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The Implications of Hamas' Gaza Breakout

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Update from AIJAC

January 30, 2008
Number 01/08 #07

This Update focuses on analysis of the political implications of Hamas' breaking down of the border of southern Gaza last Wednesday morning, sending hundreds of thousands of Gazans into Sinai (Hamas initially denied responsibility, but evidence of its responsibility for blowing up the border fence now seems undeniable - see here, here, and here.) For a more general summary and backgrounder on the events of recent days, see here.

First up, the always insightful Barry Rubin argues that, contrary to what is being widely claimed, the breakout into Egypt was self-defeating, not a great propaganda victory for Hamas. He says the move fits strongly into the traditional Palestinian tactic of playing for victimhood, and this requires constantly losing, with all the costs this creates for Palestinian society, and probably won them few actual sympathy points. For Rubin's full argument that Hamas' strategy can never lead to either statehood or victory, CLICK HERE. For those interested, here are the good editorials Rubin mentions from the Washington Post and Chicago Tribune. Additional  editorials worth reading come from the New York Post, New York Sun, and Haaretz.

Next up, former Jerusalem Post editor Bret Stephens concentrates on the effects of the breakout on Egypt, which he argues may be considerable. He sees the Hamas-staged event as a move which strongly appeals to public opinion in the Arab world, despite the fact that Arab governments do very little for the Palestinians. He particularly sees signs that the Muslim Brotherhood, Hamas' parent organisation and the Egyptian government's strongest opposition force, is strengthened and increasingly confident as a result, and argues that Egypt's future looks increasingly uncertain after President Mubarak, who is almost 80, dies. For the complete piece, CLICK HERE. Meanwhile, many Israeli and pro-Israeli commentators have found a silver lining in the Gaza breakout, because it forces Egypt to take a more responsible attitude toward the Gaza situation - see  here, here, here and here. However, Israeli columnist Calev Ben David disagrees, seeing little hope that Egypt or the international community will now solve the problem. More on this debate in Israel is here. Finally, Middle East scholar Martin Kramer uses recent events to revive an interesting peace proposal.

Finally, distinguished Israeli international law specialist Avraham Bell discusses the legal situation of Gaza and the legality of Israeli measures to  counter Hamas' attacks prior to the border breakout. He argues that Israel was under no legal obligation to supply goods to Gaza or allow an open border and therefore the claim that Israel's limitations on those goods or closure of that border amount to "collective punishment"is a complete misinterpretation of international law. There's much more, dealing with various treaties and principles, and to read it all, CLICK HERE. Also commenting on the international law that applies to Israeli moves against Gaza is American academic J. Peter Pham. Meanwhile, Eric Schechter answers the claim that Israel is still somehow legally the "occupier" of Gaza, despite having removed all soldiers and settlers in 2005.

Readers may also be interested in:


Hamas's Phony Victory

Barry Rubin

GLORIA, January 27, 2008

Imagine a very secret meeting held somewhere in the Gaza Strip. Around a table sit various Hamas bigwigs and their leader makes the following speech:

"Ök, here's the plan. We'll wage war on our stronger neighbor, Israel, and lose; destroy our economy; make our people suffer; ensure international sanctions continue against us, and alienate almost all Arab regimes. Then, when things can't seem to get any worse, we'll turn out all the lights and get international sympathy!"

"Brilliant!" is the response as the Hamas leaders leap to their feet and chant: "Just 100 more years of this and Israel will be destroyed!"

Not such a great strategy, you say? Then why should anyone think Hamas won some big public relations' victory by shutting off Gaza's electricity and blowing up the border wall with Egypt? Â True, that's what Hamas's heads think. They are boiling over with pride at having put one over on Israel, as if this is some huge triumph. Some Israelis seem to agree.

But this is pure nonsense. Actually, it reminds me of many incidents in Palestinian history. Let me choose one. After the PLO's 1982 defeat in Lebanon, when it was driven out of the country, Yasir Arafat called the catastrophe "an absolute political victory," while one of his henchmen said, "We should not become arrogant in the future as a result of this victory."

Remember this. You can only make--illusory--profits out of being an alleged victim if you always lose.

Meanwhile, public support for Israel in America is at an all-time high. In some European countries, notably France and Italy, it has been rising. At any rate, no important Western states are siding with Hamas. If they have any policy obsession it is pushing the peace process, and Hamas is recognized as a barrier to that. A remarkably anti-Hamas, pro-Israel editorial in the Washington Post, January 24, was entitled. "As thousands stream across the border to Egypt, Hamas blockades the peace process."

Two years after Hamas's election victory and six months after it seized the Gaza Strip, international sanctions show no sign of faltering. Other than Syria, no Arab state is helping Hamas. Egypt may be soft on Hamas at times but it is very angry at the group.

In the West Bank, the Palestinian Authority, now a Fatah regime, is not falling apart (well, no more than usual). Ask yourself this question: Will the vision of what's been happening in Gaza persuade West Bankers that they want Hamas in power there? Today, if Westerners want to feel friendly to the Palestinians they can support "good guy" Fatah against "bad guy" Hamas.

Meanwhile, Israel is doing very well. Unemployment is at an all-time low; the economy is growing fast; polls show that both patriotism and personal satisfaction are high among its citizens. Despite the rocket assault, Israeli defenses are strong on both the Gaza and West Bank fronts, with terrorism considerably down.

But even if one is just talking about the international media, I think the Hamas publicity stunt largely boomeranged, especially in the print media. Wire services explained Israel's motives and Hamas's aggression against it to a much greater extent than usual.

The aforementioned Washington Post editorial accused Hamas of disrupting peace efforts, stated that "no one is starving in Gaza, and noted that "Israelis have been relentlessly terrorized" by Hamas rocket attacks. It concluded, "The people of Gaza, should get a consistent message that relief lies not in blowing up international borders but in ending attacks on Israel and allowing a peace process to go forward."

A Chicago Tribune editorial, entitled "The Enemy Within," warned that "until most Gazans fix the blame for their miserable living conditions where it belongs--on their elected leaders of Hamas--Gaza will remain poised on the brink of crisis, sending rockets into Israel and then complaining bitterly when its foe retaliates." And that editorial concluded, "As long as Hamas is in power, Gaza will be driven further into misery, further from the path that would lead to an independent state. For Gazans, the real enemy is within."

Certainly, contrary reports can be found, as well as pictures seemingly calculated to mobilize sympathy for ending sanctions on the Gaza Strip. Yet this was scarcely a tidal wave and largely concentrated in the media institutions that always take that stance.

In reality, there are two huge flaws with Hamas's strategy. From a pragmatic standpoint, Hamas's radicalism does prevent the creation of a Palestinian state and a peace that would benefit Palestinians. Its strategy of the permanent offensive guarantees not only suffering but also failure.

Even from a radical perspective, Hamas's policy of permanent offensive is a big mistake. It would have been better advised to pretend moderation, make a deal with at least Fatah--or perhaps even Israel--then break it in a bid for total victory. If it opted for quiet, Hamas could end the sanctions, gain some Western support, build up Gaza's economy and social institutions, and train a future generation for all-out war. Â But Hamas also rejects this cleverly cynical extremist approach. Of course, Arafat made that same error.

So while Hamas will never give up it also will never win. To portray its latest antics as some kind of success is simply wrong. It is a disaster for Hamas and the Palestinians. To understand this reality is to comprehend the central blunder plaguing the Palestinian movement's strategy since its inception, ensnaring the PLO, PA, Fatah, and Hamas alike.

Barry Rubin is director of the Global Research in International Affairs (GLORIA) Center http://www.gloriacenter.org and editor of the Middle East Review of International Affairs (MERIA) Journal http://meria.idc.ac.il . His latest books are The Truth About Syria (Palgrave-Macmillan) and The Long War for Freedom: The Arab Struggle for Democracy in the Middle East (Wiley) .

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The Gaza Breakout 

Bret Stephens

Wall Street Journal
, January 29, 2008

What if Gaza were to conquer Egypt? The possibility is not as remote as it may seem just by glancing at the map.

Egypt has more than 50 times the population of its former colony and 2,800 times the landmass. But Gaza is sovereign Hamas territory, Hamas is the Palestinian branch of Egypt's Muslim Brotherhood, and Egypt -- not Israel -- is the country that has most to fear from a statelet that is at once the toehold, sanctuary and springboard of an Islamist revolution.

No wonder liberal Egyptians are reacting with near-hysterical alarm to last Wednesday's demolition of the border fence between the Gaza Strip and the Sinai. The Brotherhood organized at least 70 demonstrations throughout Egypt early last week to protest Israel's economic blockade of the Strip, itself a reaction to Hamas's rocket barrages into Israel. "Arm us, train us and send us to Gaza," chanted the demonstrators, along with "O rulers of Muslims, where is your honor, where is your religion?" The independent Egyptian daily Almasry Alyoum also described conversations between Hamas leader Khaled Mashal and Mohammed Mahdi Akef, the Brotherhood's Supreme Guide, to coordinate their activities. "We will take to the streets and defend our brothers in Gaza, even if we are all tried in military courts," Mr. Akef was reported as saying.

As Middle Eastern power plays go, Hamas's decision to dismantle the Gaza-Sinai border was a masterstroke. Gaza's economic woes are almost wholly self-inflicted, but they are real. Dynamiting and bulldozing the border of a neighboring country is legally an act of war, but it was made to seem like a humanitarian necessity and a bid for freedom. Flooding that neighbor with hundreds of thousands of desperate people is a massive economic burden on Egypt, but one that it shirks at its political peril.

Above all, Hamas exploited the myth of pan-Arab solidarity with the Palestinians in order to explode it. Having whipped itself into its usual frenzy over Israel's "siege" of Gaza, it was a delicate matter for the state-run Egyptian press to make the government's case for deploying truncheon-wielding police to turn back the Palestinian human tide. It's an equally delicate matter for the Egyptian government to arrest Brotherhood protesters peacefully demonstrating "for Palestine," even if the Brotherhood's real target is Hosni Mubarak's regime and the Israeli-Egyptian peace treaty that it supports.

For Palestinians who have spent squalid decades in the refugee camps of Lebanon (which forbids Palestinians from owning property or having any sort of gainful employment), or have been systematically abused as laborers in the Gulf sheikdoms (Kuwait expelled its Palestinian population en masse following its 1991 liberation from Iraq), or have had a country denied to them by a Hashemite regime in Jordan, the lies of the Arab world are well known.

Still, it must have seemed to Palestinians an especially galling contrast that Israel announced the resumption of fuel supplies to Gaza just as Egypt was cutting its deliveries of fuel and foodstuffs to its border towns of Rafah and El Arish in the Sinai, in order to keep the Palestinians out. For good measure, Egyptian sources tell me that yesterday the government also arrested 3,000 Gazans who had made their way to Cairo -- yet another betrayal that will surely linger in Palestinian memory for a long time.

For the Brotherhood all this is excellent news. Yesterday, Nabil Shaath, a Palestinian minister in President Mahmoud Abbas's cabinet, reportedly sought a meeting in Cairo with Supreme Guide Akef in order to negotiate a new border arrangement. Mr. Akef declined to see him, a telling indicator of the Brotherhood's newfound political confidence. It can now lay firm claim to the Palestinian cause, never mind that its "brothers" in Hamas are the real source of current Palestinian misery.

By contrast, the Egyptian government faces a serious quandary, and not just as a matter of rhetoric. By its treaty with Israel, it is forbidden from deploying its army in large numbers to the Sinai. In previous years, it used this restriction as an alibi in its lackluster efforts to prevent the arms flow from Sinai to Gaza. Now that flow threatens to go in the opposite direction, endangering not just Israel but also Egyptian tourist resorts such as Taba and Sharm el-Sheikh. "The situation in Sinai now poses the greatest threat to Egypt's national security," writes one perceptive Egyptian blogger. "Any Palestinian crossing the border could take with him weapons and explosives and supply them to Al Qaeda affiliated groups in Sinai."

The Egyptian-Israeli treaty may ultimately have to be revised to take account of the changing facts on the ground. Israel, too, will have to rethink some basic strategic assumptions. Supporters of Ariel Sharon's "disengagement" plan -- present company included -- can take a measure of satisfaction in noting that Gaza is increasingly becoming an Arab problem rather than an Israeli one. But in addition to the physical challenge of having to defend against incessant (if so far rarely deadly) rocket attacks from Gaza, and reinforce its long desert border with Egypt, Israel must also now consider the possibility that the current regime in Egypt may not long survive the death of its soon-to-be octogenarian president.

Who and what comes next is anyone's guess, though it would be foolish to gamble on Gamal Mubarak, the president's West-leaning son. Egypt is a military regime, and the younger Mubarak, who never served in uniform, is not well-loved among the generals who will have the final say in matters of succession.

A more serious question is whether the military might take a more indulgent view of the Brotherhood, either because it has been infiltrated by Islamist officers, or because it seeks a condominium with the Brotherhood in order to shore up its own legitimacy. (In this connection, U.S. efforts to "engage" the Brotherhood in a political dialogue would have a disastrous effect, as it would signal to the military that it could cut its own deal with the Islamists without having to pay a price in U.S. support.)

In the meantime, the border with Gaza is again being sealed, bringing the crisis to a temporary end. It won't remain quiet for long, and neither will Egypt -- the next great foreign policy crisis on the American horizon.

Bret Stephens is a member of The Wall Street Journal's editorial board.

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International Law and Gaza: The Assault on Israel's Right to Self-Defense

Abraham Bell

Jerusalem Issue Brief, Vol. 7, No. 29    28 January 2008

  • International law authorizes Israel to initiate military countermeasures in Gaza. If Gaza is properly seen as having independent sovereignty, Israel's use of force is permissible on the grounds of self-defense. If Gaza is properly seen as lacking any independent sovereignty, Israel's use of military force is permissible as in other non-international conflicts.
  • The rule of "distinction" includes elements of intent and expected result: so long as one aims at legitimate targets, the rule of distinction permits the attack, even if there will be collateral damage to civilians. The rule of "proportionality" also relies upon intent. If Israel plans a strike without expecting excessive collateral damage, the rule of proportionality permits it. Israeli attacks to date have abided by the rules of distinction and proportionality.
  • Israel's imposition of economic sanctions on the Gaza Strip is a perfectly legal means of responding to Palestinian attacks. Since Israel is under no legal obligation to engage in trade of fuel or anything else with Gaza, or to maintain open borders, it may withhold commercial items and seal its borders at its discretion.
  • The bar on collective punishment forbids the imposition of criminal-type penalties to individuals or groups on the basis of another's guilt. None of Israel's actions involve the imposition of criminal-type penalties.
  • There is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of a state party to the convention and the occupier "exercises the functions of government" in the territory. Gaza is not territory of another state party to the convention and Israel does not exercise the functions of government in the territory.
  • The fighting in Gaza has been characterized by the extensive commission of war crimes, acts of terrorism and acts of genocide by Palestinians, while Israeli countermeasures have conformed with the requirements of international law. International law requires states to take measures to bring Palestinian war criminals and terrorists to justice, to prevent and punish Palestinian genocidal efforts, and to block the funding of Palestinian terrorist groups and those complicit with them.

Since Israel's withdrawal from the Gaza Strip in August 2005, Palestinian groups including Hamas, Fatah, Palestinian Islamic Jihad, the Popular Democratic Front for the Liberation of Palestine, and the Popular Resistance Committees have launched thousands of rocket attacks at Israel. All the attacks have been on civilian targets, with no more than a handful of possible exceptions. The brunt of the Palestinian assault has been borne by the town of Sderot. The attacks have killed several residents and injured dozens, struck houses and public buildings like kindergartens, and so traumatized residents that three-quarters of all Sderot children between the ages of 7 and 12 suffer from post-traumatic anxiety.

 
Faulty Arguments Made by Opponents of Israel

Unsurprisingly, in the wake of Israeli countermeasures, persistent critics of Israel have strongly objected to Israel's defensive actions to date, while remaining mostly mute on the crime under international law committed daily by the Gazan militias' attacks on Israeli civilians. As will be explained below, it is evident that the criticisms are without legal basis. Israeli responses to the Palestinian terror attacks emanating from Gaza correspond to the requirements of international law, and the claims that Israel has violated international law are without merit.

One widely reported criticism came from John Dugard, a professor of international law who has accepted a permanent appointment as special rapporteur on human rights in the "occupied Palestinian territories" from the discredited UN Commission on Human Rights and its successor UN Human Rights Council. Dugard has publicly and repeatedly interpreted his mandate as requiring him to criticize only Israel and on January 18, 2008, true to form, Dugard criticized Israeli defense measures for alleged illegality in the high-profile Sunday New York Times (Jan. 20, 2008).

First, Dugard claimed that Israel's attack on Hamas headquarters in a Palestinian Interior Ministry building in Gaza was illegal because the target was "near a wedding venue with what must have been foreseen loss of life and injury to many civilians." However, contrary to Dugard's insinuation, the building was certainly a legitimate target under the international humanitarian legal rule of distinction as it makes a definite contribution to Hamas' hostilities. That one Palestinian civilian lost her life in the Israeli strike is unfortunate, but not a violation of the rule of proportionality, which authorizes collateral damage to civilians where justified by military necessity.

Second, Dugard asserted that Israel's closure of its borders with the Gaza Strip constitutes illegal "collective punishment." Yet there is nothing in international law that requires Israel to maintain open borders with such a hostile territory, whatever its sovereign status. Exercising legal counter-measures against a hostile entity does not constitute "collective punishment" under international law. Dugard's refusal to level the same charge against Egypt, which also kept closed its border with the Gaza Strip, underlines the bias that accompanies the legally inaccurate statement.

Dugard was not alone. UN High Commissioner for Human Rights Louise Arbour denounced Israel's "disproportionate use of force." UN Undersecretary-General for Political Affairs Lynn Pascoe told the UN Security Council that collective penalties were prohibited under international law (Financial Times, Jan. 22, 2008). UNRWA Commissioner General Karen Koning Abu Zayd joined the chorus by criticizing Israel's "sporadic" electricity supply to Gaza and its border closures and called on the international community to act (Guardian, Jan. 23, 2008). Unfortunately, these skewed assertions and misstatements of international law by UN officials framed how international public opinion views the illegal Palestinian actions in Gaza and the merits of Israeli defensive actions, and especially Israel's legal right to defend itself.

Some parties had the courage to reject the one-sided and faulty arguments. In the UN Human Rights Council in Geneva, Canada, a state that prides itself in making the defense of human rights and international law a significant factor in its foreign policy, voted against a resolution condemning Israel for the Gaza fighting. While the European state members abstained in the Human Rights Council vote, some European officials, such as Frano Frattini, European Commissioner for Justice, Freedom and Security, correctly defended the legality of the Israeli actions, and others, such as Dutch Foreign Minister Maxime Verhagen, criticized UN bias against Israel. Finally, U.S. Ambassador to the UN Zalmay Khalilzad told the UN Security Council on January 22, 2008, that Hamas was "ultimately responsible" for the current situation in Gaza.

This essay nevertheless attempts to construct a rational legal basis for evaluating Israeli behavior and potential criticisms. This is no easy task as many of the criticisms of Israel's conduct are made in conclusory fashion, without reference to legal doctrines or legal materials in support of the charges, or, alternatively, based on a misunderstanding of the requirements of the law and the factual context.

This essay examines, in turn, the six distinct bodies of law that could potentially affect the legality of Israeli counterstrikes:
  • the laws of initiating hostilities (jus ad bellum);
  • international humanitarian law, which governs the conduct of military actions;
  • the laws of occupied territory, which some have argued applies to Israeli actions against Gaza-based terrorists;
  • human rights laws;
  • laws on genocide; and
  • anti-terror laws.
A careful examination of the relevant law demonstrates that Israeli counterstrikes to date, and its potential future counterstrikes (both economic and military), conform to the requirements of international law. Moreover, Palestinian commission of war crimes and acts considered under international conventions to be terrorist acts and acts of genocide require Israel and other countries to take steps to punish Palestinian criminals for their acts in the Gaza fighting.

A final preliminary note is in order. The legal status of the Gaza Strip is an extremely complex puzzle in international law and is beyond the scope of this essay. Fortunately, it turns out that many of the legal conclusions regarding the Gaza fighting are not affected by the precise nature of Gaza's status. The essay notes those instances where Gaza's status does affect the ultimate legal determination.

1. The Legality of Israeli Military Actions under Jus ad Bellum


The law of jus ad bellum, as codified by the UN Charter, prevents using military force against another state. However, Article 51 of the Charter excludes self-defense from this ban on the use of force. Furthermore, jus ad bellum does not restrict the use of force in non-international conflicts.

Israel's right to use force in defending itself against Palestinian attacks from Gaza is clear, notwithstanding the uncertain legal status of the Gaza Strip, which makes it difficult to determine the grounds on which Israel's actions should be analyzed. If Gaza should be seen as having independent sovereignty, Israel's use of force is permissible on the grounds of self-defense. On the other hand, if Gaza is properly seen as lacking any independent sovereignty, Israel's use of military force is permissible as in other non-international conflicts.


2. The Legality of Israeli Military Actions under International Humanitarian Law


International humanitarian law regulates the use of force once military action is underway, irrespective of its legality under jus ad bellum. The two most basic principles of international humanitarian law are the rules of distinction and proportionality. Israel's counterstrikes have abided by both these rules.

Distinction:

The rule of distinction requires aiming attacks only at legitimate (e.g., military and support) targets. The rule of distinction includes elements of intent and expected result: so long as one aims at legitimate targets, the rule of distinction permits the attack, even if there will be collateral damage to civilians and even if, in retrospect, the attack was a mistake based on faulty intelligence. Israel has aimed its strikes at the locations from which rockets have been fired, Palestinian combatants bearing weapons and transporting arms, Palestinian terrorist commanders, and support and command and control centers. Locations such as Interior Ministry buildings from which Hamas directs some military activities are objects that make a contribution to Hamas' military actions and are therefore legitimate targets, even though they also have civilian functions.

By contrast, the Palestinian attacks are aimed at Israeli civilians and therefore violate the rule of distinction. Moreover, one of the corollaries of the rule of distinction is a ban on the use of weapons that are incapable, under the circumstances, of being properly aimed at legitimate targets. The rockets and projectile weapons being used by the Palestinian attackers are primitive weapons that cannot be aimed at specific targets, and must be launched at the center of urban areas. This means that the very use of the weapons under current circumstances violates international humanitarian law.

Proportionality:

The rule of proportionality places limits on collateral damage. While collateral damage to civilian and other protected targets is permitted, collateral damage is forbidden if it is expected to be excessive in relation to the military need. Prosecutions for war crimes on the basis of disproportionate collateral damage are rare, and it is difficult to see how a credible claim can be made that any of Israel's counterstrikes have created disproportionate collateral damage. Moreover, like distinction, the rule of proportionality relies upon intent. If Israel plans a strike without expecting excessive collateral damage, the rule of proportionality permits it, even if, in retrospect, Israel turns out to have erred in its damage estimates.

All reported Israeli strikes in the latest round of fighting have been aimed at legitimate targets and none has caused excessive collateral damage. Legal advisors attached to Israeli military units review proposed military actions and apply an extremely restrictive standard of both distinction and proportionality, in accordance with expansive Israeli Supreme Court rulings. It is thus likely that future Israeli measures will continue to abide by the rules of distinction and proportionality.

Retorsion:


Israel's imposition of economic sanctions on the Gaza Strip, such as withholding fuel supplies and electricity, does not involve the use of military force and is therefore a perfectly legal means of responding to Palestinian attacks, despite the effects on Palestinian citizens. The use of economic and other non-military sanctions as a means of "punishing" other international actors for their misbehavior is a practice known as "retorsion." It is generally acknowledged that every country may engage in retorsion so long as the underlying acts are themselves legal. Indeed, it is acknowledged that states may even go beyond retorsion to carry out non-belligerent reprisals-non-military acts that would otherwise be illegal (such as suspending flight agreements) as countermeasures. Since Israel is under no legal obligation to engage in trade of fuel or anything else with the Gaza Strip, or to maintain open borders with the Gaza Strip, it may withhold commercial items and seal its borders at its discretion, even if intended as "punishment" for Palestinian terrorism.

Collective Punishment:


While international law bars "collective punishment," none of Israel's combat actions and retorsions may be considered collective punishment. The bar on collective punishment forbids the imposition of criminal-type penalties to individuals or groups on the basis of another's guilt. None of Israel's actions involve the imposition of criminal-type penalties.

Examples of retorsions are legion in international affairs. The United States, for example, froze trade with Iran after the 1979 Revolution and with Uganda in 1978 after accusations of genocide. In 2000, fourteen European states suspended various diplomatic relations with Austria in protest of the participation of Jorg Haider in the government. Numerous states suspended trade and diplomatic relations with South Africa as punishment for apartheid practices. Obviously, in none of these cases was a charge raised of "collective punishment."

3. The Legality of Israeli Military Actions under the Laws of Occupation

Some groups have claimed that the Gaza Strip should be considered "occupied" by Israel according to the Fourth Geneva Convention, in which case Israel would be required to "ensure the food and medical supplies of the population," as well as "agree to relief schemes on behalf of the...population" and maintain "public health and hygiene."

Due to internal political considerations as well as rulings by the Israeli Supreme Court, Israel continues to maintain the flow of basic humanitarian supplies such as food, medicine and water to the Palestinian population of Gaza. In a recent case (Albassiouni v. Prime Minister, HCJ 9132/07), the Israeli Supreme Court implied that it interpreted domestic Israeli administrative law to require the Israeli government to maintain a minimum flow of Israeli-supplied necessary humanitarian goods when engaging in retorsional acts such as the cutting off of Israeli supply of electricity to Gaza. Thus, even if there were a legal basis for considering Gaza Israeli-occupied territory, Israel would be fulfilling its duties under the Fourth Geneva Convention.

However, there is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of another "High Contracting Party" (i.e., a state party to the convention) and the occupier "exercises the functions of government" in the occupied territory. The Gaza Strip is not territory of another state party to the convention and Israel does not exercise the functions of government-or, indeed, any significant functions-in the territory. It is clear to all that the elected Hamas government is the de facto sovereign of the Gaza Strip and does not take direction from Israel, or from any other state.

Some have argued that states can be considered occupiers even of areas where they do not declare themselves in control so long as the putative occupiers have effective control. For instance, in 2005, the International Court of Justice opined that Uganda could be considered the occupier of Congolese territory over which it had "substituted [its] own authority for that of the Congolese Government" even in the absence of a formal military administration. Some have argued that this shows that occupation may occur even in the absence of a full-scale military presence and claimed that this renders Israel an occupier under the Fourth Geneva Convention. However, these claims are clearly without merit. First, Israel does not otherwise fulfill the conditions of being an occupier; in particular, Israel does not exercise the functions of government in Gaza, and it has not substituted its authority for the de facto Hamas government. Second, Israel cannot project effective control in Gaza. Indeed, Israelis and Palestinians well know that projecting such control would require an extensive military operation amounting to the armed conquest of Gaza. Military superiority over a neighbor, and the ability to conquer a neighbor in an extensive military operation, does not itself constitute occupation. If it did, the United States would have to be considered the occupier of Mexico, Egypt the occupier of Libya and Gaza, and China the occupier of North Korea.

Moreover, it is difficult to avoid the conclusion that foes of Israel claiming that Israel has legal duties as the "occupier" of Gaza are insincere in their legal analysis. If Israel were indeed properly considered an occupier, under Article 43 of the regulations attached to the Fourth Hague Convention of 1907, it would be required to take "all the measures in [its] power to restore, and ensure, as far as possible, public order and safety." Thus, those who contend that Israel is in legal occupation of Gaza must also support and even demand Israeli military operations in order to disarm Palestinian terror groups and militias. Additionally, claims of occupation necessarily rely upon a belief that the occupying power is not the true sovereign of the occupied territory. For that reason, those who claim that Israel occupies Gaza must believe that the border between Israel and Gaza is an international border between separate sovereignties. Yet, many of those claiming that Gaza is occupied, like John Dugard, also simultaneously and inconsistently claim that Israel is legally obliged to open the borders between Israel and Gaza. No state is required to leave its international borders open.

4. The Legality of Israeli Military Actions under International Human Rights Law

Under the International Covenant on Civil and Political Rights, Israel is required to ensure the protection of certain rights "within its territory" including the right to life. The application of the covenant to Israeli activities in the Gaza Strip is questionable as it is unlikely that the Gaza Strip should be considered Israel's territory. Nonetheless, Israel has abided by the requirements of the convention, if it applies to Gaza. In combat situations the meaning of the rights in the convention is established by the rules of international humanitarian law. Thus, Israel is protecting the human rights of Palestinian residents of the Gaza Strip by abiding by international humanitarian law.

5. Duties of Israel under the Genocide Convention

Article Two of the Convention on the Prevention and Punishment of Genocide defines any killing with intent "to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" as an act of genocide. Given expressions of intent by some of the Palestinian terrorist groups to kill Jews as a group due to their ethnic identity (such as the Hamas charter's call for an armed struggle against all Jews until judgment day), all the members of such groups who carry out killings are guilty of the crime of genocide under the convention. Under Article One of the convention, Israel and other signatories are required to "prevent and punish" not only persons who carry out such genocidal acts, but those who conspire with them, incite them to kil,l and are complicit with their actions. The convention thus requires Israel to prevent and punish the terrorists themselves, as well as public figures who have publicly supported the Palestinian attacks.

6. Duties of Israel under Anti-Terrorism Conventions


The International Convention for the Suppression of the Financing of Terrorism requires Israel (like other state parties to the convention) to prevent the collection of funds intended to support terrorist attacks. The Palestinian attacks fall under the definition of terrorist attacks under Article 2(1)(b) of the convention because they are aimed at Israeli civilians in violation of the rule of distinction, and they are intended to kill or seriously injure civilians in order to intimidate a population. If Gaza is considered "territory of [the] state" of Israel, Israel is legally required to establish jurisdiction over Palestinian terrorist crimes under the convention; if Gaza is not Israeli territory, Israel is permitted to establish jurisdiction over the terrorist crimes.

Additionally, the convention establishes that Israel is not only permitted to impose certain economic sanctions on the de facto rulers of the Gaza Strip, it is required to do so.

Under a related convention, the International Convention for the Suppression of Terrorist Bombings, it is a crime to bomb public places (such as city streets) with the intent to kill civilians, by persons who are non-nationals of the state of which the victims are nationals. Under this convention too, the Palestinian attackers must be considered international terrorists and Israel is either required or permitted (depending on whether Gaza is Israeli "territory") to assume criminal jurisdiction over the Palestinian terrorists committing these acts. Additionally, other states signed on the convention-such as the United States, Russia, Turkey and France-must cooperate in helping to combat such Palestinian terrorist acts.

Finally, Security Council Resolution 1373 requires states to "deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens" and "prevent the movement of terrorists or terrorist groups." The resolution was adopted under Chapter VII and is therefore apparently binding on all states, although some have argued that the resolution is not binding because the Security Council is not authorized to enact quasi-legislation. While the resolution does not define terrorism, it references the International Convention for the Suppression of the Financing of Terrorism, making it clear that the Palestinian attackers from Gaza fall within the scope of the international terrorists covered by the resolution. Consequently, if binding, this resolution requires Israel to take steps to deny safe haven to Palestinian attackers from Gaza and to prevent their free movement. 

Conclusion


The Palestinian-Israeli fighting in Gaza has been characterized by the extensive commission of war crimes, acts of terrorism and acts of genocide by Palestinian fighters, while Israeli countermeasures have conformed with the requirements of international law.

International law requires states to take measures to bring Palestinian war criminals and terrorists to justice, to prevent and punish Palestinian genocidal efforts, and to block the funding of Palestinian terrorist groups and those complicit with them.

Dr. Avi Bell is a member of the Faculty of Law at Bar-Ilan University, Visiting Professor at Fordham University Law School, and Director of the International Law Forum at the Jerusalem Center for Public Affairs.