Published: 23 October 2023 Author: Stefan Talmon
On 7 October 2023, a Jewish Sabbath day, Hamas and other armed Palestinian groups indiscriminately fired between 3,000–5,000 rockets from the Gaza Strip towards Israel while, at the same time, more than 1,000 Hamas militants breached Israel’s heavily fortified security fence surrounding the territory to launch unprecedented attacks in multiple locations in Israel. Hamas fighters indiscriminately killed and injured Israeli security forces and civilians, including some 260 people attending a music festival in southern Israel. Some 1,300 Israelis, including many women and children, were killed and more than 3,000 injured – the largest number of Jewish victims in a single day since the holocaust. In addition, Hamas abducted some 200 Israelis to the Gaza Strip where they were kept as hostages. These despicable actions of Hamas constituted egregious violations of international law, including war crimes and crimes against humanity.
In defending their fellow citizens, Israel forces killed more than 1,000 militants and captured dozens more. Israel responded by bombing Hamas targets in Gaza which by 14 October 2023 had led to around 1,900 Palestinians, including some 600 children, killed and nearly 7,700 wounded.
The barbaric terrorist attack against Israel from Gaza was widely condemned. On 7 October 2023, Federal Foreign Minister Annalena Baerbock stated: ‘We stand in full solidarity with Israel and its right under international law to defend itself against terror.’ This was echoed by Federal Chancellor Olaf Scholz.
On 9 October 2023, Israeli Defence Minister Yoav Gallant announced a total blockade of the Gaza Strip, saying:
I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no water, no fuel, everything is closed. We are fighting human animals, and we are acting accordingly.
Israel had been imposing a comprehensive land, air and sea blockade on Gaza since June 2007 after Hamas took control of the territory. The new measure, however, was of a different quality. Israel no longer just controlled access to the territory but cut off the 2.3 million Palestinians of Gaza – half of them children – from all essential supplies.
The Israeli measure and the dehumanising language employed was widely criticised. On 9 October 2023, the United Nations Secretary-General stated:
While I recognize Israel’s legitimate security concerns, I also remind Israel that military operations must be conducted in strict accordance with international humanitarian law. … I am deeply distressed by today’s announcement that Israel will initiate a complete siege of the Gaza Strip, nothing allowed in – no electricity, food, or fuel.
On 10 October 2023, the UN High Commissioner for Human Rights stated:
The imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law. Any restriction on the movement of people and goods to implement the siege must be justified by military necessity or it may amount to collective punishment.
On the same day, the European Union’s High Representative for Foreign Affairs and Security Policy also criticised Israel for imposing a total blockade of Gaza, saying:
Israel has the right to defend [itself], but it has to be done [in accordance with] international law, humanitarian law, and some decisions are contrary to international law. Some of their actions – and the United Nations has already said it – cutting water, cutting electricity, cutting food to a mass of civilian people, is against international law. So yes, there are some actions that are not in accordance with international law.
The President of the International Committee of the Red Cross (ICRC) also added her voice, urging Israel to comply with its obligations under international law. She said:
At this critical moment, we urge the parties to respect their obligations under international humanitarian law and to take every possible step to prevent civilians from further harm. … Critical infrastructure that people depend on to live – including electricity and water networks – must not be targeted. Irrespective of any military siege, the authorities must ensure that civilians have access to basic necessities, including safe water, food and medical care.
In a press release the ICRC later added: ‘[D]enying [the population of Gaza] food, water, and electricity, are not compatible with international humanitarian law.’
Against this background of widespread concern and criticism, the Federal Government was asked about the dire humanitarian situation caused by Israel’s blockade of Gaza and whether the blockade was in accordance with international law. During its regular press conference on 11 October 2023, the Federal Government was asked whether it was trying to open a humanitarian corridor to Gaza. A spokesperson for the Federal Foreign Office replied:
[T]he protection of civilians must of course be respected even in this absolutely exceptional situation, and this includes humanitarian access to the civilian population and the provision of urgent needs such as water, food and medical care. We are also in discussions with the United Nations about this.
This was followed by a question of whether the Federal Chancellor supported the Israeli blockade of the Gaza Strip and whether he considered this action to be in line with international law. The deputy cabinet spokesperson replied:
For the Chancellor, solidarity with Israel is paramount. … It is quite clear that Israel has the right under international law to defend itself against these attacks by Hamas. I would not want to evaluate individual measures in this context.
Confronted with the fact that both the European Union’s High Representative for Foreign Affairs and Security Policy and the United Nations High Commissioner for Human Rights had called the blockade a clear violation of international law, the deputy cabinet spokesperson replied:
As I said, for us, at this moment when Israel has been attacked by Hamas in this brutal way, solidarity with Israel is paramount, and we emphasize that Israel has the right to take action and to defend itself against this attack.
Pressed to answer the question of whether the Federal Government agreed that a complete siege of the Gaza Strip, cutting the territory off from all basic necessities such as water, electricity and energy would violate international humanitarian law, the deputy cabinet spokesperson stated:
I previously stated – in great detail – that Israel has the right under international law to defend itself against the ongoing attack, the terrorist attack by Hamas. We support this right and stand with Israel in this. But I also explained that this attack is ongoing and that, of course, even in this absolutely exceptional situation, the protection of the civilian population is a requirement of international humanitarian law.
Asked for a fourth time whether the Federal Government agreed with the Office of the United Nations High Commissioner for Human Rights that the complete siege of the Gaza Strip violated international law, the deputy cabinet spokesperson replied:
This question has now been asked here for the fourth time, I think, and we will not answer it now, the fourth time, other than by saying that for us at this moment, when Israel has been attacked in this brutal way, solidarity with Israel is paramount and that Israel has the right to defend itself.
The journalists did not give up, however, and asked the spokesperson for the Federal Foreign Office for a simple yes or no answer to the question of whether Israel’s military actions were consistent with international humanitarian law. The spokesperson replied instead:
Israel has the right under international law to defend itself against this massive terrorist attack by Hamas.
Asked whether this meant ‘yes’, the spokesperson declined to answer. The journalists thereafter tried for a sixth time, asking about the legality of the blockade in light of obligations under international law. The deputy cabinet spokesperson once again dodged the question, replying:
For us, it is crucial to show that at the moment solidarity with Israel is our main message. That is what is important to us at the moment. … The bottom line is that Israel has the right to defend itself against this attack and that we will not judge from this rostrum individual measures that Israel is taking.
The Federal Government’s wriggling may be explained by its general position of ‘unwavering solidarity’ with Israel. On 12 October 2023, Federal Chancellor Scholz stated in an address to the Federal Parliament: ‘At this moment there is only one place for Germany: the place alongside Israel. … The security of Israel is German reason of State (Staatsräson).’
On 13 October 2023, the wording of official statements slightly changed from the absolute formulation that ‘Israel has a right to defend itself’ to ‘Israel has a right to defend itself within the framework of international law’ and ‘Israel has the right to defend itself against the Hamas terrors – within the parameters laid down by international law for such exceptional situations.’ German officials now also focused on the humanitarian needs of the Palestinian population in Gaza. During a joint press conference with the Jordanian King in Berlin, Federal Chancellor Scholz stated on 18 October 2023:
We are continuing our humanitarian assistance to alleviate the suffering of the civilian population. We are committed to ensuring that there is humanitarian access to the Gaza Strip. It is imperative that the suffering civilian population in Gaza, used by Hamas as human shields, receive humanitarian assistance, water, food and medicine.
On the same day, Federal Foreign Minister Baerbock called for rapid humanitarian aid for Gaza, that the water supply is brought back on, and that food and medicine can be delivered. On 19 October 2023, Foreign Minister Baerbock stated:
The humanitarian situation for hundreds of thousands of innocent people in Gaza is disastrous. There is a lack of everything. It is crucial that international aid, food, water and medical supplies can be brought to the people in Gaza swiftly and unhindered.
Neither the Chancellor nor the Foreign Minister, however, addressed the underlying reason for the humanitarian crisis – the total siege of Gaza by Israel.
The imposition of a ‘complete siege’ on the Gaza Strip, denying the civilian population access to food, water, fuel and electricity, constituted a serious violation of international humanitarian law and could even be considered a war crime. Despite Israel’s withdrawal from the Gaza Strip in September 2005, the territory continued to remain under Israeli occupation. As Occupying Power, Israel had the duty of ensuring the food and medical supplies of the population to the fullest extent of the means available to it. In particular, it had to bring in the necessary foodstuff, medical stores and other articles if the resources of the occupied territory were inadequate.
In addition, the complete siege of the Gaza Strip amounted to illegal collective punishment of the residents of Gaza. Collective punishment is not limited to criminal sanctions but applies to any sort of sanction and harassment, administrative, by police action or otherwise. The 2.3 million Palestinians of Gaza were not responsible for the terror attacks by Hamas on Israel, yet the siege targeted and imposed suffering and hardship on them, effectively penalising them for acts they had not committed. Statements by Israeli government representatives made clear that the siege was being imposed to apply pressure on Hamas, and in response to the terror attack by Hamas on Israel. For example, on 12 October 2023 the Israeli Energy Minister wrote on the social media platform X:
Humanitarian aid to Gaza? No electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter until the Israeli abductees are returned home. Humanitarianism for humanitarianism. And no one will preach us morality.
Two days later, Israel’s President Isaac Herzog said at a press conference:
It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not being aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime that took over Gaza in a coup d’état, but we are at war … we will fight, and they will break their back bone.
These statements show that the siege was intended to inflict collective punishment on the people of Gaza. The prohibition of collective punishment is stated in the Hague Regulations on Land Warfare, the Third and Fourth Geneva Conventions, and the two Additional Protocols to the Geneva Conventions. The prohibition of collective punishment has also become a rule of customary international law.
In light of this clear and serious violation of international law by Israel, Germany’s wriggling is even more striking. While Germany should, of course, have stood with Israel in the face of a most gruesome terrorist attack, it should also have stood with international law. Reminding Israel of its obligations under international law would not have undermined Israel’s right to defend itself. Solidarity does not have to be blind or unquestioning. After all, Germany is under an obligation ‘to ensure respect’ for the Geneva Conventions and for international humanitarian law more generally. Looking the other way when friends and allies violate international law while calling out the slightest infraction of international law committed by strategic rivals and opponents in the long run undermines Germany’s credibility with regard to international law. As stated by the EU’s High Representative for Foreign Affairs and Security Policy: ‘Depriving a human community under siege of a basic water supply is contrary to international law – in Ukraine and in Gaza.’ Germany may have raised its concerns about the legality of the total siege with Israel behind closed doors in private and confidential talks with Israeli officials, but this is not sufficient: international law must not only be upheld, but must also be seen to be upheld.
Category: International law in general
DOI: 10.17176/20231023-113815-0
