David H. Levitt

‘Yes, But’ and the Law of Armed Conflict: Sieges

It didn’t take long – less than a week in most cases – for the finger-waggers and tsk-tskers to change from condemnation of Hamas’s atrocities and statements agreeing Israel has the right to defend itself to lecturing Israel, from a safe distance of course, about its supposed obligation under international law to protect Gazan civilians.

According to such advocates of “Yes, but . . .” diplomacy – epitomized by this recent New York Times column by Nicholas Kristof – Israel has the right to defend itself against Hamas’s atrocities, but not TOO hard. Israel has the right to end Hamas once and for all – but notably not one of these critics ever explain what Israel can actually do to accomplish this indisputable military goal. They always say what Israel cannot do, but nary a suggestion of what Israel can do to protect its citizens, and never, ever a discussion from such advocates about the consequences of leaving Hamas in existence as inevitably leading to future harm to both Israeli and Palestinian civilians (including by misfired Hamas rockets) caused by Hamas’s repeated war crimes of intentionally targeting civilians and using its own civilians as human shields.

Anyone who actually takes the time to research the international Law of Armed Conflict (LARC) and International Humanitarian Law (IHL), however, will quickly learn that they do not prohibit sieges such as that announced by Israel on Gaza shortly after the October 7 attacks. Virtually every source confirms that LARC/IHL does not prohibit sieges. See, e.g., here, here, and here. And as applied specifically to Israel’s siege of Gaza following October 7, see here.

The majority view, as confirmed in these sources – and the sources that they in turn cite – is that sieges are not prohibited under LARC/IHL, even if they cause starvation in the general population, as long as their purpose is to achieve a military objective rather than to starve the civilian population; some sources even assert that siege remains lawful as long as the “sole” or “primary” purpose is not starvation of civilians. And where the besieging party allows for humanitarian corridors for non-combatants to leave (as Israel did – although Hamas then committed the further war crime of attempting to prevent civilians from leaving) and allowing entry of humanitarian aid (as, again, Israel did), it is further evidence that the siege is lawful under LARC/IHL. One of the articles linked above confirms that “a number of military manuals conclude that if the besieging party leaves open the offer for civilians and the wounded and sick to leave the besieged area, preventing supplies from reaching the area would not amount to a violation of the prohibition.” Further, “a besieging party may temporarily deny the delivery of humanitarian relief when there are reasonable grounds to believe that the consignments may be diverted by the besieged party.” There are no reasonable grounds to dispute that Hamas has and will continue to divert humanitarian aid from the civilian population to its members.

International law on siege, like most of the LARC/IHL, requires taking into consideration circumstances, something the finger-waggers never do. Thus, warnings of impending actions must be provided, unless circumstances do not permit. For example, retaining the element of surprise is a recognized exception to not providing warnings.

Further, the above-cited sources – and virtually all others that discuss LARC/IHL on siege – hold that the besieged party (here, Hamas) must also comply with the rules for protection of civilians. Indeed, one of the sources linked above states: “The primary responsibility for meetings the needs of civilians within a besieged area lies with the party that has effective control over them – namely, the besieged party.” (emphasis added). Hamas’s actions as to its own besieged population, therefore, is yet another war crime committed by Hamas, not by Israel; Hamas (not Israel) has the “primary” responsibility – yet another point of international law never mentioned by Israel’s critics.

There is a trend in LARC/IHL as to sieges to incorporate the more general principal of “proportionality” into the evaluation of the lawfulness of a siege. As discussed in more depth in my prior article on that subject, proportionality is not a tit-for-tat analysis that some fatuous and uninformed talking heads with public platforms profess, but rather a nuanced balancing test that bars military action only if (within the knowledge of those making the decisions at the time), the incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, would be excessive in relation to the concrete and direct military advantage anticipated.

Israel’s stated military goal is the elimination of Hamas. That is a legitimate military goal given the atrocities that Hamas has committed and promises to inflict in the future, not even counting the war crimes it repeatedly commits against its own Gazan population. Israel’s siege is calculated towards that goal, and there is zero evidence that the purpose of the siege is to starve civilians. Instead, tragic as it might be due to Hamas’s actions in trapping its own civilians and preventing them from leaving, the siege is entirely lawful under LARC/IHL.

“Yes, but . . .” diplomacy is itself inappropriate, and propagated by those whose statements are based on ignorance or willful disregard for the actual principles of international law. It should be disregarded and disputed for what it is: antisemitism.

About the Author
David H. Levitt practices intellectual property and commercial litigation law in Chicago, and is a pro-Israel activist.
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