We asked several top law-of-war experts for their views on a statement made by a senior US official over the weekend. We sent them the following prompt, independently. Their responses are below.

Here’s the prompt:

White House Coordinator for the Middle East and North Africa Brett McGurk made an official presentation at the IISS Manama Dialogue Security Conference, held in Manama, Bahrain on November 18, 2023.

In those remarks, he described U.S. policy of conditioning the scale of humanitarian relief to Gaza on Hamas’ release of the hostages it has held since its Oct. 7 attacks in Israel. Would the policy described by McGurk be compatible with international humanitarian law?

The transcribed excerpt of his remarks are below. The most relevant passages are in red. (The full video is below, in which his remarks start at 27:00 and this section starts at 34:00):

It’s a top priority for the President who has spoken with families of U.S. citizens who are still being held. He spoke to the issue three nights ago with Prime Minister Netanyahu, and as I mentioned just last night with the mayor of Qatar.  I will not discuss the details of those discussions here, but they have been intensive and ongoing.

The track we have pursued led to the release of two Americans, a mother and a daughter, which was a pilot for what we hope will be a much larger release. Now, such a release of large number of hostages would result in a significant pause in fighting, a significant pause in fighting, and a massive surge of humanitarian relief — hundreds and hundreds of trucks on a sustained basis entering Gaza from Egypt.

And I have to say, Hamas from the earliest days has said, if you want the hostages returned, we need fuel, humanitarian, more humanitarian supplies. That’s the bargain they set. But this is the pathway to a pause in the fighting, the release of hostages.

And it’s also reasonable to pause the fighting, release the hostages, the women, the children, the toddlers, the babies, all of them. And the onus here is on Hamas. This is the path. Simply calling for a ceasefire is not a path to peace. Imagine if someone took your family members and then told you to get them back, you had to give them X, Y, and Z, whatever it might be, and you were being advised,  just give them X, Y, and Z anyway, without any promise that your family members would be released. That would be problematic. And that’s where we’ve been, and yet we have been working to get humanitarian aid into Gaza, increasingly.

But the surge in humanitarian relief, the surge in fuel, the pause in fighting, will come when hostages are released. Speaking of humanitarian relief, we are working to significantly increase assistance into Gaza.

And everybody working on this feels the pain and the emotion that Ayman laid out. Everyone, every day. It is horrific. It is intolerable, as the Crown Prince said yesterday.  And we are leading efforts to increase the flow of life-saving, sustained humanitarian assistance.

At the beginning of the crisis, of course, there were no border crossings into Gaza. And it was through our engagements that humanitarian aid begin to transit through Rafah from Egypt. President Biden’s visit to Israel opened the door to assistance. His direct conversations with President Sisi finalized a deal to finally get trucks moving from Egypt into Gaza. David Satterfield, our humanitarian coordinator on the ground, I just saw him the other day in Israel, working every day to surge as much support as possible. There are now approximately 100 trucks a day entering Gaza loaded with assistance, but it is not enough. Nobody says it’s enough. And we aim to double that amount as soon as possible, and then see it grow exponentially from there. But I want to just stress, the hostages are released, you will see a significant, significant change.

We have also committed 100 million dollars for these efforts.  We have a 14 billion dollar supplemental package before the Congress, which is indeed focused on defense needs for Israel against the myriad of threats it faces, but also a significant portion for humanitarian assistance for Palestinians and the people of Gaza.

This has been matched by a 100 million dollars from the GCC, a 100 million dollars from the EU, which is welcome. And the United States is the largest supporter of UNRWA, support by an administration restored two years ago after it was cut entirely by the last administration. And UNRWA remains the only reliable distribution network in Gaza. There’s no alternative. And this vital support from us will continue, and we call on others who expressed concern about the situation to do the same.

Tom Dannenbaum, Associate Professor of International Law at the Fletcher School of Law & Diplomacy, where he is also Co-Director of the Center for International Law & Governance:

Neither the safety and liberty of the hostages, nor the most basic needs of the population of Gaza may be instrumentalized to try to coerce the adversary to do what it ought to be doing. The hostages must be released unconditionally. Aid must be allowed in unconditionally.

The militants who abducted over two hundred people on the 7th of October have been engaged from that moment in the war crime of taking hostages. The crux of that crime is threatening to kill, injure, or continue detaining persons with the intent to compel a third party to act or refrain from acting as the condition for the hostages’ safety or release. Crucially, the criminality of this practice does not turn on whether the target of the coercion has an independent legal obligation to perform the demanded act. In other words, it applies as clearly to the taking of hostages to demand compliance with the law as it does to the taking of hostages to demand any other act or omission.  This is for the straightforward reason that the wrong inheres not in the nature of the demand, but in the unlawful instrumentalization of the hostages’ liberty or safety. Brett McGurk’s description of the Hamas negotiation position indicates that certain Hamas actors are engaged in precisely this crime – promising the hostages’ release only in return for the increased flow of aid. That position is indefensible. The hostages must be released unconditionally.

Since the announcement of a total siege on October 9th, Israel has, in my view, been engaged in the starvation of civilians as a method of warfare—itself a war crime. As I have argued previously, that crime can attach to the impeding of humanitarian relief (or any other deprivation of objects indispensable to civilian survival) in one of two scenarios:

  1. When (a) relief is blocked in order to deny its sustenance value and (b) the population deprived of that relief is civilian in character.
  2. Alternatively, when relief is blocked for reasons other than denying its sustenance value, but under conditions in which civilians are virtually certain to starve as a result of that obstruction.

It appears that both of these alternative forms of the crime are now applicable.

The total siege announced on October 9th included the deliberate deprivation of food, water, fuel, and electricity. There has been no credible explanation for the explicit targeting of food and water, other than for denying their sustenance value to the encircled population. Food, after all, just is sustenance. Under international humanitarian law, the population that has been targeted with that deprivation—the population of Gaza as a whole—is a civilian population notwithstanding the presence of combatants within it. Given the woefully inadequate supplies that have been allowed in since the partial opening of the Rafah border crossing two weeks into the siege (and the total lack of access to the population in northern Gaza), the continued impeding of all but a limited and insufficient flow of aid is most plausibly understood to be a continued policy of deliberate sustenance deprivation.

However, even if that were not the case, the situation has reached the point at which the inevitability of starvation as a result of continued impediments is now clear. The World Food Program stated on Thursday that the rate of aid being delivered to Gaza is enough to meet just 7% of the population’s daily minimum caloric needs. It warned that civilians across the territory now face “the immediate possibility of starvation.” In other words, the second scenario in which the crime attaches is now also applicable. Whatever the reason for the enduring impediments to the delivery of the needed level of humanitarian aid, it is now clear that the continuation of those impediments will cause civilians to starve.

Either way, Israel has a clear obligation to allow and facilitate the full necessary flow of humanitarian relief into Gaza. McGurk’s statement indicates that precisely such permission and facilitation is being withheld deliberately to coerce Hamas into releasing the hostages. Indeed, he suggests it would be “problematic” to capitulate to Hamas’ demand for the delivery of aid without insisting on the release of the hostages (as promised in the group’s threat).

However, Israel’s obligation to allow aid in has nothing to do with Hamas’ demand for aid. It is grounded not in a deal between the belligerents, but in Israel’s obligation to the civilians of Gaza not to inflict upon them the torturous suffering of mass deprivation. Just as the safety and liberty of hostages may not be instrumentalized to coerce Israel to comply with its legal obligation to allow in the necessary level of aid, so too the urgent and essential needs of the population of Gaza may not be instrumentalized to coerce Hamas to comply with its obligation to release the hostages. One war crime cannot be used to try to bring about the cessation of another. The hostages must be released unconditionally. Aid must be allowed in unconditionally.

A final note: although IHL does not impose specific obligations on third states to provide the necessary aid, all states have a duty to allow and facilitate the rapid and unimpeded passage of the aid that is available for delivery. Separately, those states with influence over Israel have a duty to use that influence to ensure the latter’s compliance with IHL, including by insisting that it allow humanitarian aid in and that it refrain from using starvation of civilians as a method of warfare. Those states or individuals who knowingly make a substantial contribution to the latter practice risk becoming complicitly liable for that violation.

Janina Dill, Dame Louise Richardson Chair in Global Security at the Blavatnik School of Government, Fellow at Trinity College and Co-Director of the Oxford Institute for Ethics, Law, and Armed Conflict:

Indeed, Israel has a legal obligation to “allow and facilitate rapid and unimpeded passage of humanitarian relief” to the civilian population of Gaza. Whether Gaza was, prior to the current escalation, occupied by Israel is a complicated question. But even if Israel is not considered an occupying power with a positive obligation to supply the population of Gaza, it has an obligation not to impede humanitarian relief offered by impartial actors. While parties to a conflict have to give their consent to such relief operations, this consent must not be withheld arbitrarily.

Here withholding consent would be arbitrary (in the legal not the colloquial sense of the word) because it violates other rules of international law, namely the basic human rights of Palestinian civilians. Moreover, early on Ministers Katz and Gallant declared their intention to deprive the population of Gaza of basic necessities in order to compel Hamas. Withholding consent and thereby “wilfully impeding relief supplies” hence potentially also violates the prohibition on using starvation as a method of war (Article 8(b)xxv).

Military considerations can be a reason to withhold consent to humanitarian access, but Israel has repeatedly stressed that Hamas is a) well supplied and b) uninterested in the fate of Palestinian civilians. It is therefore unclear how impeding the flow of fuel, food and water to these civilians can be militarily necessary. If Israel is right, withholding relief is unlikely to limit Hamas’ ability to conduct military operations or influence its decision-making. Even if it had military value, further depriving the civilian population would be disproportionate given the humanitarian catastrophe unfolding in Gaza.

Let me also stress that Mr. McGurk mischaracterises the structure of the moral problem Israel faces. Israel does not owe Hamas (the hostage takers) food, fuel or water. Its legal and moral obligation not to impede humanitarian relief is to the civilian population of Gaza. “Imagine if someone took your family members and then told you to get them back, you had to give them X, Y, and Z” and you deprived a third party of X, Y, and Z, a third party that had no control over whether the hostages are released but that needed X, Y, and Z to survive.

The only morally and legally defensible outcome is the unconditional release of all hostages by Hamas and the unconditional accommodation of humanitarian relief by Israel. Human beings are not bargaining chips.

Adil Ahmad Haque, Executive Editor at Just Security and Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School:

The policy described by Brett McGurk, in prepared comments, is incompatible with international humanitarian law and may amount to a war crime. Under international humanitarian law, Hamas must release all hostages immediately and unconditionally. At the same time, Israel must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, immediately and unconditionally. These are independent, categorical obligations that do not depend on reciprocity of any kind. There can be no quid pro quo. Israeli hostages and Palestinian civilians are human beings, not bargaining chips.

It is a war crime to use starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including by wilfully impeding relief supplies. McGurk’s comments indicate that Israel is impeding relief supplies, not out of security concerns (for example, concerns that Hamas might seize a fuel shipment), but in order to make Palestinian civilians suffer, so that Hamas will feel compelled to release hostages. This would likely satisfy the elements of the crime.

The policy also seems incoherent. McGurk says that Hamas “has no regard for the people of Gaza.” Then why expect that Hamas will change its behavior in order to relieve their suffering?

Finally, and perhaps most importantly, this policy is morally repugnant. The suffering of Palestinian civilians is intended as a means to an end, not merely foreseen as a side-effect. It responds to Hamas’ unlawful taking of hostages by unlawfully taking hostage the entire civilian population of Gaza. The Biden Administration’s support for this policy is a disgrace.

Yousuf Syed Khan, a Senior Lawyer with Global Rights Compliance:

As a preliminary matter, conditioning the scale of humanitarian relief to Gaza on Hamas’ release of the hostages should not be erroneously qualified as a “bargain [Hamas] set.” Rather, this is an egregious violation of international humanitarian law. While Geneva Convention IV addresses humanitarian relief during occupation and blockade, under customary international humanitarian law (IHL) applicable in both international non-international armed conflicts, “parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.” This means that Israeli authorities have the right to verify the humanitarian nature of supplies. There is therefore no principled legal reason rooted in IHL for such conditioning. Violations by one party to the conflict – in this case hostage-taking – do not obviate the obligations of the other. Moreover, allowing for the facilitation and provision of humanitarian aid to the civilians of Gaza would not amount to the kind and degree of harm required to qualify as their direct participation in hostilities – meaning food, water, or fuel, in and of itself, should not be erroneously viewed as somehow tilting the military balance in favor of Hamas, even in the context of a siege. What is most disturbing about this policy is that it serves as almost a tacit admission of the use of starvation as a method of warfare, and bears the explicit hallmarks of collective punishment. Attempting to invoke emotions by urging others to imagine their own family members taken hostage, and, in turn, justifying the denial of sufficient humanitarian aid and relief to some two million Gazan civilians, while hinging such aid on the release of hostages taken by Hamas, is completely antithetical to the spirit and purpose of international humanitarian law.

Michael Meier, Visiting Professor at the Emory University School of Law, where he is also Acting Director of the Emory International Humanitarian Law Clinic; former senior civilian adviser to the U.S. Army Judge Advocate General on matters related to the Law of Armed Conflict:

The possible agreement between Israel and Hamas of a release of hostages and a pause in the fighting in order to increase humanitarian aid entering Gaza is welcome news.  However, my concern with the statement by Brett McGurk is conditioning the increase in aid to the release of the hostages.  Although the result will be positive, neither of those conditions should be contingent upon the other.  Two wrongful acts do not make the positive outcome right under the law.

As I and my co-authors noted in a previous post, the taking of civilian hostages by Hamas is strictly forbidden at all times, by all parties, and would constitute a war crime in both international and non-international armed conflict. Under international humanitarian law, Hamas needs to immediately release all hostages regardless of whether there is an increase in humanitarian aid.

With respect to Israel, it must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction. Though the consent of Israel may well be required, it cannot be withheld arbitrarily. This means that Israel has a right to ensure that humanitarian relief is provided to the Palestinian civilians as well as the hostages taken from Israel on October 7 versus being used for Hamas military operations. The ICRC Commentaries to Additional Protocol I provides that “[t]he fact that consent is required does not mean that the decision is left to the discretion of the parties. If the survival of the population is threatened and a humanitarian organization fulfilling the required conditions of impartiality and non-discrimination is able to remedy this situation, relief actions must take place.”  Mr. McGurk notes that the current humanitarian assistance is “not enough.  Nobody says it’s enough.” Accordingly, Israel has an obligation to allow and facilitate the humanitarian aid to those civilians even if the hostages are not released.

Fionnuala Ni Aolain, Executive Editor at Just Security and Regents Professor Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; former  U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism:

I welcome the urgency and concentration with which the United States is addressing the imperative to release hostages. Hostage taking is the most cruel of international law violations, universally condemned across legal systems and cultures.  Regrettably however, it appears that impartial humanitarian access, an absolute and uncontested imperative of international humanitarian law, is being rhetorically and practically held hostage to the release of those same hostages.  Recalling the preamble to the 17th International Law (Stockholm) Conference of the Red Cross in 1948 the most fundamental obligation of all States is to “protect civilian populations from the horrors of war.”  States should not be in the business of bartering fundamental obligations to provide humanitarian relief against the desired actions of other Parties to a conflict.  Allowing for impartial humanitarian relief is an obligation of all Parties to conflict, including States with influence — who can through their words and deeds, advance overall respect for international humanitarian law. I profoundly fear that this kind of trading language diminishes the protection of civilians in all conflicts, not only in Gaza today.

Jelena Pejic, Member of Just Security‘s Board of Editors, 2023 Lieber Scholar at the Lieber Institute at West Point, and former Senior Legal Adviser in the Legal Division of the ICRC in Geneva:

Hostage-taking was among the several apparent war crimes committed on October 7 by members of Hamas and affiliated armed groups in Israel’s border regions with Gaza. Hostage-taking may be  defined as “the seizure, detention or otherwise holding of a person (the hostage) accompanied by the threat to kill, injure or continue to detain that person in order to compel a third party to do or to abstain from doing any act as an explicit or implicit condition for the release, safety or well-being of the hostage.” As is well known, the majority of persons taken hostage in Hamas’s savage operation that day were civilians. But, members of the armed forces – in this case of the IDF – can be hostages too, if the aim of their detention is coercion as described above. Hostage-taking is a well-established crime under international law. It is prohibited under both treaty and customary IHL regardless of the type of armed conflict involved and is listed as a war crime under the ICC Statute in both international and non-international armed conflict.

Thus, as matter of law, Hamas has an obligation to immediately and unconditionally release all the hostages it is holding.

Three days after Hamas’s October 7 raid Israel’s Defense Minister announced a total siege of Gaza, which included a prohibition on humanitarian access and assistance to the Palestinian territory.  The unbearably tragic humanitarian consequences of this approach – which has since been somewhat eased, but by no means sufficiently – on the civilian population of Gaza have been plain for all to see. The question is what are Israel’s obligations in relation to humanitarian relief operations. If Israel is considered still to be in occupation of Gaza (as some claim), it is has a duty under IHL to itself provide for the needs of the population to the fullest extent of means available to it. If Israel ceased being an occupying power when it largely, but not completely disengaged from Gaza in 2005 (as others claim), it must allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need offered by impartial third parties, subject its right of control.  This obligation attaches to any side involved in an armed conflict, whether international or non-international, as a matter of customary IHL.

Thus, as a matter of law, humanitarian relief operations for civilians in need must either be undertaken, or allowed by Israel.

It may also be noted, without any judgment on the facts of the current conflict, that it is a war crime in international armed conflict under the ICC Statute to intentionally starve civilians as a method of warfare, including by wilfully impeding relief supplies as provided for by the Geneva Conventions.

Hostage-taking and denial of humanitarian relief are standalone violations under IHL. This body of norms does not operate reciprocally in the sense that a transgression by one side would permit a violation by the other, because its primary aim is the protection of civilians, in the present case both Israeli and Palestinian. The fact that the parties to the ongoing armed conflict, as well as external actors such as the US and Qatar are discussing the release of a certain number of hostages for a “surge” in humanitarian relief operations is thus not a legal, but eminently political issue.  The necessity and wisdom of it are beyond the scope of these brief remarks.

IMAGE: (L to R) Israel’s National Security Advisor Eyal Hulata, Director-general and chief executive of the International Institute for Strategic Studies (IISS) John Chipman, US White House Coordinator for the Middle East and North Africa Brett McGurk, and the German Social Democratic Party’s Spokesperson on Foreign Affairs Nils Schmid attend the 17th IISS Manama Dialogue in the Bahraini capital Manama on November 21, 2021. (Photo by MAZEN MAHDI/AFP via Getty Images)