International law is failing displaced Gazans

When the cease-fire between Israel and Hamas ended on 1 December, 1.8 million Gazans had been displaced by the war — about 80% of Gaza's population. Many fled from northern to southern Gaza after Israel issued a warning about military operations in the north. 

Last week, Israel began a ground offensive into southern Gaza, disturbing what safety residents of Gaza had left and compounding a dire humanitarian crisis.

Many have blamed Israel for not following international law regarding forced displacement of civilians. However, international law is part of the problem.

Existing international law is not sufficient to protect civilians in Gaza from forced displacement during the horrors of war. Where international law fails, the international community has the moral imperative to step in and assist displaced Gazans.

To see how international law falls short, and why more international aid is needed, let's start with Israel's 13 October warning to residents of northern Gaza to flee to the south on just 24 hours' notice. 

This warning was impossible for 1.1 million people to follow and was reported in some outlets as illegal. The legal requirement is that such warnings must be "effective," which means only that a population receives them. 

The law of war does not require that the warnings are actually followed — or that civilians practically be able to follow them.  The law of war is not sufficient to protect people living in combat zones.

Then there's the question of safe zones. Legally, both Israel and Hamas would have to agree to the establishment of safe zones. And even if Israel could create de facto safe zones in areas it controls, no zone would be large or safe enough for 1.8 million displaced Gazan civilians—with some Hamas fighters surely lurking among them.

Nevertheless, this week, the Israel Defense Force made an attempt to protect civilians by publishing an evacuation zone map on its Arabic-language website and on social media, dividing Gaza into 623 zones. 

The IDF air-dropped leaflets with QR codes linking to the map and asking civilians to share their location. The IDF is monitoring the map in real time and reports that civilian protection has improved.

However, the warnings may not meet the legal requirement of effectiveness. Despite the map, no evacuation zone in Gaza is consistently safe for civilians. 

Even for Gazans with the requisite technical tools to access the map, telephones and internet have been down or intermittent in Gaza since the war began. 

Moreover, the map is reportedly unclear and difficult to follow in the changing combat environment. The IDF's announcements reportedly change with little notice and are difficult to follow.

Then consider the problem of humanitarian aid, something Gazans desperately need. Israel is obligated to allow aid that is essential for the survival of the civilian population, including food and medical supplies. International law, however, does not require Israel to provide this aid.

As the government of Gaza, Hamas has primary legal responsibility to protect its civilian population. Israel must facilitate aid if Hamas is unable to do so. 

However, Israel is not obligated to assist when Hamas is diverting humanitarian aid for its own military use. Given reports that Hamas is diverting humanitarian supplies to sustain its military operations, Israel may legally deny or restrict aid from entering. 

In a densely populated urban combat environment, international law contains insufficient provisions to protect displaced civilians. 

Simply put, international law involving population displacement in combat assumes civilians have somewhere to go when they flee, belligerent parties that will facilitate delivery of humanitarian assistance, and impartial parties willing to provide it without interference from belligerents. The law is not sufficient to protect Gazans trapped in a combat zone.

Where law fails, morality must prevail. States must step in and fulfill their obligation to promote solutions consistent with international law. The international community must pressure Israel, Hamas and Egypt to allow more aid and safe zones for civilians in Gaza. States and international organisations must offer unimpeded and impartial humanitarian aid. 

If border crossings prove challenging, the states might explore providing aid by sea. Israel and Hamas should also allow the most vulnerable civilians to leave Gaza for medical care or temporary residence, and states should facilitate temporary protection for them.

After Israel's campaign in southern Gaza, nearly all Gazans will have been displaced by war, with many of their former homes in ruins. As Palestinians know all too well, temporary displacement will become permanent if not addressed, and the effects of displacement compound for generations. 

States and international organisations must step up to prevent more casualties from this brutal war — and to lay groundwork for a better peace.

Jill Goldenziel is a professor of international and constitutional law at the National Defense University-College of Information and Cyberspace and a nonresident fellow at the NATO SHAPE/ACO Office of Legal Affairs

The views expressed are the author's own and do not necessarily reflect the official policy or position of the National Defense University, the US Department of Defense or any part of the US government or NATO.

Disclaimer: This article first appeared on Bloomberg, and is published by a special syndication arrangement.