Peter Berkowitz
Further politicization of the global legal system
On may 31, 2010, in defense of a naval blockade imposed on the Gaza Strip, Israel seized control of the Mavi Marmara in international waters, detained the passengers, and towed the ship to the Israeli port city of Ashdod. During the previous three days and without incident, Israel had boarded, inspected, and brought to Ashdod the other five ships that had set sail from Turkey as part of the “Gaza Freedom Flotilla.” But on the Mavi Marmara, passengers wielding pipes, knives, and axes attacked Israeli commandos as they rappelled from helicopters down to the ship’s deck. Nine passengers were killed in the operation and several dozen were injured. Seven commandos were injured as well.
The flotilla’s ostensible purpose was to bring humanitarian goods to the Palestinian population of Gaza. In fact, humanitarian goods had been arriving in Gaza over land through Israel, and Israel had repeatedly volunteered to deliver the flotilla’s humanitarian cargo through the established land crossings. The flotilla’s real and obvious goal was, as one of the organizers put it, “breaking Israel’s siege.”
The international outcry in response to Israel’s raid on the Mavi Marmara was immediate. Little attention was given to the Turkish flotilla’s deliberate provocation or to the possibility that Israel had acted ineptly or unwisely. The focus rather was on the accusation, often couched as a conclusion, that Israel had acted unlawfully. Little attention was given to the Turkish flotilla’s deliberate provocation or to the possibility that Israel had acted ineptly or unwisely.
On May 31, almost as soon as the news broke, un Secretary General Ban Ki Moon insisted that it was incumbent upon Israel to explain its actions to the world: “I condemn this violence . . . it is vital that there is a full investigation to determine exactly how this bloodshed took place . . . I believe Israel must urgently provide a full explanation.”
Also on May 31, Richard Falk, un special rapporteur on the Situation of Human Rights in the Occupied Palestinian Territory, immediately pronounced Israel in egregious violation of international law: “Israel is guilty of shocking behavior by using deadly weapons against unarmed civilians on ships that were situated in the high seas where freedom of navigation exists, according to the law of the seas.” Falk called for an investigation on the grounds that “It is essential that those Israelis responsible for this lawless and murderous behavior, including political leaders who issued the orders, be held criminally accountable for their wrongful acts.” He characterized the Gaza blockade as “a massive form of collective punishment” constituting “a crime against humanity, as well as a gross violation of the prohibition on collective punishment in Article 33 of the Fourth Geneva Convention.” He insisted that failure to punish Israel’s lawlessness would itself be criminal: “As special rapporteur for the Occupied Palestinian Territories, familiar with the suffering of the people of Gaza, I find this latest instance of Israeli military lawlessness to create a situation of regional and global emergency. Unless prompt and decisive action is taken to challenge the Israeli approach to Gaza all of us will be complicit in criminal policies that are challenging the survival of an entire beleaguered community.” Such was Israel’s “flagrant flouting of international law” that, to end its blockade of Gaza, Falk concluded, “the worldwide campaign of boycott, divestment, and sanctions against Israel is now a moral and political imperative, and needs to be supported and strengthened everywhere.”
Many nations promptly condemned Israel and some presumed its guilt that day. According to the bbc, within hours of the boarding of the Mavi Marmara French Foreign Minister Bernard Kouchner announced he was “deeply shocked” by Israel’s action and called for an inquiry, and French President Nicolas Sarkozy accused Israel of a “disproportionate use of force.” Sweden summoned the Israeli ambassador to discuss the “unacceptable action.” The Turkish foreign ministry issued a statement declaring the incident a “flagrant breach of international law” while Turkish Prime Minister Recep Tayyip Erdogan proclaimed Israel’s raid “totally contrary to the principles of international law” and an act of “inhumane state terrorism.” And the Arab League called for an emergency meeting the next day to discuss Israel’s “terrorist act.”1
On June 1, the un Security Council issued a presidential statement. By condemning Israel’s raid and by demanding a “prompt, impartial, credible, and transparent investigation conforming to international standards,” the Security Council indicated that there was sufficient evidence to be concerned that serious breaches of international law had occurred.
Not to be outdone, the notorious un Human Rights Council on June 2 issued resolution 14/1 on “The Grave Attacks by Israeli Forces against the Humanitarian Boat Convoy.”2 The hrc resolution “condemns in the strongest terms the outrageous attack by the Israeli forces against the humanitarian flotilla of ships which resulted in the killing and injuring of many innocent civilians from different countries.” And it authorized “an independent, international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance.”
The widespread accusations of unlawful conduct directed at Israel — coming, it should be said, not from some abstract international community, but from officers and official bodies of the un, European states, Turkey, and Arab states — were high on outrage and low on legal analysis. This is in keeping with the growing tendency in international affairs to transform hard political questions into conclusive legal judgments. The transformation increasingly yields gross abuses of law fraught with substantial political implications. The denunciations of Israel’s response to the Gaza Flotilla provide a case in point. To counteract the harm they can cause to a state’s interests when they gain international currency and exert worldwide influence, even far-fetched and perverse legal arguments must be addressed and refuted in legal terms.
In fact, the legality of Israel’s stopping and seizing of the Mavi Marmara and the other five ships of the Gaza Freedom Flotilla turned on the legality under international humanitarian law (a part of the international law of war governing the conduct of war, also known as ihl, the law of armed conflict, or the laws of war) of the naval blockade. If the blockade was legal, then Israel was perfectly within its rights to stop on international waters ships whose announced intention was to break it, and Israeli commandos were within their rights to defend themselves against the potentially lethal attacks to which they were subject as they boarded the Mavi Marmara. Israel’s blockade was legal given the state of armed conflict between Israel and Hamas, the de facto ruler of Gaza; the widely accepted use of naval blockades in war; and the conformity of Israel’s blockade to the requirements of maritime law — it was duly declared, effective, nondiscriminatory, and allowed the passage of humanitarian assistance to the civilian population of Gaza.
Israel neither has troops stationed in Gaza nor exercises the functions of government there.
Many, however, continue to contend the blockade is illegal. According to the standard argument, the blockade violates international law because — notwithstanding its disengagement from Gaza in the summer of 2005, in which Israel withdrew every soldier and every civilian, and despite the absence of any Israeli soldiers or citizens in Gaza on May 31, 2010, when the Mavi Marmara was seized — Israel continues to be an occupying power of Gaza, and as such is barred from undertaking acts of war, such as a naval blockade, against the Palestinian people of Gaza.
The standard argument, however, is at best weak and generally groundless and incoherent. It twists well-settled concepts, distorts basic categories, overlooks or obscures crucial facts, misreads critical cases, and ignores fundamental legal principles. To put the matter succinctly, since it neither has troops stationed in Gaza nor exercises the functions of government there, Israel does not exercise “effective control” of Gaza, and therefore does not meet the test that international humanitarian law establishes to determine whether a territory is occupied by a hostile power.
More importantly, the argument over whether Israel occupies Gaza is ultimately irrelevant to determining the legality of its naval blockade. Even if Israel were deemed the occupying power, it would not lose its inherent right of self-defense, recognized by the un charter and international law, to repel acts of aggression. By virtue of its public declarations, its bombardment of civilian populations in Israel, its unremitting efforts to conduct terrorist operations against Israel, and, after Israel’s December 2008-January 2009 Gaza operation, its rearmament in preparation for the renewal of rocket and missile attacks, Hamas has been in a condition of persistent, widespread, and organized war with Israel since it seized control of Gaza by force in June 2007. Accordingly, Israel is entitled under international law to impose a naval blockade to prevent Hamas from acquiring additional weapons of war. Of course Israel remains obliged to permit civilians’ humanitarian requirements to be met.
The acceptance of poor arguments on behalf of the widespread opinion that the Israeli blockade of Gaza is illegal threatens the integrity of the international law of war. As in the case of the Goldstone Report before it, in the case of the Gaza Flotilla again, influential international public opinion has coalesced around a view of the law of armed conflict that substitutes propaganda for credible legal analysis. As with the Goldstone Report controversy, so too with the Gaza Flotilla controversy: Exposing the abuses to which the international law of war has been subject and setting forth a sounder view is critical to conserving it, and is a task in which all nations devoted to the rule of law have a stake — liberal democracies in particular, and especially liberal democracies such as the United States that are actively engaged in armed struggle against transnational terrorists. And as with the Goldstone Report, so too with the Gaza Flotilla controversy, that task requires a critique of the majority view; a restatement of longstanding principles of the law of armed conflict; and, above all, a recovery of the imperative to strike a reasonable balance between military necessity and humanitarian responsibility, the imperative out of which the international law of war emerged and which must remain its governing goal.3
The occupation argument
To vindicate the standard argument that Israel is prohibited from maintaining a naval blockade of Gaza because it is an occupying power, proponents must overcome the well-settled definition of occupation and the established test for determining whether an occupation has come into existence.
The law of occupation is rooted in two principal sources. According to Article 42 of the 1907 Hague Regulations, “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.”4 And Article 6 of the Fourth Geneva Convention indicates that a state achieves established authority and becomes an occupying power in a territory “to the extent that such Power exercises the functions of government in such territory.”5
The legal test is whether the hostile army has placed territory and its population under “effective control.” As Elizabeth Sampson, on the basis of an extensive review of the legal materials, observes, “In the context of international occupation law, ‘effective control’ is a term of art with no definite source, but it has developed as the standard that combines the conditions for occupation outlined in the Hague Regulations and the Fourth Geneva Convention.”6 Case law and state practice, moreover, indicate general agreement that to exercise effective control in the legally relevant sense is to perform the functions of government, which typically requires troops in the territory.
During Operation Cast Lead, Israel imposed a naval blockade to prevent the arrival into Gaza of weapons.
Israel in Gaza obviously does not meet the test as commonly understood. Israel has not had troops stationed in Gaza, or indeed any permanent presence there, military or civilian, since September 2005, when it completed the disengagement process it began the month before. When Israel left Gaza, the Palestinian Authority took over the functions of government, which it exercised until June 2007, when Hamas violently overthrew it and took control. Since then, Hamas has exercised the functions of government in Gaza. In late December 2008, Israel launched Operation Cast Lead, the aim of which was to stop Hamas’s firing of shells, rockets, and missiles at civilian populations in the southern part of the country. Early on in the three-week operation, Israel imposed a naval blockade to prevent the arrival into Gaza of weapons and other military supplies. At the conclusion of the operation, Israel brought home all troops, but maintained the blockade.
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