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Assessing two possible legal grounds
The first potential legal ground for temporary evacuation is when a warning of impending attacks is given as a precautionary measure. Sometimes, such an evacuation can be a consequence of the duty to give an advance warning before an attack that may endanger the civilian population. Usually, such a warning is given before a specific attack. However, in certain circumstances, an advance warning could relate to a wider area, where attacks on a large scale are expected. If not an advance warning in the strict sense, such a call could also follow the more general duty to take constant care to spare the civilian population. To emphasize, as with all precautions, under no circumstances does a warning alone transform any protected object or person into a lawful target. Furthermore, issuing such a warning does not release the party to the conflict from its obligations to ensure humanitarian access to those remaining in the area.
More crucial for our purposes is that such a measure — if viewed as a type of advance warning or precaution — is extremely limited in its ability, if at all, to justify prolonged evacuation. Crucially, an advance warning does not create a legal obligation for civilians to evacuate — as the attacker has no legal authority over them — nor does it in itself justify preventing persons from returning. Indeed, if the purpose of the call to leave an area is to advise civilians to evacuate for their own safety, and does not create an obligation to do so, it obviously cannot provide a legal basis for preventing return. This reveals a broader conundrum: if the earlier evacuation call is phrased as a warning (which people are free to accept or reject), there needs to be another source to actively bar their return. Even setting this conceptual problem aside, a threshold issue concerns the scale of hostilities. When the intensity of the fighting in the relevant area decreases below the level that putatively justified the initial broad warning, it is no longer possible to rely on the previous level of danger to civilians to prevent them from returning to the area now.
Therefore, the IDF Chief of Staff’s statement that once the danger subsides people would be permitted to return to North Gaza is in the right direction; however, it is wrong on the law by requiring that this will be the case only when there is “no danger” in the area. Unfortunately, there is always a danger to civilians during hostilities, particularly in urban areas. The question is not whether there is any danger, but rather whether the danger remains on a level that justified the initial evacuation, or perhaps whether the situation is imminently expected to return to such a level. It would be hard to argue this is the case any longer in North Gaza, especially as IDF operations have been reportedly “scaled back” in the area and considering the extent of the aerial bombing that already took place.
The second ground for evacuation stems from the law of occupation, and as opposed to the previous ground, may also provide legal authority for evacuations. Under Article 49(2) of the Fourth Geneva Convention, the occupying power may evacuate a population from a certain area if the safety of the population or imperative military reasons require it. However, it is impossible to invoke powers under the law of occupation without the corresponding duties. Crucially, this power is preconditioned on an obligation to ensure as much as possible that proper living conditions exist in the area to which civilians are evacuated, and furthermore, the evacuees must be allowed to return to their homes as soon as hostilities in the area in question cease. In any case, since there is a significant risk of abuse of the powers recognized in Article 49(2) — and in particular concerning military reasons for evacuation — it should be interpreted narrowly.
Now, many of those who criticize Israel’s initial evacuation, proceed from the assumption that Israel was an occupying power in Gaza at the time the order was issued and has failed to ensure proper living conditions in South Gaza. The question of whether Gaza was fully, “functionally,” or not occupied at the time is beyond the scope of this essay. What is important is that in recent weeks, the Israeli military has claimed to possess ”operational control” in North Gaza, which supports the view that at least now it is an occupant in North Gaza (although, this control might be in flux in some areas). This remains the case even if there are some clashes in the area, as the mere existence of such clashes does not necessarily negate the existence of occupation. Article 49(2) itself concedes this possibility by recognizing that some hostilities can take place within occupied territory, as grounds for evacuation. Arguably, then, even if it is accepted that the initial evacuation was predicated on an advance warning during active hostilities, after which Israel proceeded to occupy the area, any prevention of return post-occupation becomes a de facto evacuation order also under the law of occupation and subject to its regulation.
This de facto transformation of the warning into an order under the law of occupation has two key implications. First, the occupant is under a strong affirmative obligation to restore public order and to act for the benefit of the local population. This obligation requires that the military commander act positively to facilitate the residents’ return. Second, the occupying forces must work to ensure that proper living conditions exist in the area to which people were evacuated. That, indeed, goes beyond the occupant’s general obligation to ensure the welfare of civilians in the area it controls.
In terms of the safety of the population as grounds for evacuation from occupied territory, here the analysis seems to merge with that above concerning advance warning. The occupant cannot rely on reasons for evacuation that were predicated on intense and sustained aerial bombardment of the area, to justify prevention of return after the area is occupied. Namely, it is clear that evacuation under Article 49(2) cannot stand until the end of the armed conflict as a whole, and it is likewise clear that this provision cannot allow prevention of return as long as there is fighting of any intensity in the area.
Notably, Article 49(2) does not refer only to the security of civilians as grounds for evacuation, but also to imperative military considerations. Furthermore, some claim — as the US Department of Defense Manual states in Section 5.19 — that in sieges, belligerents may prevent civilian access to certain areas. Israel might argue, in this context, that if the return to North Gaza is permitted, there is fear that Hamas fighters will impersonate civilians and return to the area. However, this risk cannot justify a blanket denial of the return of all civilians. Just as the presence of some enemy fighters in a civilian area cannot alone justify the complete removal of civilians from the area to begin with, so is the fear that some enemy fighters may return cannot justify total prevention of the return of civilians. Even if one accepts that the law of siege might recognize such restrictions — an issue not dealt with here — it is difficult to view the situation in the whole of North Gaza as one of siege, considering that Israel claims to exercise operational control within the area. A siege is about exercising external control. One cannot have it both ways.
Furthermore, should an argument be made that imperative military considerations can include the creation of a security buffer zone by evacuating civilians from an area, this would not hold on any reasonable reading of Article 49(2). Not only is the article to be read narrowly so as not to weaken the prohibition on forcible transfer or deportation, but it is also explicit that evacuees should be allowed to return as soon hostilities in the evacuated area cease. This quite clearly excludes any preventive rationale as an imperative military consideration.