In response to Hamas’ brutal attacks that killed at least 1,400 Israeli civilians and continues with 200 hostages in Hamas control, Israel has imposed a “complete siege” of the Gaza Strip. This includes blocking access to electricity, food, and fuel. While Israeli authorities have restored some access to water in southern Gaza the supply remains limited.
For the over 2 million civilians in Gaza, the siege has created dire humanitarian conditions. Hospitals are quickly running out of medical supplies, and the International Committee of the Red Cross recently said that humanitarian organizations will not be able to provide life-saving assistance with the siege in place.
Joining the show to discuss the siege, and how international law applies to it, is Tom Dannenbaum.
Tom is an Associate Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University where he is also Co-Director of the Center for International Law and Governance. Tom is an expert on international humanitarian law, including siege starvation.
Show Notes:
In response to Hamas’ brutal attacks that killed at least 1,400 Israeli civilians and continues with 200 hostages in Hamas control, Israel has imposed a “complete siege” of the Gaza Strip. This includes blocking access to electricity, food, and fuel. While Israeli authorities have restored some access to water in southern Gaza the supply remains limited.
For the over 2 million civilians in Gaza, the siege has created dire humanitarian conditions. Hospitals are quickly running out of medical supplies, and the International Committee of the Red Cross recently said that humanitarian organizations will not be able to provide life-saving assistance with the siege in place.
Joining the show to discuss the siege, and how international law applies to it, is Tom Dannenbaum.
Tom is an Associate Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University where he is also Co-Director of the Center for International Law and Governance. Tom is an expert on international humanitarian law, including siege starvation.
Show Notes:
Paras Shah: In response to Hamas’ brutal attacks that killed at least 1,400 Israeli civilians, Israel has imposed a “complete siege” of the Gaza Strip. This includes blocking access to electricity, food, and fuel. While Israeli authorities have restored some access to water in southern Gaza, the supply remains limited.
For the over 2 million civilians in Gaza, the siege has created dire humanitarian conditions. Hospitals are quickly running out of medical supplies, and the International Committee of the Red Cross recently said that humanitarian organizations will not be able to provide life-saving assistance with the siege in place.
This is the Just Security Podcast, I’m your host, Paras Shah.
Joining the show to discuss the siege, and how international law applies to it, is Tom Dannenbaum.
Tom is an Associate Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, where he is also Co-Director of the Center for International Law and Governance. Tom is an expert on international humanitarian law, including siege starvation.
Hi, Tom, welcome to the show. Thanks so much for joining us today.
Tom Dannebaum: Good morning, Paras. Thanks very much for having me.
Paras: I should note that we’re recording this episode in the morning U.S. Eastern time on Wednesday, October 18.
To get us started, can you tell us, how does international law handle armed conflict?
Tom: Well, there are a number of regimes that are applicable during armed conflict. But the two frameworks of international law that are specifically focused on armed conflicts are, on the one hand, the law governing the resort to force that's codified in the UN Charter. For the lawyers in the room, that’s the jus ad bellum. And that defines when it's lawful for a state to resort to war, or another way of putting it, is whether it's lawful to resort to force in a given situation.
The second body of law that's specifically focused on armed conflict is international humanitarian law, which is also termed the law of armed conflict, or in the Latin, the jus in bello. And that's codified across a number of treaties, most notably the Geneva Conventions from 1949, and there are additional protocols from 1977, as well as being embedded in customary international law. And what's distinct about that regime is that it defines how the parties to a conflict can conduct themselves in armed conflict once it's underway.
So the first body of law is really about whether states can fight, and the second is about how parties to the conflict conduct themselves in an armed conflict. And those two bodies of law are separate and independent, which is to say that neither has any bearing on the other, or to put it another way, since we'll focus on international humanitarian law, international humanitarian law presumes the mutual commitment of both sides to fighting, and rather than trying to change that reality — which is a task it leaves to jus ad bellum, the law governing resort to force — IHL, humanitarian law, instead seeks to essentially limit the hell of war as much as possible, given the presumed mutual commitment of the parties to fighting.
That means specifying rules that are compatible with fighting effectively, but which seek to limit the harm associated with doing so, and to prohibit the grievous kinds of wrongs that can arise in the context of war. What those rules look like has changed over time. There's been an increased focus on human protection and a greater synergy with human rights law. But that's the basic structure of international law as it relates to armed conflict. We have these two regimes, they do different kinds of things that serve different purposes. And the one that I think we're going to focus on primarily today is international humanitarian law, which is really about trying to limit the human suffering associated with armed conflict.
Paras: Right. And you mentioned customary international law. And just to unpack that a little bit, customary international law is another source of international law, just like treaties, and it's considered binding on states. It emerges when countries have a certain practice that's developed over time, and they accept that practice as legally required. So, they're taking certain actions because they see it as legally necessary or obligatory. And when we think about international humanitarian law, what are some of the core principles or ideas there?
Tom: Well, in the conduct of hostilities component of international humanitarian law, the crux of it is that parties to the conflict must distinguish at all times between, on the one hand, civilians and civilian objects, and on the other hand, combatants and military objectives. They have to direct their military operations and attacks exclusively and discreetly at military objectives. They have to do everything feasible to verify the targets and refrain from attacking in cases of doubt, take all feasible precautions to limit civilian harm that might be associated with an attack even on those specifically identified military objectives, and to refrain from attacking altogether if the civilian harm expected from a given attack — and here when we're thinking about civilian harm, it's framed at least in the codified form as loss of life injury or damage to civilian objects — if that civilian harm would be excessive in relation to the concrete and direct military advantage anticipated from the attack.
So that final rule is the rule of proportionality, which is really about weighing these two ostensibly incommensurate values, which makes it of course complicated, namely civilian harm and military advantage. But that comes at the end of this set of requirements. Beyond those requirements, in the context of the conduct of hostilities, there are rules relating to weapons regulations, various prohibitions on exploiting the rules, or endangering persons in certain protected categories. And outside of that there are frameworks relating to detainee treatment, sexual violence, protection of medical care, protection of humanitarian actors, and the administration of occupied territory, occupied territory being the territory of one state that is under the effective control of another state, without the sovereign state’s consent, and in a way that displaces the sovereign state’s capacity to effectively exercise authority over that territory.
That concept is potentially relevant here, because there is some debate regarding whether Gaza is under Israeli occupation, and if indeed it is, the rules are slightly different. The rules governing occupation, belligerent occupation, are a distinct subset of the rules within international humanitarian law and entail heightened obligations on the occupying power.
Paras: So at its core, international humanitarian law is trying to distinguish between civilians and combatants, and the way these two ideas of actions that are militarily required or necessary and preventing harm to civilians. How does that play out in the context of a siege?
Tom: If we go back to the early codification of the law of armed conflict in the 19th and early 20th century, the law was more permissive than it is today, and that certainly extended to sieges. We can go all the way back to the Lieber Code, which was drafted on the orders of Abraham Lincoln during the Civil War. It's actually an internal American document, but drawing on what Francis Lieber, the drafter, understood to be the customs of international humanitarian law, customs of the law of armed conflict. And in that code, siege starvation is explicitly permitted, including driving civilians back into besieged areas to hasten capitulation.
But the law today is quite different, particularly on the issue of starvation, but also more generally. In contemporary international humanitarian law, sieges are very clearly subject to the general rules governing the conduct of hostilities, many of which I've already mentioned. That's to say that a siege is not itself illegal. It's not illegal to engage in siege. But to be lawful, a siege has to comply with all of the standard rules of international humanitarian law. So for example, if the besieged population is composed primarily of civilians and civilian objects, it would be clearly unlawful to show the area as a whole, even assuming some military objectives would be within the encircled zone. And it would be unlawful because it would be an indiscriminate attack, because the attack would fail to distinguish between civilians and combatants.
Paras: International humanitarian law prohibits the starvation of civilians as a method of warfare, and that prohibition first emerged in the Geneva Conventions where the focus was on belligerent occupation and what an occupying power was required to provide to a civilian population. The prohibition is then further codified and expanded in 1977 through the Additional Protocols to the Geneva Conventions. What does the prohibition now forbid?
Tom: I think the key thing is to try and figure out what the prohibition of the starvation of civilians as a method of warfare means. There is some dispute as to how to understand this particular prohibition. But what I'll do is just give you the foundations of what I think is the correct way to understand it.
The first thing as a premise here, which is just a general rule in international humanitarian law, is that a civilian population doesn't lose its civilian character simply in virtue of the presence of combatants within it. Whatever one’s view on the margins there, in my view, it is indisputable that the population as a whole is the civilian population, notwithstanding the presence of Hamas fighters within it. Obviously, those fighters, those combatants, lack civilian protections, but the population as a whole on an aggregate level is the civilian population. And so the population as a whole retains civilian protection.
The second key premise is that, pursuant to what's framed in Additional Protocol I is the basic rule of international humanitarian law. This is codified in Article 48 of Additional Protocol I. The parties to the conflict must at all times distinguish between the civilian population and combatants, and direct their military operations exclusively at the latter, and at military objectives. This is a slightly technical point, but I think it's worth emphasizing that this rule applies to military operations, not only to attacks, and that's relevant in terms of thinking about whether it applies to siege as opposed to say, bombardment.
Those two principles, the principle that a civilian population doesn't lose its character in virtue of the presence of combatants within it, and the principle that parties to the conflict must at all times distinguish between civilians and civilian population on one hand, and combatants, military objectives, on the other hand, are relevant to thinking about the starvation of civilians as a method of warfare, particularly in the case of a total siege. The heart of the prohibition on starvation of civilians as a method of warfare is that it's prohibited to engage in the deprivation of objects indispensable to civilian survival, at least where that's done with a view to denying their sustenance value, denying those objects their sustenance value, or where it's done with a knowledge that civilian starvation will arise. And then the question is, okay, what does it mean to engage in the deprivation of objects indispensable to civilian survival, such as food and water.
Deprivation can take many forms, it can include tax, such as a tax on food, it could include rendering useless, such as disabling water pumps, or poisoning water sources, it can include removal, but it can also include impeding relief supplies, and that's explicit in the International Criminal Court statutes. For the deprivation to qualify as a war crime, there also needs to be a particular kind of intent, that it's done with an intent to starve civilians. My view is that what it means to intend to starve civilians in this context is either to deny the objects food, water, and so on their sustenance value to civilians, or to engage in that deprivation, knowing that civilians will starve as a result of the deprivation.
In the current context, in Gaza, in my view, the first of those two forms of intent was satisfied at the outset of the total siege. When Defense Minister Yoav Gallant very clearly specified that this was not the deprivation of food or water as a collateral effect, it was not the deprivation of objects that happened to be food and water, but performing some other military functions such as a grain bond providing cover to combatants, it was neither of those things — it was very clearly the deprivation of food and water for their sustenance value. And it was targeted, for the reasons I've already suggested, at a population that qualifies as a civilian population. And so in my view, at that point, the starvation war crime attached.
And I think it's worth emphasizing that all of this is independent of what the ultimate goal or motive of such an operation is. In other words, when there's the deliberate denial of sustenance to a civilian population, we have starvation of civilians as a method of warfare, whether the goal is to inflict suffering on civilians, or to starve the combatants embedded within the civilian population — because even in the latter context, the means through which that goal is pursued just are the deliberate denial of sustenance to the civilian population — and that qualifies on my view, as starvation of civilians as a method of warfare. And because we're dealing with intentional deprivation of sustenance, there's no need to wait for civilians to start dying from the lack of food to say that this conduct qualifies as starvation of civilians as a method of warfare.
Paras: Tom, you mentioned a few treaties, including the Rome Statute of the International Criminal Court and Additional Protocol I to the Geneva Conventions. Do those treaties apply here?
Tom: Israel is not party to either Additional Protocol I or the ICC statute. However, the prohibition on starvation of civilians as a method of warfare in Additional Protocol I, which is codified in Article 54, is widely recognized to constitute customary international law. And the Israeli courts have recognized this as a relevant source of law in the context of evaluating previous questions relating to the deprivation of fuel electricity into Gaza, and so have assessed Israel's limiting of the flow of fuel electricity into Gaza, particularly in a 2008 case before the Israeli High Court of Justice, as regulated in part by the prohibition on starvation of the civilians as a method of warfare and the related rules on humanitarian access in the context of Additional Protocol I, and specifically referenced those provisions of Additional Protocol I as relevant to understanding the customary international law applicable to Israel.
With respect to the war crime, so it's clearly the case that Israel is not a party to the ICC statute. The ICC statute applies on the territory of Gaza, including to all crimes that occur in whole or in part on the territory of Gaza, in virtue of Palestine’s ratification of the ICC statute in 2015. And that's already underpinned the opening of an ICC investigation by the Prosecutor in 2021, which the Office of the Prosecutor recently clarified clearly applies to the current situation.
The understanding of the states that drafted the ICC statutes, and in my view, implicitly, the understanding of all states that ratify it, given the implications of how the ICC works, is that the crimes codified within it are crimes underpinned by customary international law. And so, at least for that significant number of states — 123 states with Armenia now on the brink of concluding its accession to the statute making 124 — that's a customary international law crime. And a number of states, including states that are not party to the ICC statute, have included it in their domestic war crimes code.
Paras: There are some complexities here around the International Criminal Court’s jurisdiction. And those turn on how this conflict is defined in the first place. International law has several categories of conflicts, including international armed conflicts — those are conflicts between two countries, two sovereign states, and non international armed conflicts. And those are conflicts that involve non-state actors, things like armed groups. How does the ICC's jurisdiction change under those two different scenarios, the international armed conflict and the non international armed conflict?
Tom: Well, the ICC has jurisdiction over the war crime of starvation of civilians as a method of warfare only if it's an international armed conflict, at least in this case. What that means is that if this conflict is characterized exclusively as a non international armed conflict, the ICC would not have jurisdiction over this specific crime, it would have jurisdiction over other war crimes, but not this one. However, it's quite likely that the ICC would determine this to be an international armed conflict, at least on the Israeli side for one of two reasons. One, because Israel is the occupying power in Gaza. That's subject to dispute, but it's at least a plausible view, and a view held by many including me, that would already render this an international armed conflict. And two, even if one takes Hamas to be a non state armed group, there's a theory that when a state fights against the non state armed group on territory that is not its own, and when the host of that territory, the sovereign of that territory, does not grant consent to its operations on that territory, then there is also an international armed conflict even if the fighting is exclusively between state forces and a non state armed group. The ICC has itself endorsed that theory in the past.
Applying that theory to the current context, this would be an international armed conflict because Israel is acting on what is clearly Palestinian territory, Gaza, without the consent of the Palestinian Authority.
Paras: President Biden is in Israel this week. How should the United States respond to the siege?
Tom: So the first point is that the United States, as every other country, has a duty to ensure respect for international humanitarian law. That's a duty that's codified in Common Article I, the four Geneva Conventions and that requires it to do whatever it can to ensure that Israel is complying with international humanitarian law.
There's also potentially the risk of complicity here, both at the level of state responsibility and potentially at the level of individual criminal responsibility, to the extent that US actors contribute to the wrongful acts of Israel as a state or the criminal acts of specific Israeli officials. Those are at the level of the legal obligations relevant to how the US is engaging here. But putting those legal obligations to one side, in my view, there's a clear, fundamental moral imperative here for the United States to use whatever leverage it has — whether that's emphasizing Israel's national security interests, whether it's appealing to law, appealing to morality, or exercising influence through withdrawing or holding conditional, military or other support — to get a full and unconditional flow of essentials to the over 2 million civilians trapped in the siege.
Paras: There's also been discussion about establishing a humanitarian corridor, what would the dynamics there look like?
Tom: A humanitarian corridor, if the humanitarian corridor is for the egress of civilians, if it's for the evacuation of civilians, is, in my view, desirable. But it's crucial to note that civilians that remain in Gaza, whether by choice or because they're unable to leave, remain civilians, they remain protected by all of the provisions and rules that we've discussed. And so even if a humanitarian corridor is open for evacuation, it remains essential that Israel and all states that have influence over Israel encouraging this, provide passage for food and other essentials into Gaza.
Paras: Is there anything else you'd like to add?
Tom: Sure. One of the complicated things about thinking through salvation and civilians as a method of warfare and applying it to specific contexts, is often there can be a trickle of humanitarian relief, or a stop-start permission of essentials into a territory that's besieged or cut off. And that can complicate evaluating whether essentials are being denied for their sustenance value. And we're already starting to see that with the limited delivery of permission of water into the Gaza Strip, or at least parts of the Gaza Strip, over the last day or two.
In considering whether or not there continues to be a practice of the starvation of civilians as a method of warfare, I think it is important to refer back to the way this was initially framed by the Israeli Defense Minister, Yoav Gallant, at the beginning, as a total cut off of food, water, electricity and fuel, which was in my view very clear about denying these objects for their sustenance value, and to evaluate any partial permission of indispensable objects subsequent to that, in light of that overall context, and therefore considering whether the supply since then has been sufficient, and considering that across various different objects indispensable to survival, including food, and including other resources necessary to access those that are allowed in. So in the context of water for example, if water pumps are rendered useless by deprivation of electricity, then that should play a significant role in our evaluation of whether permitting water in that context has negated the applicability of starvation of civilians as a method of warfare.
The second thing is to also consider all of this against the backdrop of the way that the hostilities are being conducted in the context of Gaza, both with respect to the aerial bombardment and once the ground invasion begins with respect to the way the ground invasion is conducted. And that means both thinking about those at the general level in terms of whether there are indiscriminate attacks, attacks on civilian objects or attacks on protective objects, such as hospitals, but also considering the way in which those hostilities are conducted visa vie, specific food and water sources and whether those combined with the siege to emphasize the degree to which starvation of civilians as a method of warfare is being used in this context.
Paras: Tom, thanks so much for joining the show. We'll be following all of this at Just Security. We really appreciate your insights.
Tom: Thank you, Paras.
Paras: We should note that on Wednesday, October 18, Israeli officials announced an agreement with Egypt to allow for the delivery of limited humanitarian aid to civilians in southern Gaza via the Rafah crossing. That announcement occurred after this episode was recorded, and the precise scope and timing for implementing that agreement remain uncertain.
This episode was hosted by me, Paras Shah. It was edited and produced by Tiffany Chang, Michelle Eigenheer, and Clara Apt. Our theme song is “The Parade” by Hey Pluto.
Special thanks to Tom Dannenbaum. You can read Just Security’s coverage of the ongoing conflict between Israel and Hamas, including Tom’s analysis, on our website. If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.