While the Israeli cabinet, due to concerns over a famine in the Gaza Strip, once again approved the entry of aid into Gaza through a procedure leading it directly into the hands of Hamas, a new legal memo establishes for the first time a legal basis of international law for there being no obligation to provide aid that ends up in the hands of a terrorist organization.
Moreover, this legal opinion specifically addresses the issue of the new aid distribution plan which, based ostensibly on a commitment to international law, requires the IDF to distribute aid even outside the designated distribution points and in any location where civilians reside. In other words, according to the opinion of the Military Advocate General, the army must deliver aid even to areas under Hamas control.
The legal memo drafted by Kohelet Policy Forum's Adv. Avraham Shalev challenges the foundational assumption that Israel is obligated under international law to transfer humanitarian aid in a way that ultimately ends up in the hands of a terrorist organization.
In a similar vein to the letter of criticism sent by members of the Knesset Foreign Affairs and Defense Committee to IDF Chief of Staff Eyal Zamir and published in Israel Hayom calling for the imposition of a siege on the Gazan population to prevent unnecessary risks to IDF soldiers and to decisively defeat Hamas – Adv. Shalev asserts that a siege is a lawful military action rooted in international treaties and customary international law.
He further contends that international law obligates states to permit the entry of humanitarian aid unless there is a serious concern that it would be seized by enemy forces - something which has in fact occurred in Gaza for the past nineteen months.
Additionally, the legal document lays the groundwork for far more significant action in Gaza, based on international law. It states that the evacuation of the civilian population from a besieged area should take precedence over the supply of humanitarian aid. According to commonly accepted legal interpretations, civilians who refuse to evacuate may be regarded as affiliated with the combatants, and their access to humanitarian aid can therefore be lawfully restricted.
By the by, international law actually prohibits the transfer of aid to areas under Hamas control. That is the opinion in a nutshell.
Below is the broader legal interpretation provided by the Kohelet Forum attorney:
"A siege is lawful under the law of armed conflict provided its sole or primary purpose is to defeat the enemy, not to deliberately starve civilians. As with any "attack" under the law of armed conflict, collateral harm to civilians must be proportionate to the military advantage. Article 54 (1) of Additional Protocol I to the Geneva Conventions prohibits starvation of civilians as a method of warfare. Thus, a siege whose primary or sole purpose is to cause civilian starvation is unlawful".
This is in line with Israel's actions, which are not aimed at starving the civilian population but at defeating the enemy hiding amongst them.
"A party imposing a siege that allows evacuation or provides humanitarian aid cannot be deemed to have the primary purpose of starving civilians. The existence of Israeli plans to evacuate populations to safe areas alongside supervised aid distribution in southern Gaza, indicates that the siege's purpose is to defeat Hamas, not to starve civilians," determines Adv. Shalev.
He goes on to explain that, "aid provision is contingent on ensuring it reaches civilians and does not provide a military or economic advantage to the enemy. There is substantial evidence that Hamas diverts, steals and hoards aid entering Gaza at the expense of civilians."
As far as Israeli efforts at evacuating the population from battle zones, the Kohelet attorney writes that: "International law prioritizes evacuating civilians from siege areas over providing humanitarian aid… One view holds that civilians who refuse to evacuate and remain in siege areas may, in some cases, be considered affiliated with combatants, allowing restrictions on their access to aid. The UK adopts this approach, justifying restrictions on aid to civilians who refuse evacuation.
During the "Swords of Iron" war, evacuation efforts faced consistent refusal by Egypt to open its border, violating its obligations as a signatory to the African Union's Convention on Refugees. Hamas' systematic seizure of aid not only exempts Israel from allowing third-party aid transfers, but also strengthens the legitimacy and rationale for voluntary migration projects as part of civilian evacuation during wartime, especially absent an Egyptian option."
Shalev adds a legal warning: "UN Security Council Resolution 1373, adopted under Chapter VII of the UN Charter, obligates all member states to refrain from providing terrorist organizations with: "any funds, financial assets or economic resources or financial or other related services.""
Drawing historical comparisons from battles in Fallujah and Mosul, the opinion's concluding chapter states:
"The siege on the Gaza Strip, as implemented by Israel, complies with international law, provided its primary purpose is to defeat Hamas, not to starve civilians.
International law, including the Geneva Conventions, customary law, and humanitarian law, permits sieges as a lawful military tactic, subject to proportionality and civilian protection obligations. Israel's evacuation plans to safe areas, and supervised aid distribution demonstrate commitment to humanitarian principles, while Hamas' systematic seizure of aid justifies restricting supplies to areas under its control.
Thus, Israel's policy prioritizing civilian evacuation over aid provision to areas controlled by a terrorist organization aligns with international law, balancing security needs with humanitarian obligations".
