Recolonising international law: Israel’s naval blockade against Gaza

Ahmed Deeb/Demotix. All rights reserved.

One year after the
onslaught of violence Israel called “Operation Protective Edge,” Gaza is still
in ruins. Infrastructure, homes, and psyches destroyed by the assault remain
shattered; according
to Oxfam International, it could take more than 100 years to rebuild Gaza’s
housing, education, and health infrastructure at the current rate of
reconstruction. This state of unrepaired—irreparable—destruction testifies to
the suffocating, stultifying effect of Israel’s siege of Gaza. In 2007, Israel
imposed a policy of land closure on the Gaza Strip, severely restricting the
movement of people and goods in and out of the territory as a punishment for
Hamas’s 2006 electoral victory. A naval blockade followed in 2009, tightening
the vice on the besieged population.

Under the land-and-sea
blockade, Israel has deprived the population of food, medical supplies, and
building equipment—not to mention a long, sundry list of other basics items
(light bulbs and baby formula, mattresses and blankets, shampoo and
conditioner). The naval blockade is Israel’s legal justification for the
interception of successive Freedom Flotillas carrying humanitarian aid to Gaza:
interceptions which would otherwise contravene the freedom of the high seas in international
law.

Legal experts have
decried the unlawfulness of Israel’s blockade under international humanitarian
law (the technical term for the laws of war): because it violates the restriction
on blockades with the purpose or effect of civilian starvation; because it
violates the prohibition
on collective punishment of civilian populations during war; because it
violates Israel’s obligation
as an occupying power to ensure adequate supply of food and medicine to the
occupied. (Israel denies that it occupies Gaza, because it formally withdrew
from the territory in 2005. However, due to Israel’s continued exertion of
multiple forms of power in the Gaza Strip—including control of the territory’s
land crossings, territorial waters, airspace, telecommunications, and electricity;
deployment of military incursions, rocket attacks, and sonic booms; management
of the Palestinian Population Registry; and regular exercise of its capacity to
invade Gaza, and arrest and prosecute its residents—multiple
authorities have concluded that Gaza is still occupied.)

But beyond the question
of legality or illegality, Israel’s appeal to international law to justify the
naval blockade disturbingly, but tellingly, resembles European colonial powers’
use of international law in the nineteenth and twentieth centuries: to legitimise
the violence of the colonisers, and delegitimise the resistance of the colonised.
In its profound asymmetry, Israel’s approach to this somewhat obscure,
technical legal question illuminates something of its colonial logic.

Israel:
having its legal cake and eating it

Israeli government
officials claim
that the sea blockade is in compliance with international law, insisting that a
sea blockade is an accepted means of warfare according to the laws of armed
conflict. However, international law only
permits naval blockades in the context of international armed
conflict, a special legal category of conflict that imposes a framework of
reciprocal rights and obligations on warring parties. Under the law of
international armed conflict, fighters on both sides are recognised as
privileged combatants: they can legally kill opposing combatants, and can be
targeted for attack; they are entitled to be treated as prisoners of war (not
insurgents or criminals) if captured. And territories and populations occupied
in international armed conflicts are shielded by the relatively robust rules of
the Fourth Geneva Convention: occupying powers must treat the occupied civilian
population humanely, and protect it from violence; occupiers can only use force
necessary for maintaining law and order; and they must guarantee that occupied
territories are provided with food and medical supplies.

But Israel categorically
refuses Palestinians the status of legitimate combatants. Instead, Palestinian
fighters are treated as “unlawful combatants”: a concocted legal
category of individuals who may be targeted for assassination, but enjoy
none of the rights of lawful combatants. For
example, unlike lawful combatants, Palestinian “unlawful combatants” can be
criminally prosecuted, and administratively detained indefinitely. And Israel
has constructed this category broadly
to include all active members of “terrorist organisations” (with “terrorist
organisations” also defined expansively), ensnaring
those who would normally be protected in international law as civilians. In
international humanitarian law there are combatants—who may kill and be killed—and
civilians—who may not kill and may not be targeted for killing (unless they are
“directly participating in hostilities”).

To exercise right without restriction: this is the fundamental asymmetry of Israel’s colonial legal logic.

In Gaza, for Israel,
there are only “terrorists”—who may be killed but may never kill, who may be
subject to seemingly unlimited death and destruction but may not legally use
force themselves.

And Israel disavows its
obligations as an occupying power, insisting that Gaza is not occupied.
Instead, Israel has labelled Gaza a non-sovereign “hostile territory”: another
concocted legal category, which Israel deploys to exercise the effective
control of an occupier, without the accompanying legal responsibilities or
restraints. The denial of occupation enables Israel to employ massive amounts
of military force in Gaza—a prerogative unavailable to occupiers, who are
obligated to safeguard the welfare of occupied populations.

At the same time, Israel
and its apologists use the denial of Palestinian sovereignty to delegitimise
Palestinian force as non-state terrorism. The “hostile territory” and its
occupants are accorded neither the powers and rights of the sovereign, nor the
protections and rights of the occupied. Rather, they are expelled to a space of
exception, as Lisa Hajjar and Mark LeVine write,
“outside the reach of IHL [international humanitarian law] and thus open to any
and all policies Israel may choose to impose, without fear of violating—at
least according to Israel's interpretations—international human rights and
humanitarian norms”.

While Israel invokes the
privileges of engaging in international armed conflict, such as imposition of a
blockade, it denies Palestinians their corresponding entitlements under the
same body of law. To exercise right without restriction, and to
execute violence without vulnerability: this is the fundamental asymmetry of
Israel’s colonial legal logic.

The
colonial past, present, and future

Israel justifies its
exceptional interpretation of international law by proclaiming that the
situation in Gaza is sui generis: unique and unprecedented. However, as
legal scholar Obiora Okafor warns,
declarations of newness often disguise continuities with the imperial past.
Israel’s interpretation of the laws of war resurrects the reasoning of European
colonial powers, which used international law as an instrument to subjugate
colonised peoples.

As our contemporary laws
of war developed in Europe in the nineteenth and early twentieth centuries,
colonisers denigrated the colonised as “savages”
and “barbarians” to justify
their ejection from the ambit of law. While the laws of war were applied to
limit violence in conflicts between “civilised,” sovereign European states, and
to protect occupied European populations, they were held inapplicable to wars
against “uncivilised,” non-sovereign colonised subjects.

“The rules of
International Law apply only to warfare between civilised nations, where both
parties understand them and are prepared to carry them out,” the British
military manual of 1907 stated. “They do not apply in wars with uncivilised
States and tribes, where their place is taken by the discretion of the
commander.” For as US Army lawyer Captain Elbridge Colby explained in a piece
titled ‘How to
Fight Savage Tribes,’ defending the bombing of Damascus by the French in
1925:

“It should be [a] clear
understanding that this is a different kind of war, this which is waged by
native tribes, that that which might be waged between advanced nations of
western culture. Ferocity and ruthlessness are not essential; but it is
essential to recognise the different character of the people”.

The war against “savage
tribes” had to be total war: war in which the distinctions between combatants
and non-combatants, permissible weapons and impermissible weapons, were
dissolved. Unrestricted colonial violence was legitimated, while the violence
of the “unicivilised” colonised in response to the colonial assault was
rendered illegitimate. The colonised were subject to war, but not entitled to
make war; subject to aggression, but not entitled to respond with force.

Unlike colonisers of
previous centuries, Israel claims
to apply international humanitarian law in its exercises of colonial violence.
But Israel’s invocation of law only serves to place Palestinians outside its
protection. From “savages” to “unlawful combatants,” from “barbarians” to
“terrorists,” from “colony” to “hostile territory”—these are the spaces of
exception reserved for those represented as non-sovereign and less human. The
names on the map may have changed, but the colonial legal landscape is
familiar.

Israel’s legal
contortions are not simply violations of international humanitarian law, but an
attempt to change it—to fortify colonial structures of exception and exclusion.
In the words
of former senior Israeli military lawyer Daniel Reisner, “If you do something
long enough, the world will accept it. International law progresses through
violations”. Indeed, several of Israel’s legal innovations (or regressions,
more accurately) have been adopted by the United States in its imperial “war on
terror.” The colonial nature of Israel’s legal logic reflects the colonial
nature of its project, and must be resisted as such.