It’s Not Wrong, It’s Illegal: Situating the Gaza Blockade Between International Law and the UN Response

Abstract

The legal nature of Israel’s blockade regime, imposed on Gaza since Hamas’s ouster of Fatah from the Gaza Strip in June 2007, became a pressing question for scholars and international media alike in the aftermath of Israel’s fatal attack on the Gaza Freedom Flotilla in May 2010. The ongoing legal debate revolves about the prohibition of collective punishment, as enshrined in Article 33 of the Fourth Geneva Convention, and consequently scrutinizes the manner in which Israel has administered its blockade. This article examines the Gaza blockade in international law and demonstrates its illegality for violating the Laws of Occupation, which delimit the use of permissible force available to an Occupying Power, irrespective of the manner in which it is imposed. Accordingly, by maintaining its blockade, Israel also challenges the existing legal order, namely the scope of legal self-defense as well as the permissible use of force under the Laws of Occupation. This legal challenge works to embolden states at the expense of protections that should be afforded to civilians during armed conflict. Rather than resist this critical attempt to shift the law, the United Nations’ Security Council has perpetuated this confusion at best and, at worst, has colluded in the redefinition of the law thereby undermining its own legitimacy as well as the force of international humanitarian law. This article concludes by recommending that the UN both uphold the rule of law and restore its legitimacy by responding substantively to Israel’s behavior and structurally to its own procedural mechanisms that have facilitated such an outcome.

Keywords: Gaza, Israel, Palestine, blockade, jus ad bellum, jus in bello, self-defense, occupation, international law, UN, Security Council, occupation

JEL Classification: K00, K10, K33, N00, N45, Z00