Israel’s blockade of Gaza is illegal irrespective of the manner in which it is imposed because a blockade is an act of war and an occupying power cannot declare war upon the territory it occupies. To do so would conflate the right to initiate war (jus ad bellum) with the laws of occupation (jus in bello) and render useless the distinction of the permissible use of force in each case. This analysis is different in kind from the one that characterizes the blockade as illegal for its contravention of Article 33 of the Fourth Geneva Convention prohibiting collective punishment.
The prohibition on collective punishment stipulates that if indeed Israel is imposing the blockade in order to repress and prevent Hamas mortar and rocket fire then it should do so in a way that does not severely harm the civilians to whom it owes a duty to protect as an Occupying Power. Several humanitarian and human rights law organizations, (e.g., ICRC , Gisha, Amnesty International, OPT Special Rapporteur) have established the blockade’s illegality for its contravention of Article 33 at considerable length. Significantly, this duty is not unique to occupying powers as non-occupying belligerents also have the duty to ensure the welfare of the civilian population. Accordingly, Israel has a duty to protect the civilians in Gaza irrespective of whether or not it remains an Occupying Power. However, specifically because Israel remains an Occupying Power, its blockade is illegal even if Israel were to ensure the welfare of Gaza’s 1.5 million inhabitants. Israel’s status as an Occupying Power prevents it from invoking legal self-defense, and from using force beyond that permissible during police operations, against Gaza-the territory it occupies.
As it stands, the existing legal order prohibits an occupying power from initiating force against its occupied territory because where there exists a belligerent occupation, presumably, an armed attack has already occurred in response to which a belligerent initiated force. Therefore Article 51 self-defense is not available to Israel because “the time when self-defense could be invoked has passed: the resort to force has already occurred, and the situation is now governed by the different regime of international humanitarian law.”
*This is based on a paper entitled, "Is it Wrong or Illegal? Israel's Blockade of Gaza in International Law" to be published by the Issam Fares Institute, American University of Beirut.
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http://www.jadaliyya.com/pages/index/255/collective-punishment-or-not-gaza-blockade-illegal_(part-i)-
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