naraburns nihil supernum
1yr ago
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Israel-Gaza Megathread #1
This is a megathread for any posts on the conflict between (so far, and so far as I know) Hamas and the Israeli government, as well as related geopolitics. Culture War thread rules apply.
For #7: Israel has a legal obligation to allow humanitarian supplies, but only when there are controls in place to ensure that the food goes to civilians.
These mostly reference rules from the Geneva conventions, specifically "Geneva Convention (IV) on Civilians, 1949", "Additional Protocol (I) to the Geneva Conventions, 1977" and "Additional Protocol (II) to the Geneva Conventions, 1977"
The 4th Geneva convention draws a distinction between nationals of a state that's signed on to the conventions, and nationals of other states Article 4, reads:
Article 4
... Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...
Palestine hasn't agreed to follow the conventions, which matters when we get to Article 23, the first article referenced by the Red Cross:
Article 23 - Consignment of medical supplies, food and clothing
Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.
The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:
(a) that the consignments may be diverted from their destination,
(b) that the control may not be effective, or
(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.
This article imposes two obligations. Countries must:
Allow aid targeted at children (under 15) and pregnant women, regardless of their nationality.
Allow aid targeted at civilians - including adult civilians - if those civilians are nationals of a party that's following the conventions.
But Israel only needs to allow this aid in-as-far as Israel believes the aid will get to where it's supposed to go.
So, before Israel gets an obligation under Article 23, Hamas would need to commit to making sure that any aid shipments reached their intended recipients and didn't get used by non-civilians. If Hamas made that commitment, Israel would be obliged to feed kids and pregnant women.
Israel would only get an Article 23 obligation to allow aid targeted at adult civilians if Hamas (as that party controlling the Gaza strip) additionally agreed to follow the Geneva conventions.
If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Article 69 , relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts. In the distribution of relief consignments, priority shall be given to those persons, such as children, expectant mothers, maternity cases and nursing mothers, who, under the Fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection.
The Parties to the conflict and each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party.
The Parties to the conflict and each High Contracting Party which allow the passage of relief consignments, equipment and personnel in accordance with paragraph 2
...
(b) may make such permission conditional on the distribution of this assistance being made under the local supervision of a Protecting Power;
(c) shall, in no way whatsoever, divert relief consignments from the purpose for which they are intended nor delay their forwarding, except in cases of urgent necessity in the interest of the civilian population concerned.
This rule, like the previous one, wants to allow humanitarian aid, but is concerned about it being seized for use in war. So, this rule introduces the notion of a "Protecting Power", which is a state that's not involved with the conflict.
Assuming the Geneva Conventions apply to Israel, then Israel does have an obligation. In the next two weeks, Israel has to give the ICRC a list of countries that Israel would trust to distribute humanitarian aid in Gaza. Hamas will try to find a country on the list that they find mutually agreeable.
When that happens, then Israel needs to let humanitarian aid come in under the supervision of a Protecting Power. But, until Hamas and Israel agree, there's no process for making sure that civilian aid actually reaches civilians, so Israel is within it's rights (under Article 70, anyway) to block humanitarian shipments that might help Hamas' war efforts.
Moving on, to ICRC's next article, "Starvation as a method of Warfare" I found two major citations. The first was "Article 54 - Protection of objects indispensable to the survival of the civilian population" of Additional Protocols 1, and the next was "Article 14 - Protection of objects indispensable to the survival of the civilian population" from Additional Protocols II.
These are pretty similar, and the relevant text reads:
Article 14 - Protection of objects indispensable to the survival of the civilian population
Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.
This specific rule is about the destruction of objects so doesn't seem directly relevant to blockades.
Obviously, this post is only looking at one source of international law. However, I think the 1949 convention makes it clear that the international community is aware of loopholes like "demand humanitarian aid and use it to feed a military" and will write treaties accordingly.
Sadly one of the more relevant analysis of the conflict and what does / does not actually amount to a war crimes. Blockades are nasty, even within the scopes of what are permissible, and that's when the restrictions do apply. However, Geneva convention restrictions are themselves often conditional, and restrictions do fall away quite often when given context, because as you say- they were written by people who understood the risk of loopholes, and were quite prepared to wage war in the face of those seeking to exploit them.
Let's consider pediatric medical supplies with minimal potential for military diversion (e.g., neonatal incubators). Let's further assume that pediatric health will be harmed without access to these supplies.
Under this framework, at the current time, is Israel obligated to permit their passage across its border?
If the supplies showed up at the border today, I'd expect Israel to claim something like:
We have good reason to believe those supplies will go missing. The area is nearly lawless. Medical supplies could be stolen or sabotaged for any number of reasons.
Then, they might also lean on the (omitted-for-space) passage in Article 23 which reads:
The Power which allows the passage of the consignments indicated in the first paragraph of this Article may make permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers.
Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.
It wouldn't feel that cynical for Israel to ask to have the neonatal incubators delivered by a neutral third party. Israel would want to have witnesses who could confirm that the incubators arrived intact and functional, if only so Israel could protect itself from accusations of wrongdoing.
Going by the spirit-of-the-law, Israel should make reasonable efforts to move quickly and find a neutral State that's willing use its military forces to deliver aid to the West Bank. When that happens, Israel is obliged to let the aid go through.
Going by the letter-of-the-law, Israel could probably drag the "Protecting Power" selection process out a fair bit. Israel has 2 weeks to give the Red Cross a list of "at least five" states that Israel would accept as a neutral third party. Hamas would need to approve a state from the list and the Red Cross would have to convince that state to get a detachment of military forces to the West Bank.
So, I don't think Israel would have an obligation to let the incubators in today. They'd have to let them in eventually, but the organization could take a few weeks if everyone's being reasonable and considerably longer if everyone's being unreasonable.
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Notes -
For #7: Israel has a legal obligation to allow humanitarian supplies, but only when there are controls in place to ensure that the food goes to civilians.
To investigate, I started with the Red Cross's articles: "Access for Humanitarian Relief to Civilians in Need" and "Starvation as a Method of Warfare"
These mostly reference rules from the Geneva conventions, specifically "Geneva Convention (IV) on Civilians, 1949", "Additional Protocol (I) to the Geneva Conventions, 1977" and "Additional Protocol (II) to the Geneva Conventions, 1977"
The 4th Geneva convention draws a distinction between nationals of a state that's signed on to the conventions, and nationals of other states Article 4, reads:
Palestine hasn't agreed to follow the conventions, which matters when we get to Article 23, the first article referenced by the Red Cross:
This article imposes two obligations. Countries must:
But Israel only needs to allow this aid in-as-far as Israel believes the aid will get to where it's supposed to go.
So, before Israel gets an obligation under Article 23, Hamas would need to commit to making sure that any aid shipments reached their intended recipients and didn't get used by non-civilians. If Hamas made that commitment, Israel would be obliged to feed kids and pregnant women.
Israel would only get an Article 23 obligation to allow aid targeted at adult civilians if Hamas (as that party controlling the Gaza strip) additionally agreed to follow the Geneva conventions.
But, the international community expanded these protections a bit in the additional protocols. The ICRC also cites Additional Protocol I, Article 70 - Relief Actions, which says
Israel doesn't currently occupy Gaza. When it does, Article 55 - Food and medical supplies for the population would kick in and oblige them to feed the occupied population. Until then, rule 70 seems to apply.
This rule, like the previous one, wants to allow humanitarian aid, but is concerned about it being seized for use in war. So, this rule introduces the notion of a "Protecting Power", which is a state that's not involved with the conflict.
Assuming the Geneva Conventions apply to Israel, then Israel does have an obligation. In the next two weeks, Israel has to give the ICRC a list of countries that Israel would trust to distribute humanitarian aid in Gaza. Hamas will try to find a country on the list that they find mutually agreeable.
When that happens, then Israel needs to let humanitarian aid come in under the supervision of a Protecting Power. But, until Hamas and Israel agree, there's no process for making sure that civilian aid actually reaches civilians, so Israel is within it's rights (under Article 70, anyway) to block humanitarian shipments that might help Hamas' war efforts.
Moving on, to ICRC's next article, "Starvation as a method of Warfare" I found two major citations. The first was "Article 54 - Protection of objects indispensable to the survival of the civilian population" of Additional Protocols 1, and the next was "Article 14 - Protection of objects indispensable to the survival of the civilian population" from Additional Protocols II.
These are pretty similar, and the relevant text reads:
This specific rule is about the destruction of objects so doesn't seem directly relevant to blockades.
Obviously, this post is only looking at one source of international law. However, I think the 1949 convention makes it clear that the international community is aware of loopholes like "demand humanitarian aid and use it to feed a military" and will write treaties accordingly.
Sadly one of the more relevant analysis of the conflict and what does / does not actually amount to a war crimes. Blockades are nasty, even within the scopes of what are permissible, and that's when the restrictions do apply. However, Geneva convention restrictions are themselves often conditional, and restrictions do fall away quite often when given context, because as you say- they were written by people who understood the risk of loopholes, and were quite prepared to wage war in the face of those seeking to exploit them.
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Thank you, this is an extraordinary answer.
Let's consider pediatric medical supplies with minimal potential for military diversion (e.g., neonatal incubators). Let's further assume that pediatric health will be harmed without access to these supplies.
Under this framework, at the current time, is Israel obligated to permit their passage across its border?
If the supplies showed up at the border today, I'd expect Israel to claim something like:
Then, they might also lean on the (omitted-for-space) passage in Article 23 which reads:
It wouldn't feel that cynical for Israel to ask to have the neonatal incubators delivered by a neutral third party. Israel would want to have witnesses who could confirm that the incubators arrived intact and functional, if only so Israel could protect itself from accusations of wrongdoing.
Going by the spirit-of-the-law, Israel should make reasonable efforts to move quickly and find a neutral State that's willing use its military forces to deliver aid to the West Bank. When that happens, Israel is obliged to let the aid go through.
Going by the letter-of-the-law, Israel could probably drag the "Protecting Power" selection process out a fair bit. Israel has 2 weeks to give the Red Cross a list of "at least five" states that Israel would accept as a neutral third party. Hamas would need to approve a state from the list and the Red Cross would have to convince that state to get a detachment of military forces to the West Bank.
So, I don't think Israel would have an obligation to let the incubators in today. They'd have to let them in eventually, but the organization could take a few weeks if everyone's being reasonable and considerably longer if everyone's being unreasonable.
This response is extremely helpful, thank you.
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