On March 27, Israel’s Supreme Court rejected a petition brought by five Israeli civil society organizations that demanded Israel ensure unimpeded humanitarian aid into the Gaza Strip amidst acute concerns of famine. In a detailed decision, a three-judge panel upheld the legality of Israel’s current policies on humanitarian access to the besieged enclave under both international and domestic Israeli law. The ruling adopts several disputed doctrinal stances. Even more significantly, it exposes some of the underlying tensions and inadequacies within international humanitarian law in providing a legal infrastructure to counter conflict-induced civilian deprivation. Recently, Yuval Shany and Amichai Cohen provided a detailed overview of the ruling as a whole. In this piece, I focus on the ruling’s reasoning (and flaws) regarding the protection of civilians’ basic needs.
The Israeli Supreme Court’s Decision on Humanitarian Aid
In March 2024, five months after Hamas’ October 7th attack on Israel and the ensuing Israeli military campaign in Gaza, several Israeli human rights NGOs filed an urgent petition with Israel’s Supreme Court. As by now is well known, international law authorities have severely criticized Israel for impeding humanitarian aid to Gaza and yielding a dire humanitarian catastrophe. In its petition, the NGOs argued that Israel was unlawfully impeding access and failing to meet its humanitarian responsibilities and requested the Court to rule that Israel must immediately ensure full humanitarian access into Gaza and deliver vital supplies.
The petitioners argued that Israel’s actions violated its obligations under international law as an occupying power, and alternatively, as a belligerent party to an armed conflict. The petition further argued that the stringent restrictions and delays on the entry and distribution of humanitarian aid were compounded by direct attacks on indispensable civilian infrastructure, under the pretext of military activities. Petitioners thus contended that Israel’s claims of military necessity or aid diversion by Hamas do not absolve it of the obligation to facilitate humanitarian aid to civilians in Gaza, nor diminish the prohibition on the use of starvation as a method of warfare and the imposition of collective punishment.
In response, the Israeli government maintained that it is upholding – and far exceeding – its obligations under the law of armed conflict, while denying that any part of Gaza is currently occupied. As a factual matter, the government claimed it imposes no limitations on the volume of aid entering Gaza but rather implements necessary security measures to facilitate it, arguably devoting considerable resources to ease and coordinate relief efforts during intense hostilities. Civilians’ suffering, it was argued, stemmed from Hamas launching attacks from within civilian areas and diverting aid from those in need, along with internal operational difficulties faced by relief organizations in collecting and distributing vital supplies.
After a year of deliberations, five public judicial hearings, and dozens of submissions spanning thousands of pages, the Israeli Supreme Court ruled that Israel’s current actions in Gaza did not merit judicial intervention. The Court only offered forward-looking remarks on the government’s duty to collect and gather an updated factual base for its action, primarily based on domestic law. Briefly, with respect to the relevant legal framework, the Court held that the threshold necessary to trigger obligations under the law of occupation was not met by Israel’s presence in Gaza, and that therefore the relevant rules are those that apply regarding humanitarian aid during active hostilities without occupation. The justices recognized that their conclusion is contrary to the International Court of Justice (ICJ) advisory opinion of July 2024, in which the majority opinion briefly deemed Gaza as occupied territory both prior to and especially following Israel’s ongoing military campaign in Gaza. Nonetheless, the Court reminded that the advisory opinion is not binding legally nor factually, further arguing that “significant differences between the factual foundations presented before the international court and before us may account for the divergence in conclusions on this issue” [para 42].
As to the substantive humanitarian obligations under the law of armed conflict, the Court found that Israel’s actions concerning humanitarian aid fulfilled its legal obligations to “allow and facilitate” humanitarian assistance. Accepting Israel’s factual depiction of its actions, the Court then detailed the government’s efforts to improve required infrastructure of land crossings and roads, enhance communications with aid organizations, and engage in deconfliction and movement coordination. Based on this assertion, the Court further dismissed the petitioners’ allegations of collective punishment and starvation as a method of warfare, stating such violations were “not even remotely” established [para. 94]. Notably, however, the Court offered no in-depth analysis of the prohibition of civilian starvation to support this conclusion. Nor did the Court mention the ban on attacking or rendering useless indispensable civilian infrastructure in its extensive 64-page judgment, despite detailed reports of such destruction by the United Nations and other international organization that were widely cited by the petitioners. The judgement’s treatment of these humanitarian obligations raises a number of complex questions.
Narrow Interpretations of IHL Norms on Aid Access
The judgment extensively cited the broad limitations stated in Article 23 of the Fourth Geneva Convention, under which a Geneva Convention High Contracting Party is obligated to ensure free passage of humanitarian assistance “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.” Undoubtedly, these broad restrictions can be utilized to deny or limit humanitarian assistance in almost any circumstance.
Importantly, however, the Additional Protocols of the Fourth Geneva Convention of 1977 do not reiterate similar exceptions. Instead, the Additional Protocols enshrined a duty to allow and facilitate rapid and unimpeded humanitarian assistance, contingent upon the consent of “concerned” parties. Once consent is given, the parties have the right to prescribe technical arrangements to allow and facilitate aid, such as searches or specifying designated times and routes of allocation. The obligation in the Additional Protocol is considered customary by the ICRC, rectifying the previous regime and thus rendering the conditionality in Article 23 ‘obsolete’. Several Security Council resolutions and international guidelines have further clarified that such consent cannot be denied arbitrarily. While Israel is not a party to the Additional Protocols, the State had accepted the customary status of “the core” of this provision prior to and during the proceedings.
Nevertheless, in its ruling, the Court read Article 23 in conjunction with the provisions of the Additional Protocol, noting that “[t]he parties to this petition do not dispute that Israel is obligated to allow and facilitate humanitarian aid to Gaza’s civilian population, subject to Israel’s right to establish necessary technical arrangements and monitor aid shipments, and the need to prevent diversion of aid to terrorist organizations.” [para. 17, emphasis added]. Such reading brings the Court to conclude that while implementing the obligation to facilitate humanitarian aid “security and military considerations may be taken into consideration” [para 16]. In other words, humanitarian aid could be extensively restricted based on security considerations. This interpretation explicitly aligns with Israel’s stance in its submissions before the Israeli Supreme Court (as well as before the ICJ in the South Africa v. Israel genocide case), in which Israel emphasized the conditions of Article 23 of the Fourth Geneva Convention.
Additionally, the Court acknowledged that even seemingly neutral “technical arrangements” significantly affect the delivery of humanitarian aid, even without explicitly restricting its entry. While “no explicit restrictions were imposed on the entry of humanitarian aid into the Gaza Strip, nor was there any categorical refusal regarding specific types or quantities of aid recorded,” the Court observed that monitoring and inspection measures – though undoubtedly within the rights of parties to an armed conflict – could significantly impact the actual entry of aid” [para 51]. These measures included “logistical arrangements like restricting the days and hours of operation at crossings, inspections and searches conducted on aid shipments, or heightened scrutiny concerning the entry of ‘dual-use’ items” [para 51]. Despite recognizing this reality, the Court effectively subordinated humanitarian obligations to security priorities, describing Israel’s policy as a necessary “balance between Israel’s humanitarian duties and security-operational considerations, including concerns of possible leakage of aid to terrorist groups” [para 90].
However, different IHL provisions tend to view restrictions on aid as exceptional rather than standard practice, emphasizing that such limitations must be temporary, limited in scope, and clearly justified. Additional Protocol I, for instance, explicitly limits even temporary restrictions on the activities and movements of humanitarian personnel to instances of “imperative military necessity” under Article 71. In a similar vein, commentary on Additional Protocol-1 highlights that technical arrangements may “only be used without infringing the obligation to facilitate the rapid and unimpeded passage of relief consignments” and limit delays of aid to extreme cases only. The Court’s broad interpretation risks hollowing out Israel’s humanitarian obligations, enabling severe restrictions under the guise of technical arrangements.
Starvation and Indispensable Infrastructure Under Article 54
Even more significantly, the Court did not substantively address the prohibition on starvation of civilians as a method of warfare under Article 54 of Additional Protocol I and Article 14 of Additional Protocol II. Instead, it concluded that Israel’s efforts to improve humanitarian conditions negated any allegations of starvation-related violations or of collective punishment. The judgment stated that “there is no dispute, nor can there be, that the humanitarian situation in the Gaza Strip is not easy, to say the least, and that the civilian population pays a very heavy price due to the war initiated by terrorist organizations.” Nonetheless, the Court continued by accepting the Israeli government’s position that “the suffering of the civilian population, by itself, does not necessarily indicate a violation of duty by the State of Israel.” [para. 58(c)]. Here, the Court stopped short of fully grappling with the legal implications of this statement.
Shortly before the judgment’s publication, Israel halted all humanitarian aid into Gaza and terminated its electricity sales to the strip. The petitioners’ request for an urgent injunction was denied, with the Court then explicitly refusing to address these developments within its verdict, stating that “the present proceeding is not the proper forum to address these decisions, which reflect significant factual and legal changes” [para 3].
The Court’s decision to issue its verdict under these circumstances, particularly without referencing the protections provided by Article 54 against civilian starvation, is profoundly alarming. In doing so, it effectively allowed actions which raise grave concerns of violations of international law to continue unchecked and without judicial inspection. More disturbingly, it may have provided a legal cover for ongoing humanitarian abuses. This decision also exposes the inherent and unique temporal dimension of deprivation harms; as a prolonged and evolving process, the Court retains discretion to delineate a timeframe that excludes particularly harsh developments from judicial scrutiny, allowing deprivation to continue unfolding as possible additional legal recourses are taken by prospective petitioners.
Furthermore, throughout the proceedings, the petitioners repeatedly cited reports of extensive damage to vital civilian infrastructure allegedly brought by Israeli attacks, from agricultural sector to health care facilities. In spite of this, the judgment neglected to mention the explicit protection afforded to indispensable civilian infrastructure. Article 54(2) of Additional Protocol I explicitly forbids attacks, destruction, removal, or rendering useless of objects indispensable to civilian survival. Article 54(3) further bans such actions even if the object is in ‘direct support of military action’, when the result is expected to be civilian starvation or forced movement. (While there are questions regarding the applicability of this provision to non-international armed conflicts, the Israeli Supreme Court’s position suggests that it treats the conflict in Gaza as an international one.)
Beyond merely declining to engage with relevant humanitarian obligations, the Court ignored the broader context of the attacks in Gaza and failed to analyze the implications of widespread destruction of critical civilian infrastructure. Even if one accepts the Court’s findings regarding aid delivery, the verdict remains silent on the grave concern of starvation caused through means other than aid obstruction—particularly the destruction of infrastructure. Despite repeated references by petitioners to this issue, the verdict was written in relative isolation, addressing humanitarian access narrowly and omitting analysis of cumulative civilian harm. This omission allowed the Court to bypass obligations under Article 54(3).
The absurdity of this omission is particularly evident in the context of Gaza’s water crisis. The court itself noted that prior to the hostilities, approximately 90 percent of Gaza’s water supply relied on local sources, not Israeli pipelines. Yet it focused only on Israel’s attempts to restore water transfers from Israel, overlooking the effects of its military campaign on Gaza’s internal water infrastructure. This example underscores a deeper weakness in the legal approach: the emphasis on external humanitarian aid while neglecting damage to local civilian systems, and the failure to address the compounding harms such destruction produces.
In broader terms, this case once more reveals the indeterminacies and tensions within international humanitarian law itself, rendering it ill-equipped to offer meaningful protection; the vague language of obligations to “allow and facilitate” aid, coupled with broad interpretations of “technical arrangements,” allows States to restrict basic needs while claiming to operate below the threshold of illegality. As individuals, families, and communities in conflict zones across the globe are increasingly engulfed by denial of their most basic needs and starvation, international humanitarian law demands more than mere clarification. It requires a decisive strengthening of norms, directly confronting the highly complex realities of urban warfare amidst densely populated areas, where unlawful hostages and civilians remain trapped between warring parties. Without urgent changes, humanitarian protections risk becoming a hollow promise rather than an array of normative safeguards against atrocity.