Talmon, Stefan

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Of Humanitarian Windows, Pause(s),Truces and Ceasefires, and Israel’sRight of Self-Defence Against theHamas Terrorist AttackStefan Talmon 2023-10-30T18:57:51Published: 30 October 2023  Author: Stefan TalmonIn response to Hamas’ barbaric terrorist attack against Israel on 7 October 2023, inwhich more than 1,400 Israelis, mainly civilians, were brutally killed, more than 5,300wounded, and some 230 abducted to the Gaza Strip, the Israel Defence Force (IDF)bombed Hamas targets in Gaza and, on 9 October 2023, declared a total siege ofthe Gaza Strip. Israeli Defence Minister Yoav Gallant announced that ‘[t]here will beno electricity, no food, no water, no fuel, everything is closed.’ Hamas, nevertheless,continued to fire rockets indiscriminately towards Israel. By 13 October 2023, Israeliairstrikes had killed some 1,800 Palestinians, including some 580 children, andinjured about 7,300. In addition, some 423,000 civilians were displaced within theGaza Strip due to the military strikes. Against the background of an impendinghumanitarian catastrophe, the International Committee of the Red Cross (ICRC)called for ‘pauses in the fighting’ to provide humanitarian assistance to the people ofGaza. On 13 October 2023, the Russian Federation put forward a draft resolution forconsideration by the Security Council, which called for ‘an immediate, durable andfully respected humanitarian ceasefire’. On 18 October 2023, UN Secretary-GeneralAntónio Guterres joined the call for an ‘immediate humanitarian ceasefire to providesufficient time and space … to ease the epic human suffering we are witnessing.’On 23 October 2023, European Union (EU) foreign ministers meeting in Luxembourgfailed to agree on a common position on the situation in the Middle East, which wasto be adopted by EU leaders at a summit later that week. In particular, no agreementcould be reached on whether the EU was to follow the lead of the UN Secretary-General and call for a ‘humanitarian ceasefire’. In order to reach agreement, thedraft text discussed had referred to a ‘humanitarian pause’ to allow rapid, safe andunhindered humanitarian access and aid to reach those in need, rather than toa humanitarian ceasefire. The EU’s High Representative for Foreign Affairs andSecurity Policy, Josep Borrell, explained the difference between the terms as follows:A ceasefire is certainly much more than a pause. A pause, as the namesuggests, is an interruption of something that would then continue. Itis much less ambitious than a ceasefire, which means an agreementbetween both sides. A pause can be agreed much quicker, and I believethe ministers consider that a pause is needed so that humanitarian aid canenter.- 1 -Agreement, however, could not even be reached on a ‘humanitarian pause’ becauseGermany and some other member States were opposed to any wording that couldhave been interpreted as a call for a definitive halt to hostilities and thus may havecalled into question Israel’s right to self-defence at a time when Hamas rocketattacks on Israel continued and more than 200 Israeli hostages were still held in theGaza Strip.On 24 October 2023, a compromise formula emerged. Before a meeting of the UNSecurity Council, Federal Foreign Minister Annalena Baerbock stated that it hadbecome clear that ‘humanitarian pauses are extremely important for humanitariansupplies.’ The term ‘humanitarian pauses’ in the plural, rather than ‘pause’ inthe singular, was then also used by US Secretary of State Antony Blinken in theSecurity Council meeting. During the meeting itself, Foreign Minister Baerbockintroduced another term, referring to ‘humanitarian windows’ to get help into Gaza.A spokesperson for the Federal Foreign Office explained the term of ‘humanitarianwindows’ as follows:These are spatial and temporal windows in which there is no shelling and inwhich it is then possible to safely provide supplies to people in need.The new term of ‘humanitarian pauses’ was then also adopted by the EuropeanUnion after days of wrangling. In the EU Council conclusions, adopted by EU leaderson 26 October 2023, it was stated:The European Council expresses its gravest concern for the deterioratinghumanitarian situation in Gaza and calls for continued, rapid, safe andunhindered humanitarian access and aid to reach those in need throughall necessary measures including humanitarian corridors and pauses forhumanitarian needs.At the same time, at the UN General Assembly’s tenth emergency special sessionon ‘Illegal Israeli actions in Occupied East Jerusalem and the rest of the OccupiedPalestinian Territory’ another compromise formula emerged. In its non-bindingResolution ES-10/21, the General Assembly called ‘for an immediate, durable andsustained humanitarian truce leading to a cessation of hostilities’.None of the terms employed – humanitarian ‘window’, ‘pause(s)’, ‘truce’ and‘ceasefire’ – are legal terms of art. The relevant international humanitarian lawtreaties use only the terms ‘armistice’ and ‘suspension of fire’. An armistice can bedefined as an agreement between the belligerent parties – either political leaders ormilitary commanders – to suspend military operations. It may be general or localised;it may be for a certain limited period of time or of unspecified duration. Even in thelatter case, it is considered a temporary suspension, not a termination of hostilities.The state of armed conflict between the parties continues. A ‘suspension of fire’ isa particular kind of local armistice. All the expressions employed with regard to theIsrael-Hamas conflict describe forms of armistice. The question thus arises why somuch importance was ascribed to the terminology used.- 2 -The term ceasefire has acquired a more specialist meaning denoting a negotiatedformal agreement that suspends hostilities for an indefinite period of time. It isintended to be long-term and usually covers the entire conflict area. Ceasefiresusually freeze the armed conflict and may last for decades. They are arranged as aconsequence of political negotiations or give rise to such negotiations and frequentlyinvolve a third party or international organisation. A ceasefire has not just military butalso political connotations.A humanitarian pause denotes a temporary suspension of hostilities purely forhumanitarian purposes. It is generally considered less formal than a ceasefire. Itdoes not have any political implications and is usually for a defined limited periodand specific geographic area where the humanitarian activities are to be carriedout. However, there is no generally agreed definition of the term, and ‘humanitarianpause’ and ‘humanitarian ceasefire’ have occasionally been used interchangeably.A truce denotes a temporary suspension of hostilities for a certain limited periodof time. It is considered less formal than a ceasefire and is based on an ad-hocarrangement, rather than a negotiated agreement. It usually is not part of a politicalprocess. By calling for a ‘durable and sustained humanitarian truce leading toa cessation of hostilities’, the UN General Assembly, however, indicated that itconsidered the truce a first step to a ceasefire.Humanitarian pauses or windows, on the other hand, describe short intervals ofjust a few hours, during which hostilities are suspended to allow for the delivery ofhumanitarian assistance. For example, the draft resolution submitted on 18 October2023 by Brazil called forhumanitarian pauses to allow full, rapid, safe and unhindered humanitarianaccess [to Gaza] for United Nations humanitarian agencies and theirimplementing partners, the International Committee of the Red Crossand other impartial humanitarian organizations, and encourages theestablishment of humanitarian corridors and other initiatives for the deliveryof humanitarian aid to civilians.The terminology made little difference with regard to the jus in bello as all theterms referred to different forms of armistice. The real significance of the differentterms lay with the jus ad bellum. Israel respondent to the terrorist attacks byHamas, exercising its inherent right to self-defence. That right is subject to theprinciple of necessity. Lawful self-defence is thus restricted to what is necessaryto repel the armed attack and ‘must not acquire a retaliatory, deterrent or punitivecharacter.’ In particular, the total destruction of the enemy may neither be necessarynor proportionate to achieve the legitimate aim of ending the actual attack. Incases where there is no belligerent occupation of the State’s territory, there isno longer a necessity to use force to repulse the attack once a ‘durable andsustained’ suspension of hostilities has been achieved. A humanitarian ceasefire, ahumanitarian pause, and a humanitarian truce would thus have seriously curtailedIsrael’s right to self-defence. After a general and indefinite suspension of hostilitiesit would have been very difficult, if not impossible, for Israel to argue that militaryoperations in self-defence were still necessary, especially if the situation on the- 3 -ground had not significantly changed since the suspension of hostilities. It was forthat reason that Germany and other States that did not want to tie Israel’s hand andprevent it from defending itself against the Hamas terrorist organisation chose to callfor ‘humanitarian windows’ and ‘humanitarian pauses’ only. Such short breaks in thefighting for humanitarian purposes did not call into question the continuing necessityof self-defence.Against the background of the wider implications of the UN General Assembly’s callfor a ‘durable and sustained humanitarian truce leading to a cessation of hostilities’for Israel’s right to self-defence, one would have expected Germany to voteagainst the resolution. This is even more so since Germany had – unsuccessfully– advocated that the resolution adopts the language of the European Councilstatement, namely ‘humanitarian pauses’. In the end, Germany was one of forty-five countries abstaining, while 120 States voted in favour and only fourteen votedagainst the resolution. Surprisingly, Germany did not explain its abstention with thecall for a ‘humanitarian truce’ but with the fact that the resolution did not ‘explicitly[condemn] the terrorist attacks by Hamas and [call] out Hamas’ responsibility forkilling civilians, taking hostages and indiscriminately firing rockets against civiliantargets.’ Category: Armed Conflict and International Humanitarian Law<intR>²Dok-Lizenz: Eine Nachnutzung dieses Beitrags ist im Rahmen des Gesetzesüber Urheberrecht und verwandte Schutzrechte (https://www.gesetze-im-internet.de/urhg/) möglich.- 4 -

Of Humanitarian Windows, Pause(s), Truces and Ceasefires, and Israel’s Right of Self-Defence Against the Hamas Terrorist Attack

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Of Humanitarian Windows, Pause(s), Truces and Ceasefires, and Israel’s Right of Self-Defence Against the Hamas Terrorist Attack

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