NELSON INSTITUTE DIRECTOR, GMU LAW PROFESSOR DEFEND LEGALITY OF ISRAELI DECISION TO DECLARE GAZA “HOSTILE”

September 25, 2007

HARRISONBURG—In an op-ed published today by the online opinion journal American Thinker, Dr. J. Peter Pham, Director of the Nelson Institute for International and Public Affairs at James Madison University, and Professor Michael I. Krauss of George Mason University School of Law defend the legality of last week’s decision by the Israeli cabinet to declare Gaza “hostile territory,” a move which they note “ 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.”

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.

In conclusion, the authors note that if Gaza is “a miserable place,” it is because “ 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,” Hamas. “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.”

American Thinker is a daily internet publication devoted to “the thoughtful exploration of issues of importance to Americans,” among which “national security in all its dimensions, strategic, economic, diplomatic, and military is emphasized.” It is edited by Dr. Thomas Lifson, a former professor at Harvard Business School, Columbia University School of International and Public Affairs, and Harvard University’s Department of Sociology.

The essay by the two professors, entitled “Feeding the Hand that Bites You”, can be accessed online by clicking here.