The legal theory of war allows Israel a free hand in Gaza. Civilians are safe from attack if they abide by the terms of surrender; otherwise, the attacker is only obliged to avoid tactically unnecessary harm to civilians. If guerillas launch a full-scale offensive after a territory has originally surrendered, then the surrender no longer holds, the country is at war, and its civilians can be attacked as a matter of military necessity.

In Vietnam, the entire population supported guerrilla war against the United States, and therefore the US Army could legally attack villages while taking nominal measures to minimize the civilian death toll. Vietnamese, accordingly, were herded to relocation camps, warned off the villages by leaflets dropped shortly before the attack, or most often not warned at all. The later situation was also legal, on the presumption that after Viet Kong guerrillas fired shots from a certain village, the retribution attack was expected, and so the partisans’ shots themselves properly warned the civilians.

It’s different in Iraq, where hardly 2 percent of the population voted for the parties affiliated with Sunni and Shia militants. Iraq can plausibly be said to abide by the terms of surrender. The US Marines, accordingly, have to engage in urban fights rather than call in airpower.

Israel is considered to be occupying Gaza because of her control of the border crossings. Such reasoning is both dubious and ultra-legalistic. Every country controls its border crossings; Israel goes a bit further and also controls the Rafah Crossing with Egypt. Strictly speaking, that isn’t so: the Rafah Crossing is controlled by Egypt. If we engage in a contest of technicalities, then Israel controls her border with Gaza, Egypt controls its border with Gaza, and Gaza is not occupied, but rather bordered by hostile states. Closing one’s border is a hostile act short of war (recall Egypt’s 1967 Tiran Straits closure) and does not qualify Israel as an occupying power in Gaza. Without occupation, Gazans cannot claim Israel’s responsibility to supply the subdued population with water and electricity, nor can they claim their right to benevolent treatment in general.

Israel’s situation vis-`a-vis Gaza closely resembles a conventional military siege, or its defensive variety, cordon sanitaire. Russia recently instituted a similar blockade of Chechnya in response to ostensible terrorist attacks; it doesn’t matter for our purposes that the Russian government perpetrated the attacks to launch the Chechen war. There is a centuries-old and ongoing controversy among war jurists whether the besieged population has the right of exit. Americans honored that right in Vietnam and Iraq, allowing residents to escape. In the first battle of Fallujah, many terrorists also slipped out of the city. In real wars where both sides are endangered, besieged populations are not routinely allowed to flee. The Nuremberg Tribunal refused to convict German officers for the siege of Leningrad, which left a million to two million civilians dead from barrages, cold, and starvation. Lot was allowed to escape Sodom before the incendiary attack. In Israel’s case of a low-intensity conflict with Gaza, the right of exit seems valid. Israel, therefore, can legally blockade Gaza’s cargo, but must allow its residents to flee into whatever territory is willing to accept them. Israel’s refusal to allow emmigration from Gaza is both illegal and silly, as Jews should welcome the depopulation of the hostile territory. There is no recognized right of return so long as the conflict has not ended amicably—that is, with peace or permanent ceasefire. In practice, few Arabs would return to the hell of the Gaza slums. Legality, as often happens, goes hand in hand with reason. Israel should reverse her policy: intercept cargos, but allow refugees.

After Gaza is established as a non-occupied hostile territory with right of exit for the population, legal theory imposes little restriction on Israel’s actions. The hostility is easy to establish: Hamas and Fatah, whose official armed wings (Izz ad Din Kassam and the Al Aqsa Martyrs’ Brigades) carry out massive attacks on Israel, and both enjoyed the majority of votes in democratic, transparent, non-coercive Palestinian elections. To make her case even stronger, Israel can recognize the Hamas government of Gaza, and even recognize Gaza’s independence—and then deal with it as one deals with a weaker aggressor state.

Palestinian attacks are military in nature rather than amateurish. Both Hamas and Fatah militants are the properly armed (sometimes better than IDF troops) military forces of a duly elected government. These forces wage a terrorist, rather than a guerrilla war, the difference being the absence of battlefields and battle uniforms. Therefore the population of Gaza is liable to Israeli strikes on two accounts: as loyal subjects of a government which wages an acknowledged war on Israel, and as a live shield created by local terrorists. In both cases, as in any war in Western—though not Jewish—theory, Israel has no legal right to be vindictive. But she can strike at the militants, even though that entails significant collateral casualties among Palestinian civilians.