The blockade of Gaza was legal; withholding humanitarian aid, not so much

Last month, the International Court of Justice rebuked Israel in an advisory opinion for blocking humanitarian aid into Gaza during the course of the Israel-Hamas war there, emphasising that starvation of civilian populations as a method of warfare is prohibited under prevailing international humanitarian law.

Predictably, Israel’s UN ambassador dismissed the ICJ advisory opinion as “shameful.”

Now that the Israel-Hamas war in Gaza is in the rearview mirror, it is important to assess the legal and moral aspects and ramifications of Israel’s two-year blockade of Gaza. Specifically, the question that needs to be asked, but that does not have a simple or simplistic answer, is whether the manner in which the blockade was carried out violated international humanitarian law.

Any serious consideration of this issue requires a review of the applicable legal standards and how they have evolved.

International humanitarian law, often referred to more succinctly as IHL, is essentially a post-World War II phenomenon. Prior to that time, civilian populations were afforded few, if any, protections in wartime. On the contrary, as UCLA Professor David Marcus noted in a 2003 article on “Famine Crimes in International Law,”

Historically, the laws of war permitted the starvation of civilians as a means of forcing a surrender. The Lieber Code, drafted at President Lincoln’s behest, recognised that “[w]ar is not carried on by arms alone,” and stated that “[i]t is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.”

Vague assurances in the Hague Conventions of 1899 and 1907 that civilians under military occupation by a foreign power would “remain under the protection and the rule of the law of nations” were essentially toothless.

In the wake of the horrors and atrocities of World War II, the Fourth Geneva Convention of 1949 “relative to the Protection of Civilian Persons in Time of War” constituted the first comprehensive initiative to provide broad-based legal protections for civilians caught up in the maelstroms of war.

Articles 23 and 55 of this convention are central to this discussion.

Article 23 provides that:

Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

However, this requirement to provide “free passage” of certain humanitarian aid is not absolute and is subject to the condition that “there are no serious reasons for fearing:

(a) that the consignments may be diverted from their destination,
(b) that the control may not be effective, or
(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy . . . .

Under Article 23, the military power that is allowing humanitarian aid to be brought into an occupied territory has the right to make sure that this aid reaches its intended recipients and is not misappropriated by occupied non-civilians.

Article 55, in turn, provides that:

To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.

In 1977, two protocols to the Geneva Conventions explicitly prohibited “Starvation of civilians as a method of warfare.” While neither Israel nor the US has ratified these protocols, they have become part of international humanitarian law.

The human and humanitarian catastrophe in Gaza, as it evolved over almost precisely two years of the Israel-Hamas war, must be considered against this legal backdrop.

The savagery of the Hamas terrorist bloodbath on October 7, 2023, and Hamas’ violent abduction that day of over 200 hostages into Gaza sparked a legitimate but fierce — some have argued disproportionately fierce — military reaction on Israel’s part that resulted in the devastation that is Gaza today. But the often legitimate criticisms of the way Israel waged its military campaign against Hamas do not alter the fundamental fact that the military campaign itself, whose goal was to eliminate Hamas as an existential threat to Israel, was in and of itself legitimate.

From the get-go, Israel’s military strategy was predicated on a blockade of Gaza, a siege, if you will. This was neither unprecedented nor unexpected. Sieges have been part of military operations since organised groups or entities have resorted to warfare as a means of achieving military or political objectives. Sieges as such have not been and are not prohibited under international law, including international humanitarian law. The points of legal, moral, and political contention were and are over how Israel’s blockade of Gaza was implemented.

“I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed,” declared Israeli Defence Minister Yoav Gallant on October 9, 2023, at the outbreak of the war. This ill-advised statement, together with Gallant’s equally coarse and unseemly observation that “We are fighting human animals and we are acting accordingly,” would provide fodder for those who accuse Israel of committing war crimes and worse.

An important factor to bear in mind is that international law, including IHL, distinguishes between combatants and non-combatants.

As noted above, IHL requires a military force that is laying siege to a territory to ensure that the civilian, that is to say, the non-combatant, population of that territory does not starve, and it must allow food and other humanitarian aid to reach those non-combatant civilians. At the same time, however, the besieging power is allowed to take steps to try to prevent the combatants under siege from appropriating or otherwise benefiting from such humanitarian aid.

While a legitimate purpose of Israel’s blockade of Gaza was to defeat Hamas, Israel was under an obligation to allow food and medical supplies to be brought into Gaza for non-combatant Palestinian civilians.

The problem inherent in this scenario was that Israel also had every right to try to prevent Hamas from intercepting the humanitarian aid in question; and the lines between Hamas militants and Palestinian civilians unaffiliated with Hamas in Gaza were blurred, making it difficult, to say the least, to distinguish with any certainty between combatants and civilian non-combatants.

Parenthetically and in retrospect, it is well-established that Hamas looted – stole – some if not much of the humanitarian aid that was brought into Gaza. Under these circumstances, the Israeli desire to be in control of the provision of humanitarian aid becomes, in my opinion, understandable.

It is also clear, however, that the type of blockade announced by Gallant two days after October 7 is a clear IHL violation in that it envisioned preventing food and other humanitarian aid from reaching Gaza’s civilian – that is, non-combatant – population.

Over the course of the Gaza war, Israel was severely criticised for restricting, for whatever reasons, including certain legitimate reasons, the flow of humanitarian aid into Gaza. On March 2, 2025, for example, after Hamas refused to accept a negotiations framework proposed by U.S. special envoy Steve Witkoff, Prime Minister Benjamin Netanyahu’s office announced that “Israel has decided to stop letting goods and supplies into Gaza . . . . We’ve done that because Hamas steals the supplies and prevents the people of Gaza from getting them. It uses these supplies to finance its terror machine, which is aimed directly at Israel and our civilians – and this we cannot accept.”

There followed numerous reports by international monitoring bodies that the civilian population of Gaza faced ever-increasing levels of food insecurity. In July, President Trump made what may well have been the understatement of the year when he said that the children in Gaza “look very hungry,” adding that what is happening to these children is “real starvation stuff.” In August, the UN body responsible for measuring hunger crises declared that parts of Gaza were experiencing a famine, a charge that Israeli government officials roundly rejected.

What is incontrovertible is that the deprivation of food during the Gaza war took a severe toll. And it is equally clear that thousands of trucks carrying food and other humanitarian aid in fact entered Gaza over the course of the war, largely as the result of international pressure on the Israeli government and amid claims that Israel was obstructing delivery of this aid.

Was there widespread starvation in Gaza? Seemingly not, as evidenced by the fact that the hundreds of thousands of Gazans who returned to their decimated homes after the cessation of hostilities did not appear to have been starved or starving. Were there pockets of starvation and was there a threat of starvation caused by the continued blockade and the inadequacy of the humanitarian aid being provided? Definitely.

To address briefly one of the more controversial debates of the past several months, did some –not all – Palestinian children in Gaza suffer from starvation? Yes. Did some of these children, whose images were featured in the media, have aggravating pre-existing medical conditions?

Again, yes. But this does not absolve anyone of responsibility, especially since individuals — including children — with pre-existing medical conditions are far more susceptible to the impact of hunger or starvation than healthier ones.

Where does that leave us? Perhaps with the following insightful observation on Gaza’s hunger crisis made by the American-born Israeli author and commentator Yossi Klein Halevi earlier this year:

The Israeli government didn’t set out to deliberately starve Gaza but to deny Hamas access to the UN’s food distribution system. That was a legitimate goal. But when it became clear that our counter-system was disastrously inadequate, and that the warnings of approaching starvation might this time be true, why didn’t the government change course? Why did it require a world outcry and American pressure to prevent a catastrophe that would have haunted us for years to come? And why were we, the Israeli public, largely silent?

I would add, why were so many of the rest of us largely silent as well?

Adapted from a presentation by the author at the Interreligious Convening on Upholding Human Dignity in Turbulent Times at The Jewish Theological Seminary of America, November 18, 2025.

Menachem Z. Rosensaft is adjunct professor of law at Cornell Law School and lecturer-in-law at Columbia Law School. He is the author of the forthcoming Burning Psalms: Confronting Adonai after Auschwitz (Ben Yehuda Press, 2025).