Gaza's children suffer as conflict enters the classroom

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... 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.

Michael I. Krauss is professor of law at George Mason University School of Law. J. Peter Pham is director of the Nelson Institute for International and Public Affairs at James Madison University. Both are adjunct fellows of the Foundation for the Defense of Democracies.

British Foreign Secretary David Miliband and Development Secretary Douglas Alexander recently alleged that Israel's decision to respond to ongoing Palestinian rocket attacks by limiting the supply of fuel to Gaza violated international law. The new UN Special Coordinator for the Middle East Peace Process, Robert H. Serry, also asserted: "Israeli measures amounting to collective punishment are not acceptable. We call on Israel to meet its obligations toward the civilian population of Gaza under international law." Yet international law does not require Israel to supply Gaza with fuel or electricity, or, indeed, with any other materials, goods, or services.
Article 23 of the Fourth Geneva Convention permits states like Israel to cut off fuel supplies and electricity to territories like Gaza. It only requires Israel to permit passage of food, clothing, and medicines intended for children under fifteen, expectant mothers, and maternity cases. Moreover, Israel would be under no obligation to provide anything itself, just not to interfere with such consignments sent by others. Article 70 of the First Protocol Additional to the Geneva Conventions of 1977 creates a slightly broader duty regarding the provision of essential supplies, but it does not list fuel and electricity as items for which passage must be permitted.
Dependence on foreign supply - whether it be Gazan dependence on Israeli electricity or European dependence on Arab oil - does not create a legal duty to continue the supply. Absent specific treaty requirements, countries may cut off oil sales to other countries at any time. In addition, neither Israel nor any other country is required to supply goods in response to its foes' resource mismanagement or lack of natural bounty.
There is no precedent that creates legal duties on the basis of a former military administration. For instance, no one has ever argued that Egypt has legal duties to supply goods to Gaza due to its former military occupation of the Gaza Strip. Furthermore, control of airspace does not create a legal duty to supply goods either. For instance, UN Security Council-ordered no-fly zones in Iraq and Libya were not seen as the source of any legal duty to supply those countries with electricity, water, or other goods.


On Feb. 9, 2008, British Foreign Secretary David Miliband and Development Secretary Douglas Alexander attacked Israel's decision to respond to ongoing Palestinian rocket attacks from Gaza by limiting the supply of fuel to the Hamas-ruled territory. The two British leaders alleged that Israel's action violated international law. On Feb. 27, 2008, the new UN Special Coordinator for the Middle East Peace Process, Robert H. Serry, also asserted in a briefing to the UN Security Council: "Israeli measures amounting to collective punishment are not acceptable. We call on Israel to meet its obligations toward the civilian population of Gaza under international law."

International officials are entitled to object on political grounds to Israel imposing even limited economic sanctions in response to Palestinian terrorism. However, they err in insinuating that international law forbids Israel's actions. International law does not require Israel to supply Gaza with fuel or electricity or, indeed, with any other materials, goods, or services.

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Must Israel Ensure a Minimum Supply of Fuel and Electricity to Gaza?

More generally, the Israeli Justice Ministry has acknowledged a duty under customary international law not to interfere with the supply of basic humanitarian items such as food and medicine, and the Israeli Supreme Court has enforced this duty in several decisions (most recently, HCJ 9132/07, Ahmed v Prime Minister, on Jan. 30, 2008).

In a Feb. 11, 2008, article in the Jerusalem Post, a former Israeli Foreign Ministry attorney summarized this acknowledged duty expansively and inaccurately as a requirement that Israel ensure a minimum necessary supply of food, fuel, and electricity to prevent starvation or a humanitarian crisis. Even if the duty were as broad as in this misstatement, Israel has not breached its duty by cutting off Israeli fuel; Israel has only reduced supplies, while Gaza maintains more than sufficient supplies for basic humanitarian needs.

Israel is not required by its customary general humanitarian duties to provide required items itself, only not to interfere with their passage. And fuel and electricity are almost certainly not items that Israel or other warring parties are required to supply. Additionally, Israel is not the sole available source of fuel and electricity to Gaza and, therefore, even if it were true that, as Milibank and Alexander stated, "without a steady supply of electricity hospitals cannot function, pumping stations and sewage systems fail, and access to clean water is denied," Israel would not be required to permit passage of fuel and electricity. Moreover, given the likelihood of Hamas diversion of assistance, even the customary rule permits Israel to interfere with the passage of humanitarian items to ensure that they do not reach the wrong hands or benefit the military efforts or economy of the enemy.

Beyond these customary duties, the same Israeli attorney wrote that "the international community [] regards Israel as continuing to have some responsibility for ensuring supplies to the civilian population" because Gaza "depends" on Israel for its electricity and water after local mismanagement of water supplies, several decades of Israeli military administration, Israeli control of Gazan airspace, and continuing military clashes. Unfortunately, he inaccurately referred to the Israeli curbs on the supply of goods as a "blockade" and misleadingly refrained from noting explicitly that there is no legal basis for the stated expectations of the "international community."