Legal issues raised by flotilla assault: Israeli navy commandos inadvertently attack Gilad Shalit

by Yaniv Reich on June 3, 2010

It’s difficult to say precisely when the Gaza siege became a formal naval blockade (Update: a commenter, Marian Houk, points out that the IDF Spokesperson announced the blockade on Jan 3, 2009, a fact that raises an additional question of how the IDF views the siege from 2006 to 2009.) But in the language of Israel’s professional hasbarists, in PM Netanyahu’s statements, in the press releases by Israel’s Foreign Ministry and official IDF spokespeople, in the talking points on the flotilla fiasco distributed by the World Zionist Organization, there is now a tight, well-organized message being delivered to the world: Israel’s flotilla attacks were legal under international maritime law because Israel had formally declared a naval blockade of Gaza.

This strategic shift represents, as far I as can tell, an important realignment of Israel’s position, which is almost certainly arising out by Israeli leaders’ increasing concern with international criminal prosecution for various war crimes. Since (at least) the Goldstone report highlighted the inhuman and illegal collective punishment of 1.7 million Gazans—a crime bordering on persecution, i.e. a crime against humanity—Israel has struggled to find a narrative that justifies its behavior. Hell bent on stopping a humanitarian convoy designed to make break the siege, Israeli lawyers appear to have been hard at work constructing a new rationale, which we now see regurgitated ad nauseum by Israel’s army of PR specialists on our television screens and across the intertubes.

The core legal claim being made is this: Under Part IV, Section II of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Israel argues it is justified to impose a naval blockade on Gaza because it is in a state of armed conflict. Quack VP Biden said as much today as well in arguing that Israel is “in a state of war with Hamas”.

Debatable Legality of Israel’s Official Position

But the type of armed conflict between Israel and Hamas is much less clear than Israel suggests. In particular, there is substantial legal confusion over whether Israel’s “war” with Hamas constitutes an International Armed Conflict (IAC) or a Non-International Armed Conflict (NIAC).

As discussed in an excellent post on Opinio Juris:

it is difficult to argue that Israel is involved in an IAC with Hamas. First, it is obviously not in a traditional IAC, because Gaza is not a state. Second, not even Israel claims that the conflict has been internationalized by the involvement of another state. And third, although the Israeli Supreme Court held—controversially—in the Targeted Killings case that armed conflict between an occupying power and a rebel group is international, Israel’s official position is that it not currently occupying Gaza.

Israel’s defense of the blockade thus appears to create a serious dilemma for it. Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas. And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza. Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas.

Israel is trying to get simultaneously the benefits of two distinct legal interpretations. On the one hand, Israel wanted to use the laws of IAC to justify its blockade; on the other it doesn’t want to abide by the particular requirements imposed on it in an IAC.

For more on the distinction between IAC and NIAC, see here.

Implications of Israel’s Legal Position

What are these additional requirements? Accepting that the situation is one of an IAC would turn Hamas militants into ” privileged belligerents” and a host of provisions from the Fourth Geneva Conventions kick in. Israel must recognize, as suggested above, its continued occupation of Gaza, something it has spent years trying to persuade us to forget. Additionally, Hamas militants, when captured must be treated as prisoners of war, something which Israel would also likely find unacceptable.

The converse is also true. Any on-duty Israeli soldier would also be a privileged belligerent. Therefore, although Hamas would still be in violation of international law for firing rockets at civilian centers, it would be fully and unequivocally justified in its capture of Gilad Shalit. It would be allowed, in my understanding, not only in fighting off Israeli incursions into Gaza but also in attacking Israeli forces wherever they are found, including inside the Green Line.

Thus, in a desperate effort to justify its brutal assault on a humanitarian convoy in international waters, Israel’s legal position appears to be a direct attack as well on Gilad Shalit, its arguments used to criticize his captivity, and all other soldiers inside the Green Line.

Additional Considerations

Even if Israel’s legal position is accepted, at least three additional legal issues arise.

First, military action is only justified when all other options have been exhausted. As seen with the Gaza assault in 2009, Israel knowingly and deliberately violated a ceasefire (in November 2009) that would have obviated the “need” for military action. Israel’s leaders chose that military option when others were available, and continue to commit the same error with respect to the blockade.

Second, “the San Remo Manual also contains rules governing the lawfulness of the blockade itself, and there can be no authority under international law to enforce a blockade which is unlawful. Paragraph 102 of the Manual prohibits a blockade if ‘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’”, according to Prof. Saul (Co-Director of the Sydney Centre for International Law at The University of Sydney). Considering the disastrous humanitarian outcomes for 1.7 million people, while the alleged belligerent Hamas is stronger than ever, this requirement is also on very uncertain ground.

Third, Israel’s behavior against the flotilla activists must follow standard international rules governing proportionality of military action. The precise sequence of events is murky, largely because Israel refuses to divulge the full collection of video that it seized/stole from the ship, from activists, and from journalists. Israel knew the convoy was full of unarmed humanitarian activists, yet a large group of commandos, supported by navy boats, helicopters, etc., armed to the teeth, managed to kill between 9 and 19 civilians with over 50 others seriously injured. Establishing proportionality in such a context will require a lot more evidence than the IDF has managed to produce from the selective editing to produce about two minutes of material from hours of video footage.

Israel’s Catch-22 seems to grow continually in its complexity—and gravity.

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{ 25 comments… read them below or add one }

1 45charleston October 26, 2010 at 6:14 pm

Gaza is a state for the purpose of SRM 1994. It is a territory with it’s own government.
Israel pulled out of Gaza since it was a required element of the law of blockades. You cannot legally blockade yourself !
This is in fact a IAC which the blockade is against a territory governed by a group that has the destruction of Israel as it’s mandate. The main purpose of the blockade is to prevent more lethal weapons from getting into Gaza. The concrete and direct military advantage is evident in the reduction of Israelis casualties.
Israel has the right as they state to inspect and redirect the aid flotilla even if it only had aid on board. They are required to provide a route for the aid to Gaza after inspection . They also have the right to meet force with force while doing their best to avoid civilian casualties where possible. They also have the right to confiscate computers etc to look for evidence.
The war itself between Gaza and Israel falls under the Law of War which is a separate body of law but has similar objectives and principles. The aim of both is to promote a humane war as much as possible. Pals have broken more Int laws than Israel. Using Civilians without uniforms, launching rockets from civilian sites are just a few breaches of the law of war. Pals have every right to fight Israel but they breach the law far more than Israel.
The laws that support Israels actions are really quite simple unless you are out to attack Israel.
Today, 2:16:44 PM
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2 45charleston October 26, 2010 at 7:11 pm

This is a biased article.
The typical pro Pal slant on the laws.
The direct conrete advantage to Israel is obvious.
How many UN peace keepers are in Gaza . How many in Dafur ?
If Gaza is in such bad shape why did they build the Gaza city Mall ? Why has the UN requested all aid to go through Israel via land ? Why has no court action been taken to end the blockade ?
Evidence clearly shows Israel followed the law to the letter !

3 Yaniv Reich October 27, 2010 at 10:52 pm

That is the longest list of unsubstantiated assertions I have read for awhile. Do you really think that you can just declare in the comments section of a blog post that Gaza is a state and therefore IAC? Are you aware that not even Israel claims it is an IAC, most likely because it isn’t according to any reasonable definition of the term?

4 45charleston October 28, 2010 at 5:27 pm

The fact is there are several legal opinions that state Gaza the territory under it’s own elected gov’t is in fact a state. A state is a territory with an elected government and self determination.
San Remo Manual 1994 is the law of blockades and naval conflict and it’s purpose is to control the conduct of blockade and naval conflict between 2 governing entities. It is about setting humanitarian rules of conduct between these 2 governing bodies. The Laws of War similarly define rules of conduct between waring governments. The principles of law between these 2 bodies are the same.
The flotilla was not an act of piracy which is when non government individuals attack a vessel. That falls under Maritime law .
When determining the law that applies it is not really that hard unless you don’t like the answer!
Israel acted legally ~

Former member Gray’s Inn Law Society, London UK.

5 45charleston October 28, 2010 at 5:55 pm

Here is just one of hundreds !
“On the basis that Hamas is the ruling entity of Gaza and Israel is in the midst of an armed struggle against that ruling entity, the blockade is legal,” said Philip Roche, partner in the shipping disputes and risk management team with law firm Norton Rose.”

It was by no coincidence that the blockade was instituted after Hamas was elected.
If you exam the whole situation as I have, you will see Israel followed every requirement of SRM. Did they do it mistakenly ? I believe not ! the only question in my mind is did they do things proportionately. I believe they did but that determination is for the courts as is the argument of legality of the blockade.
That argument is not to be decided by a flotilla expressly breaching a blockade. If it is a matter of aid to Gaza Israel followed the law in attempting to redirect the flotilla to Ashod as required by SRM. Once at Ashod they inspect and deliver the acceptable aied to Gaza.
One of the most significant things is that the UN has directed all aid to go through Israel which is being done.

6 Yaniv Reich October 28, 2010 at 7:22 pm

Again, Mr. 45charleston, you state things as if their simple assertion into the blogosphere renders them true.

I encourage you to read this:

http://www.jpost.com/Israel/Article.aspx?id=177028

An excerpt:
“Robbie Sabel, the former legal adviser to the foreign ministry, told The Jerusalem Post that the state would almost certainly argue that the seizure of the vessels was an executive act with which the court was not authorized to intervene.

Sabel also said that Israel considered the Gaza Strip hostile territory which is engaged in armed conflict against it. The UN Convention on the Laws of the Sea did not deal with armed conflict.”

But the definition of “hostile territory” is unique, an invention of Israel’s Foreign Ministry and/or IDF legal office that has no part of established law. Israel uses it to try to avoid precisely those legal issues raised in my post, as well as the understandings of international law to which the entire world adheres.

7 45charleston October 28, 2010 at 8:09 pm

I have read that and other self incriminating opinions. They are just that.
As I say the purpose of San Remo is to regulate 2 governments at armed conflict !
The problem with Int law is that there are not enough precedents for this unique situation.
The place for determining the facts are in a court. No action has been successful and in my opinion there will be none. In fact things are still the same other than a loosening of some restrictions of banned items.
Ask yourself why the UN now tells aid deliveries to go through Israel ? Are they complicit in an Illegal blockade as Hamas claims ? Why are there no UN peace keepers in Gaza like there are in other areas of armed struggle like Dafur ? Why is Egypt not attacked for their blockade on Gaza ?
The purpose of SRM is to deal with government actions unlike Maritime Law which deals with “PERSONS”

8 45charleston October 28, 2010 at 8:17 pm

You have the USA in court right now for targeting a US born Terrorist under co- belligerency. The courts ruled against them but other legal arguments were accepted allowing for the targeting of a US citizen in Yemen.
I suspect you will see the Israelis position which is unique but reasonable considering the intent of SRM.

9 45charleston October 28, 2010 at 8:40 pm

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That raises the critical question of whether Israel acted legally nearly three years ago when it imposed a blockade on Gaza after withdrawing its troops. Most, though not all, scholars surveyed by The Chronicle said the blockade was legal.

“Israel has suffered rocket attacks that have been launched from Gaza and has the right of self-defense,” said Chimene Keitner, an associate professor at UC Hastings College of the Law in San Francisco who specializes in international criminal law.
Essentials allowed

“Under international law, the blockade probably can be justified,” Keitner said. At the same time, she said, the law entitles civilians in a blockaded area to receive food, medicine and other essentials, and Israel may be violating that requirement.

“Most international lawyers … would say a blockade is permissible in an armed conflict, and it includes the ability to stop and search ships in international waters,” said Allen Weiner, co-director of Stanford’s International Law Program. Although Israel has the right to control its border with Gaza,

10 45charleston October 28, 2010 at 9:01 pm

Nigeria intercepts Iranian weapons shipment today in port of Lagros. Suspect it was headed to Gaza.
Sure gives credence to Israel’s blockade.

11 45charleston October 29, 2010 at 1:29 pm

law experts Harvard Law School Professor Alan Dershowitz, Chicago Law School Professor Eric Posner, and Johns Hopkins International Law and Diplomacy Professor Ruth Wedgwood, said that the naval blockade, the boarding in international waters, and the use of force were in accord with long-standing international law. [3] [4] [5] Dershowitz compared the blockade with the U.S. blockade of Cuba during the Cuban Missile Crisis and Posner with the Coalition blockade of Iraq during the first Gulf War. [3] [4] [5]

12 Yaniv Reich October 29, 2010 at 6:35 pm

It appears we agree on the need for the legality of the Gaza siege to be taken before a proper court. So I have no doubt you–and Posner–will support the call for Israel to defend the siege at the International Court of Justice.

Posner writes, for example, in the article you cite:

“Gaza is not a sovereign state (although it has its own government, controlled by Hamas) and is not a part of Israel or of any other state. Its status is ambiguous, and so too is the nature of the armed conflict between Israel and Hamas. Thus there is no clear answer to the question whether the blockade is lawful.”

This is, of course, precisely the point of the original blog post. But more to the point, Posner should also be on board with the ICJ option.

Pay very close attention to the following point, because it addresses something that you seem to do repeatedly. Just because the US does something, that action does not become right or legal. Just because Saudi Arabia does something, it doesn’t become right or legal for neighboring countries to do the same. Just because Hamas does something, it doesn’t mean Israel can then do it. And, most importantly, just because Israel does something, it is not automatically right or legal.

These all belong to a form of argumentation, which both you and Dershowitz use, that is worthy only of the utmost contempt.

13 45charleston October 29, 2010 at 8:50 pm

I agree that Gaza may not fit the definition of state per say as Posner states. That is why a court will have to determine if it as a sovereign territory fit the broader meaning of state for the purpose of SRM. State action is not covered by Maritime law or the Law of the sea as they are specific to”Person” and not government action. The right to self defense is paramount and the law needs to evolve to cover this unique situation.
The point is that the blockade is 4 years old and no successful action has been taken. I believe Israel will be exonerated in any court action given the nature of the warfare methods used by Hamas ruled Gaza.
The recent shipment of 13 containers filled with weapons uncovered in Nigeria further strengthen the need for a tight blockade on Gaza.
A shi

14 45charleston October 29, 2010 at 9:15 pm

Actually I have never assumed that just because Israel did what they did it was right.
I say Israel is right because of the necessity of self defense against a territory that is committed to destroy Israel. That in it’s self is a unique situation. I also feel they are right because SRM 1994 is the body of law that addresses government action such as intercepting the flotilla.
Just to be clear ,I am not Jewish or Israelis. Unlike you I have no bias in my opinion.

15 45charleston October 29, 2010 at 9:28 pm

Maritime Law that you referenced.
“Admiralty law (also referred to as maritime law) is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, shipping, sailors, and the transportation of passengers and goods by sea. Admiralty law also covers many commercial activities, although land based or occurring wholly on land, that are maritime in character.”

Pay particular attention to “private international law governing the relationships between private entities”

16 45charleston October 29, 2010 at 9:52 pm

Another thing that people like you do is trying to impose a text book definition to the word “State” while ignoring the intent of the law. The intent is to provide humanitarian rules of conduct between to government entities while in armed conflict. The principles are the same for most laws dealing with conflict.

17 45charleston November 3, 2010 at 10:00 am

Google “As Flotilla Inquiry Calls Grow Louder, Legality of Gaza Blockade ” You will see Judy Woodruff debate Anthony D’Amato on the legality of the blockade. She eats this so called humanitarian legal expert alive !! D’Amato had to be told to shut up by Judy al be it politely, several times. He is a pro pal legal expert fool.

You will love what she does to this guy !!

18 Yaniv Reich November 3, 2010 at 2:25 pm

It is a good debate, and you are right that D’Amato is extremely weak.

But that doesn’t make the legal arguments against Israel’s actions any less important. They have not addressed the core legal contradictions that I discussed in my blog post, namely the categorization of Hamas-ruled Gaza as an IAC or NIAC. And the issue of the flotilla carrying weapons is a red herring. Israeli officials prior to the flotilla made it very clear they did not believe weapons were being transported, something the Turks took great pains to confirm prior to the ships’ departure, but wanted to reserve the right to enforce their policy of “no development, no humanitarian crisis” in Gaza. A Google search of the Israeli papers in weeks before the incident make this crystal clear.

Therefore, even if Israel’s relationship with Gaza was grounded in law such that the blockade itself was legal, which is very highly debatable, then it would still would not have had legal justification to board a ship known to be carrying only civilian supplies.

19 45charleston November 3, 2010 at 5:35 pm

That is quite inaccurate. Sec 48 SRM 1994 allows vessels , including aid ships (sec 47) heading to breach a blockade to be inspected regardless of cargo. SRM also allows the vessels to be redirected to a port to be inspected and Israel must provide transportation of the aid to Gaza accompanied by a Human right org like the Red Cross. This is in fact being followed under the urging of the UN to all aid givers.
You are quite right that the true peace activists tried hard to make sure there were no weapons brought on board. Some of the militants boarded at Cyprus.
Have you watched the Iranian Press TV clip some of which is in the BBC Death in the Mediterranean. The IHH militants armed themselves inspite of the captain of the Mavi trying to stop them. Under the law knives and rods are lethal weapons. IDF seeing their fellow IDF have every legal right to use all necessary force to propect them until the situation is brought under control.

20 45charleston November 3, 2010 at 5:51 pm

As I said the intent of the law is clear. It is to provide humanitarian rules of conduct between two waring territories. It distinguishes between private and government actions. It is absurd to try and apply Maritime Law (PIRACY) to this situation. Piracy is when private individuals attack a commercial vessel to plunder it’s cargo. This is clearly not the case.
If you drew a line and at one end you put Maritime law criteria and at the other SRM 1994, ML being 1 and SRM 10 on a graduated scale . The blockade would be a 9 in terms of applying to the criterias. In fact only the principles of Int Law would apply such as proportionality and distinction of combatants and civilians. I have looked at and read hundreds of relevant material and fell Israel acted well within the legal mandates of SRM.
There is in fact no other law that applies as precisely as SRM.

21 Yaniv Reich November 3, 2010 at 9:23 pm

I fail to grasp why you keep referring to maritime law when I am clearly discussing the legal basis for the blockade under the San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Moreover, you are focused on legitimizing the military assault on the flotilla and are not addressing the basic issue of whether the blockade was justified, and if so, based on what legal status of Gaza. Simply having a government does not automatically make one either a state or non-state actor.

22 45charleston November 3, 2010 at 10:20 pm

You obviously aren’t reading what I wrote.
San Remo deals with government actions. Hamas is a government and falls under SRM as opposed to Maritime law ( the law of the sea).

23 45charleston November 4, 2010 at 3:03 pm

SRM is also the updated law of blockades.
The only other body is Maritime law which specifically references “Person”. That clearly does not apply as I pointed out.
You cannot discuss the Mavi incident without dealing with the blockade

24 Marian October 13, 2011 at 1:18 am

Yes, interesting debate. But, curious about why you begin by writing: “It’s difficult to say precisely when the Gaza siege became a formal naval blockade”? It’s not difficult at all… the announcement of the formal naval blockade was made by the IDF on 3 Jan 2009, as Operation Cast Lead’s ground invasion phase got underway. This announcement was then — apparently — published on the website of the Israeli Ministry of Transport on 6 January 2009. I say apparently because I could not locate it in 2009, and it only turned up thanks to a pseudonymous commenter from Israel on my blog who sent me the link in June 2010 when I was discussing whether or not Israel had complied with the requirements for a formal naval blockade, in the immediate aftermath of the Israeli naval interception and assault on the Mavi Marmara, when — as you rightly argue — Israel came into a new-found appreciation for international law. But, the very announcement of the formal naval blockade on 3 January 2009 indicates that there was an on-going debate, within official and military circles and within various ministries, about the merits of trying to squeeze into compliance with international law — a debate in which the international law propopents only got the upper hand after the fiasco of the boarding of the Mavi Marmara. The commenter who suddenly provided on my blog in June 2010 a previously unfindable link insists he’s one person and not a bank of hasbarists and also insists he’s commenting on an entirely voluntary basis according to his own personal interests, whenever the whim strikes. Certainly, however, it could not be entirely out of the realm of the possible that the Israeli Ministry of Transport would be in a position to publish a post-dated website announcement of the formal naval blockade to comply, retrospectively, with the formal requirements … but, at the very least, we can say there was a clear announcement by the IDF on the night of 3-4 January 2009…

25 Yaniv Reich October 13, 2011 at 11:37 am

Thanks, Marian. I hadn’t realized a date could be pinpointed (kind of makes one wonder what justification for the siege existed, then, between 2006–Jan 3, 2009). I’m going to update the sentence to reflect your comment.

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