Whenever the current conflict in Gaza ends, and whatever the terms of any cease-fire, Israel will have to maintain its weapons’ siege against Gaza.
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The current conflict plainly revealed how inadequate the previous siege was. Thousands upon thousands of rockets, including long-range ones capable of hitting Tel Aviv, Jerusalem and the West Bank, found their way into Gaza despite the siege that Israel began following the rocket fire that accompanied Israel’s decision to end its military occupation of Gaza. Some of these rockets came from Iran, others from Syria, while still others were assembled in Gaza from material brought in from the outside. These rockets place Israeli civilian lives in jeopardy, even if the Iron Dome has shown success in thwarting most of them.
There can be absolutely no doubt that a military blockade designed to prevent the importation of lethal aggressive weapons is entirely lawful under international law. Even a UN Commission, not known for its partiality towards Israel, agreed that the naval blockade was entirely lawful. Our own State Department concluded that such a blockade was lawful when the United States quarantined Cuba in a successful effort to keep the former Soviet Union from shipping nuclear missiles to its shores.
Any future quarantine should exclude food, medicine and other necessities of life that do not pose a direct threat to Israeli security. But there must be a total quarantine on the importation of rockets and rocket parts. This includes the shutting down of the many smuggling tunnels between Egypt and Gaza, or at the very least, some reliable inspection of what is allowed to go through those tunnels. It obviously also includes a shutting down of all of the terrorist tunnels that now exist or are being built between Gaza and Israel proper. The only purpose of these tunnels is to allow Hamas to kidnap and/or kill Israelis and to bring them or their bodies back to Gaza to hold them in exchange for Hamas prisoners. I have been inside one of these tunnels and they pose a lethal threat to Israel.
No country is required to accept such lethal threats to its citizens. The only other possible alternative to an enhanced military siege is for there to be reliable inspectors throughout Gaza whose job it is to prevent the rearming of Hamas. It is unlikely that Hamas would agree to any such inspectors. The experience in Lebanon, where Hezbollah has armed to the teeth right in front of United Nations’ “inspectors,” demonstrates how difficult this task would be even if Hamas agreed to some monitoring.
Israel made a serious mistake in ending the military occupation of Gaza. It was right to end the settlement project, which did not serve to enhance Israel’s security. There is an enormous difference—in law, in morality and in practicality—between a military occupation and civilian settlements. Under the laws of war, a military occupation may continue until the enemy has put down its arms, and the risk to the other side has been eliminated or at least significantly diminished. Those conditions were not met when Israel ended its military occupation of the Gaza back in 2005. Israel should have maintained a sufficient military force in the Gaza to assure that thousands of rockets could not be built or fired from hostile territory.
It is probably too late now, and too costly, for Israel to reoccupy the Gaza Strip. A far less restrictive alternative is to enhance the military siege while eliminating any humanitarian siege. This will not be easy to accomplish, but it is far better than maintaining the current status quo whereby Hamas fires rockets at Israel, is attacked, achieves a ceasefire, rearms, attacks Israel again, and is attacked in turn. An ounce of weapons siege is worth a pound of rocket fire and air attacks.
Any siege of Gaza, even if it is limited to a weapons’ siege, will have a negative impact on the million and a half civilians who live in that densely populated area. But if the siege is limited to weapons, the impact will be far less than the inevitable deaths and injuries caused by Hamas firing rockets into Israel and Israel retaliating. Although the blame for these civilian deaths fall squarely on the shoulders of Hamas, because it is Hamas that fires its rockets from densely populated areas, it is the Palestinian civilians who pay the heavy price. They pay this heavy price because Hamas deliberately refuses to build shelters for its civilians. They do build shelters and tunnels to protect their terrorists, those who fire the rockets and other combatants. Hamas could easily fire its rockets from the many spacious areas outside of Gaza City. It could build military bases from which to wage warfare. But instead it has chosen this “dead baby strategy”, whereby it encourages or compels civilians to become huma
n shields, precisely in order to display the dead babies, women and disabled who they know will be killed when Israel attacks their rockets.
A weapons’ siege imposes a heavy toll on the civilian population, but the toll would not be nearly as heavy as that imposed by the current Hamas strategy. The great tragedy is that Israel, like any democracy, is put to three tragic choices:
1. It could tolerate thousands of rockets being aimed at its civilians, in the hope that Iron Dome will prevent deaths and injuries;
2. It can respond to these rocket attacks by proportionate and targeted military strikes, as it is now doing;
3. Or it can prevent the rearming of Hamas by a narrowly limited weapons’ siege. The last of these alternatives is the least worst choice.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard, a practicing criminal and constitutional lawyer and the author, most recently, of “Taking the Stand: My Life in the Law.”