Since the violent clash between the Free Gaza flotilla and Israeli naval forces on May 31, numerous NGOs and “human rights groups” have issued harsh and one-sided condemnations of Israel’s actions. Many of these statements have been couched in the terminology of international law. However, as the following analysis demonstrates, these claims are legally incorrect or dubious. They represent the continued exploitation of international law for political ends.
For more on how NGOs “have virtually all been marked more by their rhetorical excess than their knowledge of international law,” see Ed Morgan,”Israel’s naval blockade pitches and rolls with the Law of the Sea,” The Globe and Mail, June 3, 2010
- Israel used excessive/disproportionate force
- The blockade of Gaza is illegal and constitutes a form of collective punishment
- Despite Israel’s 2005 “Disengagement,” Gaza continues to be under Israeli occupation
- Israel’s actions constitute an act of piracy
Adalah– “The Israeli military attack violates international law as it targeted civilians and civilian targets, and involved the use of disproportionate force.”
Amnesty International– “Israeli forces appear clearly to have used excessive force…Israel says its forces acted in self-defence, alleging that they were attacked by protestors, but it begs credibility that the level of lethal force used by Israeli troops could have been justified. It appears to have been out of all proportion to any threat posed.”
Israeli naval forces were met by violent activists wielding guns, knives, clubs and chains. According to video and audio released by the IDF, soldiers initially attempted to employ non-lethal force. Deadly force was only authorized after the soldiers were confronted by a well-armed crowd, and after they faced live fire. Several Israeli soldiers suffered gun and knife wounds. The right to self-defense in the face of an immediate and clear threat to one’s life is not contested in international law.
Amnesty International- “‘The activists on the ships made it clear that their primary purpose was to protest against the continuing Israeli blockade, which constitutes a form of collective punishment and so a breach of international law,’ said Malcolm Smart.”
Human Rights Watch- “The blockade, which amounts to the unlawful collective punishment of Gaza’s civilian population…”
Center for Constitutional Rights– “Since its inception nearly three years ago, CCR has condemned the blockade as a form of collective punishment.”
War on Want– “The British government must act immediately to put pressure on Israel to end the illegal blockade of Gaza and its military occupation of Palestinian land.”
Is the blockade a form of collective punishment?
Restrictions on the flow of goods in a war environment do not constitute “collective punishment” under international law. “Collective punishment” refers to the imposition of criminal penalties and does not refer to the legal act of retorsion (e.g. sanctions, blockades). In fact, pursuant to Article 23 of the Geneva Convention (which sets standards for the provision of limited humanitarian aid), Israel has no obligation to provide any goods, even minimal humanitarian supplies, if it is “satisfied” that such goods will be diverted or supply of such goods will aid Hamas in its war effort. As numerous credible accounts have reported, Hamas has diverted supplies from Gaza’s civilian population. Although Israel is under no legal obligation, Israel continues to provide hundreds of tons of humanitarian supplies to Gaza on a weekly basis. The cargo carried by the Gaza flotilla was equivalent to approximately the amount of humanitarian aid crossing from Israel into Gaza on a single day.
Is the blockade itself illegal?
International law recognizes maritime blockades as a legitimate and legal step in the context of an armed conflict. The naval manuals of Western states including the US and UK set forth the conditions for maintaining a blockade by sea or air.
The US Commander’s Handbook on the Law of Naval Operations states, “While the belligerent right of visit and search is designed to interdict the flow of contraband goods, the belligerent right of blockade is intended to prevent vessels and aircraft, regardless of their cargo, from crossing an established and publicized cordon separating the enemy from international waters and/or airspace.” The handbook further states that an “Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or airfield with the intention of evading the blockade.” Article 67(a) of the San Remo Manual on International Law Applicable to Armed Conflict at Sea permits attacking neutral merchant vessels “believed on reasonable grounds to be carrying contraband or breaching a blockade.”
Israel’s actions were also in line with the international law obligation to prevent support to terrorists. Security Council Resolution 1373 required all states, by authority of Chapter VII, to “Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by … eliminating the supply of weapons to terrorists.” According to international law scholar Abraham Bell, this Security Council Resolution arguably “requires states to block the passage of support to Hamas, a terrorist organization.”
Gisha– “This incident is proof that despite claims to the contrary, Israel never ‘disengaged’ from the Gaza Strip but rather continues to control its borders – land, air and sea.”
PCHR– “Today’s crime reconfirms the duplicity of Israel’s claims regarding the end of its military control of the Gaza Strip, and further proves that the Gaza Strip will remain an occupied territory so long as the Israeli military control of the air, sea and land is ongoing.”
These NGOs claim that Gaza is occupied because Israel still maintains control over the territory’s land and sea borders and airspace. This argument is false as a matter of fact and a matter of law, and largely parrots a “legal” opinion circulated by the PLO shortly prior to Israel’s disengagement in 2005. Under both the Hague and Geneva Conventions, as well as judicial interpretation of these provisions, the standard of “effective control” refers solely to the exercise by a hostile army of governmental authority – not control of borders. Thus, in no way can Israel be said to exercise governmental authority in Gaza. Indeed, as Egypt controls the southern border of Gaza, and based upon its occupation of Gaza from 1948-67, under NGO reasoning, Egypt would also be considered to be occupying Gaza.
Statement from “Gaza civil society” – “We…call on the international community and civil society to pressure their governments and Israel to cease the abductions and killings…and begin a global response to hold Israel accountable for the murder of foreign civilians at sea and illegal piracy of civilian vessels carrying humanitarian aid for Gaza.”
U.N. Convention on the Law of the Sea, Article 101 defines piracy as:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
As explained by Hofstra Law School professor, Julian Ku, the IDF raid was clearly not carried out for “private ends.” He continues, “in general, piracy cannot be committed by a national ship, only by private ships or by national ships that have been taken over by their crews.”