Israel’s raid of a “Freedom Flotilla” of activists that ended with nine deaths brought a global firestorm of protest, dimmed the chances for a peace deal, and threatened Israel’s relations with Turkey, its closest ally in the region.
Both sides immediately claimed the protection of international law, with Israel citing legal justification for effectively extending its naval blockade into international waters where the flotilla was heading for Gaza. Yet for most Western governments, with the exception of the United States, the question is not so much the legality or illegality of Israel’s action. Rather, European countries from Germany to Britain are focusing on the broader legal context of Israel’s blockade of the Gaza Strip and the suffering of civilians there.
Lists of items forbidden to enter under the blockade include everything from canned fruit and fishing rods to musical instruments, donkeys, and nutmeg. A ban on concrete and iron, carried by the “Freedom Flotilla,” aims to stop the building of rocket-proof bunkers – but has hampered reconstruction in the wake of Israel’s 2009 offensive to stop Hamas rocket fire.
Three reports last month assessed the damage a year after the offensive ended. The United Nations Development Program said three-quarters of the damage “remains unrepaired and unreconstructed.” The UN's Office for the Coordination of Humanitarian Affairs noted some 40 percent of Gazans lack adequate food, while American Near East Relief found 8 in 10 people need aid. In addition, pools of untreated sewage have grown as large as 100 acres in recent months.
Indeed, living conditions in Gaza are so bad that by some readings of international law, the legality of the flotilla attack is a moot point.
“There is a clear link between conditions in Gaza and international law that is relevant this week,” says Mark Ellis, executive director of the International Bar Association in London. “At the heart of humanitarian law, the laws of war, and human rights law is a need to ensure that civilians are protected and do not disproportionately suffer from the actions of a state.
“Right now, every objective assessment is that Gazans are suffering. The elephant in the room in flotilla-attack legal debates is the blockade. The real need is a focus on the legality of the conditions of people in Gaza.”
Israel sees it differently. Its justification for the flotilla attack and its Gaza policy rests on two pillars: First, Israel maintains – in the face of intense international disagreement – that Palestinians are not unduly suffering in Gaza. Second, it argues that international law is not mature enough to handle Israel’s unique security problems; Israel lives in a rough neighborhood with a threat from Hamas too severe for law professors to grasp, and it must rely on its own interpretation of international law.
Michael Oren, Israel’s ambassador to the US, told Fox News that the flotilla raid was “perfectly legal, perfectly humane,” and that “Israel acted in accord with international law.... Any state has the right to protect itself, certainly from a terrorist threat such as Hamas, including on the open seas.”
Israeli Prime Minister Benjamin Netanyahu asserted on June 2 that Hamas continues to smuggle rockets and that “there’s no humanitarian crisis in Gaza. Each week an average of 10,000 tons of goods enter Gaza. There’s no shortage of food. There’s no shortage of medicine. There’s no shortage of other goods. So our naval personnel had no choice but to board these vessels.”
The World Food program has said that 400 trucks are needed in Gaza per day, or 2,800 per week, to meet basic nutritional needs. According to Israeli data (PDF), an average of 371 truckloads of food products were delivered per week in 2009 and 310 per week so far in 2010.
Confusion remains over whether Israel extended its naval blockade from 20 to 68 miles into the open sea – or whether Israel never extended but simply intercepted the ships on grounds they had intent to bust the blockade.
Israel claims its flotilla raid was legal under the San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Israel says the law entitles it to enforce a blockade, even in international waters.
Clause 67 of San Remo does allow interdiction of neutral ships in a war among states if, as the clause spells out, the ship is “reasonably” suspected of “breaching a blockade.” Yet San Remo is not a consensus treaty or legally binding, according to the Red Cross; moreover, it doesn’t offer authority for extending military jurisdiction into open seas without a formal conflict.
But few legal experts agree that Israel can suspend the paramount UN Charter on the Law of the Sea to expand a blockade overnight or preemptively intercept ships.
Under the UN charter, vessels on the high seas are subject to the jurisdiction of the flag state of that vessel. No one can board. Exceptions include: a vessel that doesn’t fly a flag, a vessel suspected of being pirated, or vessels suspected of violating international sanctions, such as North Korean ships thought to carry nuclear materials. Even carrying weapons at sea doesn’t violate international law.
That’s why most international jurists say Israel cannot legally justify the boarding of a sovereign ship protected under the charter. “In legal terms, the Turkish ship [the biggest in the aid flotilla] was Turkish territory,” argues former British Ambassador Craig Murray, a fellow at the University of Lancaster School of Law.
Marcelo Kohen, a law professor at Geneva’s Graduate Institute of International Studies, agrees that the requirements needed to claim a San Remo justification were not complete. “Hamas is not a state," he says. "There is also at present a cease-fire on Gaza," whereas San Remo is assumed to be relevant in a state of war, says Kohen.
"Under [Israel's] logic one could maintain a maritime blockade unendingly," he adds. "It only requires one party to consider itself as being in a ‘state of war.’ ”
Gaza specialist Sara Roy at Harvard University, an author and frequent critic of Israeli policy, argues that legal questions can distort more basic issues: “After its 2005 withdrawal from Gaza, Israel claims no longer to be an occupier. It claims no responsibility, but acts with total control. Meanwhile, the international community pays the bills and feeds the people.”
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