We hear constantly in the mainstream media, and in the hallowed halls of the U.S. government, the great rationale for bombing the hell out of Gaza: Israel has a right to defend itself. ‘If the Gazans would only stop firing those rockets, we Israelis would be glad to cease our fire.’ But Hamas, Gaza’s duly and democratically-elected government, keeps insisting that a ceasefire isn’t enough, because it will only put Gazans back in prison. What’s needed, says Hamas, is for Israel to lift the siege of Gaza and open the borders so that Gazans are no longer prisoners. That would constitute a permanent ceasefire worth partaking in.
Rarely, however, do we hear anything about this notion other than ridicule of it. ‘Those terrorist Hamas leaders—they want Israel to reward them for their aggression. Have they no morals?’ But perhaps this notion deserves a bit of consideration. What does Hamas actually mean here? Why do they insist that the real aggressor is Israel, even aside from bombs and rockets, and that it is Hamas that has the right to defend itself?
A recent article by Prof. Daniel C. Maguire, “Hiding War Crimes Behind a Question,” (July 24, 2014, Consortiumnews.com), provides some light here. That is, according to Maguire, “siege (or blockade) is itself an act of offensive warfare,” indeed, one of the most devastating forms of warfare and one that is condemned by ethical and religious and civic leaders from Maimonides to Just War theorists to humanitarian law. Therefore, since the Gazans have been under siege since at least 2007 (in 2006, explaining its “economic warfare” on Gaza, Dov Weisglass, adviser to then-PM Ehud Olmert, said the goal of the siege was to put the people of Gaza “on a diet, but not to make them die of hunger.”), and since that siege or blockage of both entry and exit to and from the Gaza Strip has become even more devastating since the new Egyptian government closed the tunnels near Rafah that were the only lifeline for Gazans until then, the policies and military measures locking Gazans into their open-air prison have become even more suffocating. Their farmers cannot trade with other countries including their relatives in the West Bank and Israel, their fishermen cannot fish, their builders cannot build, even hospital supplies and food are rationed, their meager supplies of water and electricity have been cut off, they have no airport, and the few places where they can take refuge are themselves being bombed. In short, like the Jews in the Warsaw ghetto, Gazans have decided that they would rather “die on our feet than on our knees.” And that the continuous warfare against them, the never-ending siege, gives them, not the Israelis, the right to defend themselves.
Once one decides to look into this notion, the plight of the Gazans and the violations of the Israelis take on ever darker tones. Numerous international organizations have condemned the siege as illegal. In 2010, a UN fact-finding mission into Israel's attack on the 2010 Gaza Freedom Flotilla concluded:
'The Mission considers that one of the principal motives behind the imposition of the blockade was a desire to punish the people of the Gaza Strip for having elected Hamas. The combination of this motive and the effect of the restrictions on the Gaza Strip leave no doubt that Israel's actions and policies amount to collective punishment as defined by international law..” (cited on http://imeu.org/article/reference-sheet-israel-gaza-international-law1 ).
In 2011, a UN panel of experts similarly concluded that Israel’s blockade of Gaza (resulting in its deadly attack on the Gaza Freedom Flotilla in May 2010) does violate international law, stating that it amounts to collective punishment “in flagrant contravention of international human rights and humanitarian law.” This is because, according to a detailed position paper produced by the Israeli organization, GISHA (http://gisha.org/UserFiles/File/publications/GazaClosureDefinedEng.pdf,), the closure of Gaza is in fact collective punishment, authorized in September 2007 when “Israel’s Security Cabinet approved a decision that openly called for restricting the movement of people and goods into and out of Gaza.” The Gisha position paper explained, in fact, that the “restrictions on the movement of people and goods through Gaza’s borders” are neither ‘economic sanctions,’ as Israel argues, nor a siege or a blockade as they are commonly known. Rather, they “constitute a closure imposed for purposes of collective punishment - and are therefore illegal under international law.” Though this might appear to constitute a technical distinction, it is extremely important in this case because while both sieges and blockades are sometimes legal, the type of closure imposed on Gaza is not. It is, as noted, a closure (I prefer to call it an en-closure, like fences or walls that enclose farm animals) imposed for purposes of collective punishment, and therefore illegal.
So why is the en-closure not a siege? Quite simply, because a siege is “the act of surrounding a particular area in order to induce surrender.” That is, the only reason the laws of war allow a siege is to bring about a surrender, after which the siege would be lifted. A siege is temporary, in other words; it happens only for a limited time, until the town or area opens itself to its besiegers. But in Gaza, there is no time limit. Gaza is closed indefinitely (except, of course, to the Israeli military). Israel controls everything about Gaza: its entrances and exits, its ability to trade or sell goods, its import of the most basic goods, the sea outside it, its air space, practically the air it breathes. Again, Israel’s en-closure of Gaza has no military objective. Rather, it is aimed at civilians,
with the goal of using them as a point of pressure on the Hamas regime - in blatant violation of the fundamental international law prohibition against collective punishment and deliberately harming civilians. (Gisha report)
In a similar way, and for similar reasons, the en-closure of Gaza cannot be considered a blockade. For Israel’s aim is not the blockade’s normal aim of depriving an enemy of needed military supplies, as can be seen from the obvious fact that what is kept out of Gaza is not just weapons but a broad range of civilian goods including hospital supplies, “most of which have absolutely no military use or potential for military use.” Neither can the closure be considered “sanctions,” which usually involve an agreement among nations to refuse to trade with the target nation. This doesn’t apply in Gaza’s case, because no other nation (with the possible exception of the U.S.) has joined these sanctions, and more, because numerous other nations have indicated that they want to trade with Gaza, but Israel is using military force to prevent anyone from trading with Gaza, or even, as in the case of the Flotilla—where nine Turkish nationals were killed—bringing it humanitarian supplies.
The conclusion of the Gisha report, therefore, is simple and even more devastating to the en-closure than its simple illegality due to its purpose of collective punishment. This is because the report adds the fact that “the closure of Gaza is taking place in the context of an occupation.” That is,
Israel continues to control Gaza through substantial control of Gaza's land crossings, total control of Gaza's airspace and territorial waters, control of the Palestinian population registry (including the question, who is a "resident" of Gaza) and control of tax policy and transfer of tax revenues. That control rises to the level of "effective control", the test in international law for the existence of a state of occupation. Gisha's position is that Israel owes obligations to Palestinian residents of the Gaza Strip and the West Bank commensurate with the level of control it exercises.
In short, it is not just that the imprisonment of the people of Gaza (a majority of them refugees from Israel’s original seizure of their homes/land in 1948) in a total enclosure is illegal collective punishment; it is also a violation of Israel’s obligations as an occupying power—obligations including “the right to life, the right to freedom of movement, the right to water, the right to health, the right to decent living conditions, protection from hunger and the special duties owed to protect children,” hundreds of whom her military has killed in the latest invasion and assault. These have been Israel’s obligations since 1967, when the occupation began, and they have been violated repeatedly for nearly fifty years. They have been violated even aside from the violations incurred during each of the last three invasions that have now killed nearly 5,000 people in Gaza and wounded thousands more, the vast majority of them civilians.
So the next time you hear the rationalization about ‘self-defense’ from Israel or from United States officials up to and including the President, you might want to think about the right of the Gazans to defend themselves against their deadly en-closure. You might also want to think about whether, in the absence of United States support—vetoes in the UN Security Council; U.S.military aid amounting to $3 billion each year, plus a recent Congressional vote to send several hundred additional millions to replenish Israel’s Iron Dome defenses—the state of Israel could for so long get away with its blatant depradations against a helpless population, its gross violations of international and humanitarian law, its grim pursuit of its aims without regard for truth or justice or simple human decency.