The thorny issue of humanitarian aid in Gaza: Who is really responsible ?

In “Anatomy of a Genocide,” Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese, accused Israel of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”. This accusation is extremely serious because it constitutes one of the 5 criteria used to qualify an act as genocide in the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention.

Albanese writes in the introduction to the report that the International Court of Justice “found a plausible risk of ‘irreparable harm’ to the rights of Palestinians in Gaza, a protected group under the Genocide Convention, and ordered Israel, inter alia, to ‘take all measures within its power’ to prevent genocidal acts, prevent and punish incitement to genocide, and ensure urgent humanitarian aid” in the 360 square kilometer enclave, where 2.3 million people live.

In this article I would like to explore the notion of “humanitarian aid” on the basis of International Humanitarian Law and look at the obligations of Israel, but also of Hamas towards its own populations, according to this legal framework. In short, I would like to explore the thorny issue of whether Israel has or has not  “take(n) all measures within its power” when it comes to the alleged accusation of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.

Some facts to start with

From the point of view of international law, Gaza has been under Israeli occupation since 1967. The territory of Gaza was nevertheless entirely evacuated by the Israeli army following the Unilateral Disengagement Plan in 2005. This plan provided, among other things, that the 21 settlements located there were removed and 8,000 Israelis were displaced. This disengagement greatly benefited Hamas, which took power in Gaza in June 2007, after the Palestinian Authority, under the authority of Mahmoud Abbas elected in 2005 and which was to co-manage the Gaza Strip, was violently driven out.

Following these events a blockade of the Gaza Strip was imposed by Israel, with the support of Egypt. It must be understood here that it is not because of the “Israeli occupation” that the heavily criticized partial blockade was imposed but in response to the takeover of power of the Islamic movement in the Gaza Strip. Additionally, the blockade of a city or territory is not strictly speaking prohibited by International Humanitarian Law, but subject to rules regarding the method used and the possible humanitarian consequences.

On this subject, I would therefore like to point out that in her report “Anatomy of a Genocide”, Francesca Albanese recalls when she presents the legal framework of the report that “Genocide cannot be justified under any circumstances, including purported self-defense. Complicityis expressly prohibited, giving rise to obligations forthird states”. This mention leads us to question the responsibility of Egypt when Israel is accused of genocide. Indeed, today Gaza’s supply of water, food, fuel, gas, electricity depends on Israel via the Kerem Shalom and Erez border posts but also on Egypt, via the border post which is located south of the Gazan city of Rafah. But for us to question the “complicity” of Egypt, the rapporteur’s statements would still have to be true.

What Israel’s opponents, notably Albanese, want to remember are the declarations of Israeli Defense Minister Yoav Gallant, who announced a “complete siege” on 9 October 2023 and Israeli Minister of Foreign Affairs Israel Katz who were quoted saying : “Humanitarian aid to Gaza? No electrical switch will be turned on, no water hydrant will be opened”. However, in early December, Elad Goren, head of COGAT, the Israeli Defense Ministry body overseeing civilian activities in the Palestinian Territories, also said that : “We are trying to increase humanitarian aid and more than 60,000 tonnes of aid have entered via Rafah”.

If we look only at the facts, we must emphasize that since the start of the war in October 2023, 19,354 trucks have entered Gaza through Rafah, carrying 19,952 tonnes of medical supplies, and 23,453 tonnes of food. Moreover, since the start of the crisis, aid provided by EU member states has more than doubled, with additional funds amounting to €490.5 million. This sum comes to increase the estimated 1,000 to 2,600 million dollars of aid which have been received to the reconstruction of the Gaza Strip since 2014.

At the start of the conflict in October, the French economist and essayist Nicolas Bouzou already underlined that the underdevelopment of the territory in Gaza is less linked to the Israeli blockade than to the diversion of international aid practiced by Hamas. It is therefore not a surprise to see that according to several media outlets, the Palestinian Islamist terrorist group managed to seize a large shipment of humanitarian aid delivered to Gaza following the opening of the Erez crossing in April. So who is really responsible for the humanitarian crisis, Israel or Hamas?

For another light on International law : the “responsibility to protect”

When we talk about International Humanitarian Law, let us recall that the Geneva conventions relating to war, notably the four conventions of 1949 and their Additional Protocol of 197, constitute the main treaties applicable to international armed conflicts. Indeed, four Geneva Conventions were adopted in August 1949 among them the Geneva Convention (IV) relating to the protection of civilians in time of war. Protocol I, or additional protocol to the Geneva conventions of August 12, 1949 relating to the protection of victims of international armed conflicts was adopted on June 8, 1977.

International law is often evoked in order to accentuate the accusations made against Israel. However, in international law the basic notion of “responsibility to protect” explicitly stipulates that “it is the responsibility of each State to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity”. The concept of “responsibility to protect” implicitly serves as the basis for the numerous Security Council resolutions adopted since 2005 on the Protection of Civilian Populations in Armed Conflicts. It is part of a legalist conception in that it does not enshrine an “automatic” but framed right to humanitarian assistance for victims of massive and systematic violations of international human rights law.

Thus, the question here is : who is violating international law, Israel or Hamas? As the State of Palestine is not internationally recognized, Hamas is also outside the scope of international law. However, if we accept that the rules of international law must apply to Israel, it must be assumed that Hamas – who is de facto the governing authority of the Gaza Strip and is the legitimate representative of the Palestinian people – is too subject to its legal obligations from the point of view of international law. Its resolute desire not to return the hostages to Israel, giving the Jewish State a legitimate reason to continue hostilities, contributes to worsening the humanitarian situation in Gaza. In this sense, Hamas fails in its “responsibility to protect”.

On the other hand, Israel has provided evidence supporting its long-standing claims that Hamas used Shifa Hospital as a major operational hub and command center. The evidence, corroborated by the New York Times, indicates that the hospital was situated above tunnels that housed headquarters for Hamas fighters, who used patients as “human shields”. The use of civilian places such as schools, hospitals and mosques in order to build and protect military installations also illustrate the idea that Hamas fails in its “responsibility to protect” and to guarantee to the Palestinian people their basic right to security.

The question of human rights is complex because there are hardly any more paradoxical relationships than that between force, and more particularly war, and morality. However, there does not seem to be any ambiguity about Hamas’ intentions : since 2007, the Islamist group has been using “human shields” in its conflicts with Israel. The NATO Strategic Communications Centre of Excellence published an extensive report in which they demonstrate that the strategic logic behind using “human shields” involves two key elements : utilise civilian casualties as a lawfare tool and take advantage of the sensitivity of Western public opinion to those casualties to accuse Israel of committing war crimes.

So what to think of Francesca Albanese’s “Anatomy of a Genocide”?

In this “asymmetric warfare”, the use of Hamas own population should be denounced as a serious violation of international humanitarian law, as is the so-called humanitarian crisis created by Israel. While the Palestinian terrorist group Hamas claimed already in December that northern Gaza was in a “state of famine, due to the shortage of essential food products”, Israel has accused the Islamist movement of “hoarding the food humanitarian convoys” for himself.

If Albense’s accusation concerning Israel’s will of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, are true then we are surprised that 7 months after the “complete siege”, no official declaration has been made about the mass death of the population due to starvation or dehydration. For comparison, the siege of Jerusalem (70 AD) killed 1,100,000; the siege of Sevastopol (1854–1855) killed 200,000 and the siege of Leningrad (1941–1944) killed 1,000,000 to 2,500,000 people.

Perhaps a simple explanation for this is that, when it comes to the Palestinian people, Israel does not intend to “bring about their physical destruction.” However, due to the density of Gaza, casualties are quite high and much higher than average. The writing of this article, however, does not take away from the fact that we deplore all the deaths of innocent women and children, victims of a war wanted by their leaders but for which they nevertheless do not want to take responsibility.