Legal Scholars Agree: Israel obeyed international law, Gaza flotilla conflict is open-and-shut case

Respected law professors agree, Israel did the right thing. 

According to Ed Moran, a professor of international law at the University of Toronto:

Reactions to the Israeli seizure of the Gaza-bound flotilla have shared two traits: They have virtually all invoked international law, and they have virtually all been marked more by their rhetorical excess than their knowledge of international law.

...While much of the international law that gets tossed around at the United Nations is up for ideological grabs, the rules of engagement at sea are among the few islands of stability. It therefore behooves us to have a look at the accepted law before going overboard on politicized interpretation.

Israel and Hamas are in a state of armed conflict. That much is clear to everyone who has looked at the situation, from the General Assembly to the Human Rights Council in its Goldstone Report, which has stressed the need to conform to the laws of war. Accordingly, the accusation of piracy is inapt, since under both customary law and Article 101 of the UN Convention on the Law of the Sea that applies only to acts done for private gain. Israel’s acts must be analyzed in terms of the law of naval warfare.

A blockade of an enemy’s coast is an established military tactic. It is recognized as a means at the Security Council’s disposal under Article 42 of the UN Charter where collective action is authorized. Likewise, as made clear in Article 539 of the Canadian Forces manual Counter-Insurgency Operations, it is an action that one belligerent can potentially impose on another, provided that the accepted conditions for the blockade are met.

The law regulating force at sea is found in several sources updating the eight conventions on the law of naval warfare adopted at the Second International Peace Conference at The Hague in 1907. These include the U.S. Naval Handbook, an equivalent U.K. publication, and Germany’s 1992 manual, Humanitarian Law in Armed Conflicts. A consolidated set of rules was issued in 1994 by the San Remo Institute of International Law in co-operation with the International Committee of the Red Cross and several national humanitarian law societies, including Canada’s.

A naval blockade is defined in Article 7.71 of the U.S. Naval Handbook as “a belligerent operation to prevent vessels and/or aircraft of all nations, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy nation.” It is designed to stop ships from crossing a cordon separating the enemy’s coast from the high seas. It is therefore often enforced in what would otherwise be international waters approaching, but not necessarily inside, the territorial sea of the blockaded party.

The San Remo conference set the specific rules for implementing a blockade. It must be publicly declared and notification sent to all states whose vessels are likely to be nearby. Further, the blockade must be effective. International law permits no fictitious blockade designed to frighten away third-party ships.

The San Remo rules also specify that a blockade be applied with impartiality to all states whose flagged ships enter the blockaded area. It must be conducted in a way that does not block access to neighbouring states and their ports.

A maritime blockade is for security purposes only, and must allow humanitarian assistance to the civilian population. Since the ships sailing for Gaza were on a declared humanitarian mission, those on board had the right to expect that any humanitarian goods would ultimately find their way to their intended recipients. On the other hand, having announced its blockade, Israel had no obligation to take the ships’ crew at their word as to the nature of the cargo. The blockading party has the right to fashion the arrangements, including search at a nearby port, under which passage of humanitarian goods is permitted. San Remo specifies that this inspection should include supervision by a neutral party to prevent the unwarranted seizure of humanitarian supplies and the abuse of humanitarian assistance by the blockaded party.

Finally, the rule of proportionate force, applicable to all armed conflict, applies equally to a naval blockade. Blockading navies are obliged to arrest a ship rather than simply fire on it, and once its soldiers are on board an arrested ship their actions must be proportionate to the threat that they meet. While Israel appears to have met the other criteria eliminating a macro offence, here the facts will have to be gathered from witnesses and videos to determine what level of force was truly needed at the spot where the paintballs met the hammers.

We may still have to swim through an ocean of polemics, but once the legal background is set out, the Law of the Sea becomes far more cut and dry.
Alan Dershowitz (whose politics we generally don't care for, but whose legal expertise we respect) writes:
First, there is the Israeli blockade of Gaza. Recall that when Israel  ended its occupation of Gaza (handed Jewish property to Islamic terrorist for nothing in return -JIDF), it did not impose a blockade. Indeed, it left behind agricultural facilities in the hope that the newly liberated Gaza Strip would become a peaceful and productive area.

Instead, Hamas seized control over Gaza and engaged in acts of warfare against Israel. These acts of warfare featured anti-personnel rockets, nearly 10,000 of them, directed at Israeli civilians. This was not only an act of warfare, it was a war crime. Israel responded to the rockets by declaring a blockade, the purpose of which was to assure that no rockets or other material that could be used for making war against Israeli civilians were permitted into Gaza.

Israel allowed humanitarian aid through its checkpoints. Egypt as well participated in the blockade. There was never a humanitarian crisis in Gaza, merely a shortage of certain goods that would end if the rocket attacks ended. 

The legality of blockades as a response to acts of war is not subject to serious doubt. When the United States blockaded Cuba during the missile crisis, the State Department issued an opinion declaring the blockade to be lawful. This despite the fact that Cuba had not engaged in any act of belligerence against the United States. Other nations have similarly enforced naval blockades to assure their own security.

The second issue is whether it is lawful to enforce a legal blockade in international waters. Again, law and practice are clear. If there is no doubt that the offending ships have made a firm determination to break the blockade, then the blockade may be enforced before the offending ships cross the line into domestic waters. Again the United States and other Western countries have frequently boarded ships at high sea in order to assure their security.

Third, were those onboard the ship simply innocent noncombatants? The act of breaking a military siege is itself a military act. And let there be no mistake about the purpose of this flotilla; it was decidedly not to provide humanitarian aid to the residents of Gaza, but rather to break the entirely lawful Israeli military blockade. The proof lies in the fact that both Israel and Egypt offered to have all the food, medicine and other humanitarian goods sent to Gaza, if the boats agreed to land in an Israeli or Egyptian port. That humanitarian offer was soundly rejected by the leaders of the flotilla, who publicly announced: "This mission is not about delivering humanitarian supplies, it's about breaking Israel's siege on 1.5 million Palestinians."

Finally, we come to the issue of the right of self-defense engaged in by Israeli soldiers who were attacked by activists on the boat. There can be little doubt that the moment any person on the boat picked up a weapon and began to attack Israeli soldiers, they lost their status as innocent civilians.

Even if that were not the case, under ordinary civilian rules of self-defense, every Israeli soldier had the right to protect himself and his colleagues from attack by knife- and pipe-wielding assailants. Lest there be any doubt that Israeli soldiers were under attack, simply view the online video and watch the so-called peaceful activists pummel Israeli soldiers with metal rods.

Every individual has the right to repel such attacks by the use of lethal force. That was especially true in this case, when the soldiers were so outnumbered on the deck of the ship. Recall that Israel's rules of engagement required its soldiers to fire only paintballs unless their lives were in danger.

Would any country in the world deny its soldiers the right of self-defense under comparable circumstances?

Israel's critics fail to pinpoint precisely what Israel did that allegedly violates international law. Some have wrongly focused on the blockade itself. Others have erroneously pointed to the location of the boarding in international waters. Most have simply pointed to the deaths of so-called peace activists, though these deaths appear to be the result of lawful acts of self-defense.

There can be little doubt that the mission was a failure, as judged by its results. It is important, however, to distinguish between faulty policies and alleged violations of international law. Only the latter would warrant international intervention, and the case has simply not been made that Israel violated international law.
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