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 the tactically unnecessary harm to civilians. If a territory has originally surrendered but later guerillas launched a full-scale offensive, 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% of the population vote for the parties affiliated with Sunni and Shia militants. Iraq can be plausibly said to abide by the terms of surrender. The US Marines, accordingly, have to engage in urban fights rather than call in the airpower.
Israel is considered to be occupying Gaza because of her control of 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 is controlled by Egypt. If we engage in the 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, or for benevolent treatment in general.
Israel’s situation vis-à-vis Gaza closely resembles a conventional military siege or its defensive variety, cordon sanitaire. Recently, Russia instituted a similar blockade of Chechnya in response to the ostensible terrorist acts; it doesn’t matter for our purposes that 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 from the city. In the 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-scale 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 migration from Gaza is both illegal and silly, as Jews should welcome 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 place of Gaza slums. Legality, as often happens, goes hand in hand with reason. Israel should reverse her policy: intercept cargos, allow refugees.
After Gaza is established as a non-occupied hostile territory with right of exit for the population, legal theory imposes little restrictions on Israel’s actions. The hostility is easy to establish: Hamas and Fatah, whose official armed wings (Izz ad Din Kassam and Al Aqsa Martyrs’ Brigades) carry out massive attacks on Israel, together 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 – then deal with is 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 guerrilla war, the difference being the absence of battlefields and battle-time uniform. Therefore the population of Gaza is liable to Israeli strikes on the two accounts: as loyal subjects of the 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 the Western – though not Jewish – theory, Israel has no legal right to be vindictive, but can strike at the militants even though that entails significant collateral casualties among Palestinian civilians.
