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Middle East Issues





Gaza, the Flotilla and the Blockade: Facts and Law


Under international law Israel is within its rights to establish a blockade of the Gaza Strip, which would include any flotilla or boats heading there, because Gaza is ruled by Hamas, a hostile terrorist entity that has launched more than 10,000 rockets and mortars into Israel targeting and killing civilians, and has also infiltrated and attempted to infiltrate into Israel in order to carry out attacks.

The evidence shows that Hamas has imposed a state of armed conflict between Gaza and the State of Israel. For example, click here for information on attacks from Gaza since 2009, click here for information on attacks against Israel prior to 2009, and click here for information on attacks from Gaza in the year after the Hamas coup there in June 2007.

Under such circumstances Israel is permitted, with certain limitations, to blockade the territory of its adversary. Despite this, Israel is not fully exercising its legal rights under international law, since it is allowing inspected food, fuel and other essential materials from Israel into Gaza via trucks. For example, click here for data on supplies transferred from Israel into Gaza for the week ending June 25, 2011.

Israel announced last year that ships attempting to transport supposedly humanitarian supplies into Gaza would have to first dock in Israel for the supplies to be inspected, after which legitimate humanitarian supplies would be trucked into Gaza. The organizers of the various Gaza-bound ships have consistently refused to allow their cargo to be inspected, which seems to prove that their "humanitarian aid" is just a pretext. Their real aim seems simply to break the blockade, which would allow Hamas to acquire even deadlier weapons to fire against Israeli civilians. Whether this is their conscious aim or not, Israel has a right under international law to prevent any blockade-running ships from reaching Gaza.

Even Reuters, not exactly known as a pro-Israel news source, published a brief analysis (Q&A-Is Israel's naval blockade of Gaza legal?) based on interviews with legal experts, concluding that Israel was well within its rights to declare and enforce a blockade on Gaza. This included, according to the Reuters article, intercepting and boarding ships in international waters: "Under the law of a blockade, intercepting a vessel could apply globally so long as a ship is bound for a "belligerent" territory, legal experts say."

Such blockades have long been part of customary and even conventional international law, and the relevant legal doctrines were reviewed and codified in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, of 12 June 1994.

The Legal Doctrine of Blockades

Under the San Remo Manual and the laws that it codifies, blockades are a legitimate tool in armed conflicts. Of particular relevance here, paragraph 98 states that merchant vessels that attempt to run a blockade can be not just boarded but actually attacked, ie fired upon:

98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.

Though within its rights to attack the vessels, Israel did not do so. Instead it put its own soldiers at risk in trying to board and take control of the ships.

Here is the relevant portion of the full section on blockades:

SECTION II : METHODS OF WARFARE

Blockade

93. A blockade shall be declared and notified to all belligerents and neutral States.

94. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.

95. A blockade must be effective. The question whether a blockade is effective is a question of fact.

96. The force maintaining the blockade may be stationed at a distance determined by military requirements.

97. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules set out in this document.

98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.

99. A blockade must not bar access to the ports and coasts of neutral States.

100. A blockade must be applied impartially to the vessels of all States.

101. The cessation, temporary lifting, re-establishment, extension or other alteration of a blockade must be declared and notified as in paragraphs 93 and 94.

102. The declaration or establishment of a blockade is prohibited if:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or

(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.

103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:

(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and

(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.

104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.

In addition, under Section IV, paragraph 60 (e) enemy merchant vessels become a legitimate military target after

refusing an order to stop or actively resisting visit, search or capture;

This is exactly what the Gaza-bound vessels did, thereby rendering themselves military targets.

If one argues that they were not enemy vessels since they were not flying the Hamas flag, they would still be covered under the sections of San Remo regarding neutral vessels:

SECTION V : NEUTRAL MERCHANT VESSELS AND CIVIL AIRCRAFT

Neutral merchant vessels

67. Merchant vessels flying the flag of neutral States may not be attacked unless they:

(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;

(b) engage in belligerent acts on behalf of the enemy;

There is therefore no doubt that Israel is well within its rights to establish and enforce the blockade, including boarding and taking over Gaza-bound ships in international waters. Israel would even be within its rights to attack such ships if they refused orders to change course away from Gaza.


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