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 it is imperative to conduct a proportionality analysis of Israel’s military actions against the Mavi Marmara and the Gaza Flotilla….

In a companion article [JURIST commentary] appearing in JURIST, I showed that the actions undertaken by the Israel navy against the flotilla of vessels bound for Gaza on May 31, 2010, were conducted in accordance with long – standing principles of the law of armed conflict at sea. It is important to understand that according to these principles, the concept of proportionality takes on a different connotation than is commonly perceived. To begin with, the issue is not whether a blockade inflicts damage, or even severe damage, on a civilian population. After all an unfortunate though natural and legitimate consequence of a blockade is indeed the infliction of damage on civilians. Nor is the issue whether the damage in and of itself subjectively appears to be “proportionate” or not. Rather the issue is whether “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.” The practical implication of this principle is that the greater the military goal that is anticipated, the more civilian damage will be considered to be within acceptable limits, and certainly high on the priority list of anticipated military advantages stemming from the naval blockade imposed by Israel on Gaza is the creation of a deterrent for vessels that might otherwise try to smuggle by sea into Gaza weapons such as missiles and rockets that constantly have been used against nearly one million Israeli civilians who live in Israel’s southern region and who have literally been held hostage by the thousands of rockets and missiles indiscriminately fired at them from Gaza since 2001. Had the flotilla vessels not been stopped, this further would have raised critical questions regarding the blockade’s effectiveness and its impartial application to vessels of all States, which together with the declaration of the blockade, all constitute necessary conditions for the existence of a legal blockade in the first place in an armed conflict at sea.

Israel had the right, as would any other State engaged in armed conflict, to control flotilla vessels sailing in the immediate vicinity of naval operations, and those vessels which did not comply with orders given them by it in this regard could be presumed to have hostile intent or enemy character and thus could be treated as enemy ships. Flotilla vessels that engaged in belligerent acts on the enemy’s behalf or made an effective contribution to the military action of the enemy, or that 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, also could be attacked on the high seas, like military objectives. Yet, in any armed conflict situation, military operations may be directed only against military objectives, which may be attacked with all the consequent destruction and casualties, and they must always be distinguished from civilian objects.

Just as military objectives may be legitimately attacked, so too are those who take part in the fighting considered legitimate targets and may be attacked with all the consequent death and injury, yet they similarly must at all times be distinguished from civilians, meaning that a distinction must be made between those who take part in the fighting and those who do not take part in the fighting and who must be shielded, as far as possible, from its effects. However a civilian may not at the same time be engaged in hostile action while retaining a civilian status. While those who are not taking a part in the conduct of hostilities may not legitimately be attacked, if civilians do actively engage in hostilities, their civilian status is subsequently revoked. “Loss of protection against attack,” explains the International Committee of the Red Cross, “is clear and uncontested … when a civilian uses weapons or other means to commit acts of violence against human or material enemy forces.” Thus, any individuals traveling with the flotilla who used knives, guns, metal bars and chains, or other means to carry out violent acts against Israel naval personnel lost their protected status as civilians and therefore could be legitimately targeted.

While unavoidable incidental civilian casualties and damage, occurring as a result of legitimate attacks on military objectives, are not rendered illegal, the proportionality rule for armed conflict at sea situations dictates that an attack is not to “be launched if it may be expected to cause collateral casualties or damage which would be excessive in relation to the concrete and direct military advantage anticipated from the attack as a whole.” Yet, any collateral casualties and damage that did occur on board the flotilla vessels obviously had not been expected at all by the Israelis. Most significantly, though, any civilians who had been harmed in the incident yet had committed acts of violence against Israel naval personnel have under international law consequently lost their protected status as civilians and obviously must therefore be factored out of any collateral casualty count since they as such would have constituted legitimate military targets.

Traditionally, the obligation for curtailing risks to civilians lies with the “defender,” although the attacker must avoid intentionally attacking them, and extends the responsibility of the “defender” to take action minimizing the risk of injury or damage and to preclude their use to shield military operations. Thus accommodations should be made in the proportionality analysis, when calculating whether civilian casualties were excessive or not, for casualties that accrued as a result of those who committed acts of violence against Israel naval personnel purposefully and callously locating themselves amongst the others on board the flotilla vessels, utilizing them as human shields, since using passengers and crew as human shields certainly increased the number of civilian casualties. For the same reason, the fact that casualties and damage occurred on board flotilla vessels that could legitimately be attacked as military objectives if they were 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 that clearly and intentionally refused to stop or resisted visit, search or capture, must also be taken into account in the proportionality consideration as a factor that necessarily augmented as well the amount of civilian casualties.

Additionally miscalculations, like operational and intelligence mistakes, however tragic and unfortunate, are a natural and lamentable consequence of armed conflicts and civilian effects emanating from such inevitable yet unintended and inadvertent errors certainly were not expected and are thus to be excluded from the collateral casualty and damage part of the proportionality equation.

Furthermore, when weighing the excessiveness vis – à – vis the military advantage in examining proportionality, it is not the concept of just a military advantage as such that is to be used in the analysis, but rather it is the relation between the anticipated overall military advantage and the excessiveness of the incidental civilian casualties or damage that is to be taken into consideration, in the sense of the making of a contribution that would be relevant to the total operation’s success and assessed from a general strategic perspective and not solely as relating to military benefits derived from a particular tactical circumstance at one specific point in time. The military advantage does not have to be an immediate one, the standard for measuring it being the military advantage expected from the military campaign as a whole, which the attack is a part of, and not solely the military advantage of each isolated or specific component of the military operation or campaign. In other words, the overall war strategy or operational plan is an integral part of the military advantage component of the proportionality analysis, and obviously a part of Israel’s overall war strategy or operational plan is to conduct military operations that would reduce the smuggling by sea into Gaza of weapons like the thousands of missiles and rockets that continuously have been fired randomly at some one million Israelis.

The assessment of any military situation moreover must be based on the facts as the commander perceived them at the time of the operation and not as they appeared retrospectively. Consequently, any analysis that pertains to proportionality in armed conflict should be made through the eyes of a reasonable military commander at the scene engaged in the heat of hostilities at the time who uses his most reasoned consideration and judgment in order to evaluate all the pertinent aspects, not least of which is the security of his own force. The military advantage element of the proportionality analysis therefore also includes force protection.

During armed conflict at sea, “those who plan, decide upon or execute an attack” must “take all feasible precautions in the choice of methods and means in order to avoid or minimize collateral casualties or damage.” The Israel navy took many precautions to avoid or minimize collateral casualties or damage in the flotilla incident, such as by selecting the method to board and take control over the flotilla vessels rather than to sink them, which for example would have been permissible if they were breaching the blockade and resisted capture following a prior warning, by choosing to conduct the procedure of boarding the ships on the high seas rather than waiting until they had come closer to land as a conscious precautionary measure designed to spare lives and which as a result most likely did save countless lives of flotilla passengers and crew, Gazans, and Israelis alike, by making the decision to use non – lethal weapons like paintballs unless lives were endangered, and by issuing instructions to naval personnel to exercise the minimum amount of force necessary with the maximum amount of restraint. It must be borne in mind that it was only when Israel naval personnel had been attacked and their lives were threatened did they resort to live fire to defend themselves, which of course they naturally had the right to do.

Thus according to the law of armed conflict at sea, the Israel navy did not act in a disproportionate fashion when it imposed and enforced on the high seas the naval blockade on Gaza and when it boarded and took control over flotilla vessels on the high seas.

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, Proportionality and the Flotilla Incident in Light of International Law JURIST – Forum, Jan. 21, 2011, http://jurist.org/forum/2010/11/proportionality-and-the-flotilla-incident-in-light-of-international-law.php