Thursday, March 10, 2011

Interational law on blockades

On Tuesday we went to a lecture at the Netanya College in the series sponsored by AACI-Netanya, on "Combatting Terrorism through International Law." The lecturer, Barry Feinstein, a Senior Lecturer of International Law and a Member of the S.D. Abraham Center for Strategic Dialog, spoke mainly about the legal aspects of the Mavi Marmara flotilla incident. I and many others have written about this before, so I will only summarize those aspects which seemed important to me.

Dr. Feinstein stated that international law is not set in stone, but the context of any incident must be considered. Also, international law does not need changing to tackle issues of terrorism, in fact any attempt to change the law would be met by a large majority against Israel and the West generally. He focused on several main aspects of the flotilla incident:
1. Was the effective Government of Gaza at war with Israel? During the 8 years prior to the Operation Cast Lead in 2008, 8,000 rockets and other missiles were fired into Israeli territory randomly targeted at civilian targets, most notably the city of Sderot. While the death tally was small (13), the objective was to terrorize the civilian population and cause them to flee. Further the Hamas Covenant talks explicitly of destroying Israel and its leaders repeated this intention many times in public.
2. Why did the Israeli commandos attack at night in international waters? The answer to this question is simple, because they calculated how fast the ships were going and how long it would take to stop them and/or change their course. Since these were big ships they take a long time to stop, and so for the blockade to be effective they had to be boarded far off the coast. If the Israelis had waited until daylight and the ships were close to the Gaza shore, they would not have been able to stop them in time and further they would have been met by a host of small Hamas boats that would have made the objective of the commandos impossible and would have led to greater loss of life.
3. Was the UN Human Rights Council biased? Two days after the event on 31 May 2010, the UN HRC had already passed a resolution establishing aCommittee like the Goldstone Committee in order to "investigate violations of international law in the Israeli attack," not to see if there were such violations. By comparison it took the same HRC two months to establish a Committee to investigate the ethnic clashes in Kyrgyzstan in which thousands were killed! Then the conclusions of the Report were that the blockade of Gaza was "clearly unlawful," and "totally unnecessary" and "incredible violence" was used and "an unacceptable level of brutality." These are not the kind of judicious conclusions that can be based on the actual incident, but were pre-ordained from a Committee that included such bastions of human rights as China, Saudi Arabia, Cuba and Pakistan. Clearly the Council itself and the findings of the Goldstone Committee were biased.
4. Is the Israeli naval blockade of Gaza legal? The San Remo International Law of the Sea (1994) is applicable to armed conflicts at sea. Blockades of an enemy territory are allowed under international law with two exceptions a) if the objective of the blockade is to starve the civilian population and b) if damage to civilians may be excessive. Neither is the case in relation to Gaza. In fact Israel has allowed enormous amounts of food into Gaza, during 2009, 783,000 tons of food were delivered into Gaza. The week of the Mavi Marmara incident 3,676 trucks entered Gaza from Israel. In 2009, 11,000 Gazans received medical care in Israel at Israeli expense. Clearly Israel's intent is not to starve the civilian population of Gaza and so it's blockade is justified.
5. What regulations cover naval blockades in international law? International blockades have been used against Germany, Iran, Cuba, Algeria and Iraq. During the Algerian war, France stopped over 5,000 vessels in one year. The US stopped 74,000 ships in its blockade of Iraq. In summary, blockades of enemy territory are a legal part of warfare on the high seas. To be legal a country must stop and can "visit and search" all vessels without discrimination and vessels are subject to "capture" if they "violate regulations or attempt to breach a blockade." They may also be attacked since "breaching a blockade is helping the enemy." According to the British Army manual "if instructions are not complied with" a vessel becomes a "legitimate military objective." In fact if the transport of contraband (military supplies or drugs) are suspected to be delivered to a blockaded territory a vessel can be stopped on the high seas anywhere in the world. According to the written agreement with the Palestine Authority (1995 interim agreement) applicable to Gaza, "Israel shall continue to carry the responsibility for external threats from the sea and the air... and will have all the powers to meet this responsibility.." A US coast guard cutter stopped a Panamanian-based steamer off Panama in international waters and in a search found 21 tons of cocaine. This search and seizure was upheld as legally valid under US Federal Law.
6. Was the Israeli action proportional? Under international law, proportionality has a different meaning from its usually understood meaning. It is understood to mean that any action may be taken short of harming the civilian population to stop any suspected ship that either is trying to breach a blockade and/or is transporting contraband to the enemy territory. Thus, under international law Israel's actions in stopping the Mavi Marmara were proportional.

The conclusion is that Israel acted fully within international law in excercising its right to blockade Gaza and stop the flotilla. If Israel is supposed to have acted illegally why haven't the complainants taken their case to the International Court in the Hague, which has often been partial against Israel. However, political considerations related to Turkey, Islam, the media and other factors have been used to inflame and exaggerate this incident. With another flotilla destined to be organized in May as another publicity stunt, we can expect a futher legal attempt by Israel to prevent the flotilla reaching Gaza and another burst of anti-Israel propaganda.

This is my summary of a complex subject, for further details see Dr. Feinstein's articles published in the journal "Jurist":

http://jurist.org/forum/2010/12/gaza-flotilla-international-law-justifications-for-israels-actions.php
http://jurist.org/forum/2011/01/proportionality-and-the-flotilla-incident-in-light-of-international-law.php

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