By Katin Liphart Massad
Washington, D.C. – The Israeli assaults on Rafah, a city in the south of the Gaza Strip, Palestine, began May 6 and have drawn worldwide anger, yet failed to trigger the U.S. “red line,” indicating that there are actually no limits to U.S. support of the Israeli war in Gaza. In particular, the horrific scenes following an Israeli bombing on May 26 – using an American made bomb – of a tent camp in Rafah that killed 45 people brought international outrage and further attention to the continued attacks on civilians by the IDF. The “Rafah Tent Massacre” and similar horrific attacks against Palestinian civilians contribute to a larger and more insidious Israeli strategy that has killed thousands and has the potential to escalate into the scale of mass atrocity: the closing of humanitarian spaces in Gaza.
These latest assaults on Rafah are part of Israel’s sustained U.S.-backed military campaign in Gaza and their relentless strategy of attacking civilian and humanitarian spaces, including hospitals, schools, and refugee camps. The Rafah assault, however, represents a particularly grim milestone: the combination of the level of destruction, lack of access, and near impossible border access means that the Israeli government has now effectively cut off all parts of Gaza and over 2.3 million people from any hope of humanitarian assistance. This is devastating for the people of Gaza, who are already struggling daily to stay alive and survive, and constitutes violations of international law.
The Limited Humanitarian Space Before Rafah
Before the Rafah assault began on May 6, there were already limited options to get humanitarian aid into Gaza, and even the few access points that were open were not safe. Since Oct. 7, 2023, at least 35,000 Gazans have been killed (the true number is likely much higher, given the number of deaths still unaccounted for and the number of individuals still trapped in rubble); the vast majority of those killed were civilians. The UN states that of those whose identities have been fully verified, 52% are women and children.
Additionally, over 224 humanitarian personnel have been killed in Gaza – a death toll that, eight months in, is already more than three times higher than ever recorded in a single conflict in one year. In late Feb. 2024, over 100 people were killed and more than 750 were injured in the first “flour massacre” when the Israeli military opened fire on a crowd waiting for aid to be distributed in Gaza City; the Israeli military still maintains that it was returning fire. A subsequent “flour massacre” was carried out by the IDF in March. In April, the danger for humanitarian workers in Gaza was again brought to light after Israeli airstrikes on an aid convoy killed seven World Central Kitchen (WCK) workers. Further, as of April, 254 aid workers in Gaza have been killed and as of May aid workers have been targeted 308 times. 74% of the aid workers killed in Gaza worked for the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), with the overwhelming majority comprising of national Palestinians.
The International Court of Justice (ICJ) publicly recognized the dire situation in Gaza back in January, observing that the Israeli operation in Gaza since Oct. 7 “…has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure” (See Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Order (Jan. 26)). In its order, the ICJ ruled that it is “plausible” that Israel is violating the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), and ordered Israel to take steps to prevent genocide, including ensuring access to adequate food and water. On May 24, the ICJ expanded this order, requiring Israel to “immediately halt its military offensive, and any other action in…Rafah,” and emphasizing “the catastrophic humanitarian situation in the Gaza Strip.” Despite these orders from the ICJ, Israel has continued to expand its operations in Rafah.
UN Secretary-General António Guterres echoed these concerns, stating that after the invasion of Rafah “for people in Gaza, nowhere is safe now” and that “the horror and suffering must stop immediately.”
Rafah and the Closing of Remaining Civic and Humanitarian Access
Until May, a limited number of aid trucks were able to enter Gaza. However, the assault on Rafah effectively cut off all of Gaza from sufficient international aid. While the Kerem Shalom crossing is technically open, the limited ability to access and utilize it combined with the total closure of Rafah means that fewer than 1,000 aid trucks have entered Gaza in the past month, compared to the 500 aid trucks per day that the UN has stated are necessary to prevent widespread famine. The aid is there – more than 2,000 trucks from the UN and other international non-governmental organizations (INGOs) are waiting on the Egyptian side of Rafah as thousands of pounds of food aid rots in the sun.
Due to the lack of ground access, the U.S. government has previously tried to airdrop food and other humanitarian supplies. Not only is the amount of aid facilitated by these drops woefully inadequate to meet the need in Gaza, but problems with the drops themselves mean that the supplies are sometimes wasted. Prior airdrops have resulted in aid packages landing in sewers and garbage dumps, and safety failures in a U.S. airdrop on March 8 resulted in the death of five Palestinians.
To address the challenges of getting aid in without ground access and the inadequacy of attempts to bring in humanitarian access via air and sea, the U.S. government, in cooperation with the Israeli government, built a $320 million temporary pier in southwest Gaza City. Construction finally finished on May 16, but by May 19 – a mere two days after the pier opened – operations were suspended after deliveries were overrun. Although it reopened on May 20, damage from bad weather and high winds forced the pier’s closure on May 28, just over a week after it became operational. After extensive repairs the pier resumed operations on Jun. 8, but “paused” operations again a mere 24 hours later due to safety concerns. Some experts posit that these failures were inevitable, and it is clear that even a fully functioning pier would not come close to solving the humanitarian crisis.
Furthermore, as the U.S. continues to try to deliver humanitarian aid to Gaza, it is simultaneously sending unfettered military assistance and arms transfers to Israel. The fact that the U.S., as an ally of Israel, even needed to construct a pier to safely deliver humanitarian assistance in the first place demonstrates just how dire the humanitarian access situation is in Gaza. It is also evidence that the U.S. is violating its own laws, which state that the U.S. may not provide military assistance to a country that is restricting the delivery of U.S. humanitarian assistance.
Andrea de Dominico, head of the UN Office for the Coordination of Humanitarian Affairs’s (OCHA’s) Office in Palestine, summarized the dire situation in a briefing last week: “We are trying to save lives every day, but the reality is that our hands have been tied (behind) our backs since the very beginning…We used to say, months back, that someone had broken our legs and now all of sudden asked us to run. I think we have learned to run with crutches…and now they have taken away the crutches also.”
Blocking Humanitarian Aid Is a Violation of International Law
In this intentionally dysfunctional environment, the Israeli government has effectively cut off over 2.3 million Palestinians from aid and humanitarian assistance. International Humanitarian Law (IHL), the set of rules that apply during armed conflict, clearly states that civilian populations in conflict zones are entitled to humanitarian assistance. Under the Geneva Conventions, the treaties that form the core of IHL, civilian populations “have a right to request humanitarian assistance, [and] nations and non-state armed groups may not arbitrarily or capriciously refuse humanitarian NGOs offers to provide such assistance.” Parties involved in an armed conflict, including occupying States–as an occupation triggers the law of armed conflict under IHL–must at a minimum accept offers of humanitarian relief where failing to do so would violate IHL’s prohibition of “starvation of the civilian population as a method of warfare.” Violation of this prohibition constitutes a war crime or crime against humanity under international law. Starvation of and denial of vital resources to a targeted population is also a recognized method of genocide under international law.
The Israeli government has repeatedly denied that it is purposefully blocking humanitarian aid or targeting humanitarian spaces and workers, and Israeli Prime Minister Benjamin Netanyahu has claimed that it is Israeli policy to allow as much aid as needed into Gaza. The reality on the ground, however, does not reflect this supposed policy; even where crossing points have been officially “reopened,” like Karem Shalom, sufficient aid is still not reaching Gazans.
Whatever the posited reasons, it is clear that Gaza and its population of over 2 million people are starving. According to the World Food Program (WFP), over 1.1 million Gazans (over half the population) have completely exhausted all of their food supplies and are facing catastrophic hunger and starvation. Under the Integrated Food Security Phase Classification (IPC, the main tool for determining severity of food security in use since 2004), a majority of Gazans are facing IPC 5, the highest level of starvation. This is the highest number of people ever recorded by the IPC facing catastrophic hunger.
The dire situation in Gaza is a direct result of the Israeli policy of obstruction. Blocking humanitarian aid and attacking humanitarian spaces are, by design, part of the Israeli government’s broader war apparatus and strategy, in violation of international law.
Starvation of Civilians as a War Crime
Starvation of civilians as a method of warfare is expressly prohibited in Additional Protocol I (Article 54) and Additional Protocol II (Article 14) to the Geneva Conventions, as well as in the International Criminal Court (ICC) Rome Statute, the treaty establishing the ICC as a permanent court to address the core crimes in IHL (Article 8(2)(b)(xxv)). It is also prohibited by the U.S. military in the Department of Defense’s (DoD) Law of War Manual and in Israel’s Manual on the Rules of Warfare. While Israel is not a party to the Rome Statute, Palestine is; this gives the ICC jurisdiction over IDF soldiers if they violate IHL in Palestinian territory, as well as over any Israeli official complicit in alleged IHL crimes. This is particularly important as the ICC is the only permanent international court that can prosecute individuals for the most serious IHL crimes, including war crimes, crimes against humanity, and genocide. The Rome Statute is also the first international legal mechanism that has codified the use of starvation on civilians as a war crime, both explicitly for International Armed Conflicts (IACs) under Article 8(2)(b)(xxv) and by amendment for Non-International Armed Conflicts (NIACs) under Article 8(2)(e)(xix). This means that the crimes enumerated in the Rome Statute can be committed in conflicts between states (IACs), as well as in conflicts between a state party and a non-state party (NIACs) (For more information on the types of armed conflict, see this resource by the International Committee of the Red Cross (ICRC).
Beyond the Rome Statute, starvation of civilians is also prohibited under Customary International Law (CIL): CIL is hard law, meaning that it is binding on all states, formed not by agreement between states or signing of a formal instrument but from the general actions and repeated practices accepted as law by States. CIL requires both state practice or usage and the expressed belief that it is a law binding on states (opinio juris). This means that CIL looks at both what states actually do and what states think they and others are required to do. Examples of these types of practices include military manuals, case law, and domestic legislation. CIL is particularly important in the context of IHL because it extends protections where there are gaps or failures in conventional or treaty law, and applies to both IACs and NIACs.
Even if Israel could prove that it was not deliberately starving the civilian population in Gaza as a tactic of warfare, which it would be hard-pressed to do, the blocking of humanitarian aid can itself rise to the level of a war crime. In the absence of a direct statement of intent, intent can be implied in situations where it is clear that blocking humanitarian aid will lead to starvation. Further, it is not legally relevant if some of those who are starving because of Israeli obstruction are combatants; what matters is whether the starving population is predominantly civilians (see Prosecutor v. Karadžić, IT-95-5/18, Trial Judgment 2016, ¶ 474 (International Criminal Tribunal for the Former Yugoslavia, ICTY)). Gaza has relied on imports for over two-thirds of its food consumption since before Oct. 7, 2024; this long-term reliance ensures that closing land crossings and blocking aid will have clear and devastating impacts. Even before the Rafah invasion, Oxfam asserted that Israel was deliberately hindering aid to Gaza, and Human Rights Watch (HRW) reported on the IDF targeting of known aid worker locations. Israel has imposed siege-like conditions on Gaza since Hamas took control in 2007, resulting in a near total reliance on international aid for the past 17 years. Currently, of the seven main border crossings into Gaza, only two remain “open” and movement of aid through those is severely limited.
Blocking Humanitarian Access as a Crime Against Humanity
The blocking of humanitarian access can also rise to the level of a crime against humanity. Crimes against humanity include various acts, such as murder, extermination, forcible transfers of populations, rape, enforced disappearances, and other acts that “shock the conscience of humanity.” To constitute a crime against humanity, these acts must be committed as part of a “widespread or systematic attack directed against any civilian population.” This can include acts of obstruction that lead to murder and extermination (explicitly including the deprivation of access to food and medicine, (see Prosecutor v. Tadić) , IT-94-1-T, Judgment 1997, ¶ 706 (ICTY)); torture; persecution (which the ICTY has determined can include deprivation of food and shelter); deportation; and, other inhumane acts, which the ICTY applied in situations of restricted access to food and medical care (see Prosecutor v. Nikolić, IT-94-2-S, Sentencing Judgment of 2006, ¶ 67 (ICTY)).
Starvation and Genocide
Intentional starvation can also be grounds for genocide (see Article II(c) of the Genocide Convention). The Genocide Convention defines genocide as specific acts “committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.” Those acts include killing members of the group, causing members of the group serious bodily or mental harm, destroying their living conditions so as to bring about their destruction; preventing them from giving birth; and forcibly transferring their children to other groups. Starvation has long been used as a tactic for the genocidal elimination of a group (see, e.g., the Holodomor in Ukraine). In Bosnia, for example, a targeted campaign of starvation was weaponized in pursuit of genocidal aims in Srebrenica and Žepa (See Bridget Conley & Alex de Waal, “Genocide, Starvation and Famine,” in The Cambridge World History of Genocide Vol. I, pp. 145-148).
What Next?
Despite the international outcry following the May 26 attacks, and despite Israel’s agreement to a framework ceasefire plan, Israel has continued to target not only humanitarian but also refugee spaces. On June 4, Israel targeted the Bureij refugee camp, killing four people, including three children. On June 8, an Israeli operation into the Nuseirat refugee camp to recover hostages killed 274 Palestinians, including 64 children and 57 women, and left over 400 injured. With the invasion of Rafah, over 1 million Gazans have been forcibly displaced to other humanitarian areas, according to UNRWA. Beyond the humanitarian space, the tactics of destruction taken by the IDF are also destroying civic space. In early June, the head of OCHA’s Palestine Office, Mr. Andrea De Domenico, warned that the level of destruction and trauma have eroded the social fabric of the community in Gaza. Israel’s attacks on refugee camps, humanitarian areas, and the civic spaces that make up Gaza show that there is truly nowhere safe left in the Gaza strip – for civilians, for women and children, for humanitarian workers.
The current “no strings attached” U.S. support to Israel is reinforcing Israel’s illegal blocking of aid and targeting of humanitarian spaces, and could constitute violations of international and U.S. law. The U.S. government needs to take responsibility for the role it is playing in creating starvation and dire humanitarian needs in Gaza. Humanitarian spaces must be supported and reopened, aid workers must be protected and able to safely deliver aid, and the international community must use every tactic available to compel Israel to stop blocking humanitarian aid; otherwise, Palestinians face even more catastrophic consequences than the horrors they have been facing for the past eight months.