16 '23 at 15:28
47

I am surprised that none of the answers so far cite actual international law (treaties). From the Additional Protocols of the Geneva Conventions, article 54:

  1. Starvation of civilians as a method of warfare is prohibited.

  2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

  3. The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse Party:

(a) as sustenance solely for the members of its armed forces; or

(b) if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.

  1. These objects shall not be made the object of reprisals.

  2. In recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion, derogation from the prohibitions contained in paragraph 2 may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity.

At least one source notes that starvation of citizens is actually only prohibited “as a method of warfare”:

Less clear is whether the prohibition only relates to situations where the belligerent resorting to this method of warfare has the purpose of starving the civilian population; or whether it also covers situations where, although not the purpose of a particular course of action, the starvation of the civilian population is its foreseeable consequence.

I'm not a lawyer, but the implication of paragraph 3(b) seems to be that cutting off food and water would be prohibited, though cutting off electricity would apparently be acceptable.

User @CDJB notes that Israel is not a party to Protocol I, which this article comes from. (source) So Israel is not bound by treaty to honor this article.

Not that this is going to stop the comments, but: the purpose of this answer is to respond to the OP, not to take a position on the conflict.

adam.baker
  • 3,069
  • 14
  • 24
  • 16
    And Hamas has signed no such treaties whatsoever, I'd wager. But that doesn't stop complaints against them either. – the gods from engineering Oct 11 '23 at 13:41
  • 10
    Out of curiosity, the PA has signed some human rights conventions (incl. the Geneva Conventions as it turns out--in 2014), but since Hamas doesn't recognize PA's authority... – the gods from engineering Oct 11 '23 at 13:55
  • 5
    Would anything prohibit a country from cutting off supplies of food from any entity other than themselves, but then supplying food via means that could be internationally supervised to be suitable for human consumption (and not poisoned, etc.)? The cost of inspecting all food shipments to ensure they don't contain any other smuggled material might be higher than the cost of supplying food which is known to be free of such material. – supercat Oct 11 '23 at 14:57
  • @supercat I suspect it would not be legally problematic, but it's not really in the spirit of warfare. Taking care of the physical needs of the people whose will you are trying to break would probably be equally confusing for both your enemies and your constituents. – adam.baker Oct 11 '23 at 19:09
  • 1
    @adam.baker: It may be "weird", but it would seem like it might be logistically more practical to air-drop basic some ration supplies than to try to have checkpoints pass through an adequate quantity to avoid starvation while still keeping out weapons. – supercat Oct 11 '23 at 20:45
  • Is this an error? 'At least one source notes that starvation of citizens is actually only prohibited “as a method of warfare”:' while the quote actually distinguishes between purpose and foreseeable consequence. – JollyJoker Oct 13 '23 at 10:06
  • @JollyJoker I think my wording is correct. As I read it, the quote is pointing out that while starvation would be unacceptable if it were a goal of a military action, if starvation results and yet was not the intention of the action (even if it may have been foreseeable), then that would be “okay.” – adam.baker Oct 13 '23 at 11:57
  • Does this mean that as the food/supplies are used by an adverse entity (Hamas), as long as the goal is to starve out Hamas, and not the civilian population, it is not a war crime? – Questor Oct 13 '23 at 15:53
  • 1
    @Questor That is at least one possible interpretation. Remember that these treaties are designed for more traditional conflicts, where the distinction between combatants and noncombatants is easier to make (though not easy I'm sure; think of Stalingrad). – adam.baker Oct 14 '23 at 06:58
  • Israel is under no obligation to provide fo – Michael Oct 14 '23 at 22:51
  • @Michael: depends where https://politics.stackexchange.com/questions/86002/does-an-occupying-power-have-an-obligation-to-feed-the-civilian-population Even some IDF officers argue they have to provide in northen gaza now. Granted, you posted that before IDF ground troops moved in and declared victory in the north. – the gods from engineering Mar 21 '24 at 07:28
27

As hinted in comments, the Israeli declaration (& actions) has/have already elicited protest from a UN commissioner, as France24 streamed:

10:40am

Total siege of Gaza 'prohibited' under international law, says UN rights chief

Israel's total siege of the Gaza Strip is banned under international law, said the United Nations human rights chief.

"The imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law," Volker Turk said in a statement.

Citing information gathered by his office, Turk said Israeli air operations have struck residential buildings, including large tower blocks, as well as schools and UN buildings across Gaza, resulting in civilian casualties.

"International humanitarian law is clear: the obligation to take constant care to spare the civilian population and civilian objects remains applicable throughout the attacks," said Turk.

the gods from engineering
  • 158,594
  • 27
  • 390
  • 806
  • 8
    FWTW, it seems it was part of larger statement that also condemned hostage-taking by Hamas, although France24 only focused on that siege bit. – the gods from engineering Oct 10 '23 at 20:19
  • 2
    Managed to find the full stmt here https://www.ohchr.org/en/press-releases/2023/10/un-human-rights-chief-urges-states-defuse-powder-keg-situation-israel-and – the gods from engineering Oct 11 '23 at 08:52
  • BTW, Israel appears to condition the lifting of the blockade on the return of the hostages. "“Not a single electricity switch will be flipped on, not a single faucet will be turned on and not a single fuel truck will enter until the Israeli hostages are returned home,” Israeli Energy Minister Israel Katz said on social media." – the gods from engineering Oct 13 '23 at 10:13
8

Tom Dannenbaum, a professor at the Fletcher School at Tufts University, has written an article about "siege starvation" in this particular context.1 He establishes the situation as follows:

On Monday [Oct. 9, 2023 -Peter], Minister of Defense Yoav Gallant announced, “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed.”[...]

Reports indicate that Israeli Air Force strikes at the Rafah crossing and Israeli government warnings to Egypt not to allow aid in are preventing the delivery of essentials through the only land border not controlled by Israel.

His legal assessment of this announcement is:

This order commands the starvation of civilians as a method of warfare, which is a violation of international humanitarian law and a war crime (ICC Statute, article 8(2)(b)(xxv)). It may also satisfy the legal threshold for the crime against humanity of inhumane acts (7(1)(K)) and, depending on what happens from here, other crimes against humanity, such as those relating to killing (murder and extermination) (7(1)(a-b)).

The question whether the ICC has jurisdiction over the Gaza Strip was answered by the court itself in 2021:

FOR THESE REASONS, THE CHAMBER HEREBY

FINDS that Palestine is a State Party to the Statute;
[...]
FINDS, by majority, Judge Kovács dissenting, that the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.

A Q&A document regarding that decision is available on the court's site.

Last not least, an official statement was issued by the UN High Commissioner for Human Rights, Volker Türk:

The imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law.

1 A more technical article by Dannenbaum from 2019 can be found here. Siege starvation was not part of the original Geneva Conventions and was added as an amendment to the Rome Statute of the ICC.

Peter - Reinstate Monica
  • 9,705
  • 1
  • 26
  • 48
  • Israel sealed Gaza on 3 sides: North, East, and Mediterranean. The Southern border of Gaza is with Egypt. A muslim Arab place that is not at war with Gaza, but sealed their border nevertheless. Are you accusing Egypt of a war crime? – Michael Oct 14 '23 at 22:50
  • @Michael Obviously, if Egypt was responsible. But Dannenbaum quotes reports that Israel is preventing Egypt to deliver aid through that border. – Peter - Reinstate Monica Oct 15 '23 at 04:19
-2

There is a concept of the Doctricne of necessary defence in the international law. It is allowed by the UN's International Law Commission (ILC) to be used by a state facing "grave and imminent peril".

Isreael may potentially claim that they are enough under "grave and imminent peril" after Hamas have killed thousands of civilians in they initial attack.

There are, however, some statements within this concept that the opposing side may use, like " the State has contributed to the situation of necessity" (Gaza side argues Israel contributed a lot) and "Actions taken were the only way to safeguard an essential interest from grave and impending danger" (how much is now needed to prevent the further Hamas attacks, it is also not very obvious).

Stančikas
  • 21,514
  • 1
  • 52
  • 113
  • I don't think necessity applies here. 1.: It can only be invoked where an action does not seriously impede an essential interest of a state or the international community as a whole. In the full document, the ILC lays out that this means that the interest relied on must outweigh all other considerations, not merely from the point of view of the acting State but on a reasonable assessment of the competing interests, whether these are individual or collective." – xyldke Oct 16 '23 at 15:51
  • It can additionally only be invoked where the obligation in question does not exclude that possibility. Again from the full document: "certain humanitarian conventions applicable to armed conflict expressly exclude reliance on military necessity. Others while not explicitly excluding necessity are intended to apply in abnormal situations of peril for the responsible State and plainly engage its essential interests. In such a case the non-availability of the plea of necessity emerges clearly from the object and the purpose of the rule".
    • – xyldke Oct 16 '23 at 15:53
  • 1
    Since an war plainly engages a State's essential interests, this second part forbids the invocation of necessity regarding the laws of war. – xyldke Oct 16 '23 at 15:55
  • When this is between two persons, definitely it is not so that the attacker can be treated in "unlawful way" only if not harmed at all, and this when already under grave danger for the victim. Even if exactly this interpretation is official, some other views may be more widespread. – Stančikas Oct 16 '23 at 19:18