How legal is Israel’s siege of Gaza?

In retaliation to over a thousand Israeli dead, the country’s defense minister, Yoav Gallant, has vowed to besiege Gaza. In a statement earlier this week, he said: “We are putting a complete siege on Gaza… No electricity, no food, no water, no gas — it’s all closed.” Israel has been as good as its word, even stopping medicine from entering the Palestinian enclave.  

Israel is obliged under international law to minimize injury to Palestinian civilians

Shutting off supplies to an area of 2.3 million people, nearly all of them civilians, raises grave questions about the legality of Israel’s action under international law. While international law generally accepts the blockade of enemy armies, depriving civilians of essential supplies violates international humanitarian law. Such action would be illegal even if Israel were not specifically targeting Palestinian civilians. 

One of the foremost tenets of international customary law is the notion that belligerents have limits on what they can do in war, an idea that dates back to medieval just war theory. These limits seem obvious to us: that combatants are legitimate targets in war while civilians are not and that methods of killing should not be gratuitous.  

This was a central part of the twentieth-century codifications of international law. In addition to the 1949 Geneva Conventions, the 1977 Geneva Protocol, the 1980 UN Convention and the 1997 Ottawa Convention all affirm that the “means of warfare is not unlimited” and that “methods of warfare of a nature to cause superfluous injury or unnecessary suffering” are prohibited (quotations are from the UN Convention preamble).  

In addition to this “principle of humanity,” two other customary rules have emerged from the travail of war: proportionality and discrimination. According to the rule of proportionality, no more force may be used than is necessary to achieve a legitimate military objective.  

The rule of discrimination requires that civilians and soldiers hors de combat (rendered unable to fight) be spared attack. Broad agreement exists among scholars that these three principles — humanity, proportionality and discrimination — form the heart of the customary law of war. 

What do these bedrock concepts tell us about Israel’s decision to cut off electricity, water, food and medicine to Gaza? First, Israel clearly has the right to defend itself under international law against Hamas’s aggression. In doing so, however, Israel is obliged under international law to minimize injury to Palestinian civilians and their property. To quote the UN Convention’s preamble, Israel must avoid means of warfare that cause “superfluous injury or unnecessary suffering” (the customary principle of humanity).  

Israel might defend its actions by citing the necessity of preventing further attacks staged from Gaza. But blanket interdiction of food, medicine, water and electricity appears to violate the customary rule of proportionality. It is one thing to say that Israel will not supply food, water, medicine and the like; it is quite another to implement a siege stopping all supplies from entering the enclave. Other, less drastic means could be adopted to stop the attacks without inflicting potentially deadly conditions on innocent civilians. Israel might, for example, search incoming ships and vehicles for contraband weaponry while allowing life-sustaining supplies free transit into Gaza. 

Finally, the interdiction policy entails foreseeable consequences of immense suffering and death to non-combatants, a policy at odds with the principle of discrimination. 

These are customary rules of international law that Israel should strive to respect. But even if we disregard customary law and focus instead on written conventions, the policy of cutting off essential supplies violates Article 54(1) of the 1977 Geneva Protocol I. Thus, on grounds of both written and customary law, Israel’s policy of besieging Gaza is illegal. 

Israel has been cruelly attacked and it is fully justified in defending its national security. This right, however, does not include the authority to starve civilians caught up, through no fault of their own, in a war remote from their intentions. The malfeasance of Hamas must not be paid for in the lives of innocent people. 

This article was originally published on The Spectator’s UK website.