Gaza “Blackout” and the Laws of War

J. Peter Pham, NRO

Although, as the Jerusalem Post reports, the so-called “Gaza blackout” was instigated by the Hamas terrorists who run the enclave as a sort of cynical publicity stunt, it has drawn the usual dire warnings of impending humanitarian crisis and protests from neighboring Arab countries and the European Union. What tends to be forgotten in moments like this is that, even if Israel, which supplies more than 75 percent of the terrorist enclave’s power, did cut off the flow, it would not only be morally but also legally justified in doing so. As Prof. Michael Krauss of George Mason University Law School and I pointed out in a commentary last year when Gaza was designated “hostile territory” by the Israeli cabinet:

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 short, notwithstanding the outraged howls from the external enablers of Hamas, there is no basis in international humanitarian law for claiming any belligerent is obliged to supply energy to territory occupied by the enemy, conventional or otherwise.

The writer is director of the Nelson Institute for International and Public Affairs at James Madison University and an adjunct fellow at the Foundation for the Defense of Democracies