The atrocities perpetrated by Hamas against Israeli civilians, including infants, are nothing short of monstrous. Most of the world is rightly standing by Israel in its time of grief and rage, similar to the reaction on behalf of the United States after 9/11. Few begrudge Israel its right to respond with the vast array of military power at its disposal.
But Israel’s blockade of Gaza, which even senior Israeli officials describe as a “siege” is too far. Prof. Tom Dannenbaum at Just Security argues that it could even constitute a war crime:
On Monday, Minister of Defense Yoav Gallant announced, “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed.” Chillingly, he continued, “We are fighting human animals and we are acting accordingly.” Reports indicate that Israeli Air Force strikes at the Rafah crossing and Israeli government warnings to Egypt not to allow aid in are preventing the delivery of essentials through the only land border not controlled by Israel.
This order commands the starvation of civilians as a method of warfare, which is a violation of international humanitarian law and a war crime (ICC Statute, article 8(2)(b)(xxv)). It may also satisfy the legal threshold for the crime against humanity of inhumane acts (7(1)(K)) and, depending on what happens from here, other crimes against humanity, such as those relating to killing (murder and extermination) (7(1)(a-b)).
Of course, this is the type of situation where the power of international law is at its weakest. Israel is faced with an openly genocidal enemy that has just undertaken a series of attacks that grotesquely flaunt any notions of international law and even basic human decency. Hamas has engaged in murder, rape, kidnapping, and mutilation and it has threatened to execute its hostages on live-stream for the entire world to see. It is obvious that Hamas has no concerns about the power of international law to hold them accountable. Israel and its defenders are right to ask why they should be bound by international law while Hamas can openly flaunt it.
The answer is unsatisfying but true: Israel should be bound even though Hamas is not because Israel is better than Hamas. In spite of all of its defects (and there are many), Israel is a functioning democracy. Although Israel has a long history of discrimination against Palestinians, including those residing within Israel, Israel remains the only place in the Middle East where Arab citizens have full democratic voting rights, as shown by the presence of Arab parties in the Knesset. And although Prime Minister Netanyahu has labored to undermine judicial independence in order to expand his own power, Israel remains a mostly functional democracy with a vibrant range of debate and dissent.
Israel is bleeding and its pain and its rage are felt by Jews the world over, joined by many of the rest of us who are sickened by the images of what Hamas’ rightly labelled “barbarians” have done. Israel’s campaign to exterminate the pestilent infestation that is Hamas is justifiable.
But starving a million Palestinian children is not.
Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.