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July 6, 2011 5:18 pm

The Legal Status of Israel’s Blockade

avatar by Brett Joshpe

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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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  • johnlevis

    Fine background info!

  • PissedOffAmerican

    Amazing.

    You cowards place a post in “moderation” limbo for days at a time, because you don’t want the narrative disturbed by uncomfortable truths. To be sure, these posts “awaiting moderation” will simply disappear.

    Guess what? The public is beginning to wake up to the fact that they have been fed a line of crap about what a fine “ally” Israel is. Slowly, but surely, you’re losing control of the narrative. And hiding or erasing comments critical of Israel’s policies isn’t going to work much longer. Many of us are working to pull your covers, and what we are exposing ain’t very pretty.

  • PissedOffAmerican

    And I notice that bit of ignorant journalist fluff last offered by Torossian has been removed, comments and all.

    You people are really TERRIFIED of the truth aren’t you?

  • PissedOffAmerican

    http://www.intifada-palestine.com/2011/07/on-flotillas-and-the-law-%E2%80%93-an-analysis-by-dr-lawrence-davidson/

    An excerpt…….

    Part II – The Forum of International Law

    The resulting struggle between the corrupt politics that keeps the West aligned with the oppressive and racist ideology that rules Israel and the civil society movement that seeks to liberate the victims of that ideology goes on worldwide and in many forums. One is the forum of international law. Presently, the debate revolves around the legality of Israel’s blockade of Gaza and the effort of the flotilla movement to defy it. Let us take a look at this aspect of the conflict.

    1. The well known American Lawyer Alan Dershowitz, a strong defender of Israel, has blatantly stated, “Israel’s naval blockade of Gaza is legal under international law-anyone who tries to break it can be arrested and prosecuted in a court of law.” Of course, Dershowitz is not an expert on international law. Rather he has made his reputation as a defense lawyer with a passion for murder cases (which makes him quite suited to defend the Israeli state). This being said, what is the basis for his assertion that the Gaza blockade is legal?

    2. The argument for the legality of the blockade is based on the 1909 Declaration of London and the 1994 San Remo Manual on Armed Conflict at Sea. Both are part of an international treaty system that sets down the parameters of much international law. According to these documents two states engaged in armed conflict can legally blockade one and other for clear military reasons. However, any blockade would cease to be legal if “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.” Defenders of Israeli actions such as Dershowitz do a very superficial reading of the documents and reason that Israel is in an armed conflict with Hamas, which is the ruling authority in Gaza, and so Israel can legally blockade Gaza so as to stop the importation of weapons and “terrorist” fighters.

    3. The holes in this reasoning are big enough to sail a flotilla of small ships through (if only they were not imprisoned in Greek ports). Thus, Israel certainly does not consider itself engaged in an armed conflict with another state. If you doubt this just ask any member of the present Israeli government whether he or she would define Palestine, including Gaza, as a state. In truth, the proper definition of Israel’s presence in the West Bank and Gaza is that of an occupying colonial power whose policies and actions are stark violations of the Geneva Conventions. That is, by virtue of their colonizing actions and treatment of residents of the Occupied Territories, their presence in Palestine beyond the 1967 borders is not legal (one can also argue over the legality of Israel within the 1967 borders). That means those they are in armed conflict with are those resisting illegal occupation. There is no international law that makes it legal for Israel, itself acting illegally, to blockade those legally resisting its actions. The arbitrary labeling of those resisting as “terrorists” does not change this legal situation.

    4. As noted above, “legal” blockades must have a military objective and must not do excessive harm to the civilian population. Yet there is evidence that Israel’s goals for the blockade are not primarily military but are, instead, aimed at committing excessive harm to the people of Gaza. The Gaza blockade was not done out of fear of weapons smuggling or terrorist infiltration, but rather constituted a conscious act of economic warfare against the people of Gaza for having the audacity to be ruled by Hamas, the winner of a 2006 free and fair election. There is documentary evidence for this interpretation of events. For instance, in 2006 Dov Weisglass, an adviser to then Israeli Prime Minister Ehud Olmert, publically stated that the goal of Israeli policy in Gaza was to “put the Palestinians on a diet, but not make them die of hunger.” Then, in June of 2010 McClatchy Newspapers published Israeli government documents attesting to the fact that Jerusalem primarily saw the blockade as an act of economic warfare, and not as a security measure. To this you can add the fact that Israeli gunboats keep shooting at Gaza fisherman who they know are doing nothing except fishing. What we have here is the collective punishment of 1.5 million Palestinians. As such it is not legal, it is illegal-a violation of the Geneva Conventions. The UN Secretary General, Ban Ki-Moon, usually so responsive to U.S. demands, momentarily broke free and in his 2009 annual report told the Israelis they should end their unwarranted blockade. He was ignored.

    End excerpt.

    About the author….

    DR. LAWRENCE DAVIDSON is professor of Middle East history at West Chester University in West Chester, PA, and the author of America’s Palestine: Popular and Official Perceptions from Balfour to Israeli Statehood (University of Florida Press, 2001), Islamic Fundamentalism (Greenwood Press, 2003), and Foreign Policy, Inc.: Privatizing American National Interest (University of Kentuck Press, 2009).

  • Albert

    I was watching on the internet last year. I saw that the flotilla had turned 180 degrees and was headed out to sea away from Israel and Gaza. (named as direction not destination)

    The law says Israel can demand the ship “stop”. Is not a turn around at 90 miles out the same thing as a “stop”? The ships were attacked and boarded when they were headed away from Israel and Gaza

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