Proportionality
Whatever rationale a force invokes for evacuations, the principle of proportionality has special significance. Although this principle usually applies to “attacks,” Israel’s own Supreme Court has ruled that proportionality also applies to other measures undertaken in armed conflict and occupation, such as the route of the West Bank Wall. Other sources also apply proportionality beyond attacks. The San Remo Manual, as part of a broader trend, applies proportionality to blockades, and the updated version of the DoD Manual also adopts proportionality in the context of measures intended to starve enemy forces (Section 5.20.2). It is also possible to argue that residual “laws of humanity and dictates of public conscience,” which are part of IHL, require that military considerations cannot justify unlimited harm to civilians, even when the law does not explicitly speak the language of proportionality. This also makes sense in terms of the law’s coherence. It would be unsustainable to argue that a single attack that might risk, say, a few people, would be subject to a proportionality assessment while military measures that might affect millions would not.
Thus, it seems that even in cases where civilian safety or imperative military considerations could justify evacuation, if a humanitarian crisis occurs in an area to which civilians have been evacuated, proportionality may under certain conditions create an obligation to allow the civilians to return. Concerning North Gaza, any security advantage potentially sought by preventing disguised Hamas fighters from returning to North Gaza must be balanced against the acute humanitarian crisis that exists in Southern Gaza due, among other things, to the overcrowding there. Likewise, any risk for civilians in North Gaza today does not seem to outweigh the risk in South Gaza, due to the humanitarian conditions there — not to mention the risk to evacuees if significant military operations take place in Rafah itself.
The war in Gaza raises complex dilemmas, owing to the extent of embeddedness of armed groups in the urban infrastructure both above and underground, the offensive capabilities and motivation they displayed on October 7 and since, as well as the presence of captives. These factors implicate both the safety of the local population and give rise to operational challenges across the board. When military considerations arise, however, they must remain military and not political; and even when they remain as such, some rational balance must exist between benefit and harm. Proportionality as a general principle under IHL best captures this balance and closes the normative void that otherwise exists. The conditions in South Gaza are a quintessential example of harm that one would be incredibly hard-pressed to justify, even in relation to civilian safety or military considerations in North Gaza.
In sum, there are two potentially lawful grounds for evacuations: the safety of civilians and, in cases of occupation, imperative military considerations. Any evacuation of civilians on these grounds must be temporary and closely related to the underlying lawful cause. The initial grounds for the evacuation of North Gaza in October — which were officially predicated on the safety of the civilian population — cannot be said to persist at the level of intensity that putatively justified the evacuation almost four months later, and accordingly, cannot alone justify maintaining the situation. If the cause of evacuation is related to imperative military considerations, these should be concrete, defined, and limited. Perhaps most importantly, proportionality requires Israel to take into account the humanitarian calamity in South Gaza. Owing to the scale of this crisis, that humanitarian cost almost certainly outweighs any putative safety or military consideration in letting civilians return to relative safety in North Gaza; indeed, especially when those competing safety and military interests could be afforded through other measures.
The article first appeared on Just Security.