Published: 21 March 2024 Author: Stefan Talmon
In response to the barbaric terrorist attack on Israel by Hamas on 7 October 2023, Israel, in exercise of the right to self-defence, embarked on an extensive aerial bombardment of Hamas’ positions in the Gaza Strip followed by a large-scale ground invasion of the territory which led to high numbers of Palestinian civilian casualties. Approximately 70 per cent of those killed were said to be women and children. The military operations of the Israel Defence Force (IDF) in the northern Gaza Strip also led to a large-scale internal displacement of the Palestinian population with many seeking refuge in the city of Rafah in the southern Gaza Strip close to the border with Egypt.
Against the background of the deteriorating humanitarian situation in the Gaza Strip, in mid-November 2023 the non-governmental organisation ‘SOS Children’s Villages Worldwide’, which operated an orphanage in Rafah, contacted the Federal Foreign Minister Annalena Baerbock and requested her assistance with the evacuation of the institution. The Federal Foreign Minister, the Federal Chancellor and the German ambassador to Israel raised the matter with the Israeli government. In the following month, the Federal Foreign Office, the German Embassy in Tel Aviv and the German Representative Office Ramallah worked together with Israeli, Palestinian and Egyptian authorities to enable the evacuation of the orphanage.
On 10 March 2024, the IDF, in joint action with the Israeli Civil Administration for the West Bank, under the direction of Israel’s National Security Council, facilitated the evacuation of sixty-eight Palestinian children, aged between two and fourteen years, from the SOS Children’s Village in Rafah as well as eleven carers and their families to the SOS Children Village in Bethlehem in the Israeli occupied West Bank. The party of more than one hundred people were taken in two buses to the Rafah border crossing where they entered Egypt. They travelled about 250 km across the Sinia Peninsula to the Taba border crossing near Eilat where they entered Israel. On their arrival there, they were met by the German ambassador to Israel. From Eilat the party travelled, accompanied by Israeli security forces, through Israel via the outskirts of Jerusalem to Bethlehem where they arrived on 11 March.
The Federal Foreign Office was instrumental in evacuating the children. On 12 March 2024, the German Ambassador to Israel posted the following statement of the German Embassy Tel Aviv on the platform X:
SOS Kinderdörfer weltweit [SOS Children’s Villages Worldwide] contacted the Foreign Minister in mid-November with a request for help with their orphanage SOS Kinderdorf Rafah. We are relieved that our efforts were successful and would like to thank everyone involved. In a humanitarian operation 68 Palestinian children as well as 11 employees and their family members were temporarily evacuated from the orphanage SOS Kinderdorf Rafah to Bethlehem in the West Bank. We thank Israel for this important humanitarian gesture.
Germany continues to stand by Israel in its fight against Hamas and keeps working towards the release of all Israeli hostages. We also remain committed to the humanitarian relief for Gaza’s civilians. It is important to know that yesterday’s transfer of orphans from Gaza is a temporary measure during the war, taking children out of acute danger, not an attempt to relocate them permanently.
Despite the evacuation, the SOS Children’s Village in Rafah continued to operate, hosting orphans whose relatives had not consent to the evacuation, children that had lost parental care only recently during the war and more than one hundred internally displaced people, many of them children. At the time of the evacuation operation, more than one million displaced persons were sheltering in Rafah, and the United Nations Children’s Fund (UNICEF) estimated that at least 17,000 children in Gaza were unaccompanied or separated from their families.
The German ambassador thanked ‘Israel for this important humanitarian gesture.’ Bringing these Palestinian children to safety, while Hamas was still holding Israeli children hostage, was undoubtedly a sign of humanity. It is, however, to be remembered that Israel, as the occupying power of the Gaza Strip, was under a legal obligation to protect children and provide them with the care and aid they require. It was also to facilitate the proper working of all institutions devoted to the care and education of children, especially orphanages. These obligations, which are expressly laid down in the Fourth Geneva Convention and its Protocol I are widely considered to be part of customary international law and are thus binding on Israel, irrespective of whether it is a party to the relevant treaties.
Customary international humanitarian law, as reflected in Article 49 of the Fourth Geneva Convention, imposes strict rules for the transfer of protected persons and, in particular, children, out of the occupied territory. Forcible transfers of protected persons from occupied territory to another country are generally prohibited, regardless of their motive. There is a limited exception for the ‘total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.’ However, such evacuations ‘may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement.’ In any case, all persons evacuated ‘shall be transferred back to their homes as soon as hostilities in the area in question have ceased.’ Article 49(2) of the Fourth Geneva Convention only prohibits ‘forcible transfers’ and non-consensual evacuations; it allows for voluntary evacuations. It is probably for that reason that the German ambassador stated that everybody was moving ‘voluntarily’, and SOC Children’s Villages emphasised in its media release that they had ‘received consent from the legal guardians of all children who were evacuated.’ The question is, however, whether legally valid consent was given. It was said that the legal guardian of the children was ‘the Palestinian Ministry of Social Development’. It is unclear whether this referred to the Palestinian Ministry of Social Development in the Gaza Strip under the control of Hamas, or the Palestinian Ministry of Social Development in the Israeli occupied West Bank under the control of the Palestinian Authority (PA). In case consent was given by the latter, it could be questioned whether the PA-controlled Ministry actually was in a position to exercise rights of guardianship with regard to children in the Gaza Strip not subject to its control. At a more general level, it must also be borne in mind that any agreement between the local authorities of the occupied territory and the occupying power cannot deprive protected persons of the benefits of international humanitarian law.
Any non-consensual evacuation of the Palestinian children from the Gaza Strip would have been unlawful because the evacuation did not concern a specific, geographically limited ‘area’ and was not demanded by ‘the security of the population or imperative military reasons’ – otherwise all people in the area of the orphanage in Rafah would have had to be evacuated. There is no legal basis for the evacuation of only a limited group of people within a specific area. In addition, the displacement of the children outside the bounds of the Gaza Strip was not unavoidable due to ‘material reasons.’ As shown by the drafting history of Article 49(2) of the Fourth Geneva Convention, ‘material reasons’ means that, owing to the limited size of the occupied territory, it must be ‘physically impossible’ to evacuate the population to reception centres inside the occupied territory. One example given for such physical impossibility was the tiny Pacific island of Wake. With 7.4 km2 Wake Island is much smaller than the Gaza Strip with its 364 km2. In any case, Israel claimed that there were safe areas within the Gaza Strip to which the population could move and even released a so-called ‘Evacuation Zone Map’.
In the end, the question of whether the evacuation of the Palestinian children was consensual or not, is immaterial. With regard to the evacuation of children from occupied territory, Article 49(2) of the Fourth Geneva Convention is complemented by Article 78(1) of Protocol I. The provision, which is reflective of customary international law, reads as follows:
No Party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety so require.
This provision severely restricts the authority of a party to the conflict to arrange for the evacuation of children, other than its own nationals, especially from occupied territory. It is not limited to non-consensual evacuations but prohibits evacuations in general. The party to the conflict must not itself evacuate the children, but it is sufficient that it ‘arranges for the evacuation’ of children. There are limited exceptions for health, medical and safety reasons. Both the German Embassy in Tel Aviv and SOC Children’s Villages seemed to be alluding to the safety exception, stating that the children were taken ‘out of acute danger’, or that they were evacuated ‘to ensure their safety by removing them from immediate danger’. However, it seems doubtful whether the requirements of the safety exception were actually met. The evacuated children were not in any more acute or imminent danger than the children remaining at the orphanage, or the more than 1 million people having taken refuge in Rafah in general. Against that background, the transfer of the children to the West Bank looks more like prohibited ‘arbitrary displacement’ than an evacuation for safety reasons.
In any event, the safety exception expressly does not apply to children in ‘occupied territory’. Article 78(1) of Protocol I is to avoid the risk of removal for purposes of ethnic cleaning and the unnecessary removal of children. The Report of Committee III to the plenary of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts explained:
It should be noted, however, that the limitation to evacuation for compelling reasons of health or medical treatment where the evacuation is to be from occupied territory reflects a deep-seated concern among many representatives in the Committee that the dangers of Occupying Powers abusing their discretion are greater than the dangers of prohibiting evacuations for reasons of safety. Even the requirement of the consent of the Party of which the child was a national was considered inadequate. In the light of these concerns and the restrictive provisions of Article 49 of the Fourth Geneva Convention of 1949, it was decided to be very cautious here in expanding the rights of an Occupying Power.
Article 78(1) of Protocol I establishes an absolute prohibition to arrange for the evacuation of children to another country for safety reasons. This prohibition cannot be overcome either by the consent of parents or guardians. In order to prevent abuse, ‘protected persons may in no circumstances renounce in part or in entirety the rights secured to them’ by international humanitarian law.
The crucial question is whether the transfer of the children from the Gaza Strip to the West Bank constituted an evacuation to ‘a foreign country’ in terms of the provision. In the Ajuri case, the Supreme Court of Israel sitting as the High Court of Justice held in 2002 that the removal of Palestinians from the West Bank to the Gaza Strip did not qualify as a prohibited deportation in terms of Article 49(1) of the Fourth Geneva Convention but amounted only to ‘assigned residence’ within the occupied territory, which is permitted under Article 78 of the Fourth Geneva Convention. The Court held that that the West Bank and the Gaza Strip were ‘effectively one territory subject to one belligerent occupation by one occupying power.’ For its finding, the Court relied the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip that had been concluded in 1995 between the Government of Israel and the Palestine Liberation Organisation. Article XI(1) of the Interim Agreement provided that the ‘two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which shall be preserved during the interim agreement.’ The Interim Agreement, however, also provided for the safe passage of persons and transportation between the West Bank and the Gaza Strip – an essential requirement for a territorial unit. The Protocol concerning safe passage was never fully implemented and after the Hamas takeover of the Gaza Strip Israel set up a blockade of the territory impeding any movement between the West Bank and Gaza. The decision of the Israeli High Court of Justice was criticised at the time by various human rights NGOs as allowing for ‘a grave breach of international humanitarian law.’ The UN Secretary-General referred to the Israeli practice of removals from the West Bank to the Gaza Strip as ‘inconsistent with international humanitarian law, such as forcible transfer of protected persons, regardless of motive.’ The US Department of State also spoke of Israel ‘forcibly transfer[ing] Palestinians from the West Bank to the Gaza Strip.’
Since its military disengagement from the Gaza Strip in 2005 and the assumption of power in the territory by Hamas, the Israeli government no longer considered the West Bank and the Gaza Strip as one territorial unit. In the HaMoked case in 2012, the Israeli High Court of Justice noted:
The respondents [Israeli government authorities] stress that the petitioners’ position according to which the Gaza Strip and the Judea and Samaria Area must be seen as a single territorial is no longer valid following the disengagement which effected a significant legal-political-security change in the Gaza Strip.
In fact, the Israeli government took the view that ‘the Gaza Strip is a separate territory enclosed by a fence.’ The High Court of Justic also gave up the view of the West Bank and the Gaza Strip being one territorial unit and upheld restrictions on movement between the two territories, including for educational of family reunification purposes.
While the Gaza Strip and the West Bank, including East Jerusalem, may still be considered a single ‘self-determination unit’, forming the basis of the (future) State of Palestine, they do no longer qualify as a single territorial unit for the purposes of international humanitarian law. The evacuation of the Palestinian children from the occupied Gaza Strip to the occupied West Bank must therefore be considered as an evacuation to a foreign country. That a foreign country also includes another occupied territory becomes clear from Article 49 of the Fourth Geneva Convention which speaks of ‘any other country, occupied or not’. In addition, Article 85(4)(b) of Protocol I, which defines grave breaches of the Protocol no longer refers to ‘any other country’ when it refers to the ‘transfer of all or parts of the population of the occupied territory … in violation of Article 49 of the Fourth [Geneva] Convention’, but speaks, in general terms, of the transfer of the population of the occupied territory ‘outside this territory’. An interpretation that equates ‘foreign country’ with ‘foreign territory’ is also in line with the object and purpose of Article 78(1) of Protocol I, which is to protect children from the prejudicial psychological and physical effects of removal from their home and familiar environment.
Even if evacuated lawfully, children and protected persons in general must be transferred back, or allowed to return to their country as soon as hostilities have ceased. It is probably for that reason that the German Embassy Tel Aviv emphasised that the evacuation was ‘a temporary measure during the war, taking children out of acute danger, not an attempt to relocate them permanently.’ The temporary nature of the evacuation was also reiterated by a spokesperson for the Federal Foreign Office who declared on 13 March 2024:
[T]here is no desire on the Palestinian side for there to be large flows of refugees out of Gaza because the trauma of the Nakba, or expulsion, resonates there. …. There is always a concern that Palestinians could be expelled from Gaza. That is why we have always made it very clear that this is only a temporary evacuation and that the children and the SOS Children’s Village will return to Gaza when the situation in their homeland has improved.
As Israel has imposed since 2007 severe restrictions on movement between the West Bank and the Gaza Strip other than in ‘exceptional humanitarian cases’, there seems to be no guarantee that the evacuated children will ever be allowed to return to the Gaza Strip, or their relatives allowed to visit them in the West Bank. In fact, the media release by SOS Children’s Villages on the evacuation included what could be understood as a plea, namely that ‘[a]ll Gazans leaving the strip must have the right to return guaranteed.’ Germany having been instrumental in evacuating the children from the Gaza Strip is under an obligation to ensure that they are transferred back to Rafah as soon as hostilities there have ceased. If the children and their caregivers were not allowed to return to the Gaza Strip, even an initially lawful evacuation would thereby become unlawful.
While Germany may undoubtedly have been motivated by humanitarian concerns for the safety and well-being of the children and acted with all good intentions, the operation might not have been thoroughly thought trough in legal terms. Any evacuation in violation of Article 49 of the Fourth Geneva Convention or Article 78 of Protocol I, or the equivalent provisions under customary international humanitarian law, constitutes an ‘unlawful transfer’, and thus amounts to a grave breach of the Fourth Geneva Convention and Protocol I. Grave breaches of these instruments constitute war crimes. German officials involved in the evacuation could thus potentially face charges for complicity in a war crime.
Category: Armed conflict and international humanitarian law
DOI: 10.17176/20240321-220524-0
I must say that I am struggling to follow the legal analysis of the author, which seems not to take into account, or seeking o bypass some serious legal hurdles.
1. The author seems to take for granted that the Gaza Strip, in its entirety, is an occupied territory under IHL, as per article 42 to the Hague Regulations. I believe that the answer regarding the Status of the Gaza Strip is much more nuanced. Thus, while is some areas it may be possible to assume or to argue that Israel is an occupying power (especially in areas in northerns Gaza), I am not convinced that Rafah, the location from which the Palestinian children were evacuated, was, at the time of the evacuation, an occupied territory under IHL. it is doubtful whether Israel exercises effective control over the area; one indication that it is indeed does not, is the fact that decision makers in Israel are debating whether to conduct a military operation in the area; also worth noting the lack of boots on the ground. Therefore, if Rafah is not an occupied territory, the prohibition in article 49 of GCIV would be inapplicable with regards to the said evacuation. The question whether the Gaza Strip is occupied is not a binary one, and it may well be the case that some areas of the Gaza Strip are under belligerent occupation, while other areas are not.
Be that as it may, I also find the suggestion by the author as unwarranted both from legal and humanitarian perspective. From a legal perspective, if one takes the view that Israel is an occupying power in the Gaza Strip, then it is under an obligation to ensure the public order and safety of the occupied population. It is therefore possible to argue that in order to comply with its obligations, an occupying power may, and in some cases may indeed by under an obligation to evacuate civilians from area in which they face security threats. Such an approach (the one that author seems to adopt) is also unwarranted from a humanitarian point of view. The case of the children evacuated from Rafah to the West Bank, upon a request from the orphanage is distinct in its nature and purpose from other previous cases that involved the transfer of children from occupied territory, e.g., the case of Russia/Ukraine.
2. At least in accordance with contemporary international law, the Gaza Strip and the West Bank form part of single territorial unit, and I find it very difficult to contend that evacuation of civilians from the Gaza Strip to the West Bank could be read nor understood as an evacuation to a foreign country.
Thank you for your comments.
We appreciate that views on many of the legal questions are divided. A fully referenced version of the article will appear in the print publication German Practice in International Law 2024 (forthcoming with Cambridge University Press). There, references may be found in support of all the views expressed.
1. For example, there is widespread support for the view that the Gaza Strip as a whole is under Israeli occupation. On 9 March 2024, the President of the International Committee of the Red Cross referred to Israel as the “occupying power” in the Gaza Strip without qualification, as do many UN agencies and the majority of States making submissions to the International Court of Justice in the case concerning Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. Even if a functional view with regard to occupation law were to be adopted. the relevant law concerning evacuations would be applicable as Israel controls access to the Gaza Strip. That the children could not have been evacuated without Israel’s involvement is shown by the fact that the Israel Defence Force was involved in their evacuation and that the evacuation required approval of Israel’s National Security Council. In the same was as no lorry can enter through the Rafah border crossing with Egypt without Israel’s approval, so no one can leave through that crossing without Israel’s consent.
2. The obligations of an occupying power with regard to evacuations are expressly spelled out in Article 49 of the Fourth Geneva Convention and Article 78 of Additional Protocol I. These provisions, which are reflective of customary international law, prohibit the evacuation of children from an occupied territory for safety reasons. This is an absolute prohibition which is not qualified by an occupying power’s obligation to ensure public order and safety under Article 42 of the Hague Regulations.
3. The question of whether the Gaza Strip and the West Bank can be considered one territorial unit has been addressed in the article and the view adopted is in conformity with the view expressed by the Israeli government before the Israeli Supreme Court sitting as the High Court of Justice.