Written by Stefan Talmon @StefanTalmon
Professor of International Law @UniBonn; Supernumerary Fellow @StAnnesCollege Oxford, Barrister, @TwentyEssex London.
On 11 March 2024, Germany facilitated the evacuation of 68 Palestinian children from an orphanage in the Gaza Strip to the occupied West Bank. What looks like a humanitarian operation may in fact constitute a war crime:
Protected persons, including children, must NOT be transferred to places outside the occupied territory, irrespective of the motive (Art. 49(1) GCIV)
The Occupying Power is under a special obligation to facilitate the proper working of all institutions devoted to the care of children and to make arrangements for the maintenance of orphans. (Art. 50 GCIV). Thus, Israel is not making “an important humanitarian gesture” but, with the help of Germany, is absolving itself from its obligations under international humanitarian law.
Protected persons may be evacuated from an area if the safety of the population or imperative military reasons so demand.
If protected persons are evacuated in order to secure their safety, the Occupying Power has the duty to place the evacuated persons in places of refuge within the occupied territory.
Only if material reasons so demand may protected persons be evacuated to places outside the occupied territory. Material reasons means that it must be physically impossible to provide places of refuge within the occupied territory.
Evacuated persons must be transferred back to their homes as soon as hostilities in the area in question have ceased. Therefore:
As not all children were evacuated from the orphanage in Rafah, it may be questioned whether the evacuation was imperative. If it was not, this would constitute an unlawful transfer.
As 2.3 million Palestinian civilians are currently required to find safe areas, that is places of refuge, within the Gaza Strip and, it may be argued that it is not physically impossible to find such places – in that case, the evacuation would amount to an unlawful transfer which constitutes a grave breach of the Geneva Conventions and a war crime.
If the evacuation is considered lawful because it is at present physically impossible to provide an area of refuge within the Gaza Strip, Germany having been involved in the evacuation is under an obligation to ensure that the evacuated persons are transferred back to their homes as soon as hostilities in the Rafah area have ceased.
If the children are not allowed to return by Israel, the transfer becomes unlawful and it may be argued that Germany will be responsible for having aided and assisted the unlawful transfers of protected persons and thus being complicit in a war crime.
Written by Stefan Talmon @StefanTalmon
Professor of International Law @UniBonn; Supernumerary Fellow @StAnnesCollege Oxford, Barrister, @TwentyEssex London.
First effects of #Nicaragua‘s case against #Germany before the @CIJ_ICJ claiming that Germany must ensure that Israel respects international humanitarian law in the #GazaStrip? While the cabinet spokesperson affirms that Federal Chancellor Olaf Scholz is still “convinced that Israel is abiding by international law”, the Federal Foreign Office is singing a slightly different tune.
On 13 March 2024, first public statement by a spokesperson of the Federal Foreign Office using the terms Israel and obligations under international law in one sentence, saying: “Israel must not arbitrarily hinder the delivery of humanitarian aid in Gaza, but is actually obliged under international law to enable the provision of supplies to the civilian population. … following the collapse of public order in large parts of the Gaza Strip, the Israeli army must ensure that the distribution of humanitarian aid help can be achieved.”
Next step would now be to call out the violation of these obligations under international law.