21 Dec The Forcible Transfer of Civilians in Gaza: Conditions, Necessity and Legality
[Dr. Mais Qandeel is a Senior Lecturer of International Law at Örebro University, Sweden. She holds a Ph.D. in international humanitarian law from the University of Fribourg, Switzerland.]
On 7 October 2023, in the wake of Hamas’ attack, Israel declared a ‘state of war’ and invoked its ‘right to self-defence’. Israel launched heavy retaliatory military attacks on the besieged Gaza Strip, home to 2.3 million Palestinians, killing at least 19,453, injuring 52,286 and internally displacing 1.9 million people as of 18 December 2023. These numbers continue to rise by the hour. The actual number of people under the rubble is unknown as is the number of Palestinians, including medical doctors, abducted by Israeli forces. The Israeli Prime Minister Benjamin Netanyahu vowed to use full force in an act of revenge and told the residents of Gaza to “get out now”. Shortly afterwards, the Israeli military announced a complete siege on the strip – no water, no food, no electricity, no fuel – and ordered 1.1 million people to move from the north of Gaza to the south. The UN warned that it was “impossible for such a movement to take place without devastating humanitarian consequences.” Other human rights organizations described it as unreasonable and unforeseeable.
Israel has attacked civilians while they have been evacuating and using the ‘safe corridor’. It has been reported that “the attack on the civilian convoy occurred at about 5.30pm. At 6.03pm, in social media posts, the IDF identified the exact same road in an infographic as the safe route.” After the evacuation order, Israeli warplanes have continued to attack sites in southern Gaza. After more than two months of heavy bombardment campaigns, the Israeli military has ordered the residents of southern cities to evacuate to a tiny area that Israel calls a ‘humanitarian area’. The UN says that Israel has “made no place safe for civilians in southern Gaza”. Israeli Finance Minister Bezalel Smotrich has suggested that Palestinians should leave Gaza and go to other countries. Some Israeli officials have advocated that Gaza residents should go to tent cities in Egypt’s Sinai Peninsula. A document compiled by Israel’s Intelligence Ministry has suggested that moving Palestinian civilians in Gaza to Egypt is the solution and that such a forced transfer is being considered by Israeli authorities.
The Fourth Geneva Convention (GC IV), in its Article 49, prohibits individual or mass forcible transfers and obliges an occupying power to provide civilians with proper safe conditions. The situation that Israel has created both before and during its attacks and siege/blockade of Gaza is described as a humanitarian disaster that heralds the breakdown of society. Israel has attacked hospitals, ambulances, homes, shelters, UN buildings and schools. Potable and clean water is scarce, leading to devastating consequences and increasing the risk of disease, disease transmission and poor hygiene conditions in the most densely populated area in the world, whose population has been forced into a much smaller space and overwhelmingly crowded shelters. The majority of Palestinians do not have accommodation and lack minimum conditions as regards hygiene, health, safety and nutrition. This post discusses this situation in the light of the GCIV – Article 49 – and assesses the legality of Israel’s transfer of Palestinian civilians during the hostilities and the fulfilment of the legal requirements of satisfactory conditions.
Prohibition of Deportation, Transfers and Evacuation
The first paragraph of Article 49 of the CGIV prohibits acts of transferring or deporting protected persons from occupied territory. It states that “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” This paragraph only places a prohibition on a ‘forcible transfer’ or ‘deportation’ and implicitly authorizes ‘voluntary transfers’. The prohibition is absolute; however, it must be read in conjunction with paragraph 2, which prescribes an exception, and paragraph 3, which sets required conditions.
Paragraph 2 is the exception and allows the occupying power to evacuate protected persons from an area where hostilities are taking place. According to the ICRC Commentary, an evacuation, unlike deportations and forcible transfers, “is a provisional measure… [and] taken in the interests of the protected persons themselves.” The language of paragraph 2 provides that “total or partial evacuation of a given area if the security of the population or imperative military reasons so demand”. It is important to emphasize here that ‘a given area’ entails a very specific and small part of the occupied territory, and not entire cities or the entire occupied enclave.
Assuming that this evacuation is for the safety of the civilian population and imperative military considerations, which must be proven by Israel in order for the evacuation to be legal, paragraphs 2 and 3 provide for safeguards. First, an evacuation must be to reception centres inside the occupied territory and the occupying power has the obligation to “provide them [the evacuees] with suitable accommodation” and later the evacuees should be able to return to their homes when the hostilities have come to an end. Second, the occupying power is obliged to ensure “satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.” These safeguards are legally assessed in the context of the Gaza Strip.
Safeguards: Safety, Satisfactory Conditions and Occupied Territory
First, ensuring the safety of civilians is vital. Several UN agencies have stated that there are no safe areas in Gaza. Israel has designated Al-Mawasi as a ‘safe zone’ in order to squeeze some 1.8 million people into a tiny area (1km in width by 14km in length, with a total size of 6.5sq km). Al-Mawasi is a sandy Bedouin town that lacks infrastructure and cannot provide shelter. There are no safe corridors for people to even reach it as Israel continues to bomb ‘safe routes’ and attacks people who are evacuating. Israel continues to change its plans for the designated safe areas, admitting that “no place in Gaza is totally safe”. It is the obligation of the Israeli forces to allow and facilitate the evacuation of people and ensure their safe passage, an obligation that has not been fulfilled.
It is important to note that Israeli forces have dropped leaflets to order people to evacuate without providing them with the means to do so. Most of these leaflets have a QR code which means that there is a presumption that all Palestinian civilians have smartphones, which have been charged and which are in working order, so that they can scan the code, and that all people have access to the internet. However, Israel has completely disconnected Gaza from the internet, attacked communication infrastructure, cut off the electricity and stopped fuel supplies. This means that civilians have no electricity with which to charge their mobile phones, no fuel to generate energy, no telecommunication services and no access to the internet. This has not only prevented civilians from knowing where the safe areas may be, but it also means that medical services trying to reach those killed and injured are unable to do so. Thus, these leaflets do not serve the purpose of fulfilling the obligation to ensure the safety of civilians in the areas that have been designated as safe as well as their safe passage to these areas.
Second, satisfactory conditions for the evacuees must be in place. As civilians move to the unknown, the occupying power must make practical arrangements to mitigate the consequences of evacuation. The ICRC Commentary states that “it will be the duty of the Occupying Power to provide them [protected persons] with suitable accommodation and make proper feeding and sanitary arrangements.” Simply put, Israel, the occupying power, must ensure that civilians in Gaza have proper food, drinking water, shelters and the basic necessities. In addition, it is important to ensure that members of the same family are not separated, which is in line with the obligation under Article 27 of GV IV, according to which the Parties to the conflict are obliged to respect family rights.
According to the UN OCHA, Israel has even prevented humanitarian supplies from being delivered to overcrowded, dire and disease-prone areas, leading to a lack of food, water and sanitation. The World Food Programme has said that the Strip is facing widespread hunger. The World Health Organization has affirmed that diseases are spreading and has called for the reversal of the evacuation orders given their catastrophic consequences. Human Right Watch has concluded that starvation is used as a weapon of war in Gaza, where “evidence indicates that civilians are deliberately denied access to food [and] water.” Although the fulfilment of this obligation comes as a second step after ensuring the safe passage and safety of the evacuees, this obligation does not appear to have been met either.
Third, the evacuation of the civilian population must be carried out within the occupied territory. Israel is internationally recognized as the occupying power in Palestine – the West Bank, including East Jerusalem, and the Gaza Strip (See UNGA, A/ES-10/L.25, para. 5, ICRC). The UNGA has rejected any Israeli attempts to forcibly transfer the Palestinian civilian population as Israel has not created any ‘safe places in Gaza’ and thus the question is where should these civilians go? This is an indication that Israel is conducting a mass forcible transfer of civilians. Given that Gaza and the West Bank, including East Jerusalem, are internationally recognized as occupied Palestinian territory, the civilians of Gaza must be allowed into the West Bank, including East Jerusalem. This step must come before pushing Gazans to evacuate to the Egyptian Sinai Peninsula, which lies outside the occupied territory.
Putting this in context, Palestinians in the Gaza Strip fear that they will never be allowed to return, repeating their displacement in the 1948 Nakba and 1967 War. Notably, more than 75% of the population of Gaza are refugees from what is known as Israel today and to whom “Israel has denied the right of return since 1948.” According to paragraph 2 of Article 49, an evacuation may “not involve the movement of protected persons to places outside the occupied territory, unless it is physically impossible to do otherwise.” If Palestinians are to be evacuated to an area outside the occupied territory, they should be evacuated to Israel – as an obligation bearer – via one of the two main crossings between Israel and Gaza and offered a safe place with satisfactory conditions until the hostilities come to an end. This would be the safest option for civilians in Gaza before they can be allowed to return to their homes.
Under the assumption that the evacuation of civilians is imperative for their safety and a military necessity, evacuation orders can be legal. Nevertheless, evacuation orders must comply with the provisions on safety and the occupying power must ensure that safeguards are in place so that the safety conditions can be met. These conditions include the safety of civilians as well as proper food, shelter and hygiene. If these conditions cannot be practically achieved in the Gaza Strip, then civilians may be evacuated to other parts of the occupied territory, namely the West Bank, including East Jerusalem. Otherwise, it is legally the responsibility of Israel, the occupying power, to create the required safe conditions for Gazans, which means welcoming them to Israel until the end of the hostilities. The current situation cannot be perceived as meeting any of the legal requirements within the meaning of Article 49 of the Fourth Geneva Convention concerning the treatment of civilians in times of war. In fact, it can only be seen as mass forcible transfer of civilians which is prohibited under the said Article.