Is the calling for the evacuation of the civilian population from an area where extensive
military operations will shortly occur a violation of international law?
As a starting point, it is necessary to locate a prohibition under international law on such evacuation. Very little is mentioned in the First Addition Protocol to the Geneva Conventions on evacuations of the civilian population. Indeed the only provision on evacuations is Article 78, and it is concerned with evacuations of children and governs the modality of their evacuation to a foreign country. It therefore seems that evacuation is not ipso facto prohibited in the conduct of hostilities.
Conversely, under Article 57(1) of the First Additional Protocol, “[i]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects”. The correct interpretation of this provision is not entirely clear; neither is it clear to what extent it reflects customary international law. However, it is apparent that under international law, parties to an armed conflict are compelled to give regard to the effects of dangers of their military operations to the civilian population. Thus, the United States Department of Defense Law of War Manual states:
The standard for what precautions must be taken is one of due regard or diligence, not an absolute requirement to do everything possible. A wanton disregard for civilian casualties or harm to other protected persons and objects is clearly prohibited. 1
Similarly, in a different context, instead of recognising an obligation of “constant care”, Israel recognised that “[i]t is widely accepted today that parties to conflicts cannot blatantly disregard such harmful effects [i.e., dangers] to the civilian population in their military operations”.
Far from violating international law, calling upon civilians to evacuate where extensive
military operations will occur conforms to a state’s obligations under international law to adopt constant care in military operations or to not disregard the effects of military operations on the civilian population. Indeed, the New Zealand Law of Armed Conflict Manual states:
A New Zealand force may need to evacuate parts of the civilian population from an
area for their own security or for imperative military reasons. Evacuations must be of
a temporary nature only and should not require civilians to leave their own territory.
Civilians are to be moved the least amount, consistent with their continued safety and
the requirements of military necessity. They are to be returned to their homes as
quickly as is safely possible once that necessity ends. Where displacement of civilians
is necessary, members of the NZDF are to ensure that proper accommodation is
provided, removals are effected in satisfactory conditions of hygiene, health, safety
and nutrition, and members of the same family are not separated. 3
The Manual refers to Article 49 of the Fourth Geneva Convention for the last proposition,
which assumes that there is a belligerent occupation, thereby also assuming that the party
requesting evacuation is in a position to provide the said resources.
The contention that there is a prohibition on the evacuation of the civilian population is indeed based on the provisions of Article 49 of the Fourth Geneva Convention. This provision only applies in instances of belligerent occupation. As explained elsewhere, Gaza is not subject to a belligerent occupation. Yet, even assuming it is, Article 49 does not prohibit temporary evacuations in instances like the present. To understand the scope of Article 49, it is necessary to quote it in full:
- Individual or mass forcible transfers, as well as deportations of protected persons
from occupied territory to the territory of the Occupying Power or to that of any other
country, occupied or not, are prohibited, regardless of their motive. - Nevertheless, the Occupying Power may undertake total or partial evacuation of a
given area if the security of the population or imperative military reasons so demand.
Such evacuations may not involve the displacement of protected persons outside the
bounds of the occupied territory except when for material reasons it is impossible to
avoid such displacement. Persons thus evacuated shall be transferred back to their
homes as soon as hostilities in the area in question have ceased. - The Occupying Power undertaking such transfers or evacuations shall ensure, to the
greatest practicable extent, that proper accommodation is provided to receive the
protected persons, that the removals are effected in satisfactory conditions of hygiene,
health, safety and nutrition, and that members of the same family are not separated. - The Protecting Power shall be informed of any transfers and evacuations as soon as
they have taken place. - The Occupying Power shall not detain protected persons in an area particularly
exposed to the dangers of war unless the security of the population or imperative
military reasons so demand. - The Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.
Paragraph 2 is key. It explicitly provides for the possibility of evacuating the civilian population for their “security”. While paragraph 3 provides certain guarantees for the civilian population, the obligations therein only extend to the “greatest practicable extent” – therefore not an absolute obligation. Of course, if the purported occupying power has no boots on the ground its capacity to ensure the various guarantees in paragraph 3 is extremely limited.
1 Department of Defense Law of War Manual (updated 2023) para 5.2.3.2.
2 Roy Schöndorf, ‘Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of
International Law to Cyber Operations’ (2021) 97 Intl L Studies 395, 401.
3 New Zealand Defence Force Manual of Armed Forces Law: Law of Armed Conflict (2nd edn, 2019) para
13.3.5
4 Jean-Marie Henckaerts, ‘Deportation and Transfer of Civilians in Time of War’ (1993) 26 Vanderbilt JTL 469, 476See also The Joint Service Manual of the Law of Armed Conflict (2004) para 11.55.
