Are evacuations from Gaza lawful? Are Gazans ‘refugees’ in need of protection? Why are Gazans not fleeing to other countries? Read our explainer to find out.
To help you place the news in deeper context, we’ve put together some quick explanations and further reading recommendations for understanding the situation for people displaced by the ongoing conflict in Gaza.
Evacuations in armed conflict are strictly governed by international humanitarian law, which seeks to balance military and humanitarian needs. People must be given an ‘effective’ warning which gives them sufficient time to evacuate safely. In October 2023, Israel gave Gazans just days to evacuate from their homes and move south ahead of a ground invasion. As Professors Ben Saul and Jane McAdam note:
The extremely tight time-frame Israel has given Gaza residents to leave is insufficient and unrealistic for an evacuation of this scale, especially amid its fast-tempo bombardment across the strip and under conditions of total siege.
The devastating human and humanitarian ramifications of this urgent and chaotic evacuation are now all too apparent. With more than one million Gazans crammed into Rafah, famine is imminent, tens of thousands of civilians have been killed, and humanitarian assistance continues to be impeded. Professors Ben Saul and Jane McAdam explain:
International law requires [Israel] to allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need. This includes food, water, medical supplies, clothing, bedding, shelter, heating fuel and other supplies and services essential for survival. The starvation of civilians is a war crime.
In view of the worsening conditions, on 28 March 2024, the International Court of Justice ordered that Israel:
[t]ake all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary.
Some commentators have criticised the lack of international evacuation options for people seeking to leave Gaza. A number of countries have been urged to create a special humanitarian visa for Gazans with ties to the country (see also point 3 below).
Most Gazans are ‘Palestine refugees’, defined as ‘persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict.’ This applies to the descendants of such people and to those who fled after the 1967 war, and today, there are nearly 6 million Palestine refugees eligible for protection and assistance by UNRWA.
A special regime for Palestine refugees was established prior to the creation of UNHCR and the 1951 Refugee Convention, under which the UN undertook to provide relief and to promote solutions. Because of this, article 1D of the Refugee Convention conditionally ‘excludes’ Palestinian refugees from protection under that treaty. However, they are only excluded if they continue to receive protection and assistance from UNRWA – the United Nations Relief and Works Agency for Palestine Refugees – which was set up in 1949 specifically for that purpose.
As Professors Guy S Goodwin-Gill and Jane McAdam explain:
a Palestinian registered with UNRWA would be entitled ipso facto to the benefit of the Refugee Convention—without having to demonstrate a well-founded fear of persecution—if it could be shown that their personal safety was at serious risk; UNRWA was unable to guarantee living conditions compatible with its mission; and the refugee was compelled to leave UNRWA’s area of operation owing to circumstances beyond their control. This would need to be assessed either individually or on a group basis. Given the scale of Israeli attacks, a group assessment would seem to be called for now.
Given that UNRWA is no longer able to provide protection and assistance, this means that Gazans arriving in other countries presumptively qualify for refugee status under the 1951 Refugee Convention (provided another exclusion clause does not apply).
With respect to a parallel provision in EU law (article 12(1)(a) of the Qualification Directive), an Opinion of the Advocate General found that:
it cannot be excluded that UNRWA’s area of operation or a part thereof may experience systemic deficiencies of such gravity that there is a substantial risk that any person sent back there would find himself or herself in a situation of extreme material poverty that does not allow him or her to meet his or her most basic needs, such as food, personal hygiene and a place to live, and that undermines his or her physical or mental health or puts him or her in a state of degradation incompatible with human dignity and, therefore, with Article 4 of the Charter. In such a situation, in order to establish that UNRWA’s protection or assistance has ‘ceased’, within the meaning of that provision, it is not necessary for the person concerned to show that the general living conditions prevailing in that area or a part thereof are undignified for him or her in an individualised manner, because the general living conditions can be deemed to be ‘undignified’ for virtually everyone. However, the right to refugee status is not unconditional even in such a situation. The person concerned must apply for international protection. Furthermore, an individual assessment is still required to verify, inter alia, that none of the exclusions set out in Article 12(1)(b), (2) and (3) of that directive apply. Whether that person is entitled to ‘subsidiary protection’, within the meaning of Article 2(g) of that directive, is irrelevant to that assessment.
Bill Frelick, the Refugee Rights Director at Human Rights Watch, has observed that while ‘Palestinians in Gaza should be allowed to remain in dignity in their homes and to exercise the right to return … they also have other treaty rights that must be respected by all states: the right to leave a country, the right to seek asylum, and the right of nonrefoulement, that is, not to be pushed back or returned to face persecution or other serious threats.’
As Professors Goodwin-Gill and McAdam explain:
Gazans remain trapped. The border crossings into Egypt and Israel remain closed to them, and official statements make clear that there is no intention to allow them in. King Abdullah of Jordan, for instance, has spoken about a ‘red line’ if Palestinian refugees are pushed out of Gaza, observing, ‘No refugees in Jordan, no refugees in Egypt.’ Egypt’s Minister of Foreign Affairs said, ‘I see no reason why Egypt, which is hosting 9 million refugees—hosting them and providing them integration into our society at considerable burden on our economy—should have to bear solely [the] additional influx of Gazans.’
These statements must be understood within a broader political context. Both Egypt and Jordan want an overall solution—ideally a two-State solution—as the UN has promised, that is consistent with international law. From their perspective, admitting refugees could be seen to undermine this goal.
Egypt and Jordan are concerned that Israel may be using the war to effect a mass transfer of Palestinians to Jordan and Egypt, which the Jordanian Foreign Minister has called unacceptable. If Israel refuses to accept a two-State solution or an end of occupation, then ‘the third option is to try get rid of as many Palestinians as possible. That is the real concern.’
Professor James Hathway states that:
The bottom line, then, is that both international refugee and human rights law that bind Egypt make clear that its closure of the Rafah border crossing to all Palestinians – including to those at grave and imminent risk – is an illegal act of refoulement. In this case, it has proved to be an illegal act with truly deadly consequences and must be condemned as such.
UNHCR has been notably silent on these issues. This has been strongly criticized by scholars such as Professor James Hathaway and former head of UNHCR’s Policy Development & Evaluation Service, Jeff Crisp.
The issue of special humanitarian visas has been raised in some countries as a means of facilitating pathways to safety for Gazans, especially those with family abroad. In Australia, people have to rely on visitor or other short-term visas rather than any dedicated pathway.
For more information, contact the Kaldor Centre for International Refugee Law.