Doc's Talk: The Legal Basis of Israel's Naval Blockade of Gaza

Monday, July 19, 2010

The Legal Basis of Israel's Naval Blockade of Gaza

Ruth Lapidoth

Professor Emeritus of International Law at the Hebrew University of Jerusalem

* The relations between Israel and Hamas are in the nature of armed conflict. Nowadays no formal declaration of war is needed. Hence the rules of the laws of armed conflict apply. This means that Israel may control shipping headed for Gaza - even when the vessels are still on the high seas.
* The rules of naval warfare have not been fully codified in a treaty and are in the nature of binding customary rules. They can be found in the relevant manuals of Western armies (in particular the U.S. and Britain) and in the San Remo Manual prepared by a group of experts. * In order to be legal, a blockade has to be declared and announced, effective, non-discriminatory, and has to permit the passage of humanitarian assistance to the civilian population. In addition, the San Remo Manual of 1994 includes two conditions: first, the state which applies the blockade may decide where and when and through which port the assistance should reach the coast. In addition, the state may require that a neutral organization on the coast should verify who is the recipient of the assistance. In Gaza, for instance, does it reach the civilians or Hamas?
* A ship that clearly intends to breach the blockade may be stopped already when it is still on the high seas. Stopping the flotilla heading for Gaza in international waters 100 kilometers from Israel was not illegal; in time of armed conflict, ships intending to breach the blockade may be searched even on the high seas.
* Israel is within its rights and is in full compliance with international law because it has fulfilled all of the above-mentioned conditions for a lawful blockade. E.g., in January 2009 Israel notified the relevant authorities of its intention to establish a blockade of the Gaza coast.

What is the legal basis of Israel's naval blockade of Gaza? The relations between Israel and Hamas (which has ruled the Gaza Strip since 2007) are in the nature of armed conflict, meaning that the rules of the laws of armed conflict apply. This means that Israel may control shipping headed for Gaza - even when the vessel is still on the high seas. Israel may not do so in the territorial sea of a third country, such as Cyprus, but in time of armed conflict Israel may check vessels on the high seas that are headed for Gaza.

A naval blockade means preventing the passage (entry or exit) of all vessels to or from the ports and coastal areas of the enemy, irrespective of the kind of cargo carried by these vessels. One has to define clearly the borders of the area to which the blockade applies. The blockade has to be distinguished from other institutions of naval warfare, such as exclusion zones and security zones.

The Sources of International Law on Blockades

What are the sources of international law on blockades? The rules on blockades are based on customary international law, as there is no comprehensive international treaty on this subject. Customary law is binding in international law. According to Article 38 of the Statute of the International Court of Justice, the sources of international law are: a) international treaties, b) international custom, and c) general principles of law recognized by civilized nations. A binding customary rule is created when many states have for a long time behaved in a certain way and have done so because they felt an obligation to behave in that manner.

Blockades have been in existence for hundreds of years. They were mentioned specifically in the 1856 Declaration of Paris (after the Crimean War) Respecting Maritime Law. A more detailed text followed in 1909 - the London Declaration on Naval Warfare. This declaration sought to codify the rules of war at sea, but the states that participated in the declaration never ratified it. However, states actually followed the rules laid down in the declaration, and thus its provisions became binding customary rules.

The customary rules on blockade can be found in the manuals of the laws of war issued by certain Western countries such as the United States and Britain. In addition, there is a manual prepared by an international group of experts in 1994 called the San Remo Manual. (While some speak about the San Remo Agreement, there was no agreement, but rather a manual.) In addition, the general principles of the laws of armed conflict apply also to naval warfare.

When Is a Blockade Legal?

In order to be legal, several conditions have to be fulfilled. The first is the requirement to give widespread notice when a blockade is applied and to make sure that any ship that is stopped knows that there is a blockade. Nowadays the problem of notification is much easier than in the past because of the great improvement in communications.

Another condition for the legality of a sea blockade is effectiveness. It is not enough simply to declare a blockade. It has to be enforced, otherwise it is not valid and legal.

According to a further condition, a blockade should not cut off an unrelated foreign state from access to the sea. In the case of Gaza, the blockade does not prevent Egypt from reaching the sea.

Furthermore, a blockade has to be based on equality: It must apply to everybody. Of course there is always the possibility that the blockading party may give special permission to certain neutral ships to go through, but these are exceptions.

A blockade has to permit the passage of humanitarian assistance if needed. However, the San Remo Manual includes two conditions (in Article 103): first, the blockading party may decide where and when and through which port the assistance should reach the coast. In addition, the state may require that a neutral organization on the coast should control the distribution of the items. For instance, in Gaza, does it reach the civilians or Hamas?

Finally, there is the condition that a state may not starve the civilian population (San Remo, Article 102). This conforms also to the general principles of the laws on armed conflict.

What If a Ship Disobeys the Blockade?

What may be done to a ship that disobeys the blockade? Here, there may be a distinction between merchant ships and warships. A merchant ship may be visited, searched, or captured; and if the ship resists, it may be attacked. The situation of neutral warships is not quite clear: Warships may also be searched and captured, but opinions are divided on whether they may be attacked. An attack is certainly permitted in a situation of self-defense.

A ship that clearly intends to breach the blockade can be dealt with while it is still on the high seas. Stopping the flotilla in international waters 100 kilometers from Israel was legal: In time of armed conflict, ships breaching the blockade may be searched even on the high seas.

Precedents of Blockades

There are numerous precedents of blockades. During the Korean War between 1950 and 1953 there was a blockade. In 1971, when Bangladesh tried to secede from Pakistan, India applied a blockade. During the Iran-Iraq war between 1980 and 1988, there was a blockade of the Shatt el-Arab. Lebanon was blockaded for several months in the 2006 war between Israel and Hizbullah, and Israel allowed safe passage from Lebanon to Cyprus for humanitarian purposes.

In the treatment of the flotilla heading for Gaza, Israel has acted in compliance with international law because it has fulfilled all the conditions for a lawful blockade. In January 2009 Israel notified the relevant authorities of its blockade of Gaza - a lawful means of naval war. The existence of an armed conflict between Israel and Hamas in Gaza was well known and did not need a special declaration to that effect.

But Gaza Is Not a State

Can Gaza be considered an enemy although it is not a state? According to international law, this is possible. In any case, according to various judgments of Israel's Supreme Court, the conflict with Gaza is an international conflict and not an internal one because Gaza is not part of Israel. Neither Gaza nor the West Bank have been annexed by Israel, nor has Israel's "law, jurisdiction and administration" been extended thereto (as was done with east Jerusalem in 1967 and the Golan Heights in 1981).

With regard to the status of Gaza: the territory was under Ottoman sovereignty from 1517 until 1917, and then it became part of the British Mandate for Palestine. In 1948 Britain left the area and Gaza was occupied by Egypt, but Egypt never annexed it. In 1967 Gaza was occupied by Israel, which also did not annex it. In 2005 Israel withdrew from Gaza, and in 2007 it was completely taken over by Hamas. Some say that Gaza is an area sui generis, which means a special situation, while according to others, it is a self-governing territory with certain powers but not with all the powers of a state.

In both the 1993 Israeli-Palestinian Declaration of Principles on Interim Self-Government Arrangements and the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, it was agreed that after a certain period of time negotiations would take place on the permanent status of Gaza and the West Bank, but these negotiations have so far failed. The 2003 Roadmap, to which both parties have agreed, foresees a two-state solution, and that a Palestinian state should be established by agreement with Israel.

Is Israel Still an Occupier?

A recurring question is whether Gaza is still occupied or not. Some say that since Israel is still in control of Gaza's airspace and adjacent sea, Israel is still the occupier. According to another opinion, under the Hague Regulations of 1907 (Respecting the Laws and Customs of War on Land), occupation has to include full control of the area. ("Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." - Article 42), and of course Israel does not control the whole territory of Gaza. Therefore, it is not responsible for what happens there.

In my opinion, since Israel is not in control of Gaza, it is not the occupier, but in those areas in which Israel still has control - which means sea and airspace - Israel is responsible. Here we have to distinguish between full control of the territory and control only of the sea and airspace.

* * *

Prof. Ruth Lapidoth, a Fellow of the Jerusalem Center for Public Affairs, is widely recognized as a leading authority on international law. She is a recipient of the 2006 Israel Prize in Legal Research and of the 2000 Prominent Woman in International Law Award from the American Society of International Law. Prof. Lapidoth served in the Israeli delegation to the UN in 1976, and in 1979 was appointed Legal Advisor to the Israel Ministry of Foreign Affairs. She is the author of nine books and more than a hundred articles on international law, human rights, the Arab-Israeli conflict and Jerusalem.

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The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

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