Blockade charade: The misguided campaign against Gazan border control

Five years since Hamas took power, the international community is still more interested in falsely castigating Israel than condemning the terrorist group

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The Palestinians' struggles have been well documented

Last month, fifty non-governmental organizations (NGOs) - including seven constitutive bodies of the United Nations - signed a petition condemning the purported Israeli blockade of Gaza.

The statement, worded with usual ambiguity, and curiously free of any reference to Gaza’s border with Egypt, reads:

For over five years in Gaza, more than 1.6 million people have been under blockade in violation of international law. More than half of these people are children. We the undersigned say with one voice: end the blockade now.

No effort is made to distinguish between the naval blockade and the border closure, nor to identify which international laws are allegedly being violated.

Therefore we must provide clarification. In 2007, Hamas ousted Fatah from Gaza in a coup, installing a radical regime that has terrorized Israel with rocket fire for the better part of the last decade. To prevent weapons from entering the area, Israel’s land border with Gaza was closed to everything but a short list of basic necessities.

In a further effort to prevent an influx of arms, the restrictions were strengthened two years later, in January 2009, with the implementation of a naval blockade. It is only the statement’s timing, designed to coincide with the fifth anniversary of the border closure, that implies to which of these two closures the petition refers.

In light of recent speculation that Hamas is willing to commit to a ceasefire, the question of Gaza’s border closure, and the international community’s inconsistent and often plainly contradictory handling of it, demands re-evaluation. Since the petition’s signatories are neither willing nor able to explain the legal basis of their allegations, their arguments must be made for them.

In 2010, the UN commissioned an investigation into the legality of the naval blockade. The resulting Palmer Report deemed Israel’s policy to be legal under international law, citing Article 51 of the UN Charter regarding a state’s right of self-defense. The border closure, by contrast, has never been subject to such an investigation.

That the logic applied to the naval blockade is not extended to the border closure plainly demonstrates the UN’s inconsistency, unless they entertain the notion that less weaponry would enter Gaza across land than would by sea, or as it presently does through tunnels from Egypt.

The term “blockade” is therefore entirely extraneous to the matter in question. When one country blockades another, sea routes are closed to third parties that are otherwise open to them. Land, however, is subject to territorial sovereignty, and states have exclusive authority to decide what enters and exits their borders.

With no resort to international laws of blockade, the most common critiques of the border closure derive from the laws of military occupation, outlined in Section III of the 1949 Geneva Convention (IV), and Section III of the 1907 Hague Convention (IV). Yet how is Israel to be classed an occupier?

Firstly, the Hague Convention defines an occupied territory as “placed under the authority of the hostile army”. This definition cannot be met in Gaza, from which Israel withdrew all troops in 2005.

Secondly, a state might exert a significant degree of control over foreign territory without having a military presence. For instance, Article VI of the Geneva Convention requires that an occupier exercise “the functions of government” in the territory in question. Israel plays no such role; Hamas is the region’s governing body.

A final (and feeble) claim that Israel occupies Gaza might be construed by reference to its degree of control over the latter’s resources, such as water, fuel, and electricity. Restrictions on fuel imports limit Gaza’s water supply and have caused recurring electricity blackouts in the region. Such measures are damaging, but are not tantamount to an occupation, just as Russia’s control of Armenian gas supplies could not be termed as such.  

It is rather the dire economic corollaries of Israel’s policy that present more tangible, though still insufficient, conditions to constitute violations of international law. These are often advanced under the guise of “collective punishment”. John Casey of UNICEF said that his organization, in line with the International Committee of the Red Cross and the UN, interpret Israel’s border closure as collective punishment.

The concept is mentioned, though never defined, in various bodies of international law. Article 33 of the Geneva Convention states that, “[n]o protected person shall be punished for an offense he or she has not personally committed”. Article 75 of the Additional Protocol (I) to the Geneva Convention in turn prohibits the practice of collective punishment under any circumstances.

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