Betakhles

Israel has said it will continue a naval blockade of the Gaza Strip despite growing global pressure to lift the siege after a navy raid on a Turkish ferry carrying aid and killed nine activists.

What is the legality of the blockade and did Israel's intervention breach international law?

Below are some questions and answers on the issue:

CAN ISRAEL IMPOSE A NAVAL BLOCKADE ON GAZA?

Yes it can, according to the law of blockade which was derived from customary international law and codified in the 1909 Declaration of London. It was updated in 1994 in a legally recognized document called the "San Remo Manual on International Law Applicable to Armed Conflicts at Sea."

Under some of the key rules, a blockade must be declared and notified to all belligerents and neutral states, access to neutral ports cannot be blocked, and an area can only be blockaded which is under enemy control.

From the “San Remo Manual”:

93. A blockade shall be declared and notified to all belligerents and neutral States.

A state of war was indeed declared. On September 19th 2007 the Israeli government has declared Hamas as a belligerent force and declared a blockade.

Earlier a declaration of war was made, by Hamas in 2006 after winning the elections. They firmly cancelled every agreement made between PLO and Israel until that point and declared their goal was the destruction of Israel.

"On the basis that Hamas is the ruling entity of Gaza and Israel is in the midst of an armed struggle against that ruling entity, the blockade is legal," said Philip Roche, partner in the shipping disputes and risk management team with law firm Norton Rose.

WHAT ARE INTERNATIONAL WATERS?

Under the U.N. Convention of the Law of the Sea a coastal state has a "territorial sea" of 12 nautical miles from the coast over which it is sovereign. Ships of other states are allowed "innocent passage" through such waters.

There is a further 12 nautical mile zone called the "contiguous zone" over which a state may take action to protect itself or its laws.

"However, strictly beyond the 12 nautical miles limit the seas are the "high seas" or international waters," Roche said.

The Israeli navy said on May 31st 2010 the Gaza bound flotilla was intercepted 120 km (75 miles) west of Israel. The Turkish captain of one of the vessels told an Istanbul news conference after returning home from Israeli detention they were 68 miles outside Israeli territorial waters.

Under the law of a blockade, intercepting a vessel could apply globally so long as a ship is bound for a "belligerent" territory, legal experts say.

From the “San Remo Manual”:

10. Subject to other applicable rules of the law of armed conflict at sea contained in this document or elsewhere, hostile actions by naval forces may be conducted in, on or over:
(a) the territorial sea and internal waters, the land territories, the exclusive economic zone and continental shelf and, where applicable, the archipelagic waters, of belligerent States;
(b) the high seas; and
(c) subject to paragraphs 34 and 35, the exclusive economic zone and the continental shelf of neutral States.
…

118. In exercising their legal rights in an international armed conflict at sea, belligerent warships and military aircraft have a right to visit and search merchant vessels outside neutral waters where there are reasonable grounds for suspecting that they are subject to capture.
….

119. As an alternative to visit and search, a neutral merchant vessel may, with its consent, be diverted from its declared destination.

CAN ISRAEL USE FORCE WHEN INTERCEPTING SHIPS?

Under international law it can use force when boarding a ship.

"If force is disproportionate it would be a violation of the key tenets of the use of force," said Commander James Kraska, professor of international law at the U.S. Naval War College.

Israeli authorities said marines who boarded the Turkish vessel Mavi Marmara opened fire in self-defense after activists clubbed and stabbed them and snatched some of their weapons.

Legal experts say proportional force does not mean that guns cannot be used by forces when being attacked with knives.

"But there has got to be a relationship between the threat and response," Kraska said.

The use of force may also have other repercussions.

"While the full facts need to emerge from a credible and transparent investigation, from what is known now, it appears that Israel acted within its legal rights," said J. Peter Pham, a strategic adviser to U.S. and European governments.

"However, not every operation that the law permits is necessarily prudent from the strategic point of view."

From the “San Remo Manual”:

48. Vessels listed in paragraph 47 are exempt from attack only if they:
(a) are innocently employed in their normal role;
(b) submit to identification and inspection when required; and
(c) do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.
…

60. The following activities may render enemy merchant vessels military objectives:
…

(e) refusing an order to stop or actively resisting visit, search or capture;
….

67. Merchant vessels flying the flag of neutral States may not be attacked unless they:

(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;
…

98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.
…

100. A blockade must be applied impartially to the vessels of all States.


OPPONENTS HAVE CALLED ISRAEL'S RAID "PIRACY." WAS IT?

No, as under international law it was considered a state action.

"Whether what Israel did is right or wrong, it is not an act of piracy. Piracy deals with private conduct particularly with a pecuniary or financial interest," Kraska said.

Claiming that the “peace activists” who attacked the Israeli soldiers are civilians is wrong. Regardless of weapons used they are to be considered as combatants and as such were legitimate target for Israeli attack. Moreover, their actions did violate the Geneva Convention rules of conflict: they bore no identifying uniform or symbol that they were combatants, differentiating them from anyone else on board not taking part in the violent resistance.

HAVE THERE BEEN ANY SHIPPING DISRUPTIONS AFTER THE RAID?

None so far but the International Chamber of Shipping (ICS), an association which represents 75 percent of the world's merchant fleet, has expressed "deep concern" over the boarding by Israeli forces, arguing that merchant ships have a right to safe passage and freedom of navigation in international waters.

"These fundamental principles of international law must always be upheld by all of the world's nations," the ICS said.

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Based on article by Jonathan Saul and comments thereto.