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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