This legal briefing outlines how the trajectory and coercive conduct of Israel’s massive military response in Gaza since 7 October, approved at the highest levels of its leadership, are converging towards the mass deportation of the civilian population of Gaza in the absence of a ceasefire. If mass deportation transpires, it would constitute a serious violation of international humanitarian law and also appear to be a crime against humanity.
Mass deportation of Gaza’s population would violate international humanitarian and criminal law
Under international humanitarian and criminal law, deportation refers to displacement across an international border, and forcible transfer refers to displacement within national borders.
On Friday 13 October, the Israeli military ordered about 1.1 million civilians in northern Gaza to flee southwards within 24 hours, ahead of planned ground military operations. The ensuing manifest lack of safety for civilians who fled, the coercive acts employed to displace them, and the sheer numbers of those displaced, means that LPHR has categorically assessed the order to amount to mass forcible transfer in violation of international humanitarian and criminal law.
On Wednesday 15 November, the Israeli military ordered residents in four areas of eastern Khan Younis, the biggest city in southern Gaza, to flee. This was reportedly followed by heavy tank shelling. We similarly assess this order to constitute an unlawful mass forcible transfer.
These two orders form a sequence of coerced mass internal displacement that appears – with southern Gaza soon to be the key focus for Israel’s invasion – to be leading inexorably towards the mass deportation of civilians from Gaza to Egypt. Mass deportation is being advocated for by ministers and cross-party parliamentarians in Israel, falsely describing it as a ‘voluntary relocation‘.
International humanitarian law prohibits deportation of the civilian population in both international and non-international armed conflicts. Deportation is considered a war crime in both international and non-international armed conflicts. Furthermore, the International Criminal Court (ICC) has jurisdiction for the crime against humanity of deportation or forcible transfer. The ICC has clarified that the crime against humanity of deportation or forcible transfer comprises five elements:
- The perpetrator deported or forcibly transferred, without grounds permitted under international law, persons to another State or location, by expulsion or other coercive acts.
- Such persons were lawfully present in the area from which they were displaced.
- The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
- The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
- The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
The first element makes clear that if mass deportation does occur, a material issue to determine will be whether or not there were coercive acts by Israel’s military forces to compel Palestinians in Gaza – where they are lawfully present – to be externally displaced. A preliminary assessment of Israel’s conduct of hostilities to this date would reveal a horrendous scope of plainly coercive acts:
- Unlawful mass killings of civilians in Gaza on a rapid and large-scale. Over 14,500 fatalities are reported to be killed, including about 6,000 children and 4,000 women, since 7 October. 1,384 families have had multiple members killed. There has been no revision in Israel’s military targeting policy despite overwhelming evidence that targeted attacks against presumptive civilian objects, including homes, shelters and hospitals, are disproportionate.
- Intentional infliction of acts causing great suffering, or serious injury to body or to mental or physical health. Hospitals in Gaza have reported large number of patients – including women, children and the elderly – with catastrophic injuries. The psychological trauma caused by the conduct of Israel’s military is certain to be severe for the civilian population.
- The near-total siege on Gaza. This clearly violates the prohibition of starvation under international humanitarian law (IHL) and is a coercive act against the civilian population.
- The deliberate, organised, targeted, and widespread destruction of homes and other civilian property by air, land and sea. This clearly appears to violate the key IHL principles of distinction, proportionality and precautions in attack, and is a coercive act against the civilian population. It is rendering populated areas of Gaza to be unliveable.
The existence of these coercive acts is compelling evidence to support the assertion that an externally displaced Palestinian could not be said to have exercised a genuine choice to leave Gaza. Rather, a fleeing of Palestinian civilians out of Gaza would be the result of a multitude of clearly coercive acts by Israel’s military forces, approved at the highest levels of Israel’s leadership.
In terms of substantiating the fourth and fifth elements of the crime against humanity of deportation, it clearly appears that if external displacement of Palestinians from Gaza does occur, it would have been committed as part of a widespread and systematic attack directed against a civilian population. The above outline of the key components of Israel’s massive and organised military response in Gaza since 7 October, horrifically impacting the entire Palestinian civilian population, provide a cogent basis to confidently make this preliminary summary assessment.
While international law permits displacement in limited circumstances where it is necessary for the “security of the population” or “imperative military reasons”, the range and scale of coercive acts by Israel’s military against Gaza’s civilian population strongly indicates that a prospective mass deportation of Palestinian civilians could not be credibly justified on these specific narrow grounds.
LPHR submits that if the foreseeable mass deportation of Gaza’s civilian population does transpire, it would be a serious violation of international humanitarian law and appear to fit the legal criteria to constitute the crime against humanity of deportation. Crimes against humanity are among the gravest crimes under international law and demands legal accountability for its perpetrators.
All necessary diplomatic efforts must be exercised to ensure this gross violation of international humanitarian and criminal law does not materialise. This means effecting an immediate ceasefire. Otherwise, the trajectory of these hostilities is threateningly set towards an enduring catastrophe: the indefinite displacement en masse of Gaza’s civilian population outside of Palestinian territory.