The ceasefire between Israel and Hamas is over. What was left of it ended in the early hours of March 18, when Israel launched a bombing campaign that killed more than 400 people in a single night, according to initial assessments. Israeli Prime Minister Benjamin Netanyahu said the strikes were “just the beginning” and Defense Minister Israel Katz threatened the “citizens of Gaza” with “far more severe” attacks that would bring Gaza to “complete ruin.” Two weeks previously, Israel had already reverted to blocking entry of all goods and supplies into Gaza, including food and other humanitarian essentials. A week later, Israel cut off electricity to the enclave, noting explicitly that the primary impact would be on water desalination.
These catastrophic developments have extinguished the glimmer of hope that characterized the first six weeks of the ceasefire, when hostages and detainees were being returned, the fighting had subsided, and Israel was finally facilitating a broad and consistent flow of humanitarian aid. The ceasefire was “allowing nearly everyone in Gaza to receive food parcels,” United Nations Spokesperson Stéphane Dujarric told reporters in New York in early March. After months of devastating food insecurity, woefully inadequate access to water, and a decimated medical system, Palestinians in Gaza were beginning to receive urgently needed sustenance, rudimentary means of shelter, and medical treatment. Exemplifying the change, 40-year old Ibrahim Abu Sultan from Gaza’s Jabaliya refugee camp told NPR, “Before the ceasefire, we would eat one meal every two or three days. Now we can at least have a meal a day.”
To be sure, more ominous signs persisted even during those six weeks. Although reduced in scale, Israeli attacks in Gaza continued throughout (and in apparent violation of) the ceasefire. U.S. and Israeli leaders openly discussed patently illegal proposals to push Palestinians out of Gaza. Hamas’s process of returning hostages through degrading public spectacles included outrages upon personal dignity, a violation of international humanitarian law (IHL) and a war crime. The condition of those returned also suggested that additional war crimes had taken place while they were in captivity. Investigations have concluded that Israel’s detention practices have also entailed grave war crimes, and the condition of released Palestinian detainees likewise provided evidence of criminal mistreatment. Moreover, throughout this period, Israel conducted a severe escalation of violence and displacement of Palestinians in the West Bank.
Nonetheless, the ceasefire offered a glimmer of hope where there had been none. Now, that hope is shattered and the fragile trajectory of recovery is in rapid reverse.
In what follows, I focus exclusively on the legal implications of Israel’s renewed policy of deprivation since March 2. In my view, Israel’s decision to cut off Gaza’s civilian population from the external supply of essential goods clearly violates international humanitarian law. It also almost certainly entails the resumption and continuation of crimes charged in the International Criminal Court’s arrest warrant for Netanyahu, including principally the war crime of starvation of civilians as a method of warfare and certain associated crimes against humanity.
Those charges stem primarily from Israel’s impediment of humanitarian relief, beginning with the total siege order of Oct. 9, 2023. Gaza is under siege again, implicating many of the same legal considerations. Nonetheless, it is important to reexamine the situation in light of the current conditions of the civilian population in Gaza, the arguments Israel is making in its defense, and the conflict’s shifting legal context. If anything, the violation has only become starker.
Before the Ceasefire
For 15 months following Hamas’s deadly assault on October 7, 2023, Israel waged a devastating air and ground campaign in Gaza, while severely restricting humanitarian access, particularly to northern Gaza. Israeli forces have destroyed most buildings. Close to the entire population of Gaza has been displaced, in many cases multiple times. At least 48,000 Palestinians are estimated to have been killed and more than 111,000 injured, although both numbers are likely to be significant undercounts. According to expert assessments, Israel pushed Gazans to the brink of famine on several occasions, with the percentage of people suffering emergency or catastrophe levels of food insecurity unprecedented in the two decades in which the Integrated Food Security Phase Classification, a tool for tracking potential famine, has been in operation.
Israel’s deprivation of food, water, and essential medical supplies and treatment to Palestinians in Gaza during this period took multiple forms. Israeli airstrikes attacked, killed, or destroyed agricultural land, farm animals, water systems, and humanitarian workers. Desalination plants were rendered inoperable through the denial of fuel and electricity. Medical infrastructure was cut off from power, bombed, and destroyed. And Israel blocked humanitarian aid throughout the 15-month period, albeit with varying levels of intensity and with variation across different areas of Gaza. The impediment to humanitarian access was especially severe in northern Gaza, which suffered extended periods of total or near-total siege.
Making matters worse, the Israeli Knesset adopted legislation on Oct. 28, 2024, banning UNRWA, the U.N. agency for Palestinian refugees, from operating in Israel and forbidding contact between Israeli officials and the agency. UNRWA is widely understood to be the “backbone” of humanitarian delivery in Gaza. Israel’s decision was predicated in part on its earlier allegation that 19 UNRWA staffers (out of a workforce of 13,000 in Gaza) participated in Hamas’s October 7 attacks. Upon being informed of these allegations in January 2024, UNRWA swiftly fired the staff members in question, while the U.N. Secretary-General tasked the Office of Internal Oversight Services (OIOS) with investigating the issue. The investigation led to a determination that nine of those accused may have been involved in the October 7 attacks, but the evidence still needed to be authenticated and corroborated. Only one of the original 19 was rehired, on the grounds that OIOS obtained no evidence to support the allegation of their involvement. Less than two months later, the Knesset adopted the UNRWA ban, which entered into effect on January 30. The anticipated impacts are potentially dire.
In a related vein, on March 10, Amichai Chikli, Israel’s minister of diaspora and combating antisemitism, announced, “a new procedure,” that would revoke the license of international humanitarian organizations working with the Palestinian population if they “published statements in support of the prosecution of Israeli citizens at the International Criminal Court.”
Before assessing the situation today, it is also worth noting several international judicial developments. In May 2024, the ICC Prosecutor applied for arrest warrants for Netanyahu and former Defense Minister Yoav Gallant, as well as three now-deceased Hamas leaders, for crimes against humanity and war crimes. The centerpiece of the case against Netanyahu and Gallant is alleged starvation of civilians as a method of warfare. Warrants for both men were issued in November. The same acts of deprivation are also at the crux of South Africa’s case against Israel at the International Court of Justice (ICJ). South Africa’s case, brought under the Genocide Convention, has led to three separate provisional measures orders, all of which have direct implications for Israel’s obligations regarding humanitarian access. Separately, the UNRWA ban has prompted the U.N. General Assembly to request an advisory opinion on Obligations of Israel in relation to the Presence and Activities of the United Nations, Other International Organizations, and Third States in and in relation to the Occupied Palestinian Territory. That process is now underway. Meanwhile, the ICJ’s advisory opinion of July 2024 on Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory has added jurisprudential weight to doctrinal points that are relevant to current assessments of Israeli conduct vis-à-vis Gaza, most notably by affirming that Israel is bound by at least some provisions of the law of belligerent occupation in Gaza.
A Return to Siege
On Jan. 19, the first phase of the ceasefire went into effect. Pursuant to that agreement, Hamas began a phased release of hostages, whose taking and detention has been a war crime from start to finish. Israel, as well as releasing Palestinian prisoners, facilitated large-scale humanitarian access. As I have previously argued, its failure to have done so previously entailed a consistent violation of IHL. The humanitarian crisis in Gaza started to improve.
As the first phase of the ceasefire expired, however, the delivery of desperately needed supplies slowed to a halt. On March 2, Netanyahu announced that Israel would prevent “the entry of goods and supplies into Gaza” in an effort to exercise leverage over Hamas. Food prices rose sharply in Gaza’s markets and aid organizations moved quickly to ration the stockpiles of aid they had already brought in. A week later, Israel’s Energy Minister Eli Cohen announced, “I have now signed an order to cut off electricity to the Gaza Strip immediately.” The primary target was a water desalination plant, as Cohen himself acknowledged.
In Netanyahu’s announcement of the new siege, he warned, “There will be no free lunch. If Hamas thinks that it will be possible to continue the ceasefire or benefit from the terms of the first stage, without us receiving hostages, it is sorely mistaken.” Humanitarian aid is being impeded and withheld expressly as a bargaining chip.
To justify this stance, Israeli officials have made two claims. First, as they did throughout the 15 months prior to the ceasefire, they allege that Hamas is diverting and hording the aid. In his announcement, Netanyahu argued, “Hamas currently controls all of the supplies and goods that are being sent to the Gaza Strip. It is abusing the Gazan population that is trying to receive the aid, it is shooting at them, and is turning the humanitarian aid into a budget for terrorism directed against us.” Second, Israeli officials have minimized the likely humanitarian impact of their actions. As reported in the Times of Israel, “Israel believes enough aid has entered the enclave in recent weeks to last Gaza for several months.” Simultaneously, the Israeli government is seeking to avoid domestic judicial scrutiny of these claims and their relationship to its legal obligations by arguing that the denial of humanitarian access to Gaza raises considerations that “go beyond and are outside the realm of law.”
Evaluating Israel’s Arguments
On the facts, Israel’s claims are deeply unconvincing.
Humanitarian actors have consistently contradicted Israel’s allegations of massive aid diversion by Hamas. In September, Refugees International published a study, which relied on interviews with a wide range of stakeholders (government officials in Israel and Jordan, humanitarian officials, staff of international NGOs involved in the cross-border aid response, people inside Gaza, and evacuated Palestinians). The study’s authors found “little evidence to support the allegation that Hamas is diverting humanitarian aid at a large scale.” Regarding the more recent situation during the ceasefire, “Multiple humanitarian aid groups operating inside Gaza have said they distribute the aid they receive directly to those in need.”
The separate claim that Palestinians in Gaza are currently adequately supplied due to the expanded humanitarian delivery during the ceasefire is profoundly misleading.
Shortly after the renewed siege was announced, UNICEF reported, “conditions for children remain extremely dire. Seven newborn babies reportedly died from hypothermia over the past week because they lacked access to sufficiently warm clothes and blankets, shelter, or medical care.” After a four-day mission in March to Gaza and the West Bank, Edouard Beigbeder, UNICEF’s regional director for the Middle East and North Africa, noted that “more than 180,000 doses of essential childhood routine vaccines, enough to fully vaccinate and protect 60,000 children under 2 years of age, as well as 20 lifesaving ventilators for neonatal intensive care units” were blocked and waiting for delivery just outside Gaza. With a reduction of 70 percent of desalinated water due to the electricity cutoff, reports already indicate a severe deterioration in access to potable water. U.N. agencies estimate that 1.8 million of Gaza’s 2.1 million residents “urgently need water, sanitation, and hygiene assistance.” Israel’s deprivation of water in Gaza was one of the most devastating aspects of the 15 months prior to the ceasefire. Meanwhile, the World Food Programme reported that “it has no major stockpile of food in Gaza because it focused on distributing all incoming food to hungry people” stating that “existing stocks are enough to keep bakeries and kitchens running for under two weeks.”
More broadly, the current reality is that there is no stable source of sustenance and medical care other than through external humanitarian delivery—the source that Israel has now comprehensively shut down. The total lack of alternatives is even more acute today than it was at the time of the initial siege order in October 2023. Since then, Israel has destroyed the agricultural, medical, residential, and water infrastructure of Gaza. The population is almost entirely displaced and unable to access permanent shelter. To claim that the population is adequately supplied in virtue of aid delivery during six weeks of ceasefire access is to obscure the fact that cutting off aid now entails denying the only sustainable source of sustenance going forward.
Quite apart from these issues, the question of whether there is adequate supply cannot be answered simply by calculating whether the aggregate number of calories that have been allowed in should theoretically be sufficient for the population in question over a defined period of time. This caloric balance sheet approach evaluates humanitarian need in the abstract, divorced from its practical reality. A genuine assessment of adequate supply requires evaluating access and distribution. Immediately upon the announced siege, food prices shot up. They continue to rise. Within days, six out of 25 bakeries supported by the World Food Programme were forced to close. Reports indicate that “at least 80 community kitchens may soon run out of stock.” And this was before Israel launched its massive bombing campaign on March 18 and promised further massive destruction and displacement.
Moreover, the risk of deterioration must be understood in relation to the prior 15 months of deprivation. In an earlier warning, the IPC Famine Review Committee stressed that temporary improvements to food access “should not allow room for complacency” about the risk of famine, particularly given the increased vulnerability associated with prolonged crisis. As Alex de Waal has shown, societies plunged into catastrophic food insecurity suffer significantly elevated mortality and have significantly elevated humanitarian needs for months after humanitarian assistance starts to flow. Data collected by the Global Nutrition Cluster indicated that “since the ceasefire, over 3,000 children and 1,000 pregnant or breastfeeding women have been referred for acute malnutrition treatment.”
Even if all of this were not already clear, Israel’s claims regarding adequate stockpiles and Hamas hording do not stand on their own terms. The renewed siege is explicitly coercive. Netanyahu described it as a response to “Hamas’s rejection of the Witkoff framework” (referring to the Trump administration envoy) and promised “additional consequences” if “Hamas continues to stick to its position.” But if it were true that (i) the existing supply of aid were adequate, and (ii) Hamas were able to divert all existing stocks for its own benefit, there would be no immediate coercive impact on the armed group itself. On the contrary, according to Netanyahu’s own claims, civilian suffering would necessarily be prior to any coercive impact on Hamas. The purported logic of the siege works only if one assumes it will persist through widespread and severe civilian deprivation.
This was all true prior to Israel’s resumption of massive bombing. The latter, to which Netanyahu had already alluded in the siege announcement, has dramatically worsened a dire situation. Taking each of these points in combination, it is simply impossible to credit claims that stockpiles in Gaza on March 2 were such that Israel faced no humanitarian imperative to grant access in the period since.
How the Renewed Siege Violates International Law
The renewed siege is in violation of IHL and it adds further evidence to the central criminal charge against Netanyahu at the ICC.
At the level of IHL, it is now even clearer than it was in October 2023 that Israel bears obligations under the law of belligerent occupation. As I wrote at the time, there was already a strong argument then that, due to its enduring control of Gaza’s borders, Israel retained occupying power status despite its withdrawal from the territory in 2005. In the intervening months, two things have happened. First, key jurisprudence has developed in support of that assessment. Second, Israel’s level of control has escalated, surpassing even a more demanding threshold for the applicability of the law of belligerent occupation.
In July 2024, the ICJ put its jurisprudential weight behind the view that “Israel’s withdrawal from the Gaza Strip” in 2005 did “not entirely release it of its obligations under the law of occupation.” The Court explained that Israel’s responsibilities “have remained commensurate with the degree of its effective control.” As Judge Sarah Cleveland indicated in her separate opinion, among the “commensurate” obligations that most closely tracked the level of Israel’s “effective control” prior to Oct. 7, 2023 are those related to the provision of food, water, medical provisions, and humanitarian access. This adds significant support to the view that Israel bore the relevant obligations from the start of this iteration of the conflict.
Second, during its ground incursion after Hamas’s October 7 attacks, Israel took full control over certain areas of Gaza and substantially greater control over the remainder, while eliminating Hamas’s system of civilian control. This led nine leading Israeli professors of international law to assess in April 2024 that, at least in northern Gaza, Israel’s level of control “amounts to full belligerent occupation.” Three months later, Marco Longobardo concluded, “After 7th October 2023, there is no doubt that the Gaza Strip is under occupation and that Israel is the occupying power.” The ICJ reasoned that the argument for obligations under the law of belligerent occupation holds “even more so since 7 October 2023.”
Of course, Israel withdrew its ground forces during the ceasefire. However, there is no plausible case to be made that Israel exited in a way that allows any form of autonomous control and governance within Gaza. The comprehensive destruction of all elements of basic infrastructure across Gaza has created a condition of total dependence on what Israel does or does not allow, particularly in relation to what is crossing the borders. Whatever one’s view on whether Israel’s obligations as occupying power lapsed upon its withdrawal in 2005, the recent ceasefire withdrawal had no such implication. In any event, the IDF has already reasserted a high level of control in key areas in the short time since Israel terminated the ceasefire.
As the occupying power, Israel has a primary duty to “ensur[e] the food and medical supplies of the population,” to the fullest extent of the means available to it (Geneva Convention IV, article 55). Moreover, whenever “whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.” (article 59). Pursuant to the same provision, “All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection.”
Israel is plainly not acting to the “fullest extent of the means available to it” to ensure food and medical supplies to Palestinians in Gaza. It is blocking the only source of precisely such supplies. Given the currently “inadequate supply” of essentials to at the very least “part of the population” of Gaza (and soon, if not already, its entirety), Israel bears a clear obligation to agree to relief schemes under article 59. To cut off the external supply of essentials in this scenario straightforwardly contravenes international humanitarian law.
Netanyahu’s statement seeks to avoid this implication by arguing that it is Hamas that is “abusing the Gazan population that is trying to receive aid.” To the extent Hamas is looting aid or denying it to civilians, that would entail violations of IHL and war crimes on its part. But it does not change Israel’s obligations to the civilian population. Moreover, pitting Hamas and the population against one another by cutting off the current supply (which humanitarians have affirmed had been reaching civilians in need), directly contradicts Israel’s obligation to “restore, and ensure, as far as possible, public order and safety,” per the foundational rule of the law of occupation in article 43 of the Hague Regulations. Even accepting limits on how comprehensively Israel can achieve that restoration under current conditions, one thing that is unambiguously within its power is to refrain from cutting off humanitarian supplies in a way that will manufacture extreme scarcity and generate severe threats to public order and safety.
Defending Israel’s conduct, some have pointed to article 23 of Geneva Convention IV to argue that Israel is not required to “allow the free passage” of essentials if it has “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 argument distorts the legal reality. The caveats listed in that section of article 23 apply explicitly and exclusively to the humanitarian access “obligation …. indicated in the preceding paragraph” of article 23, which is not specific to belligerent occupation. In other words, they codify not general authorizations to limit aid, but specific caveats to the specific obligations defined in article 23. By its own terms, article 23 of the Fourth Convention does not authorize what articles 55 and 59 prohibit. That is to say, in occupied territory, the requirements to grant access and ensure food and medical supply hold without modification according to the enumerated caveats in article 23.
But the point is not limited to belligerent occupation or the internal structure of Geneva Convention IV. International humanitarian law did not stop developing in 1949. Significant additional obligations have subsequently taken hold. And just as the caveats internal to article 23 do not authorize the violation of other articles of Convention IV, they are equally unable to authorize the violation of rules of IHL external to the Fourth Convention.
Today, even if it were not bound by the obligations of an occupying power, Israel would still be bound by (a) the customary prohibition of starvation of civilians as a method of warfare and (b) the customary requirements (i) not to arbitrarily deny consent to humanitarian access and (ii) to allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel to which it consents in that regard. Indeed, Israel’s own High Court of Justice recognized the customary relevance of these obligations to its control over the supply of essentials into Gaza as far back as 2008 (Jaber Al-Bassiouni Ahmed 2008). Israeli litigation regarding the application of these rules to the current situation in Gaza is ongoing.
None of these rules is subject to the caveats in article 23 of Geneva Convention IV, which, again, apply only to the requirements of that specific provision. Notably, even States such as the United Kingdom and Germany, both of which have been largely supportive of Israel, have expressed “deep concern at the Government of Israel’s announcement on 2 March to halt all entry of goods and supplies into Gaza” and have called on “the Government of Israel to abide by its international obligations to ensure full, rapid, safe and unhindered provision of humanitarian assistance to the population in Gaza.” With a blanket prohibition of access to a population in need, there can be little doubt that Israel is failing that duty.
The prohibition of starvation of civilians is particularly significant, as it underpins the central war crime with which Netanyahu is charged at the ICC. Based on information released by the ICC, the arrest warrant for Netanyahu is predicated primarily on his impediment of relief supplies, per the terms of article 8(2)(b)(xxv) of the ICC Statute. At the ICC, criminal liability attaches when a perpetrator (i) deprives civilians of objects indispensable to their survival, (ii) with the intent to starve civilians as a method of warfare.
There is no question that this latest iteration of the siege involves the deliberate deprivation of objects indispensable to survival. Food is the quintessential object indispensable to survival and is legally cognizable as such even assuming the fact of existing (and here depleting) alternative stocks. Essential medicines also clearly qualify.
Electricity can be more complicated. In this case, however, the Israeli government was clear that the denied electricity “was used for a desalination and wastewater treatment facility.” Although Israel’s energy minister argued that “this will force them to use their fuel stocks,” this rationale concedes that the electricity was not serving a military use. Rather, it was supporting the functioning of what is unambiguously an object indispensable to survival (a water desalination plant) and it was cut off with that in mind. As noted in a recent U.N. update on the humanitarian situation in Gaza, “Without electricity, the plant can only provide about 2,500 cubic metres of water per day and the amount of drinking water available in southern Gaza will be substantially reduced, affecting approximately 600,000 people.” In issuing arrest warrants for Netanyahu and Gallant, the ICC’s Pre-Trial Chamber emphasized that “cutting off electricity … had a severe impact on the availability of water in Gaza and the ability of hospitals to provide medical care” and was one of the practices that “created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration.” These findings led it to include electricity denial as a component of starvation of civilians as a method of warfare and the crime against humanity of murder.
As in earlier iterations, the current deprivation of humanitarian aid and electricity is clearly directed at a civilian population. The presence of combatants in Gaza does not change the civilian character of the population as a whole, given that the latter is overwhelmingly comprised of civilians (e.g. Protocol I, article 50(3); ICTY Prosecutor v. Karadžić Trial Judgment 2016). To cut off the supply of essentials, such as food, medical supplies, or the electricity necessary for desalination to Gaza as a whole is to deprive a civilian population of objects indispensable to survival. Here, the rules relating to starvation must be understood in light of the “basic rule” of IHL, pursuant to which parties to the conflict must, in all military operations, distinguish between the civilian population and combatants (Protocol I, article 48).
The remaining question relates to criminal intent. I have outlined the range of arguments on that point at length in a law review article and in an earlier Just Security essay. As explained in those pieces, and as articulated at the time of the ICC warrant application, a composite analysis of (a) the underlying IHL on starvation of civilians as a method of warfare, codified in article 54 of Additional Protocol I, and (b) “intent,” as defined in article 30 of the ICC Statute, supports the assessment that acting with the intent to starve civilians as a method of warfare includes either of the two following alternatives:
- Engaging in the deliberate deprivation of objects indispensable to survival for the purpose of denying the sustenance value of those objects to civilians or to a civilian population. This form of intent can attach before it is certain that civilians will be reduced to a state of starvation.
or:
- Engaging in the deliberate deprivation of objects indispensable to survival in the knowledge that this deprivation is virtually certain to leave civilians in a state of starvation. This form of intent can attach even if civilian sustenance denial is not the purpose.
Even assuming that current stocks of humanitarian essentials in Gaza preclude finding that the current iteration of the siege is, at this stage, virtually certain to leave civilians in a state of starvation, it is clear that this step has been taken with a view to denying the sustenance value of the blocked objects. As detailed above, both Netanyahu and Cohen, the energy minister, have been unabashed about their hope to coerce. That coercive effect relies upon denying the sustenance value of the things that are being blocked or undermined: humanitarian aid and water desalination. The deprivation of these essentials is directed at a population that is unambiguously civilian. For those reasons, the starvation war crime is again implicated.
Given the widespread nature of these practices, a similar analysis would extend to the crimes against humanity of inhumane acts, persecution, and (where lethality is virtually certain) murder. Each of these is included already in the warrant for Netanyahu.
Efforts to Marginalize Humanitarian Organizations
Israel’s ban on UNRWA and its move to exclude humanitarian actors that have supported legal efforts to hold Israel or its officials accountable may also violate IHL. In considering that question, the ensuing analysis leaves aside questions regarding Israel’s relevant obligations under the UN Charter and the Convention on the Privileges and Immunities of the United Nations.
In general terms, a belligerent is not required to provide access to any one specific humanitarian actor. As long as it is not arbitrarily withholding consent to humanitarian action or impeding delivery, it has a certain level of discretion regarding the specific humanitarian organizations with which it works. There are distinctive constraints relevant to the specific situation of UNRWA, however, that make it harder to reconcile Israel’s ban on engagement with the agency with key obligations of IHL. There are additional concerns relating to restrictions on organizations that have supported ICC investigations of Israeli officials.
In the context of belligerent occupation, preexisting “relief societies shall be permitted to continue their humanitarian activities” as long as they act in accordance with humanitarian principles (art. 63, GC IV). The provision names Red Cross and Red Crescent Societies, but the category is expressly not exclusive to them. The ICRC Commentary explains the provision’s reference to “other relief societies” on the grounds that “no method of alleviating suffering must be ignored.”
Could UNRWA qualify? The agency’s work in Gaza clearly preexisted Israel’s occupation of Gaza and the West Bank in 1967, and Israel agreed to its continued operations at the time. There is widespread consensus that UNRWA performs a critical humanitarian relief function, especially in Gaza. And the agency describes the humanitarian principles as being “at the heart of all” of its operations. In 2014, the Conference of High Contracting Parties to the Geneva Conventions adopted a declaration in which parties supported the activities “of the International Committee of the Red Cross, … of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, and of other impartial humanitarian organizations.” Although not specific to article 63, this arguably supports the classification of UNRWA alongside Red Cross and Red Crescent Societies in that context. UNRWA had emphasized its commitment to humanitarian principles in a submission to the Conference.
At the same time, UNRWA performs a more diverse array of functions than ordinary humanitarian relief organizations. The agency describes its work in the broader terms of “human development and humanitarian services.” However, in addition to relief societies, article 63 also covers “the activities and personnel of special organizations of a non-military character, which already exist or which may be established, for the purpose of ensuring the living conditions of the civilian population by the maintenance of the essential public utility services, by the distribution of relief and by the organization of rescues.” (art. 63, GC IV). A strong argument could be made that UNRWA fits within this category, at least if the list of functions is not understood to be exhaustive. Moreover, some of UNRWA’s activities that are not enumerated in article 63, such as education, are the subject of other provisions requiring facilitation by the occupying power (art. 50, GC IV). The ICRC Commentary emphasizes that the latter protection applies to “a wide variety of institutions and establishments” for children and “must be respected whatever their status under the law of the country and whether they are privately run or under State control.”
Of course, Israel’s explanation of its withdrawal of consent and prohibition of engagement with the agency implies UNRWA does not operate according to humanitarian principles—a failure that would appear to eliminate the article 63 shield of its continued activities. Claims by Israeli political leaders that UNRWA is fundamentally compromised or complicit in activities hostile to Israel are both longstanding and long contested. Certainly, the allegation regarding specific participants in the October 7 attacks should not itself be taken to vitiate the humanitarian character or impartiality of the agency as a whole, given that UNRWA quickly fired those individuals and launched an internal investigation. The ICJ could play a key role by opining authoritatively on UNRWA’s compliance with humanitarian principles and status under article 63 in its prospective advisory opinion on Israel’s obligations of cooperation with the United Nations.
Strikingly in that respect, UNRWA is widely understood by States and humanitarians to be the backbone of humanitarian action in Gaza. As the ban loomed, UNRWA Commissioner General Philippe Lazzarini told the Security Council, “Since October 2023, we have delivered two-thirds of all food assistance, provided shelter to over a million displaced persons, and vaccinated a quarter of a million children against polio.”
Article 63 aside, in the case of an organization of that scale and with that unique level of situational integration, the general discretion belligerents retain regarding working with specific humanitarian organizations must attend to humanitarian practicalities. Under current circumstances, it is not clear that Israel can discharge either its primary obligations as an occupying power or its obligations to facilitate humanitarian relief without engaging with UNRWA.
Additionally, in its March provisional measures order in the genocide case, the ICJ required Israel to “[t]ake all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance …” Given UNRWA’s central role in humanitarian response, including as articulated by other U.N. agencies, the UNRWA ban legislation would appear to violate Israel’s obligations under this order.
Finally, with respect to the threat to humanitarian organizations other than UNRWA, their satisfaction of the criteria of independence and impartiality cannot be conditioned on their silence in the face of IHL violations. On the contrary, contributing to the work of the ICC through identifying serious violations of international humanitarian law is fully aligned with the mission of IHL. Arguably, States have an obligation to facilitate—and certainly not to sanction—such engagement as part of their common article 1 and customary duty to ensure respect for IHL. The requirement of impartiality attaches to the delivery of relief. Advocacy pursuant to the standards of international law cannot impugn an organization’s humanitarian status.
Overall, the renewed cut-off of aid and electricity to Gaza and its overt framing as part of a coercive negotiation strategy reflects a profoundly dangerous normalization of the weaponization of aid and the use of civilian populations as bargaining chips. Efforts to marginalize key humanitarian actors are likely to exacerbate an already dire situation. The Israeli government’s willingness to pursue this path indicates Netanyahu’s presumption of impunity despite the ICC warrant for his arrest. ICC States Parties—including those that consider themselves to be leading supporters of the Court—have much to answer for in that regard. It is long past time to state clearly and without equivocation that warrants will be executed. More broadly, states must act now to use all available leverage to demand the restoration of humanitarian access and an immediate cease-fire.