Thursday, September 20, 2007

‘Hostile territory' - what is the legal meaning of the term?

The government on Wednesday coined a new term that may, but will likely not, take root in international jurisprudence . For the time being, there is no such concept as "hostile territory" in that body of law.
That being the case, the fact that Israel declared the Gaza Strip "hostile territory" does not give it the legal right to take any action that it did not already have, or to take any action that until now was forbidden by international law.
In short, the government's decision on Wednesday was a unilateral act, spoken in terminology that no one else in the world uses.

A source who spoke on condition of anonymity explained that the term "hostile territory" was not a legal concept but rather the description of a practical fact. The government is saying that Gaza has been hijacked by terrorists. Hamas is not the lawful government of a sovereign state but it is effectively in charge. In these circumstances, the Gaza Strip is a "hostile territory."

Why did the government decide to declare it so even though the term has no basis in international law? It was essentially a warning notice to the world that Israel intends to treat the Gaza Strip differently than it has until now and to apply measures it has not used before.

The announcement put out by the security cabinet after the decision was unanimously approved on Wednesday gives some inkling of what these measures will include. According to the statement, "Additional sanctions will be placed on the Hamas regime to restrict the passage of various goods to the Gaza Strip and to reduce the supply of fuel and electricity. Restrictions will also be placed on the movement of people to and from the Gaza Strip. The sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis."

The announcement, therefore, puts the world on notice and sets the stage for punitive measures that Israel will take against Hamas. The question is, will Israel be able to punish the Hamas regime without punishing the civilian population, thereby allegedly violating the laws of war that call on armies to distinguish between enemy soldiers, whom they can harm, and the civilian population, whom they cannot disproportionately harm.

The dilemma has caused the government to apply three restraining principles to it's decision. It won't carry out any measures immediately, it will give due consideration to the legality of every measure it wants to take, and it will not take measures that would lead to a humanitarian crisis in Gaza.

There has already been a considerable amount of debate in Israel about some of the measures the government is considering, such as restrictions on the amount of water and electricity it will supply to the Gaza Strip in the future. One expert was quoted in The Jerusalem Post recently as saying Israel could make a case for denying Gaza electricity, since the terrorists use it to manufacture Kassam rockets. On the other hand, it could not deprive Gaza of water, because it is not directly related to the manufacture of Kassams.

Another expert told the Post that given the Gaza Strip's almost total dependence on Israel, denial of both electricity and water would violate international law. Other experts say that neither measure would infringe international law, given the circumstances that Israel must contend with vis-à-vis Hamas.

So, we can expect a great deal of internal controversy over the measures that the government will apply in the fight against Hamas in the new era. But that is not true of the world outside, because Gaza's new status as defined by Israel has no meaning in the international arena. Israel can expect to be almost unanimously censured abroad, even if Attorney-General Menahem Mazuz sanctions the measures and, in Israel's opinion, they will not cause a humanitarian crisis.

Israel Radio analyst Moshe Negbi pointed out Wednesday that from a legal view, one of Israel's major problems with the international community regarding Gaza is that international law does not address the war of a sovereign country against terrorists. The laws of war deal almost exclusively with regular armies fighting one another. There are no international rules of the game for a war against terrorism. Unless and until that changes, Israel essentially has not choice but to create its own laws, for better or for worse.

Comment: I have for some time now argued fr a change in the rules of war-i shall post some of the work shortly.

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