Email |  Print | RSS | Comment |  

 Email |  Print

Sun, June 13, 2010 | Legal Issues and the Blockade of Gaza

Since the seizure of the Gaza Flotilla by the IDF, there’s a lot of debate going on about the legal issues of the (naval) blockade of Gaza and the raid on the Freedom Gaza Flotilla. Was the raid on the Flotilla legal? And what about the legal issues of the naval blockade of Gaza? In this post we want to provide you with links which direct you to articles about these questions.

Israel’s Ministry of Foreign Affairs has published a (legal) background to the maritime blockade of Gaza and the Gaza Flotilla. Israel states quite clearly here that it considers itself in an armed conflict with the Hamas regime that controls Gaza.^[1] This fact is important concerning the legal issues of imposing a (naval) blockade in an armed conflict.

Excerpts:

“A maritime blockade is in effect off the coast of Gaza. Such blockade has been imposed, as Israel is currently in a state of armed conflict with the Hamas regime that controls Gaza, which has repeatedly bombed civilian targets in Israel with weapons that have been smuggled into Gaza via the sea.”

“Maritime blockades are a legitimate and recognized measure under international law^[2] that may be implemented as part of an armed conflict at sea.”

“A blockade may be imposed at sea, including in international waters, so long as it does not bar access to the ports and coasts of neutral states.”

“The naval manuals of several western countries, including the US and England recognize the maritime blockade as an effective naval measure and set forth the various criteria that make a blockade valid, including the requirement of give due notice of the existence of the blockade.”

“A state may take action to enforce a blockade. Any vessel that violates or attempts to violate a maritime blockade may be captured or even attacked under international law. The US Commander’s Handbook on the Law of Naval Operations^[3] sets forth that a vessel is considered to be in attempt to breach a blockade from the time the vessel leaves its port with the intention of evading the blockade.”

“Israeli personnel attempting to enforce the blockade were met with violence by the protesters and acted in self defense to fend off such attacks.”

Read more: Israel Ministry of Foreign Affairs, [May 31, 2010].

The IDF’s Military Advocate General’s Corps also published some legal aspects of the naval blockade of Gaza and the seizure of the Gaza Flotilla. According to it’s website “the MAG essentially supervises and enforces the rule of law throughout the IDF and provides legal advice to the Chief of Staff and all divisions of the military in areas relating to military, domestic and international law.”

Excerpts:

“For several years, the State of Israel has been engaged in an ongoing armed conflict with terrorist organizations operating in the Gaza strip. This armed conflict has intensified after Hamas violently took over Gaza, in June 2007, and turned the territory under its de-facto control into a launching pad of mortar and rocket attacks against Israeli towns and villages in southern Israel.”

“The entire activities of Israel in this armed conflict are governed by the Law of Armed Conflict^[4] (also known as: International Humanitarian Law^[5]).”

“According to the Laws of Armed Conflict, a state party to an armed conflict has the right to establish a naval blockade on its enemy’s coast for security reasons. A naval blockade means preventing the passage (entry or exit) of all vessels to or from the ports and coastal areas of the enemy, irrespective of the kind of cargo carried by these vessels.”

Read more: IDF MAG Corps

MFA legal expert Sarah Weiss Maudi on the legal aspects of Gaza aid

Excerpts:

“In 2005, Israel implemented what is called its disengagement plan and under this disengagement plan Israel withdrew completely from the Gaza Strip – meaning that there is no longer any Israeli military or civilian presence in the Gaza Strip. This ended Israel’s effective control of the area after about 40 years of effective control.”

“Gaza is no longer under Israel’s effective control. What exists today is a state of armed conflict, as I said. Basically, what happened was that Israel had hoped that the disengagement plan would serve as a springboard towards more positive relations with its neighbors in Gaza. Unfortunately, the opposite happened and the Hamas regime, a terrorist regime, seized control of Gaza and stepped up its attacks on civilian targets in Israel proper, in communities and towns adjacent to the Gaza Strip.”

“There are certain obligations under international humanitarian law that apply to armed conflict. Basically, Israel must ensure that vital humanitarian goods are supplied to the citizens of the Gaza Strip. Israel supplies vital humanitarian goods on a daily basis – these include baby formula, meat, dairy products etc. and in the last year and a half for example, over a million tons of goods have been transferred to the Gaza Strip.”

“Under international law, a state that is imposing economic sanctions does not need to transfer non-vital goods. This means that goods that would give Hamas a military or economic advantage are not transferred. This is why, for example, Israel limits the transfer of concrete to Hamas. Concrete could be used to cast rockets or it can be used to build reinforced bunkers, and certainly those things would give Hamas a military advantage.”

Read more: MFA legal expert Sarah Weiss Maudi, [May 26, 2010].

Israel’s Justice Ministry statement on High Court of Justice petitions regarding the Gaza flotilla. The State Attorney’s Office submitted to the High Court of Justice the State’s response to two petitions regarding the Gaza flotilla, concluding that the action was legal. The response was submitted by State Attorney Moshe Lador and other senior officials.

Excerpts:

“One of the main routes by which weapons and ordnance have been infiltrated into the Gaza Strip up to now is tunnels dug under the border with Egypt into the area of the Strip. Against these, as it is known, the State of Israel has done its utmost to thwart their being used to transfer war materiel. In addition, as part of the struggle to block the smuggling of weapons, the State of Israel has imposed a naval blockade on the Gaza Strip. The blockade is not intended to harm residents of the Strip. It is designed to prevent direct and free access to the Gaza Strip, not via Israel, in order to thwart, minimize, block and hinder the Gaza Strip from becoming a giant arsenal for the terrorist organizations to use in deliberately targeting Israelis in the framework of murderous terrorist actions that have been perpetrated over the years. Free access to Gaza – were it to be allowed (and were it to become possible in the future) – would obviate any possibility whatsoever of preventing the realization of this unbearable scenario.”

“While the Gaza flotilla was publicly “marketed” as being for humanitarian purposes, the reality indicates a different goal. The organizers of the flotilla scorned Israel’s efforts to prevent the vessels from reaching Gaza, via diplomatic dialogue, announcements in advance and declarations over the radio. The organizers of the flotilla similarly rejected Israel’s offer to transfer the aid on board directly to Gaza via Israel, thereby attesting that their goal was to ‘break the blockade.'”

“Legally, the petition ignores central provisions of international law that permit the imposition of a naval blockade and the capture of vessels that are in violation, or are about to violate said blockade, and claims – without any basis in law – that these actions were carried out in the absence of authority. The State’s actions were carried out according to law, both customary international law and the Entry into Israel Law.^[6] As for the petition’s being directed at the detention of flotilla passengers who are not required for investigation regarding the events at issue, or for perpetrating severe violent offenses against IDF soldiers, there is full readiness to facilitate their immediate departure from the State of Israel. In any event, regarding the claim on the issue of detention under the Entry into Israel Law, there is an alternative remedy, in the form of judicial review of the orders under the Entry into Israel Law.”

Read more: Israel’s Justice Ministry Statement, [June 01, 2010].

The Wall Street Journal has published an article by Eric Posner in which he states that Israel’s position is reasonable and backed by precedent. Eric Posner uses Lincoln’s blockade of the Confederate States of America (CSA) to defend the legality of Israel’s blockade of Gaza. This article is subscriber content of WSJ.

Excerpts:

“The catch here is the meaning of “armed conflict.” Traditionally, armed conflict can take place only between sovereign states. If Gaza were clearly a sovereign state, then Israel would be at war with Gaza and the blockade would be lawful. If, however, Gaza were just a part of Israel, Israel would have the right to control its borders— but not by intercepting foreign ships outside its 12-mile territorial sea or contiguous zone.”

“Gaza is not a sovereign state (although it has its own government, controlled by Hamas) and is not a part of Israel or of any other state. Its status is ambiguous, and so too is the nature of the armed conflict between Israel and Hamas. Thus there is no clear answer to the question whether the blockade is lawful.”

“However, the traditional idea of armed conflict involving only sovereign states has long given way to a looser definition that includes some conflicts between states and nonstate actors.”

“So Israel’s legal position is reasonable, and it has precedent. During the U.S. Civil War, the Union claimed to blockade the Confederacy while at the same time maintaining that the Confederacy was not a sovereign state but an agent of insurrection.”

“Human Rights Watch argues that a blockade to strike at a terrorist organization constitutes a collective penalty against a civilian population, in violation of Article 33 of the fourth Geneva Convention.^[7] This argument won’t stand up. Blockades and other forms of economic sanction are permitted in international law, which necessarily means that civilians will suffer through no fault of their own.”

“Most attention has focused on the question whether Israeli commandos used excessive force while taking control of one of the flotilla ships, which resulted in nine deaths. Human Rights Watch says that Israel’s actions violated the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.^[8] However, that document is not international law; its principles are akin to a set of “best practices” for advising countries with poorly trained police forces. It is also vague and it would not apply to a military operation.”

Read more: Wall Street Journal, [June 04, 2010].

At Opinio Juris, Australian legal scholar Kevin Jon Heller challenges Eric Posner’s findings on the legality of the Gaza Blockade, “because the European reaction to the blockade [the Union blockade of the Confederacy] and the [U.S.] Supreme Court’s treatment of it provide a critical qualification to Posner’s thesis that there is ‘a certain latitude for countries to use blockades against internal as well as external enemies.'”

Excerpts:

“First, it completely ignores the European reaction to the blockade. The Union wanted the best of both worlds: to limit the CSA’s military capabilities by instituting a blockade, a traditional weapon of war, while continuing to treat the CSA as an insurgent, not as a belligerent. The Union wanted, in other words, all of the advantages of the blockade while none of the disadvantages of having to treat CSA soldiers as privileged combatants. Europe, however, categorically rejected the Union’s position. Instead, it immediately and formally recognized the conflict between the Union and the CSA as a state of belligerency — as a war, not as an insurrection — and declared itself neutral in the conflict.”

“In other words, although Lincoln had the right to determine whether to recognize a state of belligerency existed between the Union and the CSA, Lincoln decided in favor of belligerency, de facto if not de jure, by instituting the blockade… This was, of course, no different than the European position, which treated the blockade as evidence that the Civil War was a war between belligerents, not an insurgency, despite the “official” Union characterization. Indeed, the Supreme Court itself recognized that its position was the same as Europe’s”

“In short, the evidence does not support Posner’s claim that the Civil War indicates there is “a certain latitude for countries to use blockades against internal as well as external enemies.” On the contrary, the reaction of both Europe and the Supreme Court to the blockade indicates a very different customary rule: namely, that the institution of a blockade is itself evidence that a conflict with a non-state actor is sufficiently serious that the blockading party must treat the non-state actor as a belligerent, not as an insurgent.”

“The importance of this rule for Israel’s blockade of Gaza is clear. It does not indicate that Israel does not have the right to blockade Gaza. What it indicates is that, for the blockade to be legal, Israel must recognize that a state of belligerency exists between it and Hamas. Which means, in turn, that Hamas soldiers, as the armed forces of the non-state actor that is Gaza, are entitled to engage in hostilities with Israel’s armed forces, cannot be prosecuted for acts of violence against those armed forces that comply with the laws of war, and must be treated as POWs upon capture.”

Read more: The Civil War and the Blockade of Gaza (a Response to Posner), [June 04, 2010].

Also at Opinio Juris, Kevin Jon Heller posted an excellent article, in which he debates that the legality of the Gaza blockade depends on the type of armed conflict (IAC or NIAC)^[9] Israel is involved in in the Gaza Strip with Hamas. He states that if Israel is involved in an IAC conflict with Hamas in Gaza then it has the right to blockade the Gaza Strip. However, Kevin Jon Heller questions whether blockades are lawful in NIAC conflicts.

Excerpts:

“…Israel justifies its interdiction of the “Freedom Flotilla” by reference to Article 67(a) of the San Remo Manual on International Law Applicable to Armed Conflict at Sea,^[10] which permits the attack of neutral merchant vessels that “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.” The interdiction thus depends on the legality of the blockade of Gaza — and I am genuinely confused as to why that blockade is legal.”

“If the conflict between Israel and Hamas is an international armed conflict (IAC), there is no question that Israel has the right to blockade Gaza… The 1909 Declaration Concerning the Laws of Naval War (the London Declaration),^[11] the first international instrument to acknowledge the legality of blockades, specifically recognized the right of belligerents to blockade their enemy during time of war. Article 97 of the San Remo Manual does likewise. And there is certainly no shortage of state practice supporting the legitimacy of blockades during IAC (the US blockade of Cuba, for example).”

“But what justifies a blockade in non-international armed conflict (NIAC)? The London Declaration does not justify such a blockade, because it only applies to “war”– war being understood at the time as armed conflict between two states. Does the San Remo Manual justify it? The Manual is not a picture of clarity concerning when its rules apply, but it does not seem to contemplate non-international sea conflicts. Article 1 speaks of “the parties to an armed conflict at sea,” which does not seem to include NIAC, unless perhaps a rebel group has a navy. (Do any?) Article 2 parallels the Martens Clause in the 1907 Hague Convention (IV)^[12] Respecting the Laws and Customs of War on Land, which only applies to IAC. Article 3 acknowledges the right of self-defense under Article 51 of the UN Charter^[13], but — as Marko Milanovic has pointed out — that right is an exception to the prohibition on the use of force in Article 2(4), which only operates between states. And numerous articles in the Manual refer specifically to “belligerent States” (see, for example, 10, 20, 34).”

“The seeming absence of support for blockades in NIAC is obviously important, because it is difficult to argue that Israel is involved in an IAC with Hamas. First, it is obviously not in a traditional IAC, because Gaza is not a state. Second, not even Israel claims that the conflict has been internationalized by the involvement of another state. And third, although the Israeli Supreme Court held — controversially — in the Targeted Killings case^[14] that armed conflict between an occupying power and a rebel group is international, Israel’s official position is that it’s not currently occupying Gaza.”

“There is, however, another possibility: that Israel’s blockade of Gaza is not a “belligerent blockade” at all, but is instead something akin to a “pacific blockade,”^[15] defined by the Dictionary of International Law^[16] as “a form of coercive measure short of war, whereby a state (or group of states) bars access to the coast of a state or part of it in order to prevent entry and exit of ships of the state under blockade.” I say “akin to” a pacific blockade, because — as the definition indicates — such blockades assume that the blockaded entity is a state, not a non-state actor. Even if Israel’s blockade of Gaza would analogically qualify as a pacific blockade, however, it would still be of questionable legality: pacific blockades are only legal with the approval of the Security Council, according to the Dictionary of International Law, and the Security Council has never approved the blockade of Gaza.”

“It seems to me, in short, that it is difficult to argue Israel has the legal right to blockade Gaza. But let me be clear — I am not certain that I am correct. I am not an expert regarding the law of blockades. I am not an expert regarding the law of the sea. I am not an expert regarding the San Remo Manual. So I am genuinely open to being convinced that my argument is wrong.”

“As noted in the Lincoln section^[17] of the University of Virginia’s Miller Center of Public Affairs, the international community viewed the blockade as an act of war that required the CSA to be formally recognized as a belligerent, thus effectively transforming what was previously a NIAC into an IAC… L.C. Green, one of the great IHL scholars, agrees with this analysis. If this is still the state of the law — and I don’t know whether it is — it would be possible to argue that Israel’s conflict with Hamas is an IAC and Israel is thus entitled to blockade Gaza.”

“But there’s a catch — and a big one. If the “cost” of the blockade is formally recognizing Hamas as a belligerent, maintaining the blockade would mean recognizing Hamas fighters as privileged combatants. (Just as the armed forces of any state are privileged combatants.) That would be fundamentally unacceptable to Israel, because Hamas fighters would then be entitled to attack Israeli combatants and would have to be treated as POWs upon capture.”

Read more: Why Is Israel’s Blockade of Gaza Legal? (Updated), [June 02, 2010].

Julian Ku (at Opinio Juris) argues that there is no clear international law rule here for either side.

Excerpt:

“Kevin has put his finger on the key legal issue: the legality of the blockade. While the question of whether excessive force was used is also central, the facts are too murky to figure this question out, and we may never figure this out. But the facts on the blockade are fairly settled. And, as Eric Posner points out in today’s WSJ, it is the law here is a bit murky but could certainly be read to support Israel’s position. Most importantly, I think he is right to argue that there is no clear international law rule here for either side.”

Read more: Why International Law Can’t Resolve the Legality of the Gaza Blockade, [June 04, 2010].

Julian Ku (at Opinio Juris) argues also that the Israeli Defense Forces Commandos didn’t commit an act of “International Piracy” as Turkish president Abdullah Gül stated on monday, May 31.^[18]

Excerpt:

But whatever can be said about the legality of the raid, it was not, as a legal matter, piracy. Let’s go to the U.N. Convention on the Law of the Sea, Article 101:^[19]

Piracy consists of any of the following acts:

(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;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

I don’t think even the Gaza flotilla defenders claim that the IDF raid was “committed for private ends.” (Just the opposite, actually). And, 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. (Given my recent brain cramps, I am of course happy to be corrected here by piracy experts out there, but I think this is right).

So can we drop the stupid piracy meme?

Read more: Did the Israeli Defense Forces Commandos Commit “Piracy”? Nope, [June 01, 2010].

On the Wall Street Journal Debate Forum, two indian students debated on the justification of Israel’s Gaza Blockade. Shikhar Singh debates that the Gaza Blockade is legally and morally justified. Arjun Rajkhowa debates that the Gaza Blockade is in fact deeply damaging to the Gazan’s society and living standards.

Shikhar Singh:

“Since morality varies across borders, let me begin by arguing the more objective bit—the legality of such action. Leslie Gelb of the Council on Foreign Relations recently wrote that under international law, Israeli blockades were permissible. He argued that Israel could not engage in hostilities in foreign waters (defined as those specifically belonging to another sovereign state). However, given a country’s right to security and self-preservation, a blockade could be affected in international waters. This has been practice for sometime now, including when Britain and the U.S. blockaded Germany and Japan. Going by what Mr. Gelb has argued, international law permits Israeli action in international waters if that directly involves legitimate security concerns.”

“…if Israel perceives it can minimize the threat from Hamas using economic coercion, then that becomes central to its security concern whether it is successful or not. In that sense, the economic blockade (contestable as it may be), is part of Israel’s security apparatus.”

“what we do know is that the activists on-board the flotillas are not as innocent as we may think. There is in our world an unbridled innocence attached to humanitarian effort and those associated with it. But in this case, that image has been cleverly used as a veneer for a contrived purpose— to dismantle Israel’s blockade… If the purpose was purely humanitarian, then the activists wouldn’t have undertaken such an aggressive strategy (in which Israeli action was easily anticipatable and perhaps even provoked) and agreed instead to routing aid through Israeli ports. In fact, this duality is even clearer when we revisit statements made by Free Gaza activists on board the flotilla— they all claimed the flotilla aimed to break the blockade as well as deliver aid.”

Arjun Rajkhowa:

“Israel has antagonized a Muslim country that was not hostile to it politically. Four of those killed on board the flotilla were Turkish. Tayyip Erdogen, the Turkish prime minister, called the incident an “act of piracy” and a “bloody massacre.” The interception of a boat carrying aid to poverty-stricken Gaza is, to him, an act of piracy, a deliberate denial of goods and materials that are desperately needed in the region. Turkey’s response is important because it recently signed an arms agreement with Israel and Turkey expects Israel to deliver its end of the bargain nevertheless.”

“Palestine receives $3 billion in aid overall. Unemployment in the West Bank is 18% and 44% in Gaza. Some 70% of the population of Gaza is below the poverty line (a dollar a day), and 80% is dependent on aid. The social pressures are dire.”

“Rama Chakaki of the UAE-based Palestine Children’s Relief Fund^[20] said in a media interview that the blockade has seriously impaired medical treatment in the region. Her organization works to help bring physicians to the region and to bring those who need immediate care out. But all attempts are thwarted by permits that require months of waiting, even in the most urgent situations. The blockade itself is deeply damaging, and that is what should be at the centre of this debate.”

Read more: WSJIDebate, [June 13, 2010].

In TimesOnline, Dr Douglas Guilfoyle writes about the legality of the Israeli raid to enforce the blockade and considers whether the Israeli soldiers acted lawfully in self-defence. He also rejects the charge that the raid itself was an act of piracy.

Excerpts:

“Historically, such a blockade had to be conducted close to shore. In modern law, however, a blockade may be enforced against neutral vessels on the high seas, where the events on the Marvi Marmara took place.”

“The ships that were intercepted by Israel, however, were carrying aid. The law or armed conflict requires that blockading states allow aid through to the civilian population; however, the blockading state may control the channel through which aid is delivered, and that is what Israel has been doing.”

“The authority to intercept vessels and control aid deliveries, however, is available only in a lawful blockade. To be lawful, a blockade must not be implemented where the damage to the civilian population is excessive in relation to the concrete and direct military advantage anticipated from the blockade, and this is where Israel’s legal position is open to question.”

“Calls for the immediate cessation of the blockade may well have a good case in law as well as in humanitarian policy.”

“As long as the blockade is lawful, then enforcing it is lawful, but the question of how it is enforced is also subject to law… Enforcement action must be both necessary and proportionate. Going aboard a civilian vessel with the intention of using lethal force against civilians would clearly be disproportionate and unlawful. Indeed, it could easily be a war crime.”

“There is, however, a real difference between deliberately murdering civilians and the mistaken exercise of self-defence, and it is not yet clear whether the events on the Marvi Marmara could be classified as self-defence or not.”

“Israel claims that its military attempted to divert the vessels using minimal force and non-lethal means, which is exactly what happened on five of the six vessels intercepted where no one was hurt.”

“Every individual who is attacked or threatened, be they soldier or civilian, has a right of self-defence. Reasonable action in self-defence would preclude a finding of murder or unlawful killing, but it will take independent investigation to establish whether this was a reasonable exercise of self-defence or not.”

“Was this piracy? If the blockade was unlawful, then enforcing it was unlawful. This, however, would still not make Israel’s actions piracy. Under the UN Law of the Sea Convention, piracy can be committed only by military forces that have mutinied or by private persons. As a technical matter states cannot commit piracy, only private individuals can. Even if the interception lacked a basis in law, it was not piracy.”

Read more: Gaza fleet raid raises questions over legality of Israel’s blockade, [June 01, 2010].

You can listen to an interview, Maritime lawyer Douglas Guilfoyle had with the BBC on this issue, here . He explains the legal background behind Israeli’s blockade of ships carrying aid into Gaza. [June 01, 2010].

In the International Law Observer, Valentina Azarov states that Israel’s raid on the Gaza Flotilla was illegal because of the fact that “the ships it attacked were carrying civilians with a clear intention to deliver humanitarian aid to the occupied Gaza Strip.” She also debates that Israel’s actions amount to clear prima facie violations of the law on the use of force.

Excerpts:

“First, the most addressed question of the legality of Israel’s actions on the high seas, in international waters, is legally framed by the law of the sea. Israel’s attacks on the ships were a violation of the UN Convention on the Law of the Sea (viz. Art. 88 and 110).”

“Israel was fully aware of the mission’s intentions, not to mention Israel’s intelligence skills, which means that it is under a particularly high duty of care for its actions. Despite the full transparency of the flotilla aid mission’s intentions and the wide international support it had gained (namely, that the flag-states of a number of the ships had expressed that they were behind the ships and demanded that Israel let them through), Israel’s official state position rejected these facts and named it a “naïve approach”, stating that the mission’s true goal was ‘to create a new and accessible route for the delivery of war material for terrorist purposes.'”

“A third ground for the illegality of the attacks was the right to humanitarian assistance. Israel is under an obligation to facilitate the provision of aid (Art 70, API) and to ensure its “rapid and unimpeded passage”, by reducing formality and avoiding harassment (Commentary on Art 70).”

“Admittedly, the level of the attacks would not amount to an act of aggression. Nevertheless, the decision ab initio to use force was unjustifiable and unlawful where other less harmful means existed to achieve the same objective (viz. seizing the ships peaceful and redirecting their course)…”

Read more: Lost at Sea: Attacks on the Gaza Flotilla and the Siege on the occupied Gaza Strip, [June 07, 2010].

Jonathan Saul answers 5 questions on the legality of Israel’s naval blockade of Gaza.

Excerpts:

“Israel can impose a naval blockade on gaza… according to the law of blockade which was derived from customary international law and codified in the 1909 Declaration of London. It was updated in 1994 in a legally recognised document called the ‘San Remo Manual on International Law Applicable to Armed Conflicts at Sea.'”

“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.”

“Legal experts say proportional force does not mean that guns cannot be used by forces when being attacked with knives.”

“Israel’s raid was not an act of piracy… under international law it was considered a state action.”

Read more: Q&A – Is Israel’s naval blockade of Gaza legal? [June 02, 2010].

The following links provide more in depth information on the Gaza Blockade and it’s legal issues, as well as the seizure of the Gaza Flotilla and the humanitarian situation in the Gaza Strip:

• Israel obeyed international law: Legally, the Gaza flotilla conflict is an open-and-shut case, [NYDailyNews, by Alan Dershowitz, Jun 02, 2010].
• The Helsinki Principles on the Law of Maritime Neutrality: Israel Was in the Right, [Arutz Sheva, by INN Staff, June 03, 2010].
• The Myth of the Siege of Gaza, [Jerusalem Center for Public Affairs, by Jonathan D. Halevi, may-june 2010].
• Israel’s Naval Blockade of Gaza Is Legal, Necessary: Dore Gold, [Bloomberg Businessweek, by Dore Gold, June 13, 2010].
• Israeli raids in Gaza: Proportionality and the Status of Hamas Policemen, [EJIL: TALK!, by Dapo Akande, Dec 29, 2008].
• Is Gaza Still Occupied by Israel? [EJIL: TALK!, by Marko Milanovic, Mar 01, 2009].
• What Exactly Internationalizes an Internal Armed Conflict? [EJIL: TALK!, by Marko Milanovic, May 07, 2010].
• Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum, [EJIL: TALK!, by Marko Milanovic, Feb 21, 2010].
• More on Drones, Self-Defense, and the Alston Report on Targeted Killings, [EJIL: TALK!, by Marko Milanovic, Jun 05, 2010].
• Israel’s Gaza blockade legal, many scholars say, [SFgate.com, by Bob Egelko, Jun 05, 2010].
• Is the Israeli Blockade of Gaza Against the Law? More or Less, [Slate, by Brian Palmer, Jun 1, 2010].
• State: Gaza blockade legal, raid justified, [Jerusalem Post, by Dan Izenberg, Jun 02, 2010].
• Turkey’s Erdogan bears responsibility in flotilla fiasco, [the Washington Post, Jun 5, 2010].
• Israel Spurns Outside Gaza Raid Probe for Own Inquiry, (Update3). [Bloomberg Businessweek, by Jonathan Ferziger and Gwen Ackerman, Jun 07, 2010].
• Israel Military Names Panel for Flotilla Raid Inquiry, (Update2). [Bloomberg Businessweek, By Gwen Ackerman and Jonathan Ferziger, Jun 08, 2010].

Notes:

1. Israel unilateral disengaged from the Gaza Strip in 2005 (Israel’s unilateral disengagement plan), placing the Gaza Strip subsequently under Palestinian control. A civil war broke out between Hamas and Fatah (the party of the Palestinian Authority) which Hamas won and in july 2007 became the de facto administration of Gaza. Israel is therefore no longer an occupying force of the Gaza Strip and does not claim the Gaza Strip as part of the State of Israel.

2. International law.

3. The (U.S.) Commanders Handbook on the Law of Naval Operations, [Edition: July, 2007], U.S. Navy – NWP 1-14M; U.S. Marine Corps – MCWP 5-12.1; U.S. COAST GUARD – COMDTPUB P5800.7A.

4. ICRC, the International Committee of the Red Cross.

5. International Humanitarian Law, (IHL).

6. Entry into Israel Law, 1952 and Entry into Israel Law, 2003.

7. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949.

8. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.

9. IAC = “International Armed Conflict”; NIAC = “Non-International Armed Conflict”.

10. San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994.

11. Declaration concerning the Laws of Naval War, London, 26 February 1909.

12. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.

13. The UN Charter; The Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on June 26, 1945, by 50 of the 51 original member countries (Poland, the other original member, which was not represented at the conference, signed it later).

14. Lessons for human rights and humanitarian law in the war on terror: comparing Hamdan and the Israeli Targeted Killings case, by Marko Milanovic; Volume 89 Number 866 June 2007.

15. Pacific Blockade.

16. Dictionary of International Law.

17. Miller Center of Public Affairs, University of Virginia.

18. the Journal of Turkish Weekly, [May 31, 2010].

19. United Nations Convention on the Law of the Sea, 10 December 1982.

20. Palestine Children’s Relief Fund.