On Oct. 13, the Israel Defense Forces (IDF) announced that they were issuing a “call for the evacuation of all civilians of Gaza City from their homes southwards for their own safety and protection [to] move to the area south of the Wadi Gaza, as shown on the [accompanying] map.” Over at Articles of War, Professor Michael Schmitt recently published an analysis of the IDF’s call. In it, the author found that: (i) the call could not constitute forced displacement, as the Israeli action was not an “order,” since Israel has no authority to “order” the residents of Gaza to do anything with Hamas controlling the area de facto; (ii) the IDF told the civilian population what to do to avoid harm from attack, and therefore impliedly did not forcibly displace them southwards; and (iii) the Israeli strikes and other operations were not displacing the civilian population to a significant degree prior to the call to evacuate, so Israel urged the residents to head south as a precaution for their welfare and delayed its entry into Gaza.
Notably, the author’s analysis was largely devoid of reference to the significant humanitarian crisis currently unfolding in the Gaza Strip. On Oct. 9, Israeli Defence Minister Yoav Gallant declared in a video statement, “We are putting a complete siege on Gaza … No electricity, no food, no water, no gas – everything is closed.” Indeed, according to the Commissioner-General of UNRWA, no water, wheat, or fuel has been allowed to enter Gaza since October 7. The Commissioner-General further warned that, unless supplies were brought in immediately, UNRWA and aid workers would be unable to continue humanitarian operations. Moreover, civilian infrastructure, including numerous health facilities and schools, continues to be struck by bombardment.
It is against this stark backdrop that the IDF had announced its call for civilians to evacuate last Friday. This article contributes to the analysis by exploring whether the IDF’s announcement solely constitutes an (effective) advance warning to civilians, as found by the author (Schmitt), or whether it may amount to an “order” to displace them. The present analysis is limited to the IDF’s announcement itself and does not cover the Hamas attacks and hostage-taking that began on Oct. 7, which unequivocally constitute egregious war crimes, crimes against humanity, and acts intended to spread terror among the Israeli civilian population. This contribution concludes with pragmatic, humanitarian considerations that underpin international humanitarian law (IHL) as it relates to the announcement.
Advance warnings versus forced displacement
Although the authority of the ICRC Customary IHL Study itself has been the subject of justifiable scrutiny, for purposes of this article as well as in responding to the author, the two relevant rules relied upon are:
(i) Rule 20. “Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit;” and
(ii) Rule 129(B). “Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.”
As the author of the original comment does not view the Israel-Hamas conflict as being international in character, this article does not address the prohibition of forcible transfer within occupied territory.
Regarding the determination of whether the IDF’s call for civilians to evacuate may amount to forced displacement as an “order” to displace them, the author begins his legal analysis by stating that, under ICRC Rule 129(B):
The Israeli action is not an “order,” as Israel has no authority to “order” the residents of Gaza to do anything. Hamas controls the area de facto and could (and should) issue and enforce such an order.
This is an exceptionally narrow interpretation, according to which belligerents who are not in control over an area or lack command authority could somehow never commit the IHL violation or corresponding war crime of forced displacement. The author’s argument assumes a strict “order” requirement under customary international humanitarian law, overlooks directly relevant case law by international criminal tribunals, and downplays notions of voluntariness.
Firstly, in the announcement, the IDF called for an “evacuation of all civilians of Gaza City from their homes southwards.” Noticeably, ICRC Rule 20 on Advance Warning does not reference communicating to civilians where to go with such specificity. Secondly, the call informs residents that they “will be able to return to Gaza City only when another announcement permitting it is made.” Arguably, this language of permission suggests a claim of authority to “order” the residents of Gaza. Thirdly, regarding the requirement itself of an “order” to displace under ICRC Rule 129(B), State practice and opinio juris demonstrate that the customary prohibition of forced displacement also covers displacement which is not the result of an “order.” Fourthly, even if an “order” were required under customary international humanitarian law, construing the act of ordering to displace broadly as the involuntary movement of the civilian population is consistent with the original proposal at the 1972 Conference of Government Experts relating to displacement being “ordered or compelled” (p. 118). A similar position was also affirmed by the International Criminal Court (ICC) in the Ntaganda Appeal, which upheld the order requirement as being satisfied when instruction(s) were given to perform acts, the result of which the displacement of a significant proportion of the civilian population “would necessarily occur” (para. 544).
A pertinent question raised in Ntaganda was whether territorial control was a prerequisite to ordering the displacement of the civilian population as a war crime under article 8(2)(e)(viii) of the Rome Statute in the context of a non-international armed conflict. Article 8(2)(e)(viii) criminalizes “[o]rdering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand” – language virtually identical to ICRC Rule 129(B). The Appeals Chamber found that there was no requirement under “customary international humanitarian law that, to order the displacement of the civilian population in the context of a non-international armed conflict, the perpetrator must be in occupation of, or exercise territorial control over, the relevant area” (para. 550). It further held that “whether the person is in a position to give effect to an order to displace the civilian population is a question of fact that depends primarily on the position occupied by the accused person and his or her duties and responsibilities, including his or her ability to ensure compliance with his or her orders” (para. 559).
Ultimately, displacement hinges on notions of voluntariness, the criteria for which has been narrowly construed and circumscribed by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the analogous context of the crime against humanity of deportation or forcible transfer: “The forced character of the displacement is determined by the absence of genuine choice by the victim in his or her displacement. As such, while persons may consent to, or even request, their removal, any consent or request to be displaced must be given voluntarily and as a result of the individual’s free will, assessed in light of the surrounding circumstances of the particular case” (para. 489).
Giving effect to an “order” to displace through acts of coercion in such a context might include the IDF’s repeatedly using the word “must” to communicate and qualify the parameters of both the insistence upon evacuation and possible return, as well as relentless attacks against civilians or civilian infrastructure, including schools and hospitals, coupled with the complete denial of humanitarian aid, which may be said to render life uninhabitable in a certain area.
Next, the author states that:
It is not a requirement that the population heed a warning. Indeed, there is no requirement to tell the civilian population what to do to avoid harm from the attack, as the IDF has done, only that it be warned that an attack is forthcoming.
It is completely accurate to state that the population need not heed an advance warning of attacks. Residents of Gaza City who did not or could not flee northern Gaza retain their civilian status and must not be erroneously viewed as directly participating in hostilities (or as counting any less in a proportionality analysis). The added inference by the author that the IDF announcing to the civilian population where to go is somehow going above and beyond the effective advance warning requirement under ICRC Rule 20, is curious. A more reasonable, or at the very least equally plausible, interpretation would be that by demarcating a specific area for civilians to move (i.e., south), their displacement was in fact being ordered.
The author next cites the commentary to Rule 129(B): “State practice … underlines the duty of parties to a conflict to prevent displacement caused by their own acts, at least those acts which are prohibited in and of themselves (e.g., terrorizing the civilian population or carrying out indiscriminate attacks).” He goes on to state:
But however one characterizes the Israeli strikes and other operations (legal or not), they were not displacing the civilian population to a significant degree. That is the very reason Israel has urged the residents to head south and delayed its entry into Gaza.
This observation is incomplete at best. It is premised on the idea that an advance warning directing a besieged civilian population, including the thousands wounded as well as sick persons, to a specific location for an undetermined duration is somehow inconceivably tantamount to forced displacement (would it be limited to the duration of a likely ground offensive?). Moreover, it is as probable that the IDF strikes were not displacing civilians because there was no reason for civilians to think they would be safer if they fled, and that the IDF strikes became coercive in tandem with the promise of safety to those who flee.
Next, pursuant to ICRC Rule 131, on the treatment of displaced persons: “all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety and nutrition and that members of the same family are not separated.” Indeed, some Gazan residents who evacuated to south and central areas after the IDF’s call have reportedly already been returning to Gaza City due to continued airstrikes and the unsatisfactory living conditions there. According to the latest update by the United Nations Office of the High Commissioner for Human Rights, others “who managed to comply with the Israeli authorities’ order to evacuate are now trapped in the south of the Gaza Strip, with scant shelter, fast-depleting food supplies, little or no access to clean water, sanitation, medicine and other basic needs.”
On the same point of living conditions, the author elected not to “take on the more legally and morally complex issue of the so-called siege,” though he “struggles to see how warnings that Gaza City is about to be attacked and civilians should leave can be characterized as anything other than actions designed to minimize loss of life and injury.” In addition to suggesting wounded and sick persons flee en masse without offering assistance and simultaneously blocking all aid including food, water, and fuel, recent armed conflicts – and particularly those characterized by siege warfare – are replete with examples of the belligerents coercing civilian movement under the guise of minimizing loss of life and injury.
In the Syrian context, for example, Government and allied forces devised an entire strategy around relocating civilians and engineering the political demographies of previously besieged enclaves after having bombarded civilian infrastructure, including objects indispensable to the survival of the civilian population such as hospitals. In addition to demographic engineering, the case law of the ICTY has clarified punitive/discriminatory intent by establishing a clear nexus between acts of forced displacement and persecution as a crime against humanity (para. 222). On this latter point, it is perhaps notable that, on Oct. 10, the IDF chief military spokesperson RAdm. Daniel Hagari stated that “hundreds of tons of bombs” had been dropped on Gaza, and that “the emphasis is on damage and not on accuracy.” On Oct. 13, Defence Minister Gallant echoed “Gaza won’t return to what it was before. We will eliminate everything.” Such statements have been accompanied by the use of dehumanizing language from senior military officials, equating Gazan civilians to “animals” or “beasts.” In the context of the analogous crime against humanity of forcible transfer, the ICTY has interpreted (para. 526) the deliberate destruction of civilian homes as indicia of the intent to permanently displace civilians.
More directly, in 2009, the Independent Fact-Finding Committee on Gaza to the League of Arab States found that during Israel’s Operation Cast Lead: “the main reason for the operation was … to engage in a vicious exercise of collective punishment designed either to compel the population to reject Hamas as the governing authority of Gaza or to subdue the population into a state of submission.”
Assessing the likelihood of forced displacement with more nuance is relevant for the determination of potential crimes against humanity, including persecution: in the present case, there has been an announcement for 1.1 million civilians to evacuate an area. This announcement is coupled with the ongoing denial of humanitarian aid, attacks against schools, hospitals, and other civilian infrastructure. It is therefore not difficult to imagine how calling for the complete evacuation of 1.1 million civilian residents to the south of Gaza for an undetermined period, in the context of a siege and without providing them (let alone, cutting off) even the most basic necessities required to sustain themselves, could ostensibly fulfill the criteria of persecution. Moreover, even absent the finding of a widespread or systematic attack against a civilian population required for a persecution analysis, experts have noted that the campaign being waged in Gaza already meets the analogous criteria for collective punishment, with one observing it to be “the most flagrant instance of unlawful collective punishment” he has witnessed in over two decades of working on the crime.
Beyond potentially punitive intent, another scenario portending forced displacement would be if Israel were seeking to create a military buffer zone in the north of Gaza, which would necessarily entail large-scale destruction, including of civilian infrastructure, as had been done by Government forces in various parts of Syria – thereby intentionally pushing the civilian population to south Gaza indefinitely. On October 16, more than 100 trucks carrying much needed aid had been waiting for days at the Rafah border crossing between Egypt and Gaza to provide cross border assistance. Over the past week, discussions on humanitarian access have evolved, with the build-up of aid convoys at Rafah and related discussions on deconflicting safe passages for civilian use. In this hypothetical scenario, “ordering” civilian displacement to the south and hinging aid relief and safe passage on their movement there could, for example, serve the broader strategy of establishing such a military no-go area in the north.
In short, the author appears to take some of the IDF’s stated purpose at face value, disregards other senior Israeli officials’ statements of more nefarious purposes behind these efforts, brackets the obvious context in which the IDF instruction to Gaza’s residents takes place, and does not leave adequate room for alternative factual findings before reaching his strong conclusions on legality.
Lastly, on the exceptions to forced displaced, namely the security of the civilians involved or imperative military reasons, the author concludes:
Israel is not moving the residents of northern Gaza or ordering them to move. But even if Israel were affirmatively forcing them to move, the fact doing so will lessen the risk of their being caught up in an urban battle would make the prohibition on forced displacement inapplicable. Furthermore, imperative military necessity would also justify the Israeli actions, for fighting in a battlespace where civilians and fighters are co-located dramatically complicates military operations; as the ICRC notes, evacuation to clear a combat zone is lawful.
For the reasons laid out above, and particularly with respect to the significant and increasingly manufactured humanitarian crisis currently unfolding in the Gaza Strip, this is an oversimplified conclusion. The IDF cannot justify forced displacement by invoking the security of civilians when the IDF is the source of their insecurity in the way it has carried out these operations. Nor does international law recognize imperative military reasons to make it easier to commit more unlawful attacks, such as intentionally bringing about a humanitarian crisis (para. 287 stating, “Although displacement for humanitarian reasons is justifiable in certain situations, the Appeals Chamber agrees with the Prosecution that is not justifiable where the humanitarian crisis that caused the displacement is itself the result of the accused’s own unlawful activity.”).
The foregoing analysis clarifies some of the contours of the “order” requirement under the customary prohibition of forced displacement (ICRC Rule129(B)). It further demonstrates that the interpretation of the IDF announcement as constituting an (effective) advance warning or an “order” to displace also depends both on the law and the facts viewed. Though humanitarian organizations continue to negotiate access with Israeli military officials, it remains to be seen whether the IDF will continue to enforce the siege to the extent it has over the past weeks. By not couching the analysis with reference to the humanitarian crisis currently unfolding in Gaza, and by not referencing plausible potential conduct such as punitive intent, the author’s original comment did not reflect all reasonable interpretations as to why the IDF’s announcement could conceivably constitute an “order” for purposes of forced displacement.