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The Legalities of Israel's Blockade

expandmymind

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This is by far the most detailed analysis of the blockade of Gaza. I suggest reading it in it's entirety.

A Juridical Analysis of the Flotilla Incident

1 Status quo ante

In order to determine the legal implications of the flotilla incident (hereinafter the incident) it is necessary to begin by stating the situation which obtained previously, and, particularly, the declarations issued by the parties. Arguments involving the legality, propriety or right to exist of the state of Israel are beyond the scope of this analysis: Israel is a state, it fulfills the objective conditions required by international law as codified by the Convention of Montevideo of 1933, and any argument to the contrary ignores reality (both legal and factual).

After the “Six-Day War” of 1967, the Gaza Strip, which had hitherto been controlled by Egypt, becamed an occupied territory under Israeli power. Many Arab citizens–some of which had previously fled other areas of Palestine as a result of the 1948 Arab-Israeli war–lived in that territory, under military administration of the occupying power.

After the war, the United Nations Security Council issued its Resolution 242, of November 22, 1967, which attempts to establish a basis for the restoration of peace and security in the area. This resolution, of difficult interpretation for reasons beyond the scope of this study, included a set of requirements on the parties: amongst those requirements are the withdrawal of Israel from occupied territories, as well as requirements for Arab parties to reach peace with Israel. A reference is made on ¶ 1 to secure and recognized boundaries, which, as well as other matters, contributes to making the resolution difficult to interpret. Vitally, ¶ 2(a) of the resolution states:

http://david.a11d.net/israel/israel.html
 
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Since international practice is being invoked, perhaps the sceptical reader will benefit from a historical reference in this regard. The following fragment refers to the American Civil War, and the implications a blockade entailed to its internationality or lack thereof.

The first crisis occurred when England issued a proclamation of neutrality, which rested upon the logic of the Union’s declared blockade. According to English reasoning, although Lincoln proclaimed the rebels to be insurrectionists and thus not recognizable under international law as a belligerent power engaged in war, his declared blockade was an act of war, which would have to be conducted against a sovereign state. Thus Lincoln had actually granted belligerency status to the Confederacy and thereby forced foreign powers to do the same. By proclaiming neutrality, England afforded the Confederacy the status of a belligerent power. Other European nations followed England’s lead. Belligerency status gave the Confederacy the right, according to international law (signed by European nations after the Crimean War in 1856), to contract loans and to purchase arms from neutral nations. It also allowed England to provide safe harbors for both Union and Confederate warships and merchant vessels, to build blockade runners and warships for the Confederacy, and to formally debate in Parliament the merits of active intervention.

Likewise, the Manual declares a similar scope for its norms, implying international practice and law has not significantly changed in this regard since the Declaration.

Part I : General provisions
Section I : Scope of application of the law
1. The parties to an armed conflict at sea are bound by the principles and rules of international humanitarian law from the moment armed force is used.

http://david.a11d.net/israel/israel.html
 
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It is difficult to establish what regulations and with what modulation would be applicable to such a sui generis blockade, but those are the most punitive which would be permited by the law of naval conflict in any event.

4.2 Conformance to general international humanitarian law

Aside from the IHL specific to naval blockades, a sui generis blockade based on the title of self-defence under Art 51 UNC would have to comply with all relevant IHL. This is especially important in this case, because Israel’s policies on materials which may and may not go through to Gaza would be greatly impacted by, inter alia, Art 59 of the Fourth Geneva Convention (hereinafter GCIV). This article states that an occupying power is obliged to let relief schemes through, under certain conditions, if the whole or a part of the occupied territory is inadequately supplied.

If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.

Note the verb shall: this obligation is unconditional, and it is so stated on the commentary to the GCIV by the International Committee of the Red Cross (hereinafter ICRC).

http://david.a11d.net/israel/israel.html
 
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As you can clearly see, the blockade is illegal in every way possible. Which of course is why the world does not accept its existence, especially the UN.

By Israel's own admission the blockade is a form of 'economic warfare' designed to force the Palestinian population into submission. Geneva Conventions anyone?
 
a bit confused. the abtract refers to "no less than 10 passengers of the flotilla are dead". My understanding is that this is wholly inaccurate.

Not a great start.

Of course, the next line in the abstract makes clear that this is an advocacy peice, not an objective analysis:

"Speaking for myself, I condemn these Israeli actions, whether they were conformant to law or not. Legality must not be the only element of judgement of human conduct, and there is no reason to limit one’s view to such a narrow standard. I hold Israeli actions lacked opportunity, justification, proportionality and humanity, in the ordinary, common sense meanings every day English attributes to these words."

In other words, Fail.

of course, if you really want to get into it, the anonamous author of this analysis would lose a lot of marks for not mentioning Article 67 of the San Remo Manual, which is the one cited by proponents of legality of the action to board the ship. Without even raising it to dismiss it, this says a lot about the degree to which the author wished to bend the reality he recognizes to maximise the propaganda effect of his analysis.

The author's analysis also suffers from a basic fallacy - that laws written at a different time do not evolve without necessarily needing to be re-written. Even if what he argues is correct, and the precise wording of the non-binding manual speaks of states, that does NOT mean that the unwritten body of international law does not evolve and extend itself in the same was as the common law. As a general principle, however, you can say that the stuff he cited from the San Remo Manual does support the contention that the blockade was legal, because there is no principled reason why international law as it exists (rather than how it is described in an old manual) would allow a blockade of an enemy state but would not allow for the blockade of a sovereign enemy entity that was not recognized as a state by the United Nations. As a result, thereis every reason to beleive that the Manual can best be described as illustrating the principle, rather than describing the precise limitations of the law.

And I should disclose, unlike this anonymous author who discloses nothing, that while I am a lawyer in a common law jurisdiction and have taken public internation law, I do not work in public international law and have not taken or practiced maritime law.

But I do not think that has an impact on the veracity of this analysis.
 
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Are you somehow under the impression that if you can just cut and paste enough words that you win the interwebs or something?
 
The "analysis" is merely one person's opinion. Nothing more. In terms of practical application of international law, the International Court of Justice has issued no binding rulings against the marine blockade of the Gaza Strip. No such opinion is likely.
 
The San Remo Manual states that while blockades may be legal, they're subject to the same rules of proportionality that any other military action would be. They also may not be applied to humanitarian goods. The Gaza blockade seems to fail on both points, regardless of any issues of sovereignty. It also runs counter to the trend in our understanding of human rights and how they likely apply in the context of maritime law.
 
The San Remo Manual states that while blockades may be legal, they're subject to the same rules of proportionality that any other military action would be. They also may not be applied to humanitarian goods. The Gaza blockade seems to fail on both points, regardless of any issues of sovereignty. It also runs counter to the trend in our understanding of human rights and how they likely apply in the context of maritime law.

Why? Please expalin. Why would it not be proportionate to require searches of all vessels going in, with all permitted cargo then being delivered by land? That to me seems entirely proportionate, when you have an enemy entity lobbing rockets at you and murdering your civilians. That to me seems wholly proportionate.

Surely searching these vessels is necessary and proportionate to keep out advanced longer range rockets, and it would be impractical (and unnecessary) to reload these ships with any non-contraband items when the goods can more easily be shipped over land.

So I think you are wrong on both points. The blockade does not apply to humanitarian goods - rather, it applies to all vessels, regardless of whether they declare themselves to be "humanitarian". Where the goods are indeed humanitarian, they are allowed in over land. Simialrly, there is a very strong argument that the blockade is proportionate to the threat posed by Hamas gaining access to advanced weapons or otherwise being able to build up its capabilities (through bunkers, infusions of cash or anything else).

why do I get the feeling that anti-Israelers believe that Hamas should be treated like the boy scouts. I mean, I know they both don't like gays, but come on now...
 
Why? Please expalin. Why would it not be proportionate to require searches of all vessels going in, with all permitted cargo then being delivered by land? That to me seems entirely proportionate, when you have an enemy entity lobbing rockets at you and murdering your civilians. That to me seems wholly proportionate.

Surely searching these vessels is necessary and proportionate to keep out advanced longer range rockets, and it would be impractical (and unnecessary) to reload these ships with any non-contraband items when the goods can more easily be shipped over land.

So I think you are wrong on both points. The blockade does not apply to humanitarian goods - rather, it applies to all vessels, regardless of whether they declare themselves to be "humanitarian". Where the goods are indeed humanitarian, they are allowed in over land. Simialrly, there is a very strong argument that the blockade is proportionate to the threat posed by Hamas gaining access to advanced weapons or otherwise being able to build up its capabilities (through bunkers, infusions of cash or anything else).

why do I get the feeling that anti-Israelers believe that Hamas should be treated like the boy scouts. I mean, I know they both don't like gays, but come on now...

Israel has been notoriously delinquent about delivering or allowing humanitarian goods into Gaza, which leaves them without a strong argument for proportionality. And it doesn't help that the stated purpose of the blockade is non-military.
 
Israel has been notoriously delinquent about delivering or allowing humanitarian goods into Gaza, which leaves them without a strong argument for proportionality. And it doesn't help that the stated purpose of the blockade is non-military.

targeting the regime which is in control of the area and whihc is attacking Isral from that territory is entirely military. "Regime change" is a legitimate military objective.

For for delays, that's your opinion, but Gaza is actually doing quite fine as far as getting access to humanitarian goods, which is evident to anyone willing to look past the propaganda.
 
For for delays, that's your opinion, but Gaza is actually doing quite fine as far as getting access to humanitarian goods, which is evident to anyone willing to look past the propaganda.

Exactly.
In fact, I'm willing to argue that Gaza is doing better than a great portion of the third world countries in the world.
 
targeting the regime which is in control of the area and whihc is attacking Isral from that territory is entirely military. "Regime change" is a legitimate military objective.

For for delays, that's your opinion, but Gaza is actually doing quite fine as far as getting access to humanitarian goods, which is evident to anyone willing to look past the propaganda.

Regime change isn't a military objective in the sense contemplated by San Remo, or probably by any international humanitarian law. It's a political objective, even though it may be sought by military means. As for Gaza's condition, I've linked to statistics on that before. They say a lot more than some picture of a mall with a handful of rich people in it.
 
Regime change isn't a military objective in the sense contemplated by San Remo, or probably by any international humanitarian law. It's a political objective, even though it may be sought by military means. As for Gaza's condition, I've linked to statistics on that before. They say a lot more than some picture of a mall with a handful of rich people in it.

Regime change is a military objective. It was the objective of the allies in WWII (unconditional surrender of the enemy nations).

With respect to Gaza, link to some more stats. Maybe ones on life expectancy, and various social statistics. Woiuld be even more helpful if you could compare those statistics to those in the west bank as well as other Arab nations. in particular, Arab nations with armed conflicts may be good comparators. Maybe Yemen?

of course, digging up sewage pipes to build rockets has not helped things there, so maybe also try to disaggregate the impact of any sanctions from the impact of Hamas' (and the PLO's beforehand) choices as government in that age old guns vs. butter allocation decision...
 
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Regime change is a military objective. It was the objective of the allies in WWII (unconditional surrender of the enemy nations).

With respect to Gaza, link to some more stats. Maybe ones on life expectancy, and various social statistics. Woiuld be even more helpful if you could compare those statistics to those in the west bank as well as other Arab nations. in particular, Arab nations with armed conflicts may be good comparators. Maybe Yemen?

of course, digging up sewage pipes to build rockets has not helped things there, so maybe also try to disaggregate the impact of any sanctions from the impact of Hamas' (and the PLO's beforehand) choices as government in that age old guns vs. butter allocation decision...

I'll dig up some more stats if I have time, but as to your other point, regime change isn't a military objective within the meaning of the laws we're talking about. Military purposes are those directly related to military activities, not larger political goals. That's why the San Remo Manual defines contraband material as that which is immediately useful in combat.
 
I'll dig up some more stats if I have time, but as to your other point, regime change isn't a military objective within the meaning of the laws we're talking about. Military purposes are those directly related to military activities, not larger political goals. That's why the San Remo Manual defines contraband material as that which is immediately useful in combat.

like I've said, the legalities are broad, amorphous concepts. As most of international law is customary and unwritten (including the law we are talking about here), the key issue is principle. And preventing a hostile regime from gaining strength with which to kill your people, or even working to remove that regime from a position of power, is about as limited a military objective as you can get from a strategic perspective. It is limited because it does not involve destruction of the country or its ability to make war, just a decapitation of the apparatus that wishes to make war in the first place.

And on principle, interdicting funds being used to acquire plutonium, say, would be no different than interdicting the shipment of plutonium itself. you cannot say that the latter is allowed under international law, but the former is not and should not be. It just doesn't make sense.

Similarly, interdicting rockets and interdicting cement used to build bunkers to shield rockets from being detected and taken out is the same thing.
 
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like I've said, the lgalities are broad, amorphous concepts. As most of international law is customary and unwritten, the key issue is principle. And preventing a hostile regime from gaining strength with which to kill your people, or even working to remove that regime from a position of power, is about as limited a military objective as you can get from a strategic perspective. It is limited because it does not involve destruction of the country or its ability to make war, just a decapitation of the apparatus that wishes to make war in the first place.

And on principle, interdicting funds being used to acquire plutonium, say, would be no different than interdicting the shipment of plutonium itself. you cannot say that the latter is allowed under international law, but the former is not and should not be. It just doesn't make sense.

Similarly, interdicting rockets and interdicting cement used to build bunkers to shield rockets from being detected and taken out is the same thing.

But it's quite different from interdicting the grain that makes the bread that feeds the children who grow up to vote for the party that supports the terrorists who attacked you. If that were a military purpose, then the distinction between military and non-military purposes would have no meaning. The many prohibitions against collective punishment in international law make it clear that such is not the case.
 
I should add that there is also the overall principle, which gets lost in all this, that Israel has every right to go in full force and completely obliterate Hamas. Hamas' very essence is the embrace of war crimes, crimes against humanity and genocide as political platforms and the means to achieve objectives. The threat they pose is very real, and their ability to inflict damage is significant and would quickly grow if they were left to their own devices.

As a result, Israel would be fully justified in going into Gaza and systematically destroying Hamas. It therefore must be fully justified in taking lesser steps against Hamas, provided that those lesser steps do not create a disproportionately larger impact on civilians.

And clearly this is not the case. Civilians would suffer far more under any military campaign to destroy Hamas.

Anyways, to back up, what is going on here is the classic approach of the anti-Israel crowd. "Israel has a right to defend itself", but every single potential action it could actually take to defend itself is codemned, using whatever excuse can be latched onto. If the excuse is bending non-binding UN resolutions tio be "law", that's fine. if it is bending international law, that's fine too. if it is completely distorting the meaning of proportionality, well that's super.

But the objective is the same. "Israel has a right to defend itself."

But military strikes - wrong, because they are "disproportionate" and harm civilians. "Targeted killings" of active terrorists that are specifically designed to minimize civilian casulaties - wrong, because they are "assassinations" carried out without "due process".

"Regime change" - Not a valid military objective. A limited blockade of military and dual-use items - "Illegal" because we can misinterpret a whole bunch of non-binding guidance on international law. Roadbklocks to allow for the detection of suicide bombers aiming to commit war crimes - "collective punishment".

This follows a neat little pattern. No matter how many others have done or are doing the same exact thing elsewhere, and no matter how aggregious Palestinian conduct or intentions, and no matter how severe the war crimes that are directed against Israel and its civilian population, every single thing Israel does or could potentially do in response to mitiagte this threat against its people and its existence is condemned.

Respectfully, this is just the latest silly little exercise.
 
But it's quite different from interdicting the grain that makes the bread that feeds the children who grow up to vote for the party that supports the terrorists who attacked you. If that were a military purpose, then the distinction between military and non-military purposes would have no meaning. The many prohibitions against collective punishment in international law make it clear that such is not the case.

Which of course is not done. the ship is interdicted to verify the cargo is what the manifest says it is. Once that is confirmed, the goods are delivered over land to gaza.

What's the problem, exactly?
 
Which of course is not done. the ship is interdicted to verify the cargo is what the manifest says it is. Once that is confirmed, the goods are delivered over land to gaza.

What's the problem, exactly?

The problem, again, is that they allow only a minimal flow of goods in order to achieve a political end by punishing civilians.
 
The problem, again, is that they allow only a minimal flow of goods in order to achieve a political end by punishing civilians.

they allowed a perfectly sufficient flow of goods. Any additional goods could flow through Egypt. If you have an issue, perhaps it would make most sense to take it up with Egypt, a country that is not the subject of wave after wave of war crimes targteing its civilians from the territory under blockade.
 
they allowed a perfectly sufficient flow of goods. Any additional goods could flow through Egypt. If you have an issue, perhaps it would make most sense to take it up with Egypt, a country that is not the subject of wave after wave of war crimes targteing its civilians from the territory under blockade.

I haven't seen anyone specifically trying to justify Egypt's part in the blockade, but I'll be happy to say you're wrong if that's what you're trying to do. :)
 
As to sufficiency, the flow of goods has been sufficient for Israel's stated purpose of crippling Gaza's economy and inflicting suffering on the civilian population. This is not a legitimate military purpose, hence the criticism.
 
I haven't seen anyone specifically trying to justify Egypt's part in the blockade, but I'll be happy to say you're wrong if that's what you're trying to do. :)

no, what I'm saying si that Israel would be completely justified in closing its entire border (which it has not done). Israel is under no obligation to provide anything, including access, to a non-occupied territory run by a terrorist organization dedicated to its destruction and the murder of its people. That Israel does so is actually a testament to its humanity, even though it is played like you play it here. As for the blockade, to the extent people want to donate non-military non dual-use items to Gaza, Israel has set up a mechanism to do so which would allow in all of this stuff, so if you wanted to arrange for an extra 1000 tonnes of wheat a day, you could do so by docking in Israel and allowing Israel to transport the goods.

Really, the bad party in all of this is indeed Egypt, which has no real justification for closing its border (Hamas is not actively trying to murder its civilians and destroy it as a country). Israel provides gaza way more than Gaza should receive from Israel (i.e., nothing), while Israel does allow "blockaded" product into Gaza provided it is inspected first and then delivered through Israeli channels. But other than in passing condemnatiions extracted like I have above, no one actually cares about Egypt, because no one actually cares about the Palestinians. The purpose of any expressed "concern" is to advance an anti-Israel agenda, not to actually do anything to benefit the people in Hamas-controlled gaza.

That is why no one cares about what Egypt is doing - because even though waht Egypt is doing hurts Gazans just as much (or more) than what Israel is doing, the focus is, as ever, solely on Israel, distorting what Israel is actually doing (by turning tonnes of goods allowed into an enclave run by terrorist murderers bent on Israel's destruction, including generating POWER for them) into a grave, unjustifiable evil.

Just like anything and everything else Israel does to try to deal with threats to its population and existence, as per usual and per my earlier post.

So really, your criticism and characterization of what is going on, including your linking of the blockade to any shortages, have no merit whatsoever.
 
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no, what I'm saying si that Israel would be completely justified in closing its entire border (which it has not done). Israel is under no obligation to provide anything, including access, to a non-occupied territory run by a terrorist organization dedicated to its destruction and the murder of its people. That Israel does so is actually a testament to its humanity, even though it is played like you play it here. As for the blockade, to the extent people want to donate non-military non dual-use items to Gaza, Israel has set up a mechanism to do so which would allow in all of this stuff, so if you wanted to arrange for an extra 1000 tonnes of wheat a day, you could do so by docking in Israel and allowing Israel to transport the goods.

Really, the bad party in all of this is indeed Egypt, which has no real justification for closing its border (Hamas is not actively trying to murder its civilians and destroy it as a country). Israel provides gaza way more than Gaza should receive from Israel (i.e., nothing), while Israel does allow "blockaded" product into Gaza provided it is inspected first and then delivered through Israeli channels. But other than in passing condemnatiions extracted like I have above, no one actually cares about Egypt, because no one actually cares about the Palestinians. The purpose of any expressed "concern" is to advance an anti-Israel agenda, not to actually do anything to benefit the people in Hamas-controlled gaza.

That is why no one cares about what Egypt is doing - because even though waht Egypt is doing hurts Gazans just as much (or more) than what Israel is doing, the focus is, as ever, solely on Israel, distorting what Israel is actually doing (by turning tonnes of goods allowed into an enclave run by terrorist murderers bent on Israel's destruction, including generating POWER for them) into a grave, unjustifiable evil.

Just like anything and everything else Israel does to try to deal with threats to its population and existence, as per usual and per my earlier post.

So really, your criticism and characterization of what is going on, including your linking of the blockade to any shortages, have no merit whatsoever.

You'd be distinctly in the minority arguing that Gaza is not an occupied territory. Almost everyone acknowledges it as such, including most pro-Israeli posters on this site, though their position does seem to shift a bit depending on the exigencies of the particular debate. It's disingenuous to suggest that it's just a matter of "closing borders" when in fact Israel controls all traffic in and out of Gaza by any route to any destination. But in any case, Israel would still have responsibilities as a belligerent regardless of whether it was a formal occupier.
 
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