A recent joint statement by three European Foreign Ministers decried the humanitarian situation in Gaza and laid the blame entirely at Israel’s doorstep.
The second paragraph of the text reiterates three core conditions that have been part of the diplomatic consensus since the war first broke out 18 months ago: Israel “must allow unhindered passage of humanitarian aid,” “Palestinian territory must not be reduced,” nor can it be “subjected to demographic change.”
Amidst all the noise made by anti-Israel activists and intellectuals and some of the more obscene gestures made by hostile governments and international organisations, it might seem otiose to focus on the more modest claims made by governments that are largely friendly to Israel.
But the insistence on these three principles – on opening supply lines, maintaining pre-war land demarcations, and keeping civilians inside a war zone – has had a greater effect on the course of the war than the ravings of campus protesters and the polished nonsense of some of the more august NGOs.
International law is usually cited as the reason for insisting on these principles, but as in so many other cases where Israel is involved, the policy demanded has little or nothing to do with the black letter of the law.
Nowhere in international law are belligerent parties in a war obligated to ensure supplies and logistics for their enemies. In most wars, the opposite is the case.
Article 23 of the Fourth Geneva Convention does oblige High Contracting Parties to allow for the free passage of medical and religious supplies along with “essential foodstuff, clothing and tonics intended for children under fifteen” for the civilians of another High Contracting Party, as long as there is no serious reason for fearing that “the consignments may be diverted from their destination”, or “that a definite advantage may accrue to the military efforts or economy of the enemy” by the provision.
The Hamas regime in Gaza is, of course, not a High Contracting Party, and, more importantly, Israel has reason to fear both that aid provisions are diverted by Hamas and that a direct advantage is accrued to it by such diversions. Not only does Hamas take provisions for its own forces, but its authorities sell provisions donated by foreign bodies and use the money to finance its war. It’s notable that the first reports of Hamas’ financial difficulties emerged only in the past few weeks, once provisions were blocked.
Israel’s critics dodge this by citing its supposed obligations as an occupying power, but this too means inventing “international law” on the fly in order to accuse Israel. Article 42 of the Hague Convention defines occupation very clearly: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
There is absolutely no sense in which Israel was in occupation of any of Gaza when Hamas launched its attack on October 7, 2023. And the territories its army has occupied since, mostly a buffer zone near the perimeter and a few key corridors, don’t have very many civilians living in them.
Authority that has been “established and can be exercised” would imply that Israeli forces run the schools, collect the taxes, arrest criminals, operate courts, etc. It’s hard to imagine a territory being occupied by one army without soldiers on the ground and where another local force amasses an arsenal of rockets, fields 20 or so battalions under its command – and is able to hold dozens of hostages for more than a year.
The claims about international law regarding both demographic and territorial issues also doesn’t meet the basic standards of scrutiny. Wherever there is war, civilians flee. Our normal impulse in such situations is to try to end the war, and where that is not possible, to ensure that civilians who wish to leave can do so.
It was under this banner that so many humanitarian organisations mobilised during the Syrian Civil War to press Western governments to accept the millions of Syrians fleeing the conflict when it broke out in 2011. The same impulse was manifest a decade later when almost 7 million Ukrainians fled Ukraine.
On territory, too, the argument makes no sense and isn’t grounded in any actual international law. UN member states are obligated to respect each other’s recognised borders, but the line between Israel and the Hamas-ruled enclave is no such thing. It is an armistice line drawn in 1949 (and adjusted slightly one year later) that reflected the Israeli and Egyptian positions at the end of the 1948 war. The text of the Israel-Egypt armistice, like that of the Israel-Jordan and Israel-Syria but notably not the Israel-Lebanon one, makes clear that “the Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either party”.
By insisting that Hamas can’t lose any territory in the war it launched, the international community has invented a norm that never before existed and removed one of the few levers Israel has to pressure it to end the war and release the hostages.
It’s annoying to hear international law invoked against Israel in so many different contexts to condemn actions that are entirely consistent both with actual international law and with the practices of other states at war. But it’s not the hypocrisy that should bother us most.
These commitments have real impacts on the course of the war, and in nearly every case they run counter to the stated objectives of the countries insisting on them.
They made the plight of the hostages much worse and much longer. They made the war much longer than necessary and much deadlier for both sides. And they locked a large civilian population in a war zone where the de-facto governing authority was not only indifferent to civilian losses on its own side, but actually had much to gain by it.
Making it impossible to defeat Hamas in the war it itself launched in 2023 won’t bring peace to Gaza; it will only ensure that the next war will be even bloodier.
Shany Mor is a lecturer in political thought at Reichman University and a senior research associate at Bicom.
