Feeding the Hand that Bites You

Two years ago, then-Israeli Prime Minister Ariel Sharon led his country in a fateful decision to "disengage" from Gaza, uprooting 8,500 Jewish residents, many born in Gaza and some domiciled there for nearly four decades.  Sharon did this because, as he put it to 1.3 million Palestinian Gazans,
"...it is not in our interest to govern you... we would like you to govern yourselves in your own country, a democratic Palestinian state."
Sharon held out hope that if things worked out in Gaza, he would move to withdraw from the West Bank as well.

That this hope has turned to literal ashes is now well known. Not only has a viable Palestinian government willing to live in peace and security with Israel failed to materialize, Hamas, a terrorist group whose charter explicitly calls for the destruction of Israel, won legislative elections and forcibly drove Fatah rivals out of Gaza. Gaza has become the locus for blatant acts of war against Israel, including repeated Qassam rocket barrages against Israeli residential areas and recurring efforts to infiltrate suicide bombers. Twelve Israeli civilians have died and countless thousands have been dislocated by these missiles. In the early hours of September 11, one rocket launched from Beit Lahiya in northern Gaza hit an Israeli basic training camp in Zikim, wounding fifty military recruits. Israeli Defense Forces soldier Gilad Shalit was kidnapped inside Israel and is being held prisoner inside Gaza. Hamas has smuggled in large quantities of weapons through the porous Egyptian border.  Twenty tons of materiel entered Gaza in July 2007 alone, and the IDF now believes that Hamas possesses anti-aircraft missiles and anti-tank rockets, most likely Sagger guided missiles.

On September 18, the Israeli cabinet voted unanimously to juridically recognize these facts: it declared that a terrorist organization has turned Gaza into "hostile territory." This declaration opens the way for Israeli authorities, at a time and in a measure of their choosing, to reduce the amount of electricity, water, and fuel they have continued to supply to Gaza since Israel's departure two years ago. [Egypt, during its entire occupation of the territory from 1948-67, never developed Gaza's energy infrastructure, leaving the strip destitute and primitive.  Israel's integration of Gaza into its supply grid has allowed Gazans to develop their industry and agriculture.]

Despite the deliberative tone of the cabinet's decision -- it noted that "sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis" -- critics hastened to denounce the move. One United Nations official interviewed on Israeli Army Radio termed the decision "collective punishment," and "a violation of international law," while UN Secretary-General Ban Ki-moon declared that any interruption in the utilities would be "contrary to Israel's obligations towards the civilian population under international humanitarian and human rights law."

The UN statements were, typically, hysterical in tone and dead wrong on the law. If Gaza is territory under the control of the enemy -- as it manifestly is under Hamas -- then the Israeli government is both within its rights and arguably obliged by its responsibilities to its citizens to treat the strip as "hostile territory." Siege and blockade of a hostile territory is a legitimate tactic of war, used in declared and undeclared (e.g., Cuban) conflicts and explicitly recognized by the 1949 Geneva Conventions. The Conventions' sole limitation is that there be "free passage of all consignments of food-stuffs, clothing and tonics intended for children under fifteen, expectant mothers, and maternity cases" (Fourth Convention, art. 23) -- and even this exception was conditioned on there being "no reasons for fearing... [t]hat a definite advantage may accrue to the military efforts or economy of the enemy" (for example, if resources destined for humanitarian aid will be commandeered by the enemy).  Israel has carefully respected this requirement.

An anti-Israel pundit will doubtless soon point to the 1977 Additional Protocol I to the Geneva Conventions, which states that "starvation of civilians as a method of warfare is prohibited" (art. 54). But Israel is starving no one. No one responsible has suggested cutting off food supplies to Gaza -- which, ironically, exported food (grown in Israeli-built greenhouses, which were demolished by Palestinians after Israel's withdrawal) before 2005. In addition, Israel is not a party to Additional Protocol I (neither is the United States). Even if that treaty bound Israel, the official commentary to the Protocol does not preclude the right to blockade a declared enemy.  In cases of siege the Protocol provides for relief of besieged civilians "subject to the agreement of the parties" (art. 70) -- does anyone think Hamas will sit down with Israel anytime soon? Similarly, the 1998 Rome Statute of the International Criminal Court can be read to make it a war crime to deprive civilians of "objects indispensable to their survival" (art. 8 (2) (b) (xxv)). But Israel is not a party to the Statute and, in any event, the context of the provision makes it clear that it refers back to the Geneva Convention's "food-stuffs, clothing and tonics" for children and pregnant women, which Israel is not blockading but which, in any event, Israel is certainly not obligated to itself supply.

To the joy of Hamas, Gaza is now Judenrein.  But it is a miserable place. Its residents, having voted for a regime that is waging war on Israel, must now suffer the consequences of their electoral (and military) support of the terrorist group. Of course, a cut-off of electricity, water, and fuel, might strengthen the extremists among them, so Israeli authorities are wise to weigh their actions carefully. But if they choose to reduce supplies to their enemy -- a measure far less aggressive than a military takeover -- they are absolutely legally entitled to do so. If Palestinians wish to claim equality among the nations of the world, they should expend energies building a state at peace with its neighbor and supplying its citizens with basic services, rather than devoting themselves to destroying their neighbor and then carping about the standard of living that Israelis allegedly owe them. 

Michael I. Krauss is professor of law at George Mason University School of Law. J. Peter Pham is director of the Nelson Institute for International and Public Affairs at James Madison University. Both are adjunct fellows of the Foundation for the Defense of Democracies.
Two years ago, then-Israeli Prime Minister Ariel Sharon led his country in a fateful decision to "disengage" from Gaza, uprooting 8,500 Jewish residents, many born in Gaza and some domiciled there for nearly four decades.  Sharon did this because, as he put it to 1.3 million Palestinian Gazans,
"...it is not in our interest to govern you... we would like you to govern yourselves in your own country, a democratic Palestinian state."
Sharon held out hope that if things worked out in Gaza, he would move to withdraw from the West Bank as well.

That this hope has turned to literal ashes is now well known. Not only has a viable Palestinian government willing to live in peace and security with Israel failed to materialize, Hamas, a terrorist group whose charter explicitly calls for the destruction of Israel, won legislative elections and forcibly drove Fatah rivals out of Gaza. Gaza has become the locus for blatant acts of war against Israel, including repeated Qassam rocket barrages against Israeli residential areas and recurring efforts to infiltrate suicide bombers. Twelve Israeli civilians have died and countless thousands have been dislocated by these missiles. In the early hours of September 11, one rocket launched from Beit Lahiya in northern Gaza hit an Israeli basic training camp in Zikim, wounding fifty military recruits. Israeli Defense Forces soldier Gilad Shalit was kidnapped inside Israel and is being held prisoner inside Gaza. Hamas has smuggled in large quantities of weapons through the porous Egyptian border.  Twenty tons of materiel entered Gaza in July 2007 alone, and the IDF now believes that Hamas possesses anti-aircraft missiles and anti-tank rockets, most likely Sagger guided missiles.

On September 18, the Israeli cabinet voted unanimously to juridically recognize these facts: it declared that a terrorist organization has turned Gaza into "hostile territory." This declaration opens the way for Israeli authorities, at a time and in a measure of their choosing, to reduce the amount of electricity, water, and fuel they have continued to supply to Gaza since Israel's departure two years ago. [Egypt, during its entire occupation of the territory from 1948-67, never developed Gaza's energy infrastructure, leaving the strip destitute and primitive.  Israel's integration of Gaza into its supply grid has allowed Gazans to develop their industry and agriculture.]

Despite the deliberative tone of the cabinet's decision -- it noted that "sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis" -- critics hastened to denounce the move. One United Nations official interviewed on Israeli Army Radio termed the decision "collective punishment," and "a violation of international law," while UN Secretary-General Ban Ki-moon declared that any interruption in the utilities would be "contrary to Israel's obligations towards the civilian population under international humanitarian and human rights law."

The UN statements were, typically, hysterical in tone and dead wrong on the law. If Gaza is territory under the control of the enemy -- as it manifestly is under Hamas -- then the Israeli government is both within its rights and arguably obliged by its responsibilities to its citizens to treat the strip as "hostile territory." Siege and blockade of a hostile territory is a legitimate tactic of war, used in declared and undeclared (e.g., Cuban) conflicts and explicitly recognized by the 1949 Geneva Conventions. The Conventions' sole limitation is that there be "free passage of all consignments of food-stuffs, clothing and tonics intended for children under fifteen, expectant mothers, and maternity cases" (Fourth Convention, art. 23) -- and even this exception was conditioned on there being "no reasons for fearing... [t]hat a definite advantage may accrue to the military efforts or economy of the enemy" (for example, if resources destined for humanitarian aid will be commandeered by the enemy).  Israel has carefully respected this requirement.

An anti-Israel pundit will doubtless soon point to the 1977 Additional Protocol I to the Geneva Conventions, which states that "starvation of civilians as a method of warfare is prohibited" (art. 54). But Israel is starving no one. No one responsible has suggested cutting off food supplies to Gaza -- which, ironically, exported food (grown in Israeli-built greenhouses, which were demolished by Palestinians after Israel's withdrawal) before 2005. In addition, Israel is not a party to Additional Protocol I (neither is the United States). Even if that treaty bound Israel, the official commentary to the Protocol does not preclude the right to blockade a declared enemy.  In cases of siege the Protocol provides for relief of besieged civilians "subject to the agreement of the parties" (art. 70) -- does anyone think Hamas will sit down with Israel anytime soon? Similarly, the 1998 Rome Statute of the International Criminal Court can be read to make it a war crime to deprive civilians of "objects indispensable to their survival" (art. 8 (2) (b) (xxv)). But Israel is not a party to the Statute and, in any event, the context of the provision makes it clear that it refers back to the Geneva Convention's "food-stuffs, clothing and tonics" for children and pregnant women, which Israel is not blockading but which, in any event, Israel is certainly not obligated to itself supply.

To the joy of Hamas, Gaza is now Judenrein.  But it is a miserable place. Its residents, having voted for a regime that is waging war on Israel, must now suffer the consequences of their electoral (and military) support of the terrorist group. Of course, a cut-off of electricity, water, and fuel, might strengthen the extremists among them, so Israeli authorities are wise to weigh their actions carefully. But if they choose to reduce supplies to their enemy -- a measure far less aggressive than a military takeover -- they are absolutely legally entitled to do so. If Palestinians wish to claim equality among the nations of the world, they should expend energies building a state at peace with its neighbor and supplying its citizens with basic services, rather than devoting themselves to destroying their neighbor and then carping about the standard of living that Israelis allegedly owe them. 

Michael I. Krauss is professor of law at George Mason University School of Law. J. Peter Pham is director of the Nelson Institute for International and Public Affairs at James Madison University. Both are adjunct fellows of the Foundation for the Defense of Democracies.