International Law Sides With Israel, If...

By Josh Nathan-Kazis

Published June 02, 2010, issue of June 11, 2010.
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To Megan McArdle, business and economics editor of The Atlantic, the illegality of Israel’s May 31 interdiction against a civilian ship as it sought to bust Israel’s blockade of Gaza was self-evident, and based on a common sense observation.

“This morning,” she wrote on June 1, on her Atlantic blog, “a bunch of people are trying to defend Israel by saying that the protesters attacked first. No, they didn’t. Boarding someone’s ship in international waters is an attack.”

The ship’s passengers, therefore, “had every right to attack armed men attempting to board their ship,” she averred. “[I]srael had no right to be there.”

But, as is often the case with international law, what may seem self-evident does not, by itself, determine what is legal.

Public debate over the legality of Israel’s actions against the recent flotilla carrying humanitarian cargo meant for Gaza has focused widely on the fact that Israel intercepted the boats far outside its territorial waters. But legal experts say that ships can be boarded on the high seas to enforce a legitimate blockade. And the law, they say, defines a legitimate blockade as one in which the blockading country is in a state of armed conflict with the country being blockaded.

The matter, therefore, turns to Israel’s claim that it is in a state of armed conflict with Hamas, the group that governs Gaza. It is a claim that some international law experts dispute.

“You can’t be in a state of armed conflict with a government in an area in which you are the occupying authority,” said George Bisharat, a professor at the University of California Hastings College of Law.

The Israeli government maintains that its occupation of Gaza ended with the withdrawal of its army and the uprooting of its civilian settlements from that territory in 2005. But Bisharat disputes that characterization, citing Israel’s control over Gaza’s airspace, coast and borders, and over buffer zones within Gaza. He also cites Israel’s repeated incursions into Gaza.

“When a country is in occupation of territory outside its boundaries, it is compelled to follow a sort of policing model,” Bisharat said. “If there is an uprising, or people organizing resistance, the occupying power does have authority to arrest people and to quell disturbances, but not to act like it’s a full-fledged war against the army of another sovereign government.”

A spokesman for Israel’s Ministry of Foreign Affairs maintained that Israel is indeed in a state of armed conflict with Hamas and that it was acting in self-defense.

“Hamas has launched 10,000 rockets against Israeli civilians. They are smuggling arms, and everyone knows [that],” said Joel Lion, the consul for media affairs at Israel’s New York consulate general. “In order to protect the lives, we decided that they couldn’t smuggle into the Gaza Strip whatever they want — ammunitions and weapons, I don’t care about cigarettes — so we decided to make a maritime blockade.”

The blockade actually forbids many commercial items, according to press reports and rights groups. The Israeli human rights group Gisha has compiled a list of items that it says are banned, based on the experiences of importers and others. Its list includes tar, cement, toys and cumin.

The flotilla, sponsored by international organizations agitating for the lifting of Israel and Egypt’s four-year-old Gaza blockade, consisted of six ships carrying more than 700 activists and 10,000 tons of humanitarian aid. The boats were intercepted in international waters off Gaza early on the morning of May 31. Nine civilians were killed, and dozens were wounded when Israeli commandos met resistance upon boarding the Turkish-flagged Mavi Marmara. Seven Israeli soldiers were also wounded.

The government of Israel acknowledges that the interception took place outside Israel’s territorial waters, which extend 12 nautical miles from the coast. But experts in international law and in the Law of the Sea note that a blockade is traditionally not enforced within the territorial waters of the nation that declared it.

“Classically, you were [enforcing] the blockade not off your own coast, but off a foreign coast, which can be quite far away,” said Bernard H. Oxman, professor at the University of Miami School of Law and expert in the Law of the Sea.

Oxman said that such a blockade must be maintained with minimum possible force. And, he said, since the signing of the United Nations charter in 1945, military actions such as a naval blockade are legal only when they take place within the context of an armed conflict waged for the purposes of self-defense.

Jonathan M. Gutoff, a professor at the Roger Williams University School of Law, pointed out that Germany and the United States both employed unrestricted submarine warfare to maintain blockades during the Second World War, sinking merchant vessels without warning. Gutoff said that the use of Israeli commandos to commandeer the ships off Gaza was “probably within the scope of reasonable force.”

Three of the ships that were intercepted bore Turkish flags, two of them Greek flags, and one an American flag. The Mavi Marmara, on which the fatalities occurred, sailed under a Turkish flag. If the nations under whose flags the ships sailed viewed the blockade as illegal, they could “describe the attacks as acts of war [or] piracy,” stated Laurence Smallman, who is a defense research analyst at the RAND Corporation and a former commander in the British navy. “Whether or not the blockade is right, in law, is the contentious point.”

In the wake of Israel’s interdiction, Turkish Prime Minister Recep Tayyip Erdogan called the boarding of the Turkish vessels illegal. But it was not apparent from press reports that Turkey’s leaders had called the blockade itself illegal.

Oxman said that if Turkey determined the blockade to be illegal, it theoretically had the right to respond in self-defense. But he saw it as more likely that Turkey “could lodge a complaint with Israel and demand a remedy. The next step would not likely be litigation, but rather negotiations and discussions between Israel and Turkey.”

Contact Josh Nathan-Kazis at nathankazis@forward.com






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