PrintFebruary 13, 2011
The Gaza Blockade: Not War But Defense
Not the laws of war, but self defense. Not a means of warfare but a security-defense option. Thus should be perceived the mainly Israeli imposed closure of Gaza -- widely known as the "blockade" -- after Hamas seized power and rockets started to be launched towards Southern Israel. Thus should be Israel's legal stance. The difference is not only in semantics, but practical.
The laws of war -- known also as jus in bello -- refer to how a war can be waged and include also the prohibition of collective punishment, while any discussion inside a self-defense framework leaves the issue out. With consensus increasing on collective punishment's war crime status along with voices, characteristically encapsulated in the Goldstone Report, terming Israel's policies towards Gaza as such and calling for Israel's indictment to the International Criminal Court, Israel should opt for a stance excluding from the agenda the issue of collective punishment.
The Turkel Commission was formed by Israel to investigate the May 2010 flotilla incident, where Israeli commandos boarded ships that were attempting to break Gaza's naval closure, leading to the death of nine Turkish citizens. In its report, the Commission correctly concludes that in order for the crime of collective punishment to be constituted, the alleged perpetrator must have the intent to punish innocent people for actions they themselves have not committed, and in Gaza's case, the pain and misery caused to the civilian population is not the objective of the drafted policy. Yet, still, some of the measures, such as these impairing freedom of movement for persons and goods from and to Gaza, target all of Gaza's population. These measures could raise issues of collective punishment due to their encompassing character, unless tied with a specific security concern, relating to each individual case and even should they be viewed as reprisals to Hamas's unlawful acts, it is doubtful whether they would easily pass the proportionality test.
Moreover, applying the laws of war in the case of the Gaza blockade would mean either that Israel and Hamas are in war -- even in absence of hostilities -- or that Gaza is still occupied. The first is claimed by the Turkel Commission Report. The second was argued by the U.N. Human Rights Council, in its own report on the flotilla incident.
Both approaches have flaws. The latter one which views Israel as still occupying Gaza even after its withdrawal of its forces and civilians in 2005, completely ignores the fact that legally, an occupation regime needs the exertion of effective control in order to be established, and as such, it is difficult to fathom how Israel's control can be effective with no physical civilian or military presence in the Strip.
The approach according to which Israel is in a belligerent state with Hamas stems from the fact that there is no peace agreement signed between the parties. But there is no peace agreement also between Israel and Syria, yet the Israeli attack to a Syria planned nuclear reactor in September 2007 was treated more on a right to self defense basis. The latter belongs to the legal framework governing the initial resort to hostilities -- jus ad bellum in Latin -- presupposing yet at the same time that such a resort is not always taken for granted, but constitutes a strategic security option, which can materialize -- as in the case of Gaza's closure -- also through measures not entailing the use of force.
True, Israel's position on the matter has been a bit confusing. Before the Israeli Supreme Court, in the case concerning the release of the people who tried to break the naval blockade in the end of May, the State's representatives presented the Gaza closure as a measure of warfare, compared to a siege, although in the laws of war a siege is undertaken to bring the enemy's capitulation and Israel does not intend to vanquish Hamas and re-conquer the Strip. On a different line, in the Turkel Commission Report the government's position appears to be that the blockade was imposed for military-security reasons. Indeed, Prime Minister Netanyahu himself has spoken of a "security blockade," further stating that the acts of the Israeli commandos during the raid to Mavi Marmara were acts of self defense.
This security-defense approach is evident also on a judicial and quasi judicial level. In Israel's Supreme Court ruling on the legality of the State's electricity and gas cut supplies to the Strip, Judge Beinisch heralded to quote the Court's former President Aharon Barak in his judgment that Israel is in war with terrorist groups and thus exercising its right to self defense. The Turkel Commission itself stated explicitly that the purpose of the closure is to limit the ability of Hamas to carry out operations against Israel.
Indeed, Israel seems to try and argue, albeit not always in a non blurring manner, that its actions should not be seen under the lens of the laws of war, but as an expression of the right to self defense. Not surprisingly, such a security-defense approach has been taken by Israel also in cases of other major counter-terrorism measures, such as targeted killings and the security fence.
Such an approach holds a special value for two reasons. First, it constitutes Gaza's closure part of a concrete wider Israeli policy of dealing with existential threats and not as a sporadic, instinctive, vindictive measure. Against the international community contentions that Gaza is still occupied and the laws of war should apply, Israel postulates a dynamic perception of the international law of self defense. Second, contrary to views of Israel as a constant denier of international law, Israel's report on the flotilla incident signals that in light of a Panel formed by the U.N. Secretary General with both Israel's and Turkey's participation, which is going to ultimately decide on the issues around the flotilla incident and Gaza, Israel wants to remain attached to international legality, aspiring to shape it with its views and legal perceptions.
To such an approach, the international community should lend a listening ear. A possible shielding behind old formed mantras is counter-productive first and foremost for law itself. Quite importantly, the gap that separates Israel from the international community is not only factual, but also legal. And this, albeit more tragic, in light of the Ban Ki Moon's Panel expected final assertion, can be also more comforting.
Solon Solomon has served in the past in the Knesset (Israeli Parliament) Legal Department in charge of international and constitutional issues.
