The abstract:
On October 9th, 2023, Israeli Defense Minister Yoav Gallant declared a “complete siege on the Gaza Strip” following Hamas’s attack on Israel. This siege, aimed at severing all supplies, quickly drew international condemnation from humanitarian NGOs and scholars, who argued it violated laws of war due to Gaza’s civilian population. Despite evidence of Hamas diverting aid, Israel faced pressure to lift the siege and allow humanitarian aid. The International Court of Justice (ICJ) and the International Criminal Court (ICC) took significant steps, with the ICJ mandating Israel to enable humanitarian assistance and the ICC seeking arrest warrants against Israeli leaders for war crimes, including “starvation of civilians as a method of warfare.”This article explores whether the international response to Israel’s actions marks a shift in the legal standards governing siege warfare, potentially setting stricter regulations that could effectively ban the tactic in populated areas. It reviews the legal framework of armed conflict relevant to sieges, including The Hague Regulations and the Geneva Conventions, and examines recent Security Council Resolutions concerning the Syrian conflict. The article analyzes Israel’s compliance with international humanitarian obligations during the Gaza siege and considers any special duties Israel might have towards Gaza.Additionally, the article discusses how recent ICJ and ICC developments may signal reduced tolerance for siege warfare, and the implications for future conflicts. By comparing the international acceptance of siege tactics in other conflicts, such as Fallujah, Mosul, and Marawi, the article argues that the criticism of Israel’s actions may reflect a double standard. It concludes by emphasizing the need for objective legal standards and cautioning against politicizing neutral legal rules.
The paper, after reviewing the relevant laws, concludes that siege is legal under specific circumstances:
Siege can be considered a lawful military tactic within the bounds of established armed conflict laws, such as distinction and proportionality. While besieging parties are not actively required to provide humanitarian aid, they are generally expected to permit third party relief efforts under appropriate conditions. The provision of humanitarian assistance is subject to the principle of military necessity but cannot be denied capriciously or arbitrarily. Humanitarian aid is conditioned on reaching its destination, with no serious concern for diversion or the enemy’s accrual of military or economic advantage. The besieging party may set the technical arrangements for the delivery of aid. The prohibition of starvation of civilians as a method of warfare refers to intentional starvation as the goal of the siege, as opposed to incidental deprivation in a siege aimed at weakening and defeating enemy forces.
Shalev notes that the South Africa ICC case says that a legal siege is really genocide. "While there are legitimate disagreements among states and jurists as to the exact contours of permitted siege under international law, South Africa has alleged that this military tactic is none other than genocide, the “crime of crimes” under international law."
His conclusion:
As seen in Fallujah, Mosul, and Marawi, siege tactics are sometimes employed when other military strategies could lead to even greater civilian harm. Restricting this tactic could require states to rely on more intense force, complicating operations within densely populated areas. Reevaluating siege as a military strategy might unintentionally encourage hostile groups to establish bases in urban zones, anticipating that the international community would be highly cautious about the civilian costs of such operations.Concerns persist that the criticism of Israeli siege tactics represents a lex specialis directed solely at Israel, rather than a standard applied universally to other states in similar circumstances. Despite condemnations by the United Nations and various human rights organizations, major military powers have recognized siege warfare’s legality in other contexts, such as Fallujah, Mosul, and Marawi. While states and jurists may in good faith debate the specific boundaries of permissible siege tactics, these disagreements differ substantially from accusations of war crimes or genocide. The selective politicization of neutral legal standards risks undermining the international community’s credibility as impartial arbiters and may alienate states that feel subjected to inconsistent treatment.
Which is a polite way to say that the rules are different for Jews.
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