Humanitarian assistance in siege contexts: a contradiction in terms?

About the author(s):

Duncan McLean has managed operations with MSF in both the field and headquarters beginning in 2002 and is currently a senior researcher with their reflection unit based in Geneva (UREPH). He has published widely on the humanitarian sector and has contributed chapters to book publications Saving Lives and Staying Alive, The Politics of Fear, and Everybody’s War. Duncan holds a PhD in history and has lectured at several universities in the Czech Republic, France and the UK, focusing on epidemiological and colonial history. He joined the editorial committee of the Journal of Humanitarian Affairs in 2019.

Maelle L’Homme holds a bachelor’s degree in political science and a Master’s degree in public affairs from Sciences Po in Paris, as well as an MSc in Health, Population and Society from the London School of Economics. After several years’ experience working as health promotion manager and project coordinator with MSF in a variety of contexts (Democratic Republic of Congo, Central African Republic, Chad, Yemen, Sudan), Maelle contributed to the Covid-19 preparedness and response in Tanzania and helped manage a hospital with surgical capacity in South Sudan. She joined the UREPH as Junior Researcher in 2021 to contribute to research around health and ethical issues.

In one of the more infamous medieval descriptions of life under siege, Calais defender Jean de Vienne wrote to the king of France in 1347 pleading for support. Noting the consumption of rats, dogs, and horses, he claimed that soon nothing would remain “unless we eat the flesh of men.” Philippe VI eventually declined and the fortified port city, out of options, fell to the English shortly afterwards. A contemporary definition of siege warfare as “the encirclement of a defended area and the subsequent isolation of the enemy forces by cutting off their channels of supply and reinforcement” (Nijs, p. 686) remains as accurate today as it was in the fourteenth century.

Given Israel’s “complete siege on the Gaza Strip” as it responds to attacks on its own territory, the conundrum of limiting the impact on civilians, without reducing the effectiveness of a technically legal military tactic, likewise remains equally relevant. This contribution attempts to explore the contradiction between a strategy of exhaustion aiming to establish the conditions for the besieged party to surrender, and the legal and moral imperative of reducing sieges’ adverse impact on civilians. It is structured around two major lines of inquiry. The first examines siege warfare as a military imperative from a historical perspective, looking at its codification in international humanitarian law (IHL) and resurgence in recent history. The second discusses relevant provisions of contemporary law pertaining to the protection of civilians trapped in a besieged area and attempts to lay out some of the challenges of providing humanitarian assistance in such contexts.

A tactic as old as war itself    

Siege warfare has been a “core part of military strategy ancient and modern” (Slim, pp. 80-81). The underlying logic being that “localized wars of attrition” reach a conclusion by “compelling one side to surrender important terrain.” And despite a disproportionate focus on dramatic confrontations, historical sieges were both more common and often more decisive than major battles in determining the outcome of a war. Significant resources were required to enforce a limited let alone prolonged siege. Yet while weapons certainly changed, from gunpowder and mines to the fortifications themselves, aside from “occasions when sheer brute superiority forced the outcome” an underestimated factor was the condition of the besieged. A factor that changed little “between ancient, medieval, and modern worlds” (Purton).

There has always been a limited number of ways to end a siege: treachery, bribery or ruse; assault by “mining, storming, and bombardment”; starving a city into submission through blockade; and most commonly, negotiation (McGlynnSlim, pp. 80-81). But irrespective of the method used, and as in warfare itself, an overriding objective as explained by 5thcentury CE writer Vegetius was “securing plenty of provisions for oneself and to destroy the enemy by famine. Famine is more terrible than the sword.” Under circumstances of extreme privation then, the options for non-combatants were unsurprisingly scant. Despite having “little role in the political making of the conflict or in the defence”, besieged towns were liable to assault while armed citadels held out to secure favourable terms of surrender, including their “lives and property” (Bradbury, p. 301). 

In the event of no compromise whatsoever, existing conventions of siege warfare compounded the fate of the besieged with punitive measures “proportional to the resistance it had offered” (Martens). So with limited chances to flee and treatment quite likely to be worse compared to combatants themselves, the prospects for civilians were clearly dire. Even alleviating their suffering during the siege was rife with counter-productive initiatives. Attempts at distributing alms to the poor, essentially a precursor for humanitarian aid today, were “inevitably self-defeating” given that siege operations are explicitly designed to cause multiple deprivations. All this succeeded in doing was driving the prices of goods higher while contributing to inflation. Misery was intensified “not simply because there was no food” but because of hoarding and profiteering. The supply systems “in the hands of merchants whose motive was profit” had a direct effect on survival rates irrespective of the military ebb and flow (Halfond, pp. 110-111).

Sieges in IHL

While conventions around siege warfare might date back centuries, only recently has the disproportionate impact of sieges on civilians raised questions around the compatibility of such a method of warfare with IHL. There is no international rule banning sieges as such, as long as the purpose is to achieve a military objective and not to starve a civilian population. ‘Besieged’ or ‘encircled’ areas are referred to in the 1949 Geneva Conventions and in their 1977 Additional Protocols but without being given a precise definition, which complicates discussing them in legal terms. There are three sets of rules of IHL generally considered relevant to siege warfare. The first regulates the conduct of hostilities (Art. 51 of AP I, Art. 13 of AP II and Customary IHL Rule 1), provides general protection of civilians and civilian objects from attack, and prohibits indiscriminate attacks and acts or threats intended to spread terror among the civilian population. The second relates to the prohibition of starvation of civilians as a method of warfare and of the destruction of objects indispensable to the survival of the civilian population (Art. 54 of AP I, Art. 14 of AP II and Customary IHL Rules 53 and 54), which comes hand in hand with provisions regulating humanitarian relief operations (Art. 70 of AP I and Art. 18 of AP II). Finally, the third set of rules applicable to sieges encompasses provisions concerning the evacuation of vulnerable civilians and access for religious and medical personnel and equipment (Art. 17 of GC IV).

At least three additional considerations must be taken into account to understand how these rules apply. First, unlike a blockade, “there are no specific conditions that must be met for a siege to be established and for relevant rules to become applicable” (Gillard, p. 2). For example, it is not necessary for the siege to be officially proclaimed. All that matters is that the siege is effectively maintained through the positioning of besieging forces, with the effect of isolating besieged forces from reinforcements and supplies. Second, the term ‘starvation’ is understood as encompassing deprivation of all goods essential to survival in a particular context (Gillard, p. 9). And third, also relevant to the situation in the Gaza Strip, are regulations pertaining to the prohibition of subjecting an entire population to a collective punishment for acts committed by some of its members (Art. 33 of GC IV and Customary IHL Rule 103).

The resurgence of sieges in recent history

In the 1990s, the live media coverage of populations condemned to be used as human shields, as repeatedly seen in Bosnia and Afghanistan, led to renewed discussions around how to mitigate the devastating toll of siege tactics. The conviction of Maj. Gen. Stanislav Gali? – who commanded the Bosnian Serb unit that encircled the besieged city of Sarajevo (April 1992 – February 1996) – by the International Criminal Tribunal for the former Yugoslavia (ICTY) for “inflicting terror” on the civilian population set an interesting precedent (Van Schaack). Yet it has had no deterrent effect, judging from how widespread a tactic siege warfare has become in contemporary armed conflicts. Civilians in Iraq, Syria, Yemen, and Ukraine all experienced similar episodes of extreme violence and being starved into submission, as currently seen in the Occupied Palestinian Territory.

In Syria, the scale of siege warfare was deemed “extraordinary”, with the regime “[imposing] punitive measures on the entire population living in rebel-held zones” (Todman). Not only were these tactics “brutally cost-effective”, they also provided for an extremely “profitable underground economy”, a long-established practice (Ciezaldo). The war economy around sieges was therefore widely described as an important element of the regime’s survival strategy. In contrast, the series of localised sieges unleashed by Putin in Ukraine was rather seen as a sign that “the Russian military [was] struggling to hold the ground it occupie[d]” and therefore needed to “create stable lines of defence” (Dover).

At first glance, the fact that siege tactics still conjure up images of medieval warfare, crenelated castles, fortified cities and stories of starvation into submission, is hard to reconcile with their resurgence over the last decades. But this resurgence is arguably linked to that of urban warfare and the strategic value of controlling today’s cities and their inhabitants. In many contexts, belligerents may have a specific interest to “draw the fighting into an urban area”, as the characteristic terrain of cities can “mitigate the technological superiority of a more powerful opponent” (Gisel et al.). Additionally, the sheer density of population in urban areas offers the defending party an opportunity to use the proximity of military objectives with civilians and protected objects to prevent the targeting of those military objectives, and the attacking party an opportunity to shift the responsibility for an attack (Lafazani).

The protection of civilians in sieges

The intentional co-location of military objectives and civilians, also known as ‘human shielding’, is explicitly prohibited by IHL precisely because it creates great difficulty for the attacking party to adhere to the principle of distinction. Meanwhile, it is hard not to see siege strategies as a form of collective punishment, given the indiscriminate harm they cause on civilians. In theory, siege warfare is lawful so long as it is directed only at combatants and those directly participating in hostilities. As a result, the first provision of contemporary law relevant to the protection of civilians trapped in a besieged area is both parties’ obligation to allow them to leave, and to return once the circumstances have changed. The attacking party must also give advance warnings to enable civilians to protect themselves, and the besieged party must take all feasible precautions to protect civilians by removing them from the vicinity of military objectives.

In practice, however, siege warfare has a direct impact on civilians and several legal issues pertaining to their protection require further clarification. One is the scope of the prohibition of starvation of civilians as a method of warfare. Scholars disagree on whether the prohibition of starvation should be interpreted as being limited to situations where a belligerent deliberately starves civilians, or whether it should be interpreted as also covering situations where, although not intended, the starvation of civilians is the foreseeable consequence of a particular course of action. Some, as reflected in the San Remo and Harvard Manuals, go as far as to require that starvation of civilians be the ‘sole’ or ‘primary’ purpose of a siege to consider it unlawful, which would reduce considerably the value of the provisions on the prohibition of starvation. Whatever the prevailing interpretation may be, in practice, it is very difficult, if not impossible, to prove that the ‘purpose’ of a siege is the starvation of civilians – and even more so to prove that it is the ‘sole or primary’ purpose.

Last but not least, the applicability of the principle of proportionality to sieges is dependent on whether sieges as a whole, namely the combined effect of bombardment and encirclement, amount to an “attack” in the sense of Article 49 of AP I. A compelling argument has been made that it does, considering both the motivation to cause harm and the violent essence of the act, the latter being understood “in terms of consequences rather than referring to the nature of the means or method of attack” (Nijs, p. 694). From this interpretation, it follows that the proportionality and precaution principles must apply, but how this might operate in the context of a siege without defeating the very purpose of this method of warfare remains unclear.

The provision of humanitarian assistance

Another point of discussion is whether the prohibition against starvation entails an obligation to consent to humanitarian relief operations. It has been noted that “a number of military manuals conclude that if the besieging party leaves open the offer for civilians and the wounded and sick to leave the besieged area, preventing any supplies from reaching that area would not amount to a violation of the prohibition” (Nijs, p.691). However, such a highly restrictive interpretation goes against the more general principle of unimpeded access of humanitarian relief to civilians in need asserted by the Fourth Geneva Convention, broadened by Additional Protocol I and established by state practice as a norm of customary international law applicable in both international and non-international armed conflicts (Chapter 17, Rules 55 and 56).

So how do you attenuate the effect of a war tactic aimed at causing isolation and deprivation, without completely defeating its purpose? The consensus around the right of parties to verify consignments, to control that only civilians benefit from them and to deny the delivery of humanitarian relief if there are reasonable grounds to believe that it may be diverted by the besieged party, does nothing to ensure that the provision of humanitarian assistance does not defeat the purpose of a siege while also mitigating its effects on civilians. In other words, there is an incompatibility in principle between the legal protection afforded to civilians, including those trapped in a besieged area, and what is considered a perfectly legal method of warfare, even though the latter can have no other result than to deprive people of the basic goods they need to survive.

An important consequence of this contradiction is that any aid authorised into a besieged area is more likely to enable the belligerents to maintain a semblance of respectability in the eyes of public opinion than to meet the scale of needs. Following intense negotiations and after stopping all supplies from entering the Gaza Strip and cutting off water and electricity in response to the Hamas attack on October 7th, Israel recently allowed some humanitarian aid to enter Gaza from Egypt. But how that aid compares to the catastrophic suffering inflicted upon the Palestinian population should leave no illusions. In a press conference held on November 7th, Claire Magone, Director of Operations for Médecins Sans Frontières – France, said that “in a month, 450 truckloads of aid arrived in Gaza, which in ‘normal times’ [under blockade since 2006] is what they are used to receiving in 1 day.”

Irrelevance or worse?

From the perspective of a besieging army, the application of military necessity within the limits of proportionality makes successful siege warfare fundamentally impossible. Indeed, a genuine application of the latter can only weaken the former, and vice versa. It is hard not to conclude that, in practice, siege tactics are fundamentally incompatible with the modern interpretation of IHL. When the delivery of humanitarian assistance enters the equation, the contradiction is complete. In siege contexts, the impact of humanitarian aid is at best marginal, at worst a contributing factor to the softening of the besieging party’s image and doing little to alleviate suffering that is a direct consequence of the siege itself.

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