On 31 May 2010 IDF special armed forces intercepted six ships of Freedom flotilla. The flotilla carried around 700 civilians and humanitarian cargo intended for the civilian population of the Gaza Strip in light of the dire humanitarian crisis.
The attempt to reach the Gaza shore resulted in the death of nine passengers and injuries of tens of others on the Mavi Marmara. The ships were seized and taken to Ashdod port and passengers detained, questioned and deported.
What are the rights of the Palestinians
to the Gaza sea?
Palestinians have a right of self-determination in the occupied Palestinian territory (oPt). The Gaza sea is part of the oPt. Therefore, Palestinians have a right to the territorial water (12 nautical miles which are approx. 22 km) and some rights in the continuous zone (additional 12 nautical miles) of the Gaza sea.
Since 1967 occupation the Gaza sea is being administered by Israel’s navy, as the occupying power. Israel is under the obligation to administer the Gaza sea according to international law including international humanitarian law (IHL).
What are the rights and duties of Israel as the occupying power under international law
including international humanitarian law?
International Law of the Sea
Article 14(1) of the Convention on the Territorial Sea and the Contiguous Zone of 1958, to which Israel is a party, states that “ships of all states, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea”. Also, “passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Such passage shall take place in conformity with these articles, and with other rules of international law”. The convention is international customary law.
Right of Humanitarian Assistance
The Palestinians as protected persons have the right to demand humanitarian assistance (article 30 IVGC, article 50 Hague Regulations of 1907). The international community has a corresponding right to provide humanitarian assistance (erga omnes) through all existing border crossings including the Gaza sea.
The occupying power is under the obligation to provide humanitarian aid to the occupied people (article 55 IVGC), and allow others to provide it in case it does not or cannot do so. It must facilitate the rapid and unimpeded passage of humanitarian aid even across a blockade line (article 59 IGVC, and article 70 IAP which reflects international customary law, rule 55 ICRC Study of 2005). All states are under the obligation to allow free access to such aid and guarantee its safety.
The ICRC Commentary on article 70 states that the intention of "rapid and unimpeded passage" of relief consignments, equipment and personnel is to avoid any harassment, to reduce formalities as far as possible and dispense with any that are superfluous. …Thus the obligation imposed here is relative: the passage of the relief consignments should be as rapid as allowed by the circumstances. … such a Party must do all it can to facilitate the passage of relief consignments.” If circumstances show that access through the sea is more feasiable and can take place more rapidly than through land crossings, than the former route should be allowed by the occupying power unless military necessity arguments prevail.
The occupying power has the right to search relief ships coming in, to regulate their passage time and route-wise, and to be satisfied that they are genuinely humanitarian in character. This is in order to avoid the hampering any military operation and to conform to the maximum extent with security requirements.
However, this should not be misused by the occupying power in order to obstruct and unduly delay humanitarian aid to the occupied territory (ICRC commentary to article 59).
The party to the conflict can also stop free passage if it is satisfied that there are serious reasons to fear that the relief may be diverted from its destination, that the control may not be effective, or that it may provide definite advantage to the military efforts or economy of the enemy (article 23 IVGC).
The entry of goods that have dual use - serving both military and civilian purposes - should not be outright denied as humanitarian needs of the civilian population take precedent while in parallel alternative means and methods of reaching the military are considered.
The participation of relief personnel such as psychologists, doctors, social workers, electricians, constructors, maintenance personnel etc., shall be subject to the approval of the party in whose territory they will carry out their duties (article 71 IAP).
Each Party in receipt of relief consignments shall, to the fullest extent practicable, assist the relief personnel in carrying out their relief mission. Only in case of imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted based on compelling and valid grounds, and without discrimination.
ICRC Commentary on article 18(2) IIAP states that "the fact that consent is required does not mean that the decision is left to the discretion of the parties. If the survival of the population is threatened and a humanitarian organization fulfilling the required conditions of impartiality and non discrimination is able to remedy this situation, relief actions must take place. In fact they are the only way of combating starvation when local resources have been exhausted…” (ICRC Study Vol II, page 1205).
A blockade is a belligerent act and can be raised based on self-defence within an international armed conflict. Israel, as an occupying power cannot claim that it blockades Gaza as self-defence (or pre-emptive self-defence for that matter) as Gaza is controlled and occupied by Israel (see International Court of Justice advisory opinion on the Wall discussing that same argument vis-à-vis the wall). Israel may block access to Gaza under its authority as an occupying power to protect itself from security threats, where those exist.
According to the San Remo Manual on International Law Applicable to Armed Conflicts at Sea of 1994 a legal blockade should follow criteria of effectiveness, impartiality and prior declaration. Also, according to international humanitarian law blockades, including naval blockades that deprive the civilian population of objects essential for survival conditions should not be imposed by the occupying power (articles 17, 23 IVGC).
Starvation is an illegal method of warfare. Objects indispensable for the survival of the population need to be protected (article 54 IAP). According to the San Remo Manual the declaration on the establishment of a blockade is prohibited 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(b)).
Therefore, in light of the dire humanitarian situation in the Gaza Strip as well as the punitive aspect (article 33 IVGC) of the Gaza siege - land crossings and naval blockade - the current policy is illegal. An illegal blockade should not be enforced in the first place.
If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to the right to prescribe the technical arrangements, including search and the condition that the distribution of such supplies shall be made under the local supervision of a Protecting power or a humanitarian organization which offers guarantees of impartiality, such as the ICRC (San Remo Manual, article 103).
US Naval Handbook (1995) article 7.7.3 states that “neutral vessels and aircraft engaged in the carriage of qualifying relief supplies for the civilian population…should be authorized to pass through the blockade cordon”.
Good faith is a well established principle in international law. Article 850 of the Australia’s Commanders’ Guide (1994) states in relation to blockades that “there is a duty to consider, in good faith, requests for relief operations… .
In light of the operational inadequacy and malfunctioning of land crossings to Gaza, and especially under the current blockade, but even if land crossings operate reasonably,
Israel must consider in good faith allowing access for humanitarian goods and personnel through the Gaza sea. This, subject to Israel’s right to visit and search the ships prior to entry and exit. Dismissal of the sea option is only justified if imperative security reasons override. Good faith means investigating seriously into all possible technical and security arrangements.
Breaking the Blockade - when?
Ships carrying humanitarian aid do not technically attemp to break a naval blockade as they should be permitted, following a search, to cross the blockade line and download their cargo.
Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. If clearly refuse an order to stop or actively resist capture they may be attacked (article 98, San Remo Manual).
When a merchant vessel makes an effective contribution to the enemy’s military action (e.g. by carrying military materials), and after prior warning or interception, they intentionally and clearly refuse to divert from their destination, the vessel may be attacked. Neutral vessels are to be granted a grace period to leave the blockaded port.
The fact that the ships are armed cannot by itself justify an attack (article 69, San Remo Manual). The existence of ammunition does not grant carte blanche to regard the civilians on the ships or the ships themselves as legitimate military targets.
Illegal attack by warships or state agents of civilian ships cannot be regarded as piracy as piracy is an act for private gain.
Israel is not a member state of the International Tribunal for the Law of the Sea and is not expected to concede to its authority voluntarily.
breaking the blockade - where?
According to the Convention on High Seas from 1958 in peacetime a warship encountering a foreign merchant ship on the high seas can board it only if there is reasonable ground for suspecting that the ship is engaged in piracy, slave trade, contraband or the ship is of the same nationality as the warship (article 22). The convention is international customary law. Israeli warships have the right to approach the ships to verify their nationality.
During an international armed conflict according to the London Declaration Concerning the Laws of Naval War of 1909 “neutral vessels may not be captured for breach of blockade except within the area of operations of the warships detailed to render the blockade effective" (article 17). The January 2009 order signed by the Israeli Minister of Defence Ehud Barak imposed a naval blockade 20 nautical miles off Gaza coastline. Therefore, it appears that beyond this line Israel is not allowed to interfere with the freedom of movement of civilian vessels. However, if one follows the Sam Remo Manual naval warfare and enforcing a blockade is allowed also in high seas (article 10). Naval warfare should only take place against legitimate military targets, not humanitarian ships.
Civilians on board
Since Israel has declared the blockade within an international armed conflict and regarded the approachment of the ships to Gaza coastline as a hostile act, its actions should be analyzed based on the laws applicable to hostilities and not as part of a law enforcement routine. In high seas Israel cannot arrest or detain a ship as a measure of law enforcement unless the acts were ordered by the authorities of the flag state (article 11, Convention on High Seas 1958).
Any attack should follow the customary law principles of distinction and proportionality and the rule on precautions in and during attack.
Attack is only lawful when it is anticipated to result in a concrete and direct military advantage. It is highly doubtful that such a military advantage exist to justify an armed attack against civilian ships. Deterrence from future flotillas alone does not stand the requirements of military advantage.
Distinction - Persons participating in relief actions are civilians and the parties to the conflict must respect and protected them. Vessels carrying civilians and humanitarian cargo should never be the object of attack.
Proportionality - 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.
Precautions in and during an attack - Precautions should take place before and during the attack. An attack shall be cancelled or suspended as soon as it becomes apparent that the collateral casualties or damage would be excessive.
Civilians that take direct part in hostilities may become a justified military objective only for that time as they do so. In addition, they may be attacked only if no other means - less harmful – exists, to dispose them of their arms or eliminate the danger they pose.
The chain of events starting from the military interception to the Mavi Marmara until the death of nine passengers reflects violations of the above mentioned principles. Even if the operation is analyzed under the law enforcement regime, it seems that the principle of proportionality in the use of force was also violated.