In the aftermath of the atrocities committed against the Israeli population by Hamas fighters on October 7, 2023, hostilities between the State of Israel’s military and the terrorist group have escalated to unprecedented heights. The entire Gaza Strip has been subjected for an extended period of time to a hermetic siege, while experiencing the heaviest bombardment in the conflict’s history. Living conditions in the Gaza Strip have since deteriorated severely for its dense population of around 2 million. The announcement of the “complete siege,” given by Israeli Defense Minister Yoav Galant on October 9, 2023, was quickly followed by dire shortages of all necessary supplies for sustenance of the civilian population and drew international calls for swift humanitarian relief action.
Twelve days after Israel had implemented its siege and restricted access to the Gaza Strip, Israeli Defense Forces (IDF) seemingly began to allow for some humanitarian aid to reach civilians. As of October 21, 2023, convoys carrying essential subsidies had been granted safe passage through Rafah Border Crossing from Egypt. While relief groups and Israel’s allies have considered the quantity of these freights insufficient and food shortages are reportedly reaching dire proportions, another remaining flashpoint is the question of fuel. Indeed, one item that Israel has consistently expressed reluctance to allow into Gaza (despite multiple pleas by humanitarian organizations on site) is fuel, arguing it may be hoarded by Hamas fighters instead.
On November 3, 2023, former Prime Minister Naftali Bennett urged on the platform X that “not one drop of fuel” be provided. Yet, on November 17, 2023, 129,000 liters of fuel and four trucks of gas were granted passage into the Gaza Strip, with Israel promising to let more through. This policy shift followed U.S. diplomatic efforts to convince Prime Minister Benjamin Netanyahu’s war cabinet that the current path may lead to an uncontrollable outbreak of epidemics. Some of Israel’s far-right coalition members immediately expressed their opposition to the order, with National Security Minister Itamar Ben Gvir stating that the war cabinet “is leading Israel to a wrong policy.” Other members of the governing coalition also deemed the passage of fuel into the Gaza Strip “a grave mistake,” calling upon Prime Minister Netanyahu to reverse the decision.
Since then, Israel’s willingness to allow fuel deliveries into areas in need appears to have receded. Though information on the state of deliveries is scarce, COGAT, the Israeli Defense Ministry agency coordinating aid deliveries with providers, is reportedly “not refusing anything that is underneath four headlines: food, water, medical supplies and shelters.” Fuel is not on that list. The UN Office for the Coordination of Humanitarian Affairs reported earlier this month that “planned missions to deliver vital fuel to water and sanitation facilities in Gaza City and the north, have been denied by the Israeli authorities.”
Against this backdrop, it seems worthwhile to investigate whether International Humanitarian Law (IHL) permits a refusal of access to fuel on Israel’s end, all while understanding Israel’s security needs and the legal rules that permit some forms of siege warfare.
For the purposes of this analysis, I assume that the Gaza Strip is not currently occupied by Israel (others disagree) and that the conflict between Israel and Hamas is of an atypical yet non-international character. These issues are, however, highly contested. The Israeli Supreme Court conversely concluded that the conflict with Hamas is of an international nature (ibid., para. 16). It should also be noted that the IDF claim Israel “conforms to more stringent obligations that are applicable to IACs [international armed conflicts] only”.
Relief action: an overview of the relevant rules of IHL
IHL prohibits the starvation of civilians as a method of warfare. This prohibition is enshrined in articles 54 para. 1 of Additional Protocol I (AP I), article 14 of Additional Protocol II (AP II), and customary international humanitarian law. While it is undisputed that these provisions cover the willful starvation of civilians, it is less clear how the law applies to the pursuit of a military goal leading to its incidental causation. As I have argued elsewhere, sieges are not per se prohibited under these regulations, but there is an absolute red line that may not be crossed: As soon as civilians are in need, meaning “in fact” inadequately supplied for survival, “denying access of humanitarian aid … may constitute [a violation] of the prohibition of starvation,” as the ICRC explains. Consequently, though Israel is neither a State Party to AP I or AP II, Israel could be required under customary international law to provide or allow for civilians to receive necessary humanitarian aid, if its affirmative conduct – such as a “complete siege” – may otherwise cause mass starvation.
For States Parties, the obligation to deliver humanitarian aid is laid out in article 70 para. 1 AP I and article 18 para. 2 AP II. These rules state that relief action shall be undertaken subject to the agreement or consent of the parties to the conflict concerned. Article 23 para. 2 of the Fourth Geneva Convention, which (given its customary nature) applies universally, also upholds that a party to the conflict may satisfy itself that there are no legitimate reasons to deny access to humanitarian aid or to otherwise withhold consent. Mirroring these provisions, the 2005 Customary International Humanitarian Law Study by the ICRC (hereinafter: ICRC Study) observes a general obligation to deliver humanitarian aid, stretching beyond States Parties to the relevant accords. Rule 55 of the ICRC Study also maintains the customary nature of the requirement of consent by the parties concerned (more on the meaning of “parties concerned” below). To this end, the Study indicates that consent to humanitarian relief action “must not be refused on arbitrary grounds.” While I will address some counter-arguments to this threshold of arbitrariness below, the ICRC Study, which is now continuously updated online, indicates that State practice supports this rule’s general acceptance in both international and non-international armed conflicts.
In order for Israel to be required to allow fuel into the Gaza Strip, three conditions need to be met:
First, fuel must qualify as a necessary item in terms of relief action for the sustenance or survival of the civilian population;
Second, Israel must be responsible for facilitating access to the civilian population in the Gaza Strip;
Third, there would have to be no lawful reasons for Israel to refuse consent.
This third element also raises a threshold question whether Israel’s consent is required for transit that occurs completely outside its own territory. I will discuss these matters at length.
Does fuel qualify as a necessary item in this case?
To summarize the relevant provisions on relief action, there can be no arbitrary refusal to deliver humanitarian aid if a civilian population is insufficiently supplied. However, the exact contours of this obligation remain vague. In concrete terms, it is unclear what types of supplies need to be delivered to a suffering population. Article 70 para. 1 AP I and Rule 55 of the Study list no specific items at all, mentioning solely “humanitarian relief” or “consignments” respectively. Article 18 para. 2 AP II explicitly names “foodstuffs and medical supplies,” while article 23 para. 1 GC IV is more extensive, referring to “medical and hospital stores and objects necessary for religious worship” as well as “essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.” Neither fuel nor electricity are mentioned in any of these regulations, begging the question whether they might be excluded in general or entirely.
In its Report on IHL and the challenges of contemporary armed conflicts (2015), the ICRC took special note of humanitarian activities. According to the Report, they “have both an assistance and a protection dimension. Humanitarian activities are therefore all those aimed at preserving life and security or seeking to restore or maintain the mental and physical well-being of victims of armed conflict” (ibid., at 136 (emphasis added)). This definition points toward what international organizations may offer, which is not necessarily what needs to be made accessible by parties to the conflict. Yet, referring to all humanitarian activities preserving life and security, or the wellbeing of civilians favors an open, case-by-case view of the services included. In a similar vein, the 1987 Commentary on article 70 para. 1 AP I discusses the rule’s imprecise character, while arguing this lack of precision is justified: “The need for a relief action and the extent of its urgency must be assessed in every case individually, depending on the real requirements. It is the ‘essential’ character of such requirements that must be the determining factor. This is a matter of common sense which cannot be formulated in precise terms” (ibid. at 2794 (emphasis added)).
Since Israel is not a State Party to the Additional Protocols, the customary counterpart to relief action and its scope matter most here. As is hinted at concerning Rule 55 of the Study, “[t]here is practice which recognizes that a civilian population in need is entitled to receive humanitarian relief essential to its survival” (emphasis added). The short, unspecified comment speaks to a rather open obligation. As the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict (hereinafter: Guidance) also stipulates, “the determination of whether the civilian population is inadequately supplied with items necessary for its survival needs to be made on a case-by-case basis” (ibid., at 19). This seems appropriate, seeing as the manifold types of subsidies civilians may require for survival could not be cast into an exhaustive list.
It is therefore crucial to take into account how the circumstances of any given conflict affect the needs of the implicated civilian population. Consequently, access to fuel would need to be essential to the survival of the civilian population in the Gaza Strip for it to qualify as part of necessary relief action.
OCHA has collected data on the power supply in the Gaza Strip since 2017. A chart presenting the situation of supply versus demand shows that, since then, almost two thirds of the available power has consistently come through Israeli lines. The rest has been provided by the Gaza Power Plant, which is operated on fuel or gas. On October 11, 2023, the power plant ran out of fuel, leading to a collapse of the entire energy supply in the Gaza Strip. Overflowing hospitals have since then come under extreme duress to keep patients alive and civilians are struggling to feed themselves amid the shortages. Beyond this, the desalination plants in Khan Younis and Deir al-Balah shut down because of the lack of fuel needed for generation, leading to risks of dehydration and waterborne disease. An OCHA representative stated on November 13, 2023 that “due to the lack of fuel, as of tomorrow the operations of receiving trucks will no longer be possible,” rendering all other necessary humanitarian relief action useless if no fuel is provided as well.
There is other strong evidence that fuel is considered an essential element of humanitarian assistance in the current conflict. When the UN Security Council passed Resolution 2712 (2023) concerning humanitarian pauses and corridors in Gaza on November 15, 2023, it included “water, electricity, fuel, food, and medical supplies” as essential goods important to the wellbeing of civilians, with several countries such as France, Russia, and China expressly mentioning these items in their accompanying statements on explanation of their votes. Beyond this, the Security Council demanded “the provision of fuel to Gaza at levels that will meet requisite humanitarian needs” in operational paragraph 8 to Resolution 2720 (2023), underlining the central role of fuel in alleviating the humanitarian crisis in Gaza.
In light of this, it appears access to fuel has become vital to the population in Gaza. It accordingly constitutes an essential item to civilians along the lines of the rules outlined above. Providing fuel counts as necessary humanitarian relief in this particular armed conflict.
Who holds humanitarian responsibilities concerning the civilian population in Gaza?
Before analyzing whether Israel may lawfully withhold its consent to facilitate access to fuel, it is paramount to discern the scope of the State’s responsibility for the civilian population in Gaza. According to Dapo Akande and Emanuela-Chiara Gillard, “[p]rimary responsibility for meeting the needs of civilians lies with the party to the conflict in whose control they find themselves” (ibid., p. 487). In this case, one might question whether Hamas could be primarily responsible to provide civilians in Gaza with necessary supplies, including fuel.
As the Guidance points out, while States party to a conflict are more likely to be in a position to provide aid, “organised armed groups are under the same obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief supplies, equipment, and personnel by taking all appropriate measures” (ibid., at 58). As a prerequisite, the armed group in question must “exercise effective control over territory” (ibid., at 15). In line with the assumption that Israel no longer occupies Gaza, Hamas has taken over effective control of the territory and its population. As the dominant political party since its ascendance in June 2007, the group “has a far greater ‘ability’ to exercise control over Gaza than Israel does” (Samson, p. 960). Somewhat in agreement, the United Nations Human Rights Council in 2009 also discerned that Hamas exercises government-like authority and is “obliged to respect human rights norms when their conduct affects the human rights of the individuals under their control.” (UN Doc. A/HRC/10/22, p. 8). Hamas accordingly carries responsibility for the population in Gaza by international legal standards. When considering who is responsible to fulfil the civilian population’s needs, Hamas may be called upon as primary.
The question, then, is whether Hamas can on its own supply the population with fuel. For some time, Israeli and U.S. officials seemed to believe the group could. On November 2, 2023, U.S. Secretary of State Antony Blinken testified before Congress that “Hamas has its own supply stockpile of fuel. … If it cared a whit about the people of Gaza, it would make sure itself that it used that fuel to have the hospitals be able to operate the incubators, stay turned on, etc. But, of course, it doesn’t.” Up until November 17, 2023, Israel disregarded pleas for fuel by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and instead repeatedly referred the UN agency to Hamas, at least that was before the temporary ceasefire between November 24 and December 1, 2023. Back then, Israeli officials estimated that Hamas hoarded approximately 200,000 gallons of fuel, with former national security adviser Eyal Hulata stating that “Israel is not blocking humanitarian aid into Gaza; it’s blocking the fuel Hamas needs to fight Israel.”
However, as of now, Hamas appears either unwilling or unable to support civilians in Gaza with the aid they need. As has been outlined above, circumstances have for years been strenuous, already making the Gaza Strip and its population largely dependent on international aid before October 7, 2023. As the UNRWA announced in August, clean water was unavailable to nearly 95 per cent of the population and there were already regular power shortages and widespread food insecurity before the recent outbreak of hostilities. In addition, the vast amounts of fuel allegedly held by Hamas would have assuredly been depleted at some point. According to OCHA, that point arrived on November 13, 2023 when the lack of fuel began jeopardizing other relief operations on which the people in Gaza depend.
While Hamas is therefore either accountable for noncompliance with its obligation under international law or itself out of fuel, it appears they are not supporting civilians with the aid the people require. To ensure the survival of the civilian population in Gaza, outside actors must presently provide those civilians with essential items.
Whose consent counts: Is Israel among the Parties “concerned” when considering humanitarian relief via Egypt?
Having established that external humanitarian assistance including fuel is necessary for the survival of civilians in the Gaza Strip, it is essential to determine if it is required to obtain Israel’s consent to such relief action, or whether Israel’s approval may be bypassed. Egypt shares a border with the Gaza Strip and relief action is already coordinated and delivered via the Rafah Border Crossing. There may be no legal requirement whatsoever to obtain Israel “consents” to the delivery of humanitarian aid, including fuel, through Egyptian territory.
To this end, IHL determines that humanitarian assistance must be allowed subject to the consent of the Parties “concerned” (article 70 para. 1 AP I, 18 para. 2 AP II), as is also held in Rule 55 of the ICRC Study. When it comes to “cross-border operations” (a term referring to “the provision of assistance from third states,” ibid., p. 4), who qualifies as a Party “concerned” depends on the international or non-international character of the armed conflict in question. For international armed conflicts, the ICRC’s 1987 Commentary on article 70 para. 1 AP I accepts that a State participating in the hostilities “through whose territory relief consignments do not have to pass, is not among ‘the Parties concerned’ in the sense of this paragraph” (ibid., at 2806 (emphasis added]). The ICRC’s Report on IHL and the challenges of contemporary armed conflicts (2015) also put forth that “the opposing party does not need to be asked to consent to relief operations that take place in the adversary’s territory or in territory controlled by the adversary” (ibid., p. 28). This appears reflective of customary standards by which a civilian population in need is “entitled to receive humanitarian relief essential to its survival, in accordance with international humanitarian law.”
Whether such “cross-border operations” have the same implications for the parties to non-international armed conflict is complex and subject to more debate. The universally applicable Common Article 3 of the GC of 1949 relating to non-international armed conflicts does not mention requirements of consent or approval. Any High Contracting Party to AP II might also not be “concerned” and therefore bypassed in cases where relief action is possible from a third State. Pursuant to the reasoning relating to international armed conflicts, it has been argued that the State party to an internal conflict is not among those “concerned,” since “de facto control … forms the basis of the consent requirement and constitutes the ‘concern’ of a party to the conflict” (Bothe, p. 94). However, such non-international armed conflicts usually entail an organized armed group seizing control over territory from a sovereign State bordering with a third, uninvolved State. Relief action conducted in line with the interpretation outlined above would arguably negate the affected State’s sovereignty over territory taken by a factious group (Schaffer, p. 75; see also Gillard proposing a compromise between the interpretations, pp. 366-367).
Notwithstanding these considerations, those arguments made in reference to non-international armed conflicts clearly do not apply to the hostilities at hand. Though the armed conflict between Israel and Hamas (as held here) does not qualify as an international one, it is not comparable to other conflicts of a typical non-international character. The unique circumstances of the hostilities unfolding in the Gaza Strip are highly particular and must be considered. Hamas is in control over territory designated to corporealize the Palestinian People’s Right to Self-Determination. And even without that concept, Israel’s sovereign territory does not extend to these areas. Israeli State sovereignty is accordingly not part of the equation when considering cross-border deliveries into the Gaza Strip from Egypt. In light of this, it seems most convincing to conclude that Israel’s consent to humanitarian assistance from Egypt is, de jure, not a requirement.
Nonetheless, at least until November 17, 2023, the IDF specifically said that it opposed access to fuel because militant groups in the Gaza Strip “use [it] to propel the rockets they manufacture and fire into Israel, as well as for vehicles the fighters drive during operations.” The role fuel plays within this armed conflict is of a particularly sensitive nature. On the one hand, it could provide a lifeline to the suffering civilian population in Gaza. On the other, it may significantly support militant efforts by Hamas and weaken Israel’s own position in the armed conflict. That is, fuel in the hands of Hamas may directly contribute to the amount of force the group can apply against the Israeli population as well as the State’s military. When it comes to other necessary items such as food, water, or medical supplies, they may also fall into the adversary’s hands; but this could not by itself lead to direct harm. Fuel in the hands of an adversary has an entirely different violent potential. The risk taken when given access to fuel is hence significantly higher and of a different nature. It is questionable whether these concerns are entirely negligible as a legal matter, even if Israel’s consent to fuel deliveries from Egypt is not required by law.
This issue is highlighted when looking at matters of consent to fuel deliveries conducted from Israel’s own territory.
Does Israel have to allow access to fuel through Kerem Shalom Border Crossing?
As an essential element to the siege tactic, Israel kept its own border crossings with the Gaza Strip shut for all types of humanitarian aid until recently when it reopened Kerem Shalom Border Crossing. Though Israel is not in effective control of the Gaza Strip’s interior, Israel does exercise control over the largest portion of the territory’s land border and external access to it. As a consequence of the conflict, the UN’s World Food Programme estimates that “one in four households in Gaza currently face extreme hunger.” Aid coming in only through Rafah Border Crossing has proven insufficient to tackle this humanitarian shortage within the Gaza Strip, seeing as “Israel said [that crossing] could only accommodate the entry of 100 trucks per day.”
It is unclear whether the supplies coming through Kerem Shalom Border Crossing have included deliveries of fuel. In the following I will address whether they must as a matter of IHL. Unlike deliveries from Egypt, which, as has been shown above, can be conducted without approval from Israel, the State of Israel’s consent is required for humanitarian aid delivered via its own territory. The question arises whether Israel may lawfully refuse to give consent under the current circumstances.
When it comes to a State’s discretion to lawfully deny consent, some authors argue there is a wide margin of appreciation, making many objectives for rejecting humanitarian relief permissible. In this vein, Sean Watts has argued, “States were only willing to abandon the GC IV limited scope of relief and protected persons in exchange for discretion to permit or reject these broader relief actions during siege” (ibid., p. 22). Indeed, the scope of article 23 para. 1 GC IV is limited to benefit specific groups, including only “children under fifteen, expectant mothers and maternity cases.” When the Additional Protocols were negotiated, the scope of the protected group expanded such that the entire civilian population should benefit from humanitarian aid, but not to the detriment of a State’s military objectives.
The bargain, to which Watts alludes, encapsulates the relationship between humanity and military necessity: While on the one hand States were willing to broaden the scope of relief action for a larger group of affected civilians and in support of humanity, they upheld wide room for discretion for military purposes on the other. IHL maintains a latitude of discretion along the lines of military necessity in other respects as well, to ensure military imperatives would “not be unduly sacrificed on the altar of humanitarianism” (Schmitt, p. 814). Watts therefore determines that “the law reserves extraordinarily broad discretion to reject offers of aid and supports the enormous and historically confirmed military import of imposing and maintaining isolation of enemy forces during siege operations” (ibid., p. 23). In Watts’s view, this denies any threshold question of arbitrariness in the first place.
Dapo Akande and Emanuela-Chiara Gillard argue otherwise. In their view, “the use of the word ‘shall’ [in article 70 para. 1 AP I] also suggests that acceptance of humanitarian relief is not entirely discretionary” (ibid., p. 489). This argument finds support in the ICRC’s 1987 Commentary of article 70: “From the moment that the civilian population referred to here is, ‘in fact,’ not adequately provided, the principle of relief actions applies: relief actions ‘shall be undertaken’ (and not: may be undertaken)” (ibid., para. 2795). In the Guidance, Akande and Gillard go on to argue there are limits of military necessity and proportionality to lawfully withheld consent: “Human rights tribunals that have interpreted the notion of arbitrariness (in the context of the right to life and the right to liberty) have consistently held that the concept requires that the measure taken was necessary, no more than necessary and proportionate to the end sought to be achieved” (ibid., p. 498). In their view, human rights considerations also factor into assessing the refusal to consent to relief action: “withholding of consent [may not] violate particular rights, most notably the rights to bodily integrity, or prevent the satisfaction of the minimum core of relevant economic, social and cultural rights” (Guidance, p. 497).
However, since much of these authors base their arguments on article 70 para. 1 AP I, they do not apply fully to the conflict at hand. Israel is not a State Party to the Protocol, and the armed conflict with Hamas is not of an international character.
It is unclear how the threshold of arbitrary refusal to consent has translated into customary law. What is clear, at least according to Rule 55 of the Study, is this: “If it is established that a civilian population is threatened with starvation and a humanitarian organization which provides relief on an impartial and non-discriminatory basis is able to remedy the situation, a party is obliged to give consent.” Rule 55 also states, “consent must not be refused on arbitrary grounds.”
The implied conditions are met here. First, as has been highlighted above, the civilian population in the Gaza Strip can no longer survive without access to fuel. Even the effectiveness of other life-sustaining relief action depends on it, proving that necessary supplies are not restricted to water, food, and medical supplies. This need apparently cannot be met via Rafah Border Crossing alone. Second, an international coalition is already bringing impartial aid into the Gaza Strip, which has previously been expanded to include fuel. While the ceasefire lasted between November 24 and December 1, 2023, there were no reports of fuel falling into Hamas’s hands. Third, with UNRWA, there is an international organization with 13,000 staff members in the area able to support control over the distribution of fuel. The current circumstances therefore also permit Israel, insofar as it qualifies as a “party concerned,” to “exercise control over the relief action,” ensuring no fuel falls into Hamas’s hands. Under these circumstances, it is extremely difficult to argue withdrawing consent could be considered anything other than arbitrary or do anything but run afoul of the customary international law articulated in Rule 55.
However, the conflict situation is fluid and changes often. If circumstances shift, there may be legitimate grounds for Israel to withhold consent. This largely depends on the level of security associated with fuel deliveries. It is a justifiable interest of the IDF to not have any fuel divert to Hamas. If this cannot be guaranteed, it would pose a legitimate security concern. Such incidents have also occurred in the past. In October 2023, UNRWA suspected Hamas members broke into their warehouses and stole supplies. Though these claims were later deleted from the organization’s profile on X, such an incident would have undoubtedly worked in favor of Hamas’s militant efforts.
The civilian population’s overall access to fuel therefore rests in an uneasy balance, dependent on how the conflict progresses. Should overarching military concerns support a decision on Israel’s end to withdraw consent to deliveries from its own territory, this would raise the issue whether other, more drastic measures of protection need to be considered. It would also need to be considered whether (and, if so, how) deliveries from Egypt might be affected. Complex questions on Israel’s overall responsibility for civilians in the Gaza-Strip under the prohibition to starve civilians would arise.
IHL compels no belligerent to inhibit their own military strategy by indirectly supporting an adversary via humanitarian aid. However, the protection of a civilian population in the crossfire is one of the central aims of modern IHL. This goal to mitigate harm to civilians is expressed not only in the Additional Protocols, but in customary law as well. Among other regulations to protect civilians, it is made manifest within the prohibition on starvation of civilians. In certain cases, this prohibition crystallizes to an obligation to facilitate impartial humanitarian aid, which I would argue is critical in the current situation unfolding in the Gaza Strip. Israel is therefore obligated to allow access to humanitarian aid to the civilian population, including fuel, via its Kerem Shalom Border Crossing. However, if the circumstances on the ground shift, so might this conclusion. Regardless, Israel does not have the prerogative to withhold consent to humanitarian aid through Egypt, a legal fact that has been largely missing from discussions.