The Gaza Blockade Is Illegal and the Flotilla Attack Was an Illegal Act of War
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Israeli officials claimed that the IDF commandos who killed and wounded dozens of activists on a humanitarian aid convoy bound for Gaza this week faced a potentially lethal attack, and opened fire in self-defense. Eyewitnesses on board tell a different story, saying the special forces troops fired on the ships before boarding, weren't in fact attacked and were unrestrained in their hostility. The question of who attacked whom is irrelevant, however, according to experts in international law. The blockade itself is illegal, and therefore Israel had no right to board those ships in the first place. It renders the argument over culpability moot. Israel committed an illegal act of war attacking the convoy, regardless of who tried to draw "first blood."
Israeli officials claim that the Jewish state is at war with Hamas, which controls the Gaza strip. On that basis, officials say Israel has a right to intercept shipping in and out of Gaza under the law of war. In an opinion piece AIPAC has been pushing to reporters this week, Leslie Gelb, a former president of the Council on Foreign Relations, wrote that "blockades are quite legal," and compared the Gaza siege to the Anglo-U.S. blockades of Germany and Japan during World War Two. "Only knee-jerk left-wingers and the usual legion of poseurs around the world would dispute this," wrote Gelb sneeringly. Michael Oren, Israel's ambassador to the U.S., echoed the World War Two comparison.
The parallel is entirely false. Gaza is not an independent state at war with Israel. Gaza is occupied by Israel, and, as such, an entirely different set of international laws apply. As UC Hastings legal scholar George Bisharat explained this week, the 2005 withdrawal of Israeli troops and settlers from the ground in Gaza is immaterial, as the area remains under Israel's "effective control" -- it's a remote occupation but an occupation nonetheless.
Under customary international law that Israel accepts as binding ... a territory is "occupied" when foreign forces exercise "effective control" over it, whether accomplished through the continuous presence of ground troops or not.
Israel patrols the territorial waters and airspace of the Gaza Strip, regulates Gaza's land borders, restricts internal movements by excluding Gazans from a "buffer zone" that includes 46 percent of the strip's agricultural land, and controls the Gaza Strip's supplies of electricity, heating oil, and petrol. Together these factors amount to remote but "effective control."
According to Bisharat, this is not a matter of dispute. "The Gaza Strip remains occupied," he wrote, "as the United Nations, the U.S. government and the International Committee of the Red Cross have all recognized." Hamas controls the ground within Gaza, but Israel controls Gaza.
There are two important ramifications to this. First, a blockade that restricts the local population's access to vital goods violates the Fourth Geneva Convention, which specifies that an occupying force has a legally binding duty to protect an occupied population. Bisharat explained it like this:
Israel has authority to halt arms imports into the Gaza Strip. But it also owes a general duty of protection to civilians under its control, and has specific duties to allow them access to adequate food and medical supplies, and to maintain public health standards - duties it has deliberately violated in imposing the siege on Gaza. Currently 77.2 percent of Gaza Palestinians either face or are vulnerable to hunger ...
Moreover, collective punishment is specifically barred under Article 33 of the Fourth Geneva Convention. Israeli officials have repeatedly stated that the objective of the blockade is to weaken the Gaza economy and undermine support for Hamas. That is a political, not a military, objective, and it is impermissible under international law to target innocent civilians to achieve nonmilitary goals.