The outpouring of sympathy and concern from around the world in reaction to the massacre of Israeli men, women and children by Hamas terrorists is welcome and appreciated.
But we are talking about Israel, so we knew that it would only be a matter of time -- after Israel struck back -- than some of that sympathy would dry up. More than that, critics are now claiming that Israel is the villain and is guilty of war crimes because of its efforts to remove the dangerous threat of Hamas.The reasoning for the condemnation is that by cutting off water and electricity, Israel is supposed to be guilty of violating international law due to the collateral damage caused to Gazans. The problem of course is that while critics of Israel enjoy throwing around phrases like "international law," "genocide," and "war crime" they do this without knowing -- or caring -- what these terms actually mean.
It is lawful to besiege enemy forces, i.e., to encircle them with a view towards inducing their surrender by cutting them off from reinforcements, supplies, and communications with the outside world. In particular, it is permissible to seek to starve enemy forces into submission.
Article 23 of the Geneva Convention (IV): Consignment of medical supplies, food and clothing says:
Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.
The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:(a) that the consignments may be diverted from their destination,
(b) that the control may not be effective, or
(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.
The key point is that while supplies are not to be automatically held up from the enemy, international law recognizes that this is subject to exceptions where those consignments may be diverted or aid the adversary's military efforts. Concrete for underground tunnels and piping used for rockets come to mind.
Then there is Customary International Humanitarian Law, rules based on general practice that has become accepted as law and is independent of treaty law.
According to Rule 53, The use of starvation of the civilian population as a method of warfare is prohibited. That being the case, how can Israel apply a siege on Gaza?
The answer is that those who blindly claim that Israel is violating International Law by using a siege just don't know what they are talking about:
Sieges that cause starvation
The prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population. This is stated in the military manuals of France and New Zealand. Israel’s Manual on the Laws of War explains that the prohibition of starvation “clearly implies that the city’s inhabitants must be allowed to leave the city during a siege”. Alternatively, the besieging party must allow the free passage of foodstuffs and other essential supplies, in accordance with Rule 55. States denounced the use of siege warfare in Bosnia and Herzegovina. It was also condemned by international organizations.
Israel's goal is not to cause starvation to civilians. The goal it to achieve the release of the hostages kidnapped by the terrorists and get rid of Hamas. As far as allowing "the free passage of foodstuffs and other essential supplies," we saw above in Article 23(c) that international law recognizes the advantage gained by an enemy that is relieved of the responsibility for providing for its citizens -- plus there is an obvious concern that Hamas would take the supplies for itself. Recall that the consignments are to be intended for children under 15.
Eugene Kontorovich asked the question in an article in 2014, Does Israel have to give free power to Gaza? He writes that civilian power stations are legitimate targets for attack when they are also used by the enemy military, and all the more so does Israel have the right to merely turn off the power it provides to Gaza, adding:
I do not believe such an affirmative duty to provide energy to one’s enemy has ever been suggested in any other context [other than Israel].He points out the obvious military advantage that Hamas would be deprived of by withholding electricity: providing the lighting necessary for its underground tunnels.
In addition, there is no doubt that the obligation to allow foreign parties to supply food and medicine does not exist under the circumstances of the current war, when there is a well-founded fear that Hamas will take control of the products or take a share for itself or use them to improve the enemy's economy or military efforts.
Bell wrote further on the topic in yesterday's New York Post: Israel has the right — and the duty — to besiege Gaza, clarifying the legal basis of Israel's siege of Gaza:
As the besieging state, Israel is not required to fund or assist Hamas’ war effort as it attempts to butcher Jews.
Siege law includes a humanitarian aspect: International law requires that Israel facilitate the passage of food and medicine by third parties, but only if such goods can be reliably delivered without diversion to Hamas and without fear the goods will give Hamas an economic and military boost.
Given Hamas’ 16-year exploitation of humanitarian aid and infiltration of human-rights and international organizations in Gaza, diversion is not merely a possibility — it is a certainty. [emphasis added]
Instead, Professor Bell suggests how allowing humanitarian workers or aid into Gaza will have the exact opposite of its intended effect:
Doing so would prolong the conflict, worsen Gaza’s physical destruction and result in greater loss of civilian life.
If governments and international organizations are serious about aiding Gazan civilians — to date, such organizations have been more invested in condemning Israel and immunizing Palestinian terrorists from accountability and punishment — they should devote their resources to facilitating the safe and rapid evacuation of Gaza’s civilian population outside the conflict zone.
It is up to the governments and international organizations to recognize Hamas for what it is, for what it has proudly done, and to take the appropriate measures to put this war to an end.
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