JURIST Guest Columnist Dr. Barry A. Feinstein, a Senior Lecturer in International Law at the School of Law of Netanya Academic College in Israel, says that the Israel navy's actions against the Gaza Flotilla complied with international law, despite the United Nations Human Rights Council's report to the contrary, in the first of a two-part series regarding the flotilla controversy this past summer ...
lthough the pre-determined verdict of Israel's guilt, as prescribed by the mandate granted by the United Nations Human Rights Council to the fact-finding mission it dispatched "to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance" to Gaza, was seemingly not taken into account by the Mission at its outset, the Mission's final conclusions
[PDF], including among others "the blockade is unlawful and cannot be sustained in law" and "the action of the Israel Defense Force in intercepting the Mavi Marmara on the high seas ... was clearly unlawful," need to be approached cautiously. As tragic as it was that nine people died and others were injured during the incident, it is telling that in breath-taking speed the Human Rights Council had within two days following the event already condemned in its resolution 14/1 of June 2, 2010 (supported by, among other Human Rights Council members, Cuba, Saudi Arabia, Pakistan, China, and Kyrgyzstan) Israel's actions as "violations of international law, including international humanitarian and human rights law," while it took for example more than two months for the Human Rights Council to finally pass a resolution relating to violence in Kyrgyzstan that eight weeks prior to the flotilla episode had claimed hundreds of casualties, and over a week before any Human Rights Council resolution on the Kyrgyzstan crisis was ever passed, hundreds more (indeed thousands more according to some reports) were killed in ethnic violence in that same troubled country.
Imposed economic hardship on civilian populations is not a singular occurrence in the world today. Witness, for example, the economic difficulties for civilian populations as the result of sanctions that have been imposed on other problematic regimes, such as those in North Korea, Syria, Cuba, and Iraq as a means of applying economic pressure on them and during the course of which typically goods that are not vital are not transferred to the countries, including obviously items that would help them militarily. A naval blockade implementing sanctions in fact is a recognized and accepted military tool. For example, a blockade called Operation Sharp Guard was imposed for three years in the mid-1990's by NATO and Western European Union naval forces on the Federal Republic of Yugoslavia, during which they queried some 74,000 vessels and boarded and inspected at sea about 6,000 of them, while directing for inspection to port more than 1,400 ships. Coalition naval forces engaged in the maritime interception operation to enforce the Iraq embargo had by the year 2000 challenged almost 30,000 merchant vessels, boarded about 13,000 ships, and directed to coalition ports for further investigation some 750. A blockade, designated as a "quarantine" was also imposed in 1962 by the United States against Cuba, and during the first year of the mid-twentieth century Algerian crisis French naval vessels on the high seas visited and searched almost 5,000 ships that were suspected of transporting war materiel to Algeria. Allied Powers imposed blockades against Axis and Central powers during the two World Wars as well. During World War One, British naval vessels, for instance, were credited with intercepting and detaining thousands of merchant ships suspected of transporting cargo bound for the enemy, and the Allied naval blockade of Germany was widely considered to have been responsible for the deaths due to starvation of around three-quarters of a million German civilians.
The actions of the Israel navy against the flotilla on the high seas were conducted pursuant to long-standing principles of the law of armed conflict at sea. These principles allow Israel to impose on the high seas a naval blockade of territory controlled by the enemy in order to prevent the entrance of ships, without regard to the type of cargo that the ships are carrying, to prohibit commerce with the enemy, even if the cargo is bound for civilians, and to search on the high seas for contraband which consists of goods destined for enemy controlled territory and that "may be susceptible for use in armed conflict." Flotilla vessels therefore could be visited and searched on the high seas if they were reasonably suspected of breaching or attempting to breach the blockade or of carrying contraband, but they could also be visited and searched on the high seas if they were reasonably suspected of violating regulations set up by Israel within the immediate naval operations area or of engaging in belligerent acts on the enemy's behalf or of making an effective contribution to the military action of the enemy; Israel could exercise control on the high seas over flotilla vessels located in the immediate vicinity of naval operations and ships that did not comply with orders given them by Israel in this regard could be presumed to have hostile intent or enemy character and therefore could be treated as if they were enemy ships; flotilla vessels that were reasonably believed to be breaching or that were attempting to breach the blockade or that were carrying contraband, or that were violating regulations established by Israel within the immediate naval operations area or that were engaged in belligerent acts on the enemy's behalf or that were making an effective contribution to the military action of the enemy, could be captured on the high seas; and flotilla vessels could be attacked on the high seas, like military objectives, if they engaged in belligerent acts on the enemy's behalf or made an effective contribution to the military action of the enemy, or if they were reasonably believed to be breaching the blockade or to be carrying contraband, after they had been given prior warning and when they clearly and intentionally refused to stop or resisted visit, search or capture.
To the extent that general international law principles relating to self-defense would be relevant, Israel, just as any other State, obviously is permitted to exercise its inherent right of self-defense, and indeed has both the right and the duty to thwart attacks against its citizens, including on the high seas, and certainly once attacked, Israel naval personnel naturally had the right to defend themselves. The 2004 British Manual of the Law of Armed Conflict [PDF], which reflects and repeats the relevant international legal principles regarding blockade and contraband, also explains that security zones may be established "as a defensive measure" and emphasizes as well that maritime and total exclusion zones "are legitimate means of exercising the right of self-defence and other rights enjoyed under international law." Furthermore, even under international agreements the Palestinians signed with it, Israel was entitled to carry out actions in which the Israel navy engaged. As stipulated in the 1993 Declaration of Principles between Israel and the Palestinians, "Israel will continue to carry the responsibility for defending against external threats, as well as the responsibility for overall security of Israelis for the purpose of safeguarding their internal security and public order." Also in accordance with the 1994 Agreement on the Gaza Strip and the Jericho Area between Israel and the Palestinians, as the Mission report correctly points out, and pursuant to the 1995 Interim Agreement on the West Bank and the Gaza Strip between Israel and the Palestinians, which incidentally has superseded the Gaza-Jericho Agreement, "Israel shall continue to carry the responsibility ... for defense against external threats from the sea and from the air ... and will have all the powers to take the steps necessary to meet this responsibility." The Israeli-Palestinian Interim Agreement additionally prescribes that foreign vessels are not to approach closer than 12 nautical miles from the Gaza coast, and further pursuant to the Interim Agreement, in fulfilment of Israel's security and safety responsibilities along the Gaza coast, Israel naval vessels are permitted to "take any measures necessary against vessels suspected of being used for terrorist activities or for smuggling arms, ammunition, drugs, goods, or for any other illegal activity." The United States similarly has in fact long-exercised its jurisdiction over foreign vessels on the high seas to enforce narcotics legislation, which has been upheld in Federal circuit court of appeals decisions "under the 'protective principle' of international law ... which permits a nation to assert jurisdiction over a person whose conduct outside the nation's territory threatens the nation's security....," and "'a nation may exercise authority upon the high seas to such an extent and to so great a distance as is reasonable and necessary to protect itself and its citizens from injury.'"
The Israel navy acted in accordance with international law when on the high seas it imposed the naval blockade of Gaza and searched for contraband; when on the high seas it visited and searched flotilla vessels that were reasonably suspected of breaching or attempting to breach the blockade or of carrying contraband or of violating regulations established by Israel within the immediate naval operations area or of engaging in belligerent acts on the enemy's behalf or of making an effective contribution to the military action of the enemy; when it acted on the high seas to control flotilla vessels that were sailing in the immediate vicinity of naval operations and presumed those vessels which did not comply with orders given them by it in this regard to have hostile intent or enemy character, treating them as enemy ships; when it captured on the high seas flotilla vessels that were reasonably believed to be breaching or that were attempting to breach the blockade or that were carrying contraband or that were violating regulations established by Israel within the immediate naval operations area or that were engaged in belligerent acts on the enemy's behalf or that were making an effective contribution to the military action of the enemy; and when it attacked on the high seas like military objectives flotilla vessels that engaged in belligerent acts on behalf of the enemy or that made an effective contribution to the enemy's military action, or that were reasonably believed to be breaching the blockade or to be carrying contraband, and after they had been given prior warning they clearly and intentionally refused to stop or resisted visit, search or capture.
Dr. Barry A. Feinstein is a Senior Lecturer in International Law at the School of Law of Netanya Academic College and a Member of the Board of Governors and a Senior Fellow of the S. Daniel Abraham Center for Strategic Dialogue. He has served as assistant to the Israel Ambassador to the United Nations at the Permanent Mission of Israel to the United Nations, and the enhancement and promotion of peace in the Middle East through economic cooperation, and combating terrorism through international law, are some of his fields of expertise
Suggested citation: Barry Feinstein, Gaza Flotilla: International Law Justifications for Israel's Actions, JURIST - Forum, Dec. 8, 2010, http://jurist.org/forum/2010/11/gaza-flotilla-international-law-justifications-for-israels-actions.php.