Legal Expert: Israel’s Siege of Gaza Is Lawful, Not ‘Collective Punishment’

Legal expert Mark Goldfeder, Special Counsel for International Affairs at the American Center for Law and Justice, has written a detailed post on X/Twitter explaining why Israel’s seige of Gaza is legal under international law, and not “collective punishment.”

Goldfeder, who is also Director of the National Jewish Advocacy Center, was responding to a claim by Rep. Alexandria Ocasio-Cortez (D-NY), who accused Israel of a “war crime” and “collective punishment” due to its blockade of Hamas-controlled Gaza.

Last week, Israel announced that it would stop supplying electricity, fuel, and other supplies to Gaza in the wake of a Hamas terror attack that has, thus far, killed some 1,300 Israelis and wounded over 3,600 more. Over 100 Israelis were taken hostage.

Sen. Bernie Sanders (I-VT) responded: “The targeting of civilians is a war crime, no matter who does it. Israel’s blanket denial of food, water, and other necessities to Gaza is a serious violation of international law and will do nothing but harm innocent civilians.” Ocasio-Cortez and other left-wing Democrats followed suit, even though there is no evidence that Israel is “targeting” civilians in its attacks on Hamas in Gaza, and has committed to avoiding Palestinian civilian casualties, as it has in the past.

Goldfeder responded with what he called a “quick primer on the Law of Armed Conflict”:

Dear @AOC and friends:
You don’t understand the first thing about international law, but that doesn’t stop you from spreading your ignorance. Here is a quick primer on the Law of Armed Conflict to explain why you and @Ilhan are incredibly, dangerously, wrong as usual: https://t.co/Gmoka70J8L

— Mark Goldfeder (@MarkGoldfeder) October 12, 2023

There are three principles that apply, he explained: “distinction, military necessity, and proportionality.”

“Distinction” means that combatants should not launch military attacks that intentionally target civilians. Hamas, obviously, targets civilians; Israel does not. Denying services to Gaza affects civilians, but it is not a military attack against them.

Moreover, Israel is not under any legal obligation to provide services to a territory whose effective government has launched a terror attack against Israeli civilians and whose stated purpose it to destroy Israel (and to kill Jews anywhere in the world).

“Military necessity,” Goldfeder explains, refers to “measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law.” Blockades and sieges therefore can be legal.

Humanitarian aid can be delivered, he said, but there is no obligation to do so if the enemy would exploit such deliveries.

Of course siege law does have humanitarian aspects- including facilitating the passage of food and medicine by third parties IF and only IF they can be reliably delivered without diversion to the enemy.

— Mark Goldfeder (@MarkGoldfeder) October 12, 2023

A siege or blockade whose purpose was to starve the local population would be unlawful, Goldfeder says, but notes that Israel’s specifically-stated objective is to force Hamas to release the hostages, Israeli and international, that it has unlawfully seized.

Israel’s aims, repeatedly stated, are to defeat Hamas terrorists by depriving them of resources and to rescue hostages.” https://t.co/3BXK867cbn

— Mark Goldfeder (@MarkGoldfeder) October 12, 2023

“Proportionality” measures the impact of any legitimate military action against the impact it has on civilians. As Breitbart News has pointed out, “proportionality” is not about the number of casualties on either side, but whether the number of casualties is acceptable given the military purpose. In past conflicts, Israel’s goal was to stop Hamas rocket attacks. This time, Hamas carried out atrocities against Israeli civilians on a massive scale, the goal — entirely justified — is to remove Hamas from Gaza entirely.

Hence the number of Palestinian civilian casualties that is “proportionate” under international law is higher. Goldfeder explains:

Proportionality is a prospective analysis that legally permits the risk of collateral damage necessary to achieve a just military objective. The greater the objective, the greater the extent of permitted risk of incidental damage or even, God forbid, death.

Got it?

— Mark Goldfeder (@MarkGoldfeder) October 12, 2023

Currently, Israel’s legitimate military purpose is to wipe out Hamas, a genocidal terrorist organization that indiscriminately kills both Israeli and Palestinian men, women, and children.

— Mark Goldfeder (@MarkGoldfeder) October 12, 2023

Moreover, Goldfeder notes, Israel has an obligation under international law to prevent genocide — including the genocide of Jews. Therefore its war against Hamas is not only permissible, but required under international law. (Hence President Joe Biden said last week that Israel not only had the “right” to respond to the recent terror attacks, but had a “duty” to go to war against Hamas.)

Because Hamas both attacks Israeli civilians, and hides among Palestinian civilians, it is entirely reponsible for civilian casualties.

That does not mean that innocent people will not tragically suffer.

But it does mean that any and all unavoidable loss of life or collateral damage as Israel pursues its just objective is entirely on Hamas’ account.

— Mark Goldfeder (@MarkGoldfeder) October 12, 2023

Thus far, no Arab country has been willing to accept refugees from Gaza. Israel has encouraged Palestinian civilians to leave Gaza, and has told those living in northern Gaza to evacuate southwards, but Hamas is discouraging and preventing them from leaving.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.