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Concerning The Legality of the Gaza Blockade

 

The Gaza Flotilla Incident

Many questions have been raised concerning the IDF’s diversion of the ‘Gaza Flotilla’ to Ashdod, and particularly to what occurred on the ‘Mavi Marmara’. This article attempts to set out the legal position. Numbers in parentheses refer to the relevant article in the “San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994“.

Is a blockade legal?

Yes, provided that “A blockade shall be declared and notified to all belligerents and neutral States.” (93) It is known throughout the world that Israel has imposed a blockade on the Gaza Strip because of the attacks received from that territory over many years.

Can the blockade be imposed on the high seas?

Yes, “hostile actions by naval forces may be conducted in, on or over: (b) the high seas (10).

Can merchant ships be stopped?

Yes. “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.” (98)

What if the ship is carrying the flag of a neutral nation?

The ships in the flotilla were flying under the Turkish flag, which is a neutral country in the conflict between Israel and HAMAS. This does not give those ships immunity: “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;” (67) In this case they were trying to breach a blockade and clearly resisted visit, search or capture. “Neutral merchant vessels are subject to capture outside neutral waters if they are engaged in any of the activities referred to in paragraph 67 or if it is determined as a result of visit and search or by other means, that they: (c) are operating directly under enemy control, orders, charter, employment or direction; or (f) are breaching or attempting to breach a blockade.” (146)

But surely an aid ship is exempt from attack?

Not necessarily. “The following classes of enemy vessels are exempt from attack: (c) vessels granted safe conduct by agreement between the belligerent parties including: (ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;” (47) But, “Vessels listed in paragraph 47 are exempt from attack only if they: (a) are innocently employed in their normal role; (b) submit to identification and inspection when required;” (48). Firstly these vessels had not been granted safe conduct by the belligerent parties (Israel and HAMAS), but had in fact been warned many times by Israel that they would not be permitted to breach the blockade. Secondly, they would still have to submit to “identification and inspection when required”. This they clearly failed to do. “If the commander of a warship suspects that a merchant vessel flying a neutral flag in fact has enemy character, the commander is entitled to exercise the right of visit and search, including the right of diversion for search under paragraph 121.” (114). Paragraph 121 states: “121. If visit and search at sea is impossible or unsafe, a belligerent warship or military aircraft may divert a merchant vessel to an appropriate area or port in order to exercise the right of visit and search.” This what the IDF did, diverting the flotilla to Ashdod for inspection. Furthermore, “In exercising their legal rights in an international armed conflict at sea, belligerent warships and military aircraft have a right to visit and search merchant vessels outside neutral waters where there are reasonable grounds for suspecting that they are subject to capture.” (118)

But the need in Gaza is desperate!

“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.” (103) Even if the situation in Gaza was desperate, which it isn’t, Israel still has the right to “prescribe the technical arrangements, including search” for transferring aid. These arrangements have been in place for a long time, under the supervision of the UN and the ICRC, but those organising the flotilla refused to make use of the established channels.

Did the IDF use disproportionate force in taking control of the ship?

Under the rules given above, the ship was being treated as a neutral vessel, since it was flying the flag of a neutral country. As such, the people on board had no right to resist the “visit and search” of the troops used to impose the blockade. By doing so, they changed the status of the vessel from “neutral” to “enemy”. “If, after visit and search, there is reasonable ground for suspicion that the merchant vessel flying a neutral flag or a civil aircraft with neutral marks has enemy character, the vessel or aircraft may be captured” (116). At the time of writing this article, the full details of what occurred when the IDF troops boarded the vessel are not available. Having met immediate resistance from those on board, they were fully entitled under the rules of war to use reasonable force in carrying out their objectives. What is “reasonable” will depend on the circumstances under which each individual soldier found himself. Roy Thurley 2nd June 2010 The full text of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994 can be found at: http://www.icrc.org/IHL.nsf/52d68d14de6160e0c12563da005fdb1b/769