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July 6, 2011 5:18 pm

The Legal Status of Israel’s Blockade

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avatar by Brett Joshpe

The Mavi Marmara. Gaza Flotilla. Photo: FGM.

As Albert Einstein once sagely quipped, insanity is doing the same thing repeatedly and expecting different results. The quote rightly applies to those who are bent on once again trying to run Israel’s blockade of the Gaza Strip to deliver humanitarian aid, thereby likely endangering the lives of Israeli soldiers and passengers onboard their flotillas.

Last May, another group attempted to breach Israel’s blockade with a flotilla of six ships that set sail from Turkey. International controversy erupted when Israeli commandoes boarded the MV Mavi Marmara after the ship refused to comply with Israel’s instructions.  A confrontation ensued and, ultimately, nine passengers ended up dead.

According to the San Remo Manual on International Law Applicable to Armed Conflict at Sea, a State imposing a naval blockade must communicate the blockade to the international community through recognized channels, which Israel has done.  Furthermore, under international law, Israel is entitled to impose a blockade since it is engaged in an armed conflict with the governing body of the Gaza Strip, the terrorist group Hamas. In fact, international law requires that Israel enforce the blockade impartially.

Despite the legitimacy of Israel’s blockade due the existence of a state of armed conflict with Hamas, Israel must nevertheless allow for the delivery of essential humanitarian aid into Gaza, but only to the extent that it does not interfere with its military operations.  That means Israelcan significantly restrict the types of goods that flow into Gaza and it can carefully regulate the means of inspecting those goods and the methods of delivery.

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Prior to last May’s attempted breach, Israel sought to avoid confrontation by requesting that the flotilla’s ships dock in an Israeli port and allow officials to inspect the cargo.  Those who defied those instructions in an attempt to gain international propaganda points did so at their own risk and to the risk of their passengers, several of whom ended up dead.

The San Remo Manual explicitly specifies that “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.” If the enforcing State has reasonable grounds to believe that a ship intends to attempt to breach a blockade, the State is also entitled to capture or attack the ship, even if the vessel is techincally in international waters.

Blockades are an accepted strategy in international armed conflict, and Israel takes its responsibility to enforce its blockades in accordance with international law seriously.  Indeed, in the aftermath of last year’s controversy, the Israeli government commissioned an independent commission, the Turkel Commission, to opine on the legality of Israel’s handling of the situation.  The Commission found that Israel’s policies comport with international law.

More than a year later, activists are again setting up a showdown with the Israeli military in a likely attempt to embarrass the Jewish State and cause an international backlash.  While those efforts may succeed in generating controversy and outrage at the UN Human Rights Council, they will not change the legality of Israel’s blockade.

Brett Joshpe is an attorney and author in New York City.  He is Of Counsel with the American Center for Law & Justice and principal of the law firm, Joshpe Law Group www.joshpelaw.com.

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