Israel Matzav

Declaring Hamastan a 'hostile entity'

A post at the American Thinker discusses the meaning of declaring Hamastan a 'hostile entity.'

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.

Declaring Hamastan a 'hostile entity' was a wonderful idea. But as to Israel actually following through on it, let's just say that I'll believe it when I see it.

posted by Carl in Jerusalem @ 10:12 PM