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.
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.