Marco Sassòli, a professor and leading expert on international law at the University of Geneva, Switzerland, says Egypt is not under obligation to grant protection to refugees fleeing war in Gaza Strip.

Prof Sassòli spoke to The New Humanitarian. The second part of the interview is continue below:

The New Humanitarian: Egypt has said it will not allow civilians attempting to escape the bombardment and expected ground invasion of Gaza to enter. Do neighbouring states have obligations to provide safe haven to people escaping violence?

Sassòli: Egypt has absolutely no obligation to accept these people, and it may fear that afterwards these people wouldn’t be able to go back as was the case in Lebanon or Jordan in 1948. The suggestion [by Israeli officials] that all these people should go to Egypt – this would be ethnic cleansing.

Where Egypt would have an obligation – and it’s interesting that no one speaks about this – if Israel doesn’t allow humanitarian assistance into Gaza, then Egypt would have to let humanitarian assistance in.

To answer your specific questions, morally, perhaps, there is an obligation to say rather than have all these people massacred, let them in. But also, this could be a contribution to unlawful deportation or ethnic cleansing, if this is prearranged between Israel and Egypt. But that doesn’t seem to be the case here.

The New Humanitarian: What is the proportionality principle, and how applicable is it when there is a substantial power imbalance between the two sides, as many people argue there is between Palestinians and the State of Israel?

Sassòli: At least in international humanitarian law, proportionality is not really a problem linked to this power imbalance. Simply, when the Israelis use force, they may use force only against military objectives, and military objectives cannot be the whole of the Gaza Strip, nor the north of the Gaza Strip, nor every member of Hamas, but the fighters of Hamas and their infrastructure.

When Israel uses force against such targets, it has to take into account the anticipated effect on the civilian population, and if it is excessive compared to the military advantage, the attack is prohibited.

The difficulty of evaluating whether proportionality was respected or not is obviously that we don’t know the plans. Perhaps it was essential for the plan to attack that specific military objective, and then it would not be excessive to take the risk, but never to deliberately kill civilians. But they must also take feasible precautionary measures: using munitions which are sufficiently precise, perhaps making the attack at a time of the day when there would be less civilians around, and, as I mentioned, warning the civilian population.

And here Israel has quite a record of specifically warning people about attacks against specific targets. However, the warning simply to say, “We will invade, and therefore don’t stay here”, is not a warning.

The New Humanitarian: In the Israeli bombardment of Gaza that we’ve been seeing since 7 October, has Israel been following the conditions that you have been laying out in terms of avoiding the indiscriminate targeting of civilians and civilian infrastructure?

Sassòli: I cannot make a statement about this because you would have to be on the ground. And even if you are on the ground and you see a destroyed school, you are still not sure about the circumstances. Was this the headquarters of Hamas, or was it nearby, or was it a mistake? Mistakes happen. Precautionary measures must be taken to avoid mistakes, but if they nevertheless happen, they are not a violation of humanitarian law.

So I cannot say for the time being that humanitarian law was violated. When the full-fledged invasion starts – and we hope this will not happen – then, obviously, it is easier to say prima facie, certain attacks are incompatible with IHL.

This is something I always criticise in humanitarian law, but, unfortunately, states did not accept a transparency obligation – that the one who destroyed the school has to explain why this was lawful. There is no such obligation.

The total closure of the Gaza Strip is something we can say violates IHL.

The New Humanitarian: What does IHL have to say about the blockade of Gaza that Israel and Egypt have maintained since 2007? And what about the complete siege of Gaza that Israel announced on 9 October, cutting off water, electricity, and the internet, and blocking food, fuel, and humanitarian supplies?

Sassòli: The previous naval blockade is a complicated issue. It involves the law of naval warfare where, according to the US, UK, Canadian, Australian, and other military manuals, blockades are still lawful and can be total, except if the purpose is to starve the civilian population, and most people would add that the proportionality principle also applies.

Everyone, including me, has said that Israel has such control over what enters the Gaza Strip that you don’t need to have a blockade. But we have now seen all of these weapons that Hamas used on 7 October. Some of them have been produced in the Gaza Strip, but some parts for it had to be brought in. So apparently the control was not so strict, and there was a military interest of Israel to hinder Hamas getting these rockets.

By the way, it’s interesting that when Russia blockaded the Ukrainian coast, Western states strongly criticised it. Here, there is less criticism.

On the land, there was this blockade, which makes the life of the inhabitants of Gaza difficult. But Israel always let through enough food, electricity, water, and food to guarantee, at a minimum, that these people don’t die.

But the declaration to close it totally is absolutely unacceptable.

The New Humanitarian: What does IHL have to say about the establishment of humanitarian corridors to deliver aid during situations like what we’re seeing in Gaza?

Sassòli: This is a difficult issue because, as such, you have to allow humanitarian assistance in. It must be impartial humanitarian assistance. But you can control it, and those who bring the assistance, if there is fighting everywhere, they will not risk their lives for that. Therefore, you need a kind of ceasefire, and this cannot be only one road. It would have to be quite large. And this presupposes an agreement between the parties because both must promise that they won’t take advantage of this corridor to invade or to break out.

Independently of humanitarian corridors, you have to let goods that are indispensable for the survival of the civilian population in.

The New Humanitarian: In our coverage, we have seen that aid workers and paramedics in Gaza have been targeted, and a high number of paramedics have been killed. One ICRC staffer told us that Israeli forces refused to ensure the safety of their paramedics. What protections do aid workers and medical personnel have under IHL?

Sassòli: Under the rules on the conduct of hostilities, they are civilians and they have to be respected as all other civilians. In addition, medical personnel have the right to fulfil their medical duties, impartially. So, if an Israeli soldier is wounded, they must also care for the Israeli soldiers.

Unfortunately, paramedics and humanitarian personnel will also be killed. In my personal opinion, except for the issue of the special protection of medical personnel because they have to care for the wounded, the rest of the humanitarian personnel are not better protected by IHL than any other civilian in the Gaza strip. That goes for journalists as well. Journalists are civilians.

If they were targeted, this was a clear violation of humanitarian law. Now, when I get hit by a bullet, how do I know if I was targeted or if this was a stray bullet?

The New Humanitarian: Basically, in order to establish whether there has been a violation of international humanitarian law, there needs to be an investigation?

Sassòli: Yes, and this is much more difficult when it comes to things like conducting hostilities than it is when it comes to things like closing the Gaza Strip or Hamas executing people. But it is interesting that when commissions of inquiry and NGOs investigate the Russian attacks in Ukraine, all Western governments were totally shocked by these attacks, although those investigators too had to make all sorts of presumptions and assumptions because you can’t know what the Russian plan was.

The New Humanitarian: The Palestinian Authority became a member of the International Criminal Court (ICC) in 2015, and the ICC launched an investigation into alleged war crimes in the Palestinian Territories – by both Israel and Palestinian factions – in 2021. What is the status of this investigation, should a new one now be launched, or should actions during the current hostilities be included under the ongoing investigation?

Sassòli: I hope and I trust that the [ICC] prosecutor will investigate. As long as individuals have not been individually indicted, it’s not important whether it is the same or a new investigation. Once a person is indicted, you cannot always add new allegations.

I must simply notice that the prosecutor was very fast concerning Ukraine. On the other hand, since 2015 when a preliminary examination was launched by the ICC Prosecutor on Israel and Palestine, we haven’t seen any results.

The conduct of hostilities issues are complicated, as I told you, but the settlements, for example, are not. We have evidence that there are settlements and that the prime minister ordered these settlements, and so on.

I must say that I have a certain feeling that there is a double standard there. Double standards are unacceptable and undermine the credibility of the law even where it is correctly implemented because then these people, like Putin, can say, “Look, they prosecute me, but they don’t prosecute others”.

The problem of the prosecutor is that, now, he and his cohort are suddenly popular with the US because they make inquiries against the Russians. If they start inquiries against Israel, they could again – as they were under presidents Bush and Trump – become considered to be main enemies of the US. This is pure speculation.

It’s not only a political issue; it is also perfectionism. But they overcame perfectionism in Ukraine, and therefore they can overcome perfectionism in this case.

The prosecutor could, as he did concerning Russia, take out some clear cases to start somewhere. There are also clear cases with these Hamas operatives, like what they did with these young people in the festival, for example.

The main thing I would expect from the prosecutor now is to start with some indictments and to speed up.

The New Humanitarian: Many Palestinians feel they have been failed by IHL over the course of the past 50 years, or longer. Have they? And how relevant is IHL in a world where enforcement mechanisms are few and far between, and the ones that do exist appear to be applied selectively?

Sassòli: I understand their frustration. I would ask them, would you have preferred not to have humanitarian law? It is only because of humanitarian law that they can say the settlements are unlawful, and it’s because of humanitarian law that the Israelis cannot annex the Occupied Territories.

But obviously, humanitarian law cannot solve their main problem: they want to have a state. But this is not an issue of humanitarian law.

This is a criticism that has often been made against humanitarian law, that somehow it makes war a little more humane and therefore more bearable. I don’t think anyone makes war by saying we have humanitarian law, and if we didn’t have this we wouldn’t even start because this war would be so inhumane. No one really trusts that it will be respected all the time.

So, I understand the frustration of Palestinians, but, for instance, if the law of occupation was respected, they would be in a much better position.

As for the double standard issues, look at the Sahrawi. Who cares about them? One cannot balance the suffering of people, but I feel a certain double standard. In Ukraine, there was really a willingness – and I was happy about this – to say now we enforce this law, while here there is less [than] in other cases. But the Palestinians are not the only ones who suffer from such double standards. Remember that, last year, 20 times more civilians died from the consequences of the armed conflict in Ethiopia than in Ukraine.

• The New Humanitarian report