“Battlefield Humanitarianism”: Navigating the Role of ADR in Humanitarian Law Complexities of Urban Warfare

By Benjamin Gotian

The resulting devastation of World War II produced a need for rules of engagement and protection of innocent civilians.  Nevertheless, an increasing number of armed conflicts are currently being fought in dense urban environments.  As a result, the risk of collateral damage and harm to civilians has drastically increased, making it significantly more difficult to adhere to international humanitarian law (“IHL”) and the rules of war.

Ensuring civilians caught in the crossfire get the necessary humanitarian aid and coordinating with all stakeholders is incredibly complex.  This process of protecting civilians in active war zones and generally upholding humanitarian law is something I shorthand as “battlefield humanitarianism.”[1]  The ongoing Israel-Gaza war has created a sense of urgency in delivering aid in chaotic and dangerous environments, further complicated by reports of Hamas diverting resources and depriving civilians of essential aid.[2]  This blog explores the role of Alternative Dispute Resolution (“ADR”) in mitigating humanitarian crises during urban conflicts. Despite the complexities, ADR offers potential pathways for promoting ceasefires and facilitating humanitarian efforts, even as urban warfare intensifies decision-making challenges.

Urban warfare, particularly in upholding international humanitarian law, compounds the difficulties already present in armed conflict.  The high density of civilian populations and the inevitable destruction of critical infrastructures make it nearly impossible to fully adhere to IHL.  Urban settings create a severe stress test for upholding core IHL principles such as distinction, proportionality, and necessity.[3]  Gaza presents one of the most challenging stress tests in modern warfare applied to upholding humanitarian law.[4]  In Gaza, most critical infrastructures have been destroyed,[5] leaving civilians without basic living needs.

ADR mechanisms can and do play an essential role in conflict zones by de-escalating violence, facilitating aid delivery, and providing a neutral platform for all stakeholders to communicate.  Aside from poor coordination in facilitating aid delivery, two issues must be considered.  First, humanitarian aid delivery in Gaza is diverted by Hamas.[6]  This issue disrupts efforts made to ensure civilians receive desperately needed resources.  Aid diversion undermines trust between parties and disrupts the humanitarian objectives that ADR mechanisms aim to support.  When aid is stolen or misappropriated, it deprives civilians of critical resources and fractures the trust of state and non-state actors amongst each other.  This dynamic creates a situation where mediators must negotiate ceasefires in order to receive aid in a safe manner and address the governance of aid to ensure that it does not fall into the wrong hands.  The second issue is ensuring that other sides do not exploit aid operations.  One particular instance was the April 2024 IDF strike on a World Central Kitchen (“WCK”) aid convoy, which killed seven WCK workers.[7]  While the cars were clearly marked,[8] and the Israelis knew the movement,[9] IDF drone operators believed that Hamas was using WCK trucks to move fighters.[10]  These incidents are reflective of the “fog of war,” where the line between military targets and humanitarian aid efforts becomes blurred.

Such complexities make distinguishing between legitimate aid deliveries and potential military threats difficult. For ADR to work in the context of battlefield humanitarianism, it must overcome a few key obstacles. The first obstacle pertains to the presence of power imbalances and lack of good faith in adhering to international norms.  Power imbalances affect the negotiating process but can also affect the outcome of that given negotiation.[11]  Further, the outcomes are often indicative of those power imbalances.[12]  The second obstacle is the legal constraints of international humanitarian law.  Warzones, especially dense urban battlefields, are incredibly chaotic environment.  Even if a party makes a concerted effort to abide by the rules of engagement, the chaos makes compliance with such rules very difficult.[13]  Between Hamas deeply embedding itself among the civilian population,[14] and said civilian population being deprived of the basic essentials,[15] it becomes very difficult to complete legitimate military objectives while adhering to IHL.  The third obstacle is trust among the parties.  Israel has long been cynical of the role of international organizations.[16]  Such cynicism is clearly affirmed in the findings that United Nations Relief and Works Agency employees were involved in the October 7th massacre.[17]

Urban warfare, particularly in Gaza, illustrates the complexity of adhering to IHL and protecting civilians in conflict zones and exacerbates its implementation.  Despite its limitations, ADR offers an essential avenue for promoting ceasefires and facilitating humanitarian aid.  As urban warfare continues to challenge the limits of IHL, greater collaboration between ADR practitioners, humanitarian organizations, and legal experts will be essential in navigating modern legal conflicts and ethical complexities.

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[1] Benjamin Gotian, Military Operations as Acts of Self-Defense: The Begin Doctrine and Israeli Counterterrorism, 20-21 (June 2023) (M.A. thesis, University of Chicago) (on file with Knowledge Library System at University of Chicago) https://knowledge.uchicago.edu/record/6046?ln=en&v=pdf [https://perma.cc/3JNX-R6VC].

[2] Nan Jacques, Zilberdik, Palestinian Authority Says Hamas is Stealing Aid Meant for Gaza Civilians, Algemeiner, Sept. 26, 2024, https://www.algemeiner.com/2024/09/26/palestinian-authority-says-hamas-is-stealing-aid-meant-for-gaza-civilians/ [https://perma.cc/6FYZ-YLCZ].

[3] Fundamental Principles of IHL, ICRC Casebook (n.d.), https://casebook.icrc.org/a_to_z/glossary/fundamental-principles-ihl#:~:text=the%20principle%20of%20distinction%20between,superfluous%20injury%20and%20unnecessary%20suffering.  [https://perma.cc/GC8E-5SMY].

[4] Gotian, supra note 1, at 22.

[5] Scott Neuman, Anas Baba & Daniel Wood, Gaza's Infrastructure in Crisis as Israel-Hamas Conflict Escalates: Water, Schools, and Hospitals Under Siege, NPR, June 1, 2024, https://www.npr.org/2024/06/01/g-s1-1780/gaza-israel-infrastructure-water-schools-hospitals [https://perma.cc/QEP7-G9S8].

[6] Zilberdik, supra note 2.

[7] Jo Floto, Israel-Gaza: Inside IDF's detailed briefing on aid convoy attack, BBC News, April 5, 2024, https://www.bbc.com/news/world-middle-east-68742572 [https://perma.cc/3FPV-Z76U].

[8] Id.

[9] Id.

[10] Id.

[11] COMMENT: A Framework for Understanding and Using ADR, 71 Tul. L. Rev. 1313, 1320.

[12] Id.

[13] Gotian, supra note 1, at 28.

[14] Michael N. Schmitt, What Is and Is Not Human Shielding, Lieber Institute West Point (Mar. 20, 2023), https://lieber.westpoint.edu/what-is-and-is-not-human-shielding/ [https://perma.cc/UV6S-ZE4Z].

[15] Neuman, Baba & Wood, supra note 5.

[16] Gotian, supra note 1, at 20.

[17] Richard Roth & Mick Krever, UN Opens Probe Into Gaza Aid Amid Israel-Hamas Tensions, CNN, Aug. 5, 2024, https://www.cnn.com/2024/08/05/middleeast/un-probe-unwra-gaza-israel-intl-latam/index.html [https://perma.cc/5UPE-9XNT].