by Jeremy R. Hammond
Foreign Policy Journal
20 July, 2010
In “The Legal Basis of Israel’s Naval Blockade of Gaza” at the Jerusalem Center for Public Affairs (JCPA), Professor Emeritus of International Law at the Hebrew University of Jerusalem Ruth Lapidoth argues that Israel’s attack on the Gaza Freedom Flotilla, in which nine Turkish peace activists were killed by Israeli commandos, was perfectly “legal”.
Lapidoth begins by arguing that “the rules of the laws of armed conflict apply” to the “armed conflict” between Israel and Hamas. From this, Lapidoth draws the conclusion that, “This means that Israel may control shipping headed for Gaza—even when the vessels are still on the high seas.”
Examining how the conclusion that Israel may legally blockade Gaza is arrived at, Lapidoth argues that: “The rules on blockades are based on customary international law, as there is no comprehensive international treaty on this subject…. The customary rules on blockade can be found in the manuals of the laws of war issued by certain Western countries such as the United States and Britain. In addition, there is a manual prepared by an international group of experts in 1994 called the San Remo Manual.”
By claiming that we must depend upon “customary international law” to decide whether or not a blockade is legal or not, Lapidoth implies that the body of formal international law is somehow irrelevant and inapplicable. The reason for this argument becomes perfectly clear when one actually examines what international law has to say about Israel’s deadly attack on a humanitarian vessel in international waters, which reveals that this entire foundational premise for the argument is false.
For instance, Israel as a party to the U.N. Charter, which states that: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered…. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (Article 2).
The prescription for seeking remedy to an international dispute or grievance is given: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” (Article 33).
For Member states, it is up to the U.N. Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to “make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” (Article 39).
If the Security Council finds such a situation exists, it may authorize the use of force “as may be necessary to maintain or restore international peace and security”, including the implementation of a “blockade” (Article 42).
Thus, Israel has a legal obligation to bring any grievances it may have to the U.N. Security Council, which may authorize and enforce a blockade. Yet, Israel has never sought U.N. authorization for a blockade as a remedy for any grievance, and the Security Council has not authorized the blockade of Gaza. Israel’s unilateral blockade, being in contravention to its obligations under the U.N. Charter, is therefore unlawful.
Israel is also party to the Fourth Geneva Convention, which according to Lapidoth’s own argument, applies. The Convention prohibits any acts constituting collective punishment of a civilian population: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited” (Article 33).
Under the Fourth Geneva Convention, Israel is legally bound to allow humanitarian shipments into Gaza: “To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate” (Article 54).
Additionally: “If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal”, including “consignments of foodstuffs, medical supplies and clothing.” Israel is legally obligated to “permit the free passage of these consignments” and to “guarantee their protection” (Article 59).
Israel’s blockade of humanitarian shipments into Gaza ipso facto constitutes an act of collective punishment against the civilian population, and is therefore illegal.
Lapidoth acknowledges that “A blockade has to permit the passage of humanitarian assistance if needed”, but adds: “However, the San Remo Manual includes two conditions (in Article 103): first, the blockading party may decide where and when and through which port the assistance should reach the coast. In addition, the state may require that a neutral organization on the coast should control the distribution of the items.”
Yet, as shall be seen, these conditions only apply in cases where there is a lawful blockade to begin with; which means they don’t apply in Israel’s case. It’s instructive that Lapidoth, far from disputing the fact, tacitly acknowledges here that the Israeli blockade denies the passage of humanitarian assistance; thus the necessity of his legalistic, cherry-picked argument. A look at the document cited reveals that Lapidoth is simply not being honest about what the San Remo Manual actually says.
The San Remo Manual applies to “armed conflict at sea” (Article 1). Yet there is no armed conflict at sea in this case. Gaza has no navy (nor does it have an army or air force). Attacks against Israel are limited to rockets fired by militant groups from the land against targets on the land. Nonetheless, let us consider that a state of “armed conflict” exists and presume the principles of the San Remo Manual are fully applicable.
The Manual explicitly states that: “The principles of necessity and proportionality apply equally to armed conflict at sea and require that the conduct of hostilities by a State should not exceed the degree and kind of force, not otherwise prohibited by the law of armed conflict, required to repel an armed attack against it and to restore its security” (Article 3).
“Parties to the conflict shall at all times distinguish between civilians or other protected persons and combatants and between civilian or exempt objects and military objectives” (Article 39).
“In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” (Article 40).
“Attacks shall be limited strictly to military objectives. Merchant vessels … are civilian objects unless they are military objectives in accordance with the principles and rules set forth in this document” (Article 41).
Moreover, “it is forbidden to employ methods or means of warfare which … are of a nature to cause superfluous injury or unnecessary suffering” or “are indiscriminate, in that … they are not, or cannot be, directed against a specific military objective” (Article 42).
Israel had an obligation to take “precautions” in its attack, such as “determining whether or not objects which are not military objectives are present in an area of attack”, to “do everything feasible to ensure that attacks are limited to military objectives”, and to “take all feasible precautions in the choice of methods and means in order to avoid or minimize collateral casualties or damage”. Additionally, “an attack shall not be launched if it may be expected to cause collateral casualties or damage which would be excessive in relation to the concrete and direct military advantage anticipated from the attack as a whole” (Article 46).
Lapidoth, in citing the San Remo Manual to support an argument that Israel’s attack on the Mavi Marmara was legal, neglects to point out that the Manual states explicitly that among the “classes of enemy vessels” that “are exempt from attack” are “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” and “passenger vessels when engaged only in carrying civilian passengers” (Article 47).
Furthermore, the San Remo Manual states that a prerequisite for any lawful blockade is a declaration that “shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline” (Article 94). Israel has never made a declaration meeting these requirments.
And to be lawful, “A blockade must be effective. The question whether a blockade is effective is a question of fact” (Article 95). Israel’s blockade is not effective towards any military objective whatsoever, having served only to deny humanitarian shipments into Gaza.
Even if Israel had made a proper declaration of its intent, the Manual notes that: “The declaration or establishment of a blockade is prohibited if … it has the sole purpose of starving the civilian population or denying it other objects essential for its survival” or if “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade” (Article 102).
Lapidoth also acknowledges that “there is the condition that a state may not starve the civilian population (San Remo, Article 102).” Lapidoth makes no further comments on this condition for the “legality” of a naval blockade, despite the fact that the blockade prevents food from entering Gaza.
Even if one could argue that blocking humanitarian supplies was not the sole purpose of Israel’s blockade, the fact remains that the continuing suffering of the civilian population was and is a predictable consequence of Israel’s actions, which are indiscriminate, disproportionate, and otherwise excessive in relation to any possible legitimate military objective.
Apologists for the Israeli attack on the Mavi Marmara, the flagship ship of the flotilla, have claimed that the nine activists were killed in an Israeli act of “self-defense” against passengers aboard the ship who attacked Israeli commandos with clubs and knives. But whether or not it is true that passengers attacked the commandos who stormed their ship is irrelevant, since (a) Civilians aboard a peaceful vessel operating in international waters have an inherent right to self-defense against armed aggression, such as the storming of their ship by armed Israeli commandos, and (b) the Israeli attack, being against a civilian and not a military target, as discussed above, was a war crime in and of itself. The murder of nine peace activists is thus a further crime.
According to the absurd logic of the argument to the contrary, the burglar who breaks into a home and kills the homeowner who attacks him with a knife commits no crime because he killed the homeowner in “self-defense”.
Continuing, Lapidoth argues that “A merchant ship may be visited, searched, or captured; and if the ship resists, it may be attacked…. A ship that clearly intends to breach the blockade can be dealt with while it is still on the high seas. Stopping the flotilla in international waters 100 kilometers from Israel was legal: In time of armed conflict, ships breaching the blockade may be searched even on the high seas.”
Yet what the San Remo Manual actually states, and what Lapidoth conveniently ignores, is that the “visit and search” of “merchant vessels” must occur only when “there are reasonable grounds for suspecting that they are subject to capture” (Article 118).
There were absolutely no reasonable grounds to suspect that the Mavi Marmara or the rest of the Gaza Freedom Flotilla were “subject to capture”—that is to say, that they served any kind of military purpose or that preventing the humanitarian shipment served any kind of military objective whatsoever.
The flotilla was forcibly redirected Israel. Yet the San Remo Manual specifically notes that under international law, it is only “with its consent” that a merchant vessel my “be diverted from its declared destination” (Article 119). Israel’s diversion of the flotilla was not done with consent, but under threat of violence and with force of arms, a further violation of international law.
Lapidoth cites precedents of blockades during the Korean War, the Iran-Iraq war, and others, concluding again that, “In the treatment of the flotilla heading for Gaza, Israel has acted in compliance with international law because it has fulfilled all the conditions for a lawful blockade” because “Israel notified the relevant authorities of its blockade in Gaza”.
It’s not clear what relevance Lapidoth thinks previous instances of blockades have to do with the situation in Gaza, and it does not follow from the observation that there have been blockades in the past that therefore Israel “has acted in compliance with international law”. Lapidoth’s claim that because Israel “notified” authorities of its blockade it is “in compliance with international law” is also a non sequitur. As already noted, Israel has never declared its intentions in such a manner as the San Remo Manual states is required for such a blockade, among the other conditions outlined above, for its blockade to be considered legitimate and lawful.
Asking “Can Gaza be considered an enemy although it is not a state?” Lapidoth answers: “According to international law, this is possible.” In the brief discussion that follows, Lapidoth offers no logical rationale for how this conclusion was arrived at. But assuming it’s a correct conclusion, it does not follow that because Gaza can be considered enemy territory that the blockade is legal.
Finally, Lapidoth address the question of whether Israel is, under law, the Occupying Power in Gaza. “Some say that since Israel is still in control of Gaza’s airspace and adjacent sea, Israel is still the occupier”, Lapidoth notes, without identifying who “Some” are. “According to another opinion,” Lapidoth continues, “under the Hague Regulations of 1907 (Respecting the Laws and Customs of War on Land), occupation has to include full control of the area. (‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’ – Article 42), and of course Israel does not control the whole territory of Gaza. Therefore, it is not responsible for what happens there.”
Lapidoth concludes, “In my opinion, since Israel is not in control of Gaza, it is not the occupier, but in those areas in which Israel still has control – which means sea and airspace – Israel is responsible. Here we have to distinguish between full control of the territory and control only of the sea and airspace.”
But this is argument is prima facie invalid. Article 42 simply does not say a nation must “control the whole territory” for the conditions of an occupation to exist. This is a strawman argument. Moreover, it is simply false that Israel maintains “control only of the sea and airspace” of Gaza. Israel also controls most of the length of the border of the territory, other than the short stretch of it Gaza shares with Egypt. Israel cannot on one hand claim authority to militarily control Gaza’s land, sea, and airspace while on the other maintaining that the conditions of occupation do not exist. Two plus two does not equal five.
In sum, Israel has a legal obligation under the U.N. Charter to bring forth any grievances it has to the Security Council, which may then authorize a legal blockade if it thinks necessary. Yet Israel did not do so, choosing rather to unlawfully implement a unilateral blockade.
Israel has a legal obligation to permit humanitarian supplies into Gaza, and not to engage in indiscriminate warfare or inflict collective punishment on the civilian population of Gaza. Yet on its face, collective punishment is the effective consequence of the blockade and Israel’s denial of aid.
Moreover, preventing ships known to be carrying only humanitarian supplies from entering Gaza in no demonstrable way helps Israel “to repel an armed attack” or “to restore its security”. By failing to distinguish between civilian objects and military objectives, Israel’s attack on the flotilla was indiscriminate, and therefore prohibited.
By blocking humanitarian goods that serve no military purpose, Israel’s attack constituted collective punishment against the civilian population, and therefore prohibited.
Additionally, since it could be foreseen that sending armed commandos to threaten and forcibly board and take control of a ship inherently presents a risk of causing “collateral casualties” excessive in relation to any military advantage anticipated (which was totally nonexistent in this case), it was therefore prohibited and constituted a war crime.
Lapidoth’s argument that there are “conditions” under international law by which its actions were lawful is a fallacy dependent upon dishonest cherry-picking from the San Remo Manual, which makes clear that those conditions only apply to situations where there is an effective legal blockade necessary for security that is not in practice indiscriminate, and only when, following on those conditions, there are reasonable grounds to believe that a ship may be serving a military purpose and thus exempt from attack. Israel’s capture and redirecting of the flotilla to Israel was a further violation of international law, in addition to the initial attack and the blockade itself.
Jeremy R. Hammond is an independent political analyst whose articles have been featured in numerous print and online publications around the world. He is the founder and executive editor of Foreign Policy Journal (www.foreignpolicyjournal.com), an online source for news, critical analysis, and opinion commentary on U.S. foreign policy. He was a recipient of the 2010 Project Censored Awards for Outstanding Investigative Journalism and can also be found on the web at www.jeremyrhammond.com.
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