Is the conflict between Israel and Hamas-ruled Gaza between two belligerents, or is Israel facing an internal insurgency? The distinction is important for evaluating the legality of the blockade that Israel is determined to enforce to stop Hamas from receiving arms from countries like Iran, determined to wipe it from the map. Blockades on the high seas are lawful under customary international law, but only under certain conditions: one of them is that there be an armed conflict or state of war between the blockading and the blockaded party.
Is Israel in a state of war with Hamas-ruled Gaza? Israel would be loath to consider itself so, for that would be tantamount to acknowledging that Gaza is the equivalent of a legitimate belligerent with all attending rights and powers under international law.
Sorting this out in the Wall Street Journal, Eric Posner contends that Israel's blockade is nonetheless legal and founded on precedent. A chapter from American history provides one of the keys. During our Civil War, Abraham Lincoln imposed a blockade on the Confederacy “while at the same time maintaining that the Confederacy was not a sovereign state but an agent of insurrection.” Lincoln’s contention was then backed up by the Supreme Court in what Posner describes as “an ambiguous opinion that held that an armed conflict existed, even though one side was not a sovereign state.” A blockade of the Confederacy was legal even if the blockaded party still did not enjoy the privileges of a belligerent power. The opinion, writes Posner, “suggests a certain latitude for countries to use blockades against internal as well as external enemies.”
But Posner’s arguments have already elicited fierce pushback. Writing over at the Opinio Juris blog, Kevin John Heller finds Posner “very unconvincing.” Citing the Prize Cases and the European reaction to Lincoln’s blockade of the Confederate States (CSA), he concludes that “an ‘internal’ blockade of a highly-organized non-state actor like the CSA or Hamas is only permissible if the blockading state is willing to recognize that the non-state actor thereby becomes a belligerent who is entitled to the same privileges as the blockading state itself” (emphasis added).
Is Heller right? Does Israel’s blockade turn Hamas in the eyes of international law from a non-state actor into a belligerent, with the same rights and privileges that Israel itself enjoys? Heller offers a fascinating tour through the tortuous legal history of our Civil War. But even if we assume that he is right about the laws governing blockades--and there is room for a great deal more debate on that question, with many more important precedents, including the British blockade during our Revolutionary War--Israel's interception of the flotilla can hardly be judged on that point alone.
If Hamas wants belligerent status, and wants to enjoy the privileges of a belligerent, it will have to fight like one. As it is now, however, Hamas’s fighters do not wear uniforms, they routinely attack civilian targets with rockets and suicide-bombings; Hamas itself routinely declares its aim to annihilate a member state of the United Nations. The soldiers of the Confederate States, on the other hand, wore uniforms; they engaged in conventional warfare as a regular army fighting another regular army; they sought independence not the destruction of the North. Heller discusses none of this.
Whatever our Supreme Court ruled in the Prize Cases in 1862, in the final analysis, Israel enjoys the fundamental right to self defense—including by blockade on the high seas—against terrorists who routinely place themselves outside the laws of war and outside the boundaries of civilization itself. Like our own constitution, international law is not a suicide pact.