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Joshua Rozenberg
Monday 31st May 2010
Gaza: What does International Law Say? (Updated)

The BBC has provided space on its website for readers to complain that the Israeli naval raid off Gaza was "piracy" because it took place in international waters. A rather better use of the page would have been a piece informing its readers of the position in international law.

I am no expert in this field and I know that international law is open to interpretation. But here's an account posted anonymously in response to this excellent piece. I have retained the US spellings, perhaps the only clue to the identity of the author, "George".

1. 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.

2. Maritime blockades are a legitimate and recognized measure under international law that may be implemented as part of an armed conflict at sea. (Examples: USA blockaded Cuba, UK blockaded The Falklands, the EU blockaded Yugoslavia)

3. 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.

4. 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.

5. In this vein, it should be noted that Israel publicized the existence of the blockade and the precise coordinates of such by means of the accepted international professional maritime channels. Israel also provided appropriate notification to the affected governments and to the organizers of the Gaza protest flotilla. Moreover, in real time, the ships participating in the protest flotilla were warned repeatedly that a maritime blockade is in effect.

6. Here, it should be noted that under customary law, knowledge of the blockade may be presumed once a blockade has been declared and appropriate notification has been granted, as above.

7. Under international maritime law, when a maritime blockade is in effect, no boats can enter the blockaded area. That includes both civilian and enemy vessels.

8. 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 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.

9. Here we should note that the protesters indicated their clear intention to violate the blockade by means of written and oral statements. Moreover, the route of these vessels indicated their clear intention to violate the blockade in violation of international law.

10. Given the protesters explicit intention to violate the naval blockade, Israel exercised its right under international law to enforce the blockade. It should be noted that prior to undertaking enforcement measures, explicit warnings were relayed directly to the captains of the vessels, expressing Israel's intent to exercise its right to enforce the blockade.

11. Israel had attempted to take control of the vessels participating in the flotilla by peaceful means and in an orderly fashion in order to enforce the blockade. Given the large number of vessels participating in the flotilla, an operational decision was made to undertake measures to enforce the blockade a certain distance from the area of the blockade.

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

Looks pretty authoritative to me.

Updates: I am grateful to "Dreadnaught" below for sourcing the comments quoted above to the Israeli Ministry of Foreign Affairs. As I said, they looked pretty authoritative to me. But, as I also said, international law is open to interpretation.

Douglas Guilfoyle, a maritime lawyer, was on the Radio 4 Today programme today.  He seemed to back up the Israeli account of international law. The issue on which he was unclear was whether Israeli troops used reasonable force in self-defence.

That, of course, depends on the circumstances as they appeared to the troops and we don't yet know the full facts. But it strikes me as telling that the five ships which complied with the Israeli blockade suffered no casualties. 

Finally, I am taken to task for not saying that the blog I had described as "excellent" was written by my wife. I had assumed that, after 36 years, this was widely known -- and not just to the people who commented below. It's clear from our respective entries in Who's Who and other sources of reference. Melanie frequently mentions our relationship on her blog. And I alerted readers to it on this website as recently as last Thursday (it's also mentioned in the current print edition of Standpoint).

But there was no intention to deceive and I shall now refer to Melanie as my wife every time I praise her in public.

Further update: The BBC has now provided the following assessment of the position under international law. This seems broadly accurate, except I am not convinced that that the only way of establishing whether the Israelis acted in self-defence is an inquiry by Turkey or the UN.

The UN Charter on the Law of the Sea says only if a vessel is suspected to be transporting weapons, or weapons of mass destruction, can it be boarded in international waters. Otherwise the permission of the ship's flag carrying nation must be sought.

The charter allows for naval blockades, but the effect of the blockade on civilians must be proportionate to the effect on the military element for the blockade to be legally enforceable.

A ship trying to breach a blockade can be boarded and force may be used to stop it as long as it is "necessary and proportionate".

The Israeli Defence Forces say soldiers acted in self-defence.

An investigation, either by the UN or by the ship's flag-carrier Turkey, is required to find if the use of force was proportionate to a claim of self-defence.

 
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Anonymous
June 10th, 2010
1:06 PM
THE MYTH OF THE SIEGE OF GAZA Gaza is not cut off from the outside world. In the last year, the markets of Gaza have been flooded with produce and merchandise. From June 2007 (the date of the Hamas military takeover of Gaza), overall monetary transfers to Gaza have totaled over $5 billion from governmental and extragovernmental sources.     There is also an established economic system of Palestinian imports from Egypt via hundreds of tunnels operating under the control of a Hamas government that grants approval for operating them and collects taxes from their owners. The tunnel network has increased imports from Egypt to Gaza from $30 million annually during the years 1994-2006 to more than $650 million annually.   to read the entire article click here: www.jcpa.org

Jewish Ideas Daily
June 10th, 2010
8:06 AM
The issue of international waters is the most minor issue in the flotilla incident. The events that led up to it and the actual event are being argued about so much that the interpretation of international law seems incidental.

Shaun Harbord
June 8th, 2010
10:06 AM
You have misrepesented the BBC's website. They have not set up an opportunity for "readers to complain that the Israeli naval raid off Gaza was 'piracy' because it took place in international waters." They have invited comments on the Israeli action generally, for or against or neutral. You're revealing your own bias.

Gaza
June 2nd, 2010
8:06 PM
. Maritime blockades are a legitimate but you forgot that embargo in Gaza is not illegal

Mike
June 2nd, 2010
7:06 AM
Since when has Israel ever worried about breaking international law? If Israel is agreeing to be held to international law all of a sudden I better start compiling a list of all the times they've broken it over the years and they can answer to a war crimes tribunal.

Matthew Doye
June 2nd, 2010
5:06 AM
Sir It has been my understanding that the only authority that can now lawfully declare a blockade is the UNSC under article 42 of the UN Charter. This, on its face, appears to put a naval blockade of Gaza beyond the law. Aside from this, the neutrality of the vessel, the rights to request and deliver aid and the lack of authority over the vessel also appear to eliminate any pretext the Israeli forces might have to board and seize the vessels. Israel may have added a new phrase to the lexicon of conflict, that of "state piracy".

Jonathan
June 1st, 2010
7:06 PM
Anyone who believes that there is an independent state of "England" which has naval manuals, as stated in point 4 in the original quotation, has disqualified himself or herself from any claim to understanding of international law. It's like the proverbial thirteenth stroke of the clock.

PaulSW
June 1st, 2010
6:06 PM
I'd be more inclined to read this disingenuous nonsense as a serious statement of the law (which incidentally it is not) if it wasn't written by one Zionist who is shamelessly plugging his Zionist wife's (Melanie Phillips) writings as "excellent".

Anonymous
June 1st, 2010
5:06 PM
Of course it is only one point of view that is purported here as authoritative. I am sure there will be a lot of discussion about the legalities of this in the coming months in and outside of Israel. Here are two differing views from Turkey and Israel: http://todayszaman.com/tz-web/news-211726-jurists-israeli-flotilla-assau... and http://www.jpost.com/Israel/Article.aspx?id=177028

Bill
June 1st, 2010
4:06 PM
Isn't it dispiriting that the Secretary General of the United Nations castigates Israel for trying to protect its citizens yet does noting effective to prevent the Government of the country whose aim is to kill as many Jews in Israel as it can from so doing. The truth is he can't so he ignores a rabid regime by turning his wrath on a regime that acts tough. Yes very tough at times but if he was fighting for his existance then perhaps he would change his mind. Maybe if his "cousins" from North Korea sent rockets into his back yard then he might be a little more circumspect. No I am not Jewish, I'm not pro Israeli nor am I anti Arab. Israel is not a place I would like to visit because I don't agree with everything they do but I find it hypocritical of so-called peace campaigners to provoke a situation and exacerbate it in order to generate increased hatred. I'm surprised Turkey was conned.

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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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