UN Report on Gaza Flotilla

[Sofiyya 1,687]

Why Is Israel’s Blockade of Gaza Legal? (Updated)

by Kevin Jon Heller

I know that will sound like a provocative question, but it’s not meant to be. According to the Jerusalem Post, 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, 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. The Jerusalem Post says the Israeli government is arguing that “Israel was in a state of armed conflict with Gaza and therefore entitled by international law to blockade Gaza.” But that defense ignores a critical question: what kind of armed conflict?

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. (Which is not to say that the manner in which Israel is blockading Gaza is legal. That’s a different question.) The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), 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) 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, 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).

There also appears to be little, if any, state practice to support the idea that a blockade is legally permissible in NIAC. According to the Jerusalem Post, the Israeli government is defending the blockade by citing Yoram Dinstein’s statement that “there are several instances of contemporary (post-UN Charter of the Law of the Seas) practices of blockades, e.g. in the Vietnam and in the Gulf War.” But those were all blockades in IAC. I can’t think of any blockades in NIAC other than Israel’s blockade of Gaza — though readers should feel free, of course, to correct me.

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 that armed conflict between an occupying power and a rebel group is international, Israel’s official position is that it not currently occupying Gaza.

Israel’s defense of the blockade thus appears to create a serious dilemma for it. Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas. And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza. Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas. But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention. (For a discussion of the difference between the humanitarian obligations imposed by belligerent occupation and by blockades, see Dapo Akande’s post at EJIL: Talk! here.)

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,” defined by the Dictionary of International Law 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.

Readers? Your thoughts? (And be warned that I will delete nasty or irrelevant comments. I’m trying to encourage genuine academic debate over the legality of the blockade; I have no interest, at least in this post, in debating the normative or political merits of Israel’s actions.)

UPDATE: As a number of commenters have pointed out, Lincoln’s blockade of the Confederate States of America (CSA) during the Civil War is a relevant historical precedent. But I think that the Civil War blockade actually supports the argument I’ve made above. As noted in the Lincoln section 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:

The first crisis occurred when England issued a proclamation of neutrality, which rested upon the logic of the Union’s declared blockade. According to English reasoning, although Lincoln proclaimed the rebels to be insurrectionists and thus not recognizable under international law as a belligerent power engaged in war, his declared blockade was an act of war, which would have to be conducted against a sovereign state. Thus Lincoln had actually granted belligerency status to the Confederacy and thereby forced foreign powers to do the same. By proclaiming neutrality, England afforded the Confederacy the status of a belligerent power. Other European nations followed England’s lead. Belligerency status gave the Confederacy the right, according to international law… to contract loans and to purchase arms from neutral nations. It also allowed England to provide safe harbors for both Union and Confederate warships and merchant vessels, to build blockade runners and warships for the Confederacy, and to formally debate in Parliament the merits of active intervention.

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.

[mawilson 2,133]

The Israeli attack on the Gaza flotilla took place in international waters, not Israeli waters. If you consulted a map, you would learn that the Gaza Strip is on the coast. Violating Israel's coastal boundaries was not an issue.

True, but WoM said

What if the next Flotilla comes with a Turkish Navy escort ?

Presumably this "escort" would accompany them all the way to Gaza, otherwise what's the point?

[mawilson 2,133]

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.

Very interesting analysis, thanks for posting.

[Usui Takumi 1,562]

True, but WoM said

Presumably this "escort" would accompany them all the way to Gaza, otherwise what's the point?

They could stop at the line and the blockade runners could race to shore. In theory a few would get through.

[Sofiyya 1,687]

Turkey still wouldn't be in Israeli waters. Israel moves into Gaza's waters to implement the blockade.

Presumably this "escort" would accompany them all the way to Gaza, otherwise what's the point?

You're welcome. Applying the concept of a wartime blockade changes the complexion of the conflict between Israel and Gaza. Israel and the UN can't have it both ways.

Very interesting analysis, thanks for posting.

[mawilson 2,133]

Turkey still wouldn't be in Israeli waters. Israel moves into Gaza's waters to implement the blockade.

Gaza has waters?

[PalestineMyHeart 1,897]

I think most people would consider a foreign navy entering it's national waters without permission to be a provocation at a minimum, or an act of war. If Turkey was interested in maintaining diplomatic ties with Israel, maybe it should not have been so intentionally provacative in helping with the flotilla's illegal goal of breaching a legal blockade.

Israel's "national waters" (more correctly termed "territorial waters") do not extend to include Gaza's coastal waters. None of the Flotilla ships even approached Israel's territorial waters - it was Israel that forced the ships into that space, and forced the surviving passengers to go to Ashdod.

In fact, the Mavi Marmara was on a course directly away from Israel when it was attacked:

[Sofiyya 1,687]

Unless Gaza is part of Israel, yes, it does.

Gaza has waters?

[PalestineMyHeart 1,897]

The latest from Turkey:

‘Israel’s bullying in eastern Med is over’

The eastern Mediterranean will no longer be a place where Israeli naval forces can freely exercise their “bullying” practices against civilian vessels, a Turkish official said Friday.

The official said this would be the outcome of Foreign Minister Ahmet Davutoğlu’s statement earlier in the day that “Turkey would take every precaution it deems necessary for the safety of maritime navigation in the eastern Mediterranean.”

Davutoğlu’s statement about providing maritime safety in the eastern Mediterranean grabbed the most attention among the various sanctions against Israel the foreign minister announced Friday. He did not further elaborate, however, on what he meant by taking “every precaution.”

The Turkish foreign minister’s statement will likely spark a new faceoff between Turkey and Israel, the region’s strongest armies, in the eastern Mediterranean. A potential confrontation between the two countries’ navies would have serious negative consequences for regional stability.

Turkish diplomats told the Hürriyet Daily News that the Turkish Navy will be more visible in the eastern Mediterranean through regular patrolling in international waters. “A more aggressive strategy will be pursued. Israel will no longer be able to exercise its bullying practices freely,” one said.

Using Turkish naval vessels to escort ships carrying aid to Palestine and observing free navigation in the zone between the island of Cyprus and Israel are among the plans set to be implemented, sources said, adding that Turkish war ships would be more frequently seen in the area.

...

Erdoğan plans Gaza visit

As part of Turkey’s more aggressive strategy against Israel, sources told the Daily News that Prime Minister Recep Tayyip Erdoğan is planning to visit Hamas-controlled Gaza in the coming weeks, an intention he voiced in late July.

“Our prime minister has already instructed the Foreign Ministry to set a date for the visit. We are looking for the best timing for the visit,” a diplomatic source said. “Our primary purpose is to draw the world’s attention to what is going on in Gaza and to push the international community to end the unfair embargo imposed by Israel.”

http://www.hurriyetdailynews.com/n.php?n=8216israel8217s-bullying-in-eastern-med-is-over8217-2011-09-02

and:

Turkey vows to take legal action against Israelis involved in Gaza flotilla raid

Turkey said on Friday it will seek to prosecute all Israelis responsible for the deaths of nine Turkish activists during an IDF raid on a ship bound for the Gaza Strip in May 2010.

"Turkey will take legal actions against the Israeli soldiers and all other officials responsible for the crimes committed and pursue the matter resolutely," Turkey's embassy in Washington said in a statement.

...

"Turkey also reaffirms that relations between Turkey and Israel will not normalize as long as Israel does not apologize and refuses to pay compensation for what it has done."

http://www.haaretz.com/news/diplomacy-defense/turkey-vows-to-take-legal-action-against-israelis-involved-in-gaza-flotilla-raid-1.382267

So the reaction we have so far:

1. Turkey expels the Israeli Ambassador and downgrades diplomatic relations to the "lowest level possible"

2. Turkey suspends all military agreements with Israel

3. Turkey announces its Navy will patrol the Eastern Mediterranean and it take whatever measures it deems necessary for the freedom of navigation

4. Turkey does not recognize Israel's blockade of Gaza and will take the case to the International Court of Justice, as well as start an initiative at the U.N. in September

5. The Turkish Navy will escort future Flotillas to Gaza

6. Turkey will take legal action in international courts representing the families of the victims killed on the Mavi Marmara against the Israeli soldiers and officials involved in the Flotilla attack

All this because Israel refuses to make an apology and pay compensation to the victims' families. This could get very interesting very quickly.

[PalestineMyHeart 1,897]

So, since the findings don't simply rail against Israel, you focus on the legitimacy of the findings. Got it.

LOL. The report itself states that it isn't a legal finding. But it upsets you that I point that out ?

[mawilson 2,133]

Prime Minister Recep Tayyip Erdoğan is planning to visit Hamas-controlled Gaza in the coming weeks

He ain't going anywhere unless Israel lets him, unless he's planning to cross over from Egypt via a Hamas weapons smuggling tunnel

[Sofiyya 1,687]

Buh bye EU, Turkey knows which side its bread is buttered on.

So the reaction we have so far:

1. Turkey expels the Israeli Ambassador and downgrades diplomatic relations to the "lowest level possible"

2. Turkey suspends all military agreements with Israel

3. Turkey announces its Navy will patrol the Eastern Mediterranean and it take whatever measures it deems necessary for the freedom of navigation

4. Turkey does not recognize Israel's blockade of Gaza and will take the case to the International Court of Justice, as well as start an initiative at the U.N. in September

5. The Turkish Navy will escort future Flotillas to Gaza

6. Turkey will take legal action in international courts representing the families of the victims killed on the Mavi Marmara against the Israeli soldiers and officials involved in the Flotilla attack

All this because Israel refuses to make an apology and pay compensation to the victims' families. This could get very interesting very quickly.

[PalestineMyHeart 1,897]

He ain't going anywhere unless Israel lets him, unless he's planning to cross over from Egypt via a Hamas weapons smuggling tunnel

Big chat there for a guy who doesn't actually make any Israeli government decisions

We'll see what both sides do.

[Sofiyya 1,687]

Oh, ya?

News Brief 8/29/2011 7:31:00 PM, Av 29, 5771

Turkish Delegation Visits Gaza

An official Turkish delegation met with Hamas top terrorist Ismail Haniyeh in Gaza Monday. The Turks expressed their support for Hamas and praised its governing of Gaza. Haniyeh in turn praised his Turkish visitors, saying that their land had “for many years been a part of the Caliphate, the great Muslim empire.”

Haniyeh asked the Turks to continue supporting Hamas politically and economically.

He ain't going anywhere unless Israel lets him, unless he's planning to cross over from Egypt via a Hamas weapons smuggling tunnel

[Pooky 3,843]

Buh bye EU, Turkey knows which side its bread is buttered on.

I don't think so. Turkey desperately wants to attain full membership of the EU. The Middle East is not the impediment they face in that regard - Cyprus is.

EU News link