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Flotillas and the Gaza Blockade

The Gaza Strip is still under a continued naval and land blockade. In light of the deadly outcome of the attempt at the delivery of aid by sea, "flotilla" of 31 May 2010, it is important to reiterate the relevance and importance of international humanitarian law if future flotillas are undertaken.

The Law

The naval and land blockade is deemed to be a clear violation of international law. Due to the fact that:

The land and naval blockade does not serve a concrete and direct military advantage

According to the January 2011 report of the Israeli Turkel Committee that investigated the incidents around the May 2010 flotilla [a]s evidenced by the testimonies that the Commission heard, the land crossings policy sought to achieve two goals: a security goal of preventing the entry of weapons, ammunition and military supplies into the Gaza Strip in order to reduce the Hamas’ attacks on Israel and its citizens; and a broader strategic goal of ‘indirect economic warfare’ whose purpose is to restrict the Hamas’ economic ability.

Economic warfare cannot be applied in order to secure a “concrete and direct military advantage”, as set out in art. 102(b) of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994 (hereinafter – San Remo Manual), which reflects customary international law.

Continued disproportional harm to civilians

The naval blockade is part and parcel of the Gaza closure, which also includes the land blockade. Therefore, the two cannot be analyzed separately. Israel maintains its closure regime with regard to land crossings, despite the declared ease of restrictions during 2010. According to a recent report from the World Food Program (WFP) of June 2011, the Gaza population remains food insecure and improvements expected of the new access regime are not significant. The WFP report states that the crossing’s opening remains unreliable and exposes the population to vulnerability and that it did not translate into a tangible relaxation of exports.  UNOCHA recently stated that measures taken to ease the blockade in June 2010 have had little real effect.  Therefore, there seems to be no evidence that the principle of proportionality, which is customary international law,  has been adhered to in the use of the closure policy as a method of warfare, since June 2010 until today. The harm to civilians remains high.

Continued collective punishment

ICRC position in its news release of 14 June 2010 was that [t]he whole of Gaza's civilian population is being punished for acts for which they bear no responsibility. The closure therefore constitutes a collective punishment imposed in clear violation of Israel's obligations under international humanitarian law.

As long as the punitive as well as the collective nature of the land and naval closure remain in force, this measure remains unlawful. According to UNOCHA the Gaza blockade is a denial of basic human rights in contravention of international law and amounts to collective punishment.

Violation of the obligation to ensure basic needs or facilitate rapid and unimpeded aid

The continued closure policy violates the occupant’s humanitarian obligations to ensure for the provision of basic needs and objects essential for the survival of the population (art. 55 GCIV, art. 69 API).  Violation of these obligations does not depend on intent to deny the population of its basic needs. It is a matter of fact, whether the obligation has been violated or not.

As an Occupying Power, Israel is under an obligation to “restore, and ensure, as far as possible, public order and safety” (regulation 43 Hague Regulations 1907), which includes the welfare of the population. This is an obligation whereby the occupant must pursue with all available, lawful and proportionate means, the public order and civil life in the occupied territory. As stated in the WFP report, much remains to be done to improve the dire humanitarian conditions of the civilian population in Gaza.

Whenever the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide free passage of such foodstuffs and other essential supplies. This is subject to the right of the Occupying Power to prescribe the technical arrangements, including the right to search and condition that the distribution of such supplies shall be made under the local supervision of a protecting power or a humanitarian organisation which offers guarantees of impartiality, such as the ICRC (San Remo Manual, art. 103).

The party to the conflict can stop free passage if 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 to the economy of the enemy (art. 23 GCIV).

However, art. 70 API states that, offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts.

In light of the persistent operational inadequacy and malfunctioning of land crossings to Gaza -and even if land crossings were to operate reasonably- Israel must consider allowing access for humanitarian goods and personnel through the shores off Gaza. Stoppage of any vessle must be carried out in accordance with international law

A humanitarian flotilla is not a legitimate military objective for attack

The flotilla is composed of neutral vessels, and thus should not be regarded as a legitimate military objective for attack, under art. 52 API. Its attack does not seem to offer, under the current circumstances, a definite military advantage. In case of doubt, it shall be presumed not to be a lawful military objective.  Furthermore, even if the flotillas may be considered formally breaking the blockade, according to Art. 17 of the 1909 London Declaration on the Laws of Naval War, reflecting customary international law, neutral vessels may not be captured for breach of blockade except within the area of operations of the Israeli warships that has been established to render the blockade effective.

Law enforcement measures  must be proportional to any threat and respect the civilian status of those on board

Due to the civilian nature of the flotilla and the people on board, and as long as the level of violence does not rise to a situation of hostilities, the occupant should avoid any use of measures that go beyond law enforcement. Further, measures should always be proportional to the threat.

Even if Israel views the advancement of the flotilla to the coast of Gaza as an act of warfare, it is bound by the core principles that govern the conduct of hostilities: (1) the distinction between civilians and combatants, (2) proportionality in the use of force between the potential harm to civilians and the military goal sought, and (3) precautions in and during attacks. Furthermore, the Israeli Supreme Court, for instance, has stated that the occupant should use the least harmful measure, including in situations where civilians take direct part in hostilities.

Download the PDF version (that includes references) of the Legal Brief on "Flotillas and the Gaza blockade".