International Law and the Fighting in Gaza

The State of Israel completely withdrew from the Gaza Strip and relinquished all governing responsibility to the Palestinian Authority (PA) in August, 2005, while continuing financial aid. Since then, the Palestinian terrorist group Hamas conquered the Strip, and Palestinian terrorists in Gaza have launched more than 6,000 projectile attacks at Israeli soil, largely aimed at killing the civilian population residing in Israeli towns near the Strip. Shockingly, many in the international media, NGOs and international institutions such as the UN have greeted the illegal Palestinian attacks with forgiving silence. While whitewashing Palestinian crimes, they have fallen back on their traditional claims that Israel “occupies” Gaza and that it violates international law by reducing aid to Gaza and defending itself militarily.

This JCPA briefing paper refutes, one by one, the claims that Israel is violating international law in the Gaza Strip. At the same time the paper explains the serial violations of international law by the Palestinians in Gaza and by Hamas in particular.

While the fighting in Gaza has seen numerous violations of international laws of distinction, perfidy and treatment of prisoners of war, these violations have occurred exclusively on one side. Israel's military responses to Gazan attacks have fully complied with these rules, while Palestinian groups have systematically flouted them. Palestinians have breached the rule of distinction by purposefully targeting the civilian population in Israel, while Israel has targeted legitimate military and support targets. Palestinians have violated the international humanitarian rule against “perfidy” by posing as civilians while engaged in armed combat while Israelis have fully complied with rules requiring that soldiers wear uniforms and bear their weapons openly. Palestinians have violated the law of prisoners of war by kidnapping IDF soldier Gilad Shalit and holding him incommunicado and without humanitarian visits of the International Committee of the Red Cross. Israel, by contrast, has gone beyond its duties, by providing captured illegal Palestinian combatants many of the protections reserved for legal combatants. Israel’s economic sanctions and border controls are fully legal, and not, as some have speciously charged, a form of collective punishment against the Palestinian population. International law endorses non-belligerent responses to hostile neighbors such as cutting off aid and sealing borders. Nothing in international law requires Israel to open its borders to its hostile neighbor in Gaza; just as Egypt may close its borders, so may Israel. Nor does international law require Israel to provide any aid to the Gaza Strip. Indeed, international law requires Israel to refrain from providing any aid to Gaza that supports terrorist groups like Hamas. Moreover, international law specifically permits Israel to intercept aid bound for the Gaza Strip due to the suspicion that Hamas will divert it, as it has previously. Indeed, if Israel deviates from international law, it is by exercising unwarranted restraint towards Gaza by providing aid that it should completely cut off. Contrary to the claims of its opponents, Israel is not creating a humanitarian crisis in Gaza by closing off its borders. The “humanitarian crisis” in question is myth propagated by proponents of the Palestinian cause, special interest donors and NGOs. It is a little known fact that the Palestinians are the largest per capita recipients of foreign aid worldwide since the Marshall Plan following World War II. In fact, the Palestinians have gotten almost three times as much aid for twice as long as Europe received under the Marshall Plan. The money is often misused by the Palestinian government. For instance, Hamas uses fuel and electricity to provide illumination in the underground tunnels that are used to smuggle weaponry into Gaza from the Egyptian Sinai while cutting off power to the civilian population to dramatize its demands for further money. Particularly compared to Egypt, which occupied the Gaza Strip from 1948-1967, the Palestinian birth and mortality statistics support the economic data and are good indicators of the actual standard of living in Gaza. Life expectancy in the Gaza Strip is higher than in neighboring Egypt (as well as Russia, the Bahamas, India and Glasgow East ). The infant mortality rate (21.35 deaths/1,000 live births) is significantly lower than in Egypt (as well as Iran, India and Brazil). Perhaps the most astonishing fact, in light of the sensationalist media coverage damning Gaza’s chances for a better future is that literacy in Gaza stands at a staggering 92.4%, far higher than Egypt (59.4%) and many other countries (including India, 47.8% and wealthy Saudi Arabia, 70.8%). Israel has also gone to extraordinary lengths to prevent the emergence of a humanitarian crisis in Gaza, having established the “Gaza Coordination and Liaison Administration (CLA),” where representatives of the IDF and government ministries work to prevent a humanitarian crisis in Gaza. Notwithstanding its legal right to refuse to provide any aid, Israel continues to provide fuel, medical care and other assistance to the population of Gaza. It is evident that if they are to regain credibility in their pronouncements regarding Israel and the Arab-Israeli conflict, international actors such as the UN and major NGO’s need to reverse their attitudes and actions toward Israel and the Palestinians regarding accusations of international law violations. They must cease issuing baseless accusations such as “war crimes” against Israel and begin stressing the problem with routine illegal practices by Palestinian actors. They must stop manufacturing, year after year, an “imminent humanitarian crisis in Gaza” and instead acknowledge that the Hamas government of Gaza routinely violates the human rights of Gazan citizens and Israelis, and even goes so far as to violate the 1949 Convention on the Prevention and Punishment of Genocide by killing Jews with the explicit aim of destroying the Jewish people. They must begin subjecting the transparent and extensive violations of international law by Hamas and the PA to the intense examinations that they have previously devoted to Israel.

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