Analysis: Is Gaza blockade a legitimate tool of war?
Int'l law allows states to defend themselves not only against enemy states but also against terrorists.
By ROBBIE SABELFixing Rafah 224.88(photo credit: AP)
The British foreign secretary issued a carefully crafted statement this Friday expressing "concern" at reports that Israel had reduced electricity supplies to Gaza and called on Israel to "reverse its decision" and to "fulfill its obligations under international law."
The statement also "condemned" the suicide attack in Dimona and called upon the Palestinians to stop rocket attacks against "innocent civilians."
International law allows states to defend themselves not only against attacks by foreign states but also against attacks by terrorist groups emanating from states that are either unable or unwilling to prevent such attacks.
The classical rule of international law allowing self-defense against non-state terrorist attacks was reaffirmed explicitly by the UN Security Council after the 9/11 attack on the World Trade Center.
There has therefore been little, if any, recent international criticism of Israeli armed strikes against the rocket launchers and against Hamas operatives. States friendly to Israel apparently acquiesce to Israel's right to take measures of self-defense against such Hamas military targets.
Under international law, only military objectives are legitimate targets and deliberate attacks against civilians or against civilian targets constitute a violation of the laws of war. Military targets may be attacked even if the attack is liable to cause civilian casualties, provided that the civilian casualties caused will not be disproportional to the military benefit of the attack.
International law also forbids destruction of property, except where such destruction is rendered absolutely necessary by military operations. Hence, if a building houses terrorists or terrorist Therefore, destruction of civilian houses as a punishment or deterrent, as proposed by some, would be clearly illegal. The fact that the other side, in this case Hamas, deliberately attacks civilian targets does not absolve Israel from its obligations.
The problematical legal issue, however, is whether Israel is also entitled to blockade the Gaza Strip as a whole and to prevent or curtail its supply of foodstuffs, fuel and electricity. The Hamas administration of the Gaza Strip is openly hostile, supports terrorist activity against Israel and for all intents and purposes is a belligerent entity. Up to and including the period of World War II blockade was regarded as a legitimate method of warfare. States imposed blockades as a regular feature of warfare.
However, modern international law prohibits "starvation of civilians" as a method of warfare. Moreover, beyond this "negative" prohibition, in times of armed conflict where an enemy population is "under the control" of an enemy state, then that state is prohibited from imposing collective punishment on the civilian population. Furthermore, the state in control has a positive obligation to ensure adequate food, services and supplies to the population under its control.
The international law status of the Gaza Strip is nebulous; it is not an independent state and no state recognizes it as such. However, it is no longer under Israeli military occupation. International law regards an area as being occupied when it is under the "effective control" of an enemy state. In Gaza there is no Israeli effective control. There are no Israeli soldiers or policemen stationed in the area. The laws, courts, police, prisons, taxes and administration are all Palestinian. There is no Israeli military governor and the fiat of Israeli military law does not apply there. This is in marked contrast to the situation when the Gaza Strip was under Israeli military administration.
But Israel controls the airspace and the sea approaches to the Strip and frequently carries out armed actions inside the area. Furthermore, as a result of the twenty years during which Gaza was under Israeli military administration, the area is dependent on Israel for most of its electricity. The over-use of local water resources has also meant that the Strip is dependent on Israel for much of its water supplies. The international community therefore regards Israel as continuing to have some responsibility for ensuring supplies to the civilian population and Israel itself acknowledges such responsibility.
Israel policy has been to use blockade against the Hamas administration as an anti-terrorist act of self-defense while allowing sufficient supply of food, fuel and electricity to prevent starvation or a humanitarian crisis. Every action against the Hamas administration inevitably harms the civilian population, but Israel has attempted to minimize it by ensuring a minimum necessary supply. This would appear to be a reasonable and logical interpretation of obligations under international law. However, the status of the Gaza Strip is to a large extent unique, or as the law says, sui generis; inevitably Israel is likely to be criticized for any action that negatively affects the civilian population.
One aspect totally ignored by the international community is the issue of Egyptian responsibility for the well-being of the population. For 20 years the area was under Egyptian military administration. Egypt now has control of its border with the Gaza Strip and could provide fuel for the Strip if it decided to do so. It is not clear whether Egypt has a legal obligation to provide fuel and electricity but it certainly is an issue that the international community should be studying.
Dr. Robbie Sabel teaches international law at the Hebrew University of Jerusalem and at the Interdisciplinary Center in Herzliya.
