June 3, 2010
Israel has been widely condemned for its assault on a flotilla of humanitarian aid bound for Gaza. This was to be expected, but not some of the extreme statements coming from moderate countries. Even the EU response was biased. The EU condemned the use of violence and called for an independent enquiry. How could the use of violence be condemned without full knowledge of the facts?
Turkish Prime Minister Recep Tayyip Erdogan called it “a bloody massacre which deserved every kind of curse.” And yet, there appears to be no doubt that the Gaza flotilla was a planned provocation.
MEMRI (Middle East Media & Research Institute) TV showed three clips. In the first, Gaza-based Yemeni professor Abd Al-Fatah Nu’man states that as much as the heroes on the flotilla want to reach Gaza, the option of martyrdom is more desirable to them (Al-Aqsa TV, May 28, 2010 http://www.memritv.org/clip/en/2490.htm).
The second is a report on the flotilla prior to its departure for Gaza, showing activists on board chanting Intifada songs and praising martyrdom (Al-Jazeera, May 28, 2010; http://www.memritv.org/clip/en/2489.htm)
In the third clip, Ahmad Hassan Omar, a member of the Egyptian Association for International Law, stated that Turkey and other countries should use aid convoys to transfer weapons to Gaza and return refugees to Acre (Al-Jazeera, May 18, 2010; http://www.memritv.org/clip/en/2478.htm).
There are three issues which need to be kept separate:
• Is the Gaza blockade legal?
• Is the Gaza blockade advisable from an Israeli standpoint?
• Was the enforcement of the blockade legal?
There is rarely consensus on interpreting international law, but the legal position appears to be as follows:
A maritime blockade is in effect off the coast of Gaza, imposed as Israel is currently in a state of armed conflict with the Hamas regime that controls Gaza, which has repeatedly bombed civilian targets in Israel with weapons that have been smuggled into Gaza via the sea.
Maritime blockades are legitimate under international law if they are part of an armed conflict at sea. (eg US blockaded Cuba, the EU blockaded Yugoslavia).
A blockade may be imposed at sea, including in international waters, so long as it does not bar access to the ports and coasts of neutral States.
The existence of the blockade was well known and Israel also provided appropriate notification to the affected governments and to the organizers of the flotilla. The ships participating in the protest flotilla were warned repeatedly about the maritime blockade. No boats can enter the blockaded area.
A state may take action to enforce a blockade. Any vessel that violates or attempts to violate a maritime blockade may be captured or attacked.
The protesters indicated their clear intention to violate the blockade by means of written and oral statements. The route of these vessels indicated their clear intention to violate the blockade.
Given the protesters’ explicit intention to violate the naval blockade, Israel exercised its right to enforce the blockade. Prior to undertaking enforcement measures, explicit warnings were relayed directly to the captains of the vessels, expressing Israel’s intent to exercise them.
It seems clear that Israel attempted to take control of the vessels participating in the flotilla by peaceful means. The five ships which complied with the Israeli blockade suffered no casualties
If the blockade of Gaza is valid under international law, Israel had the right to act. The facts that need clarifying are first, whether the action taken by Israel was proportionate. The UN Charter on the Law of the Sea allows for naval blockades, but the effect of the blockade on civilians must be proportionate to the effect on the military element for the blockade to be legally enforceable. A ship trying to breach a blockade can be boarded, even if it is in international waters, and force may be used to stop it as long as it is “necessary and proportionate”. And second, whether the Israelis attempting to enforce the blockade acted properly in self defence.
There is grave doubt that it will be possible to uncover the truth, without impartial witnesses, and there do not appear to be any.
The facts of the Israeli blockade of Gaza are well-known. The militarily aggressive role of Hamas is self-evident. However, there is no consensus on whether the blockade is legal under international law.
There seems to be no doubt that Hamas is smuggling Iranian rockets, missiles and other weaponry into Gaza to use against the Israeli population. The Israeli fear is that the missiles are becoming more accurate and have a longer trajectory.
Israel points out that Iranian shipments bound for Hamas (eg Karine A) and for Hezbollah (eg the Francop), containing hundreds of tons of weapons, have been seized in the past.
Israel has the right to stop arms entering Gaza. However, its refusal to accept construction material is unreasonable. Egypt too does not allow construction material into Gaza. The UN says that Israel only admits less than one third of humanitarian requirements: Israel denies this.
Israeli action, valid or not, will have very unfortunate consequences for the country. It will weaken the ties with its few friendly countries and, in particular, detrimentally affect its relationship with the US and destroy the very important strategic relationship with Turkey.
The Israeli policy, is in my view, self-defeating, whether or not it is legal. But, as the International Crisis Group says, “Israel does not bear sole responsibility”. The policy has not weakened Hamas and has brought serious suffering to the Palestinians. Gaza should be opened to commercial traffic, subject to Israeli inspection for weapons and effective international end-use monitoring.
This policy is misguided. As Amoz Oz writes, the Israeli view
“originates in the mistaken assumption that Hamas’s control of Gaza can be ended by force of arms or, in more general terms, that the Palestinian problem can be crushed instead of solved.
But Hamas is not just a terrorist organization. Hamas is an idea, a desperate and fanatical idea that grew out of the desperation and frustration of many Palestinians. No idea has ever been defeated by force — not by siege, not by bombardment, not by being flattened with tank treads and not by marine commandos. To defeat an idea, you have to offer a better idea, a more attractive and acceptable one.”
The Israeli government would do well to reflect on whether it sometimes sacrifices long term strategy for apparent short-term benefits.
At the time of writing, Hamas is refusing to accept the contents of the
ships, trucked to Gaza from Ashdod. At least one more ship is expected to sail shortly for Gaza.