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Lost at Sea: Attacks on the Gaza Flotilla and the Siege on the occupied Gaza Strip

Submitted by on 07/06/2010 – 1:44 pm9 Comments

On 29 May 2010 the Gaza Freedom Flotilla, consisting of six civilian ships and 700 human rights activists and journalists from over 40 countries, set sail for the Gaza Strip carrying over 10,000 tonnes of aid and supplies for Gaza’s civilians. The purpose of the Flotilla was twofold: (1) to bring much needed supplies for the reconstruction of Gaza, a territory and population that remains largely in ruins after Israel’s bombing during Operation Cast Lead in 2008-09 and (2) to protest – a non-violent and peaceful protest – against Israel’s illegal military blockade against the Gaza Strip, which has, amongst other things, prevented any rebuilding since the Israeli bombing and engendered a humanitarian crisis.

At 04:00 on Monday 31 May 2010, Israeli naval commandoes rappelled from helicopters onto a Gaza Freedom Flotilla ship (the Mavi Marmara) while it was travelling through international waters (approximately 90 miles or 150k/m from the coast of Gaza). During an operation designed to gain control of the ship, the Israeli commandos opened fire on the civilians, killing at least ten (at the time of writing – the figure could be higher) and injuring many more. [This factual account is taken directly from the legal analysis brief provided by LPHR. Correction: The Marmara ship was flagged by the Comoros Islands, not Turkey.]

The attacks on the Gaza Freedom flotilla have awakened a discussion about the rules of siege warfare and the law of blockades amongst international law practitioners and academics. The following contribution to the ongoing debate will briefly revisit some of the issues addressed by academic discussions and in Israel’s official responses, contextualize the attacks in light of the long-standing siege and belligerent occupation of the Gaza Strip and consider Israel’s actions as an occupying power in light of international law.

Overview of the Legal Analysis of the Attacks on the Gaza Flotilla

Most legal analyses of the incident thus far have surrounded a number of principal questions — a non-exhaustive overview follows. 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).

Still, the illegality of Israel’s actions emanates primarily from the fact that the ships it attacked were carrying civilians with a clear intention to deliver humanitarian aid to the occupied Gaza Strip. 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.” It should, however, be recalled that Israeli military officials and politicians had made clear statements in the days preceding the attacks to the effect that the ships did not present a security threat but rather a threat to Israel’s “image” (see examples in Al-Haq’s legal analysis).

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). Israel is however permitted to ensure that the provisions conform to its security requirement (NB: recalling the arbitrary nature of the lists of goods that are prohibited from entering the Gaza Strip), through reasonable search measures. Although relief personnel are subject to Israel’s approval to carry out their duties, it is only in exceptional circumstances of imperative military necessity that Israel is authorized to limit the activities of such personnel or limit their movement.

Fourthly, the effective prohibition of siege warfare is applicable. On 2 June 2010, the Human Rights Council held an urgent meeting and adopted a resolution calling on Israel “to immediately lift the siege on occupied Gaza and other occupied Territories” and condemned “in the strongest terms possible the outrageous attack by the Israeli forces against the humanitarian flotilla of ships”. It further notes, “[t]he 1.5 million persons of Gaza – more than half of whom are children, continue to suffer under a blockade that is an affront to human dignity.” The law of the sea grants certain guarantees to neutral, civilian and merchant vessels allowing only for their capture within the area of operations of the blockade. The targeting thereof is unequivocally prohibited, amounting to a violation of the imperative principle of distinction.

Finally, Israel’s actions amount to clear prima facie violations of the law on the use of force. 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 as was done in the case of the Rachel Corrie, another ship that arrived from Ireland on 6 June, 2010). The Human Rights Council’s resolution concludes that “in light of the tragic outcome, it seems apparent that the Israeli military was highly excessive in its use of force, and we must question why force should have been used at all in such a situation.”

Helpful analyses of the attacks were published by NGOs, including Al-Haq and Diakonia, and legal scholars on Opinio Juris and EJIL!Talk.

Additional analysis is also available on The Guardian and The Times (London).

The Qualification of the Conflict and the Law Applicable to the Gaza Strip

A legal discussion of the implications of the qualification of the conflict between Israel and Hamas, as international or non, on the legality of the blockade took place on the Opinio Juris. A structural and further analytical problem with this discussion is the fact that it takes the law of the sea and the  rules concerning the imposition of naval blockades as a starting point. It thereby ignores almost completely the context of these measures and the fact that the imposition of a siege is in itself a grave violation of the prohibition of collective punishment in international law.

Further, the Opinion Juris debate over the qualification of the conflict ignores a very basic legal fact, namely the ongoing belligerent occupation of the Gaza Strip by Israel (previously addressed, inter alia, here). The UN law enforcement mechanisms, states and countless organizations and institutions as well as legal experts have confirmed that the Gaza Strip is occupied and that the debate over the legal status of the Gaza Strip involves distortions with regard to clear rules of international law defining “effective control” as defined by the law of occupation as well as factual misgivings.

Professor George Bisharat’s recent article reinforces this position:

“In fact, under customary international law that Israel accepts as binding, Israel continues to occupy the Gaza Strip, despite the withdrawal of its ground troops and settlers from that region in 2005. A territory is “occupied” when foreign forces exercise “effective control” over it, whether accomplished through the continuous presence of ground troops or not.

Israel patrols the territorial waters and airspace of the Gaza Strip, regulates Gaza’s land borders, restricts internal movements by excluding Gazans from a “buffer zone” that includes 46 percent of the Strip’s agricultural land, and controls the Gaza Strip’s supplies of electricity, heating oil, and petrol. Together these factors amount to remote but “effective control.” Thus, the Gaza Strip remains occupied, as the United Nations, the US government and the International Committee of the Red Cross have all recognized.” (emphasis added)

Israel’s official state response in the recent cases filed to the Israeli Supreme Court following the attacks on the flotilla outlines in explicit detail the position that it is engaged in an international armed conflict with Hamas. The same position is accepted in the Israeli Court’s recent jurisprudence (including the Humanitarian Access case, Bassiouni case, inter alia) basing its position, inter alia, on Cassese (International Law (2005), p 120). Israel has however consistently rejected its international legal obligations as an occupying power of the Gaza Strip, bluntly sidestepping the calls of the UN and international community to lift the siege.

A debate over the qualification of the conflict cannot exist seeing that a belligerent occupation is governed by the laws of international armed conflict. The blockade is in fact arguably rather a siege, one that cannot be seen as pacific, neutral, temporary or effective in any of its means or pursuits. It is a siege that is by its definition illegal, similar to the logic applicable to the illegality of a settlement in occupied territory.

The illegality of the Siege on the occupied Gaza Strip

Israel’s justifies its actions with the San Remo Manual on International Law Applicable to Armed Conflict at Sea, namely Article 67(a) which permits the attacks of neutral 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.” Therefore, the legal issue at stake, that would determine the legality of Israel’s actions is indeed the legality of the siege on the Gaza Strip. The illegality of the three-year-long siege on the Gaza Strip has been conclusively upheld for a number of years by, inter alia, countless UN statements.

The siege is seen as an act of war in the context of Israel’s belligerent occupation of the Gaza Strip. It is an aggressive measure directed intended to punish the civilian population. An important starting point for this analysis is the context and proclaimed objectives of the siege (or blockade, for that matter), namely Israel’s intention to punish the civilian population by limiting humanitarian aid, access and movement. The siege imposed on the Gaza Strip for now almost three years is therefore illegal, regardless of the nature of the measures Israel has undertaken in its context, e.g. whether sufficient indispensable humanitarian aid is facilitated or provided by the besieger itself (see additional information concerning Israel’s violations of this basic obligation). Dr Guilfoyle of UCL recalls (in The Guardian),

“UN agencies as saying that insufficient aid is reaching Gaza, possibly less than one quarter of daily needs. This raises serious questions about the underlying legality of the blockade. The relevant rules of armed conflict prohibit intentionally starving the civilian population and require that humanitarian supplies essential to survival must be allowed to pass, albeit subject to certain controls by the blockading power. To maintain a population at a level just above the bare minimum needed for survival might arguably be within the strictest letter of the law, but could never seriously be thought consistent with its spirit.”

Reductions in supplies of electricity and gas, amongst other basic goods, to the Gaza Strip have been undertaken gradually and repeatedly, even following statements by Israel’s own Supreme Court that the level of humanitarian supplies before a particular reduction measure was barely or just about sufficient to sustain the civilian population of the Gaza Strip above the “humanitarian crisis” threshold. It should be noted that the starvation of the civilian population is a measure of collective punishment with intention that resonates from statements made by Israeli politicians and military officials, constituting not only a violation of API, but also a war crime under Art 8(2)(b)(xxv) of the Rome Statute.

The Applicability of the Law of Siege Warfare

I would like to question whether the use of blockade terminology is indeed more appropriate than the law of siege warfare? Various regional and international institutions and scholars have used these terms almost interchangeably. Notably, a legal analysis of the varying terminology by conducted by legal experts from Yale University suggests that the measures imposed by Israel are in fact not a siege or blockade but a closure for purposes of collective punishment, which directly targets civilians, and is for this very reason egregiously illegal. The authors of the paper base their claims namely on the fact that a blockade or siege require a clear military objective, as opposed to the targeting of civilians, and an intention on behalf of the besieger to compel surrender.

As Professor Bisharat confirms this view, “Israeli officials have repeatedly stated that the objective of the blockade is to weaken the Gaza economy and undermine support for Hamas. That is a political, not a military, objective, and it is impermissible under international law to target innocent civilians to achieve nonmilitary goals.”

Israel’s Military Advocate’s most recent official position on the blockade (published on the Military Advocate General’s website) states, “The naval blockade was established for a clear military necessity – to prevent the military strengthening of Hamas by stopping the entry of terrorist elements and the smuggling of weapons into the Gaza strip, an aim supported also by the Security Council Resolution 1860”. If further notes that “before it was established, Israel allowed the entry of a vessel carrying humanitarian assistance into Gaza, but since the naval blockade was declared, no vessel was allowed in.”  We should briefly recall the content of UN Security Council Resolution 1860 which places primary emphasis on the obligation to facilitate and ensure humanitarian aid and cannot in fact be read as permitting or even encouraging the limitation of trade or provisions on the basis of a terrorism regime, as Israel claims:

“2. The Security Council calls for the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment.

3. The Security Council welcomes the initiatives aimed at creating and opening humanitarian corridors and other mechanisms for the sustained delivery of humanitarian aid.

4. The Security Council calls on member states to support international efforts to alleviate the humanitarian and economic situation in Gaza, including through urgently needed additional contributions to UNWRA and through the Ad Hoc Liaison Committee.

[…]

6. The Security Council calls upon member states to intensify efforts to provide arrangements and guarantees in Gaza in order to sustain a durable ceasefire and calm, including to prevent illicit trafficking in arms and ammunition and to ensure the sustained reopening of crossing points on the basis of the 2005 Agreement on Movement and Access between the Palestinian Authority[...]“

It appears on the face of it that there is no considerable difference between the two terms, blockade and siege. Still, a blockade can in light of Israel’s position, and possibly also some precedents on the pacific nature of a “naval blockade”, be perceived as legal (which is indeed the case with scholars on the Opinio Juris, inter alia). On the other hand, the use of the term siege, which is a military tactic outlawed by the modern laws of war due to the barbaric nature of its historical uses, the aggressive nature of the measures involved in its imposition and the fact that predominantly the civilian population is targeted, amounting to collective punishment, is a more appropriate and relevant legal framework.

Notably, the report of the UN Fact-Finding Mission on the Gaza Conflict (also known as the Goldstone report) used the term blockade. It did not, however, clarify why this terminology is more appropriate than the use of the siege or collective punishment legal frameworks, or look to distinguish them from the former. UN resolutions, statements by governmental and non-governmental organizations and professionals have, on the other hand, mainly used the term siege, which more precisely presents the facts on the ground and the long history of occupation and systematic violations of international law committed by Israel against the Palestinian civilian population of the Gaza Strip.

In fact, the recent references by the Israeli Military Advocate General to a specific measure of a “naval blockade” are particularly deceptive and immensely imprecise seeing that the so-called “naval blockade” attempts to blatantly isolate these actions and forgets its present-day context and the continuous collective punishment of the civilian population of the Gaza Strip, which Israel is belligerently occupying since 1967.

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