If Israel was ambivalent (or of several minds) about the applicability of international law, prior to the Israeli naval assault on the Freedom Flotilla in the pre-dawn hours of 31 May, the Israeli government has now rediscovered its value.
Professor Ruth Lapidot, a former legal adviser to Israeli Ministry of Foreign Affairs, is one of — if not the – preeminent Israeli expert on international law [also known as public international law]. Her views are taken extremely seriously in official Israeli circles.
She recently [on 16 June] discussed Israel’s announced naval blockade of Gaza’s maritime space in a meeting with diplomats and journalists at the Jerusalem Center for Public Affairs [run by Israel’s former Ambassador Dore Gold.
Some of the more interesting things she said are: Israel has declared a formal naval blockade of Gaza’s coastline, in January 2009 [as we have reported here]. The area which is blockaded has to be clearly defined, and there has to be clear notification. The blockade must be applied without discrimination (though limited specific exceptions can be permitted). Humanitarian assistance must be permitted — but not goods which may increase the war capacity of, in this case, Hamas. If there is a suspicion that a ship is carrying arms or personnel to , in this case, Hamas, Israel may capture, visit, or search a ship that enters the blockaded zone, and can try to persuade them to leave. But, if a ship tries to run the blockade, there is a clear difference between how it is possible to treat a merchant ship (military force can be used) or a warship (only protests are allowed).
Those who oppose this blockade only say that it’s against international law, without saying why, Professor Lapidot said.
UPDATE: In a just-published interview, Greta Berlin of the Free Gaza movement said that “Israel has no right to stop us under international law UNLESS it wants to admit that it occupies Gaza. Since Israel says it no longer occupies Gaza and Gaza is free, they have no right to stop us. In addition, the blockade is collective punishment against a civilian population that is WAY out of line. International law, Amnesty International and the International Red Cross have all said the same thing. Israel’s blockade is illegal”… This is published here.
Professor Lapidot explained at the JCPA discussion that she believed Gaza is a sui generis entity, a special case. Because Gaza was never annexed by Israel, and because Israel does not control the entire territory of Gaza, she argued, it is not occupied. However, since Israel controls the air and sea space [criteria that many if not most other international law experts say are confirmation of an occupation], it has a special responsibility in case of accidents. She noted that the former Israeli Supreme Court head Justice Barak ruled that Israel also has a moral responsibility because it did previously occupy Gaza for so long.
The entire discussion was videotaped, and it is archived on the JCPA website, where it can be viewed on the website of the JCPA here. [Go to Institute for Contemporary Affairs, then on either sidebar click on video archive, then select this event]. Here are some excerpts:
Legal aspects of the problem of the blockade of Gaza:
“The situation between Israel + the Hamas is a situation of armed conflict – this is important because this means that the laws of war apply — which means you may control ships going to Gaza, even on the high seas — you may not do it in the territorial sea of third country… not in Cyprus, but on the high seas in time of conflict.
A blockade means that one state prohibits event the entry and exit of both neutral and enemy ships and airplanes to an area which must be defined. You have to define very clearly what is this area – where are the borders of this area.
There are some other similar institutions in PIL [Public International Law] – there are also exclusion zones and security zones or war zones or neutral zones — on the sea, in laws of war, during time of conflict.
But, it was a blockade that was imposed by Israel on the shores of Gaza
What are the sources of the law on blockades?
Until this very day the rules are still customary international law (no international treaty deals with this problem)
A list of documents that mention blockades:
(1) 1856 Declaration of Paris on the Crimean war – but it has only a very short mention;
(2) 1909 London declaration on naval warfare — much more important, and detailed; there was an intention to codify this, but unfortunately the states that participated did not ratify it: so, this has remained a declaration and is not treaty.
Manuals: San Remo (prepared by an international group of expert), and those of the militaries of the UK, US, and Germany — all these manuals say this is binding customary law.
Concerning war on sea, the world still applies the general principles of laws of war (eg: there is a prohibition of starvation of civilians)
Conditions for legality or validity of a blockade
1.) Notification – it has to be declared and notified as clearly as possible to all those who might be affected (nowadays communications much easier)
2.) Effectiveness – a “paper blockade” is not valid: you have to apply and enforce, otherwise it will not be valid; this is a question of fact, there are no clear legal rules.
3.) You must ensure that you do not cut off access to the high seas of the territorial sea of a third state
4.) Equality – it has to be based on equality, applied to everybody in the same way, not just to some states — including Prime Ministers who might be on any of the ships.
5.) You must permit the passage of humanitarian assistance. (The San Remo manual of 1994 says that you must permit humanitarian assistance, but state applying must decide where, when, and through which port the humanitarian assistance goes. There is the possibility to require that a neutral organization must control to whom the humanitarian assistance goes — eg ICRC, to see if the humanitarian assistant goes to civilians — or, in the case of Gaza, to Hamas)
6.) You may not starve the civilian population.
What can and may be done to ships trying to run the blockade?
A distinction is made between merchant ships (you have the right to capture, visit, search, and if they resist, you may even attack the ship) and warships (you may try to capture, and try to search but not attack a warship unless it is situation of self-defense)
When can you apply and in what kind of waters? As soon as it is clear a certain ship intends to break the blockade, you can start to deal with it, even if it is on the high seas.
Precedents (modern – after World War Two):
(1) Korean war 1950-53
(2) Bangladesh – 1973, applied by India
(3) Iran-Iraq war – blockade on Shatt al-Arab
(4) There was also a blockade in the 2006 war between Israel and “the terrorists” in Lebanon (nevertheless Israel did give a safe passage between Lebanon and Cyprus for humanitarian assistance.)
[During the 2008 war between Russian and Georgia, there was some discussion – but it was not a real blockade, only a search of ships on the high seas, to look for contraband.]
Excerpts from the Question and Answer segment of the discussion at JCPA:
Q: States are reluctant, prefer to use softer term such as quarantine. Iran-Iraq war – UNSC resolution prohibits arms therefore blockade and that naval presence in Indian ocean and Red Sea is still there but now to seek out members of al-Qaeda, or carrying weapons
A: Also 1962 quarantine of Cuba – it did not meet all qualifications of blockade
Q: Must a blockade be announced?
A: It has to be announced loudly and clearly to everybody who is involved. Even more, when a ship is trying to get though, you must make sure this specific ship has to have actual knowledge, or presumptive knowledge, of the blockade
Q: Is Israel in full compliance?
A: Absolutely — I thought it was clear without even mentioning it — all these conditions [are met]. In January 2009, Israel made the notification to the whole world, and therefore we can say that this is a real blockade..
Q: Since the legality of this blockade rests on state of war between Israel and Hamas, doesn’t it mean requiring a full declaration of war?
A: In the past, yes, but nowadays there are wars that break out without declaration. There is no need for a declaration in order for there to be a state of war. There was a judgment by [Israeli Supreme Court] President Aharon Barak five years ago [after Israel’s “unilateral” disengagement] where he explained that the situation [between Israel and Gaza] is so bad that it is a situation of armed conflict.
Q: If it’s so clear, can you explain why do other international experts disagree”
A: This question is very interesting, because they never say why. They only say that it’s illegal under international law, full stop. They do not say why…
Q: But the boarding was in international water?
A: In time of armed conflict you can search ships even on the high seas…
Q: Even Israeli newspapers write this: seizing ships in international waters is a violation of international law. Other opinion writers say the laws of war do not apply to Gaza, because it is not a state.
A: Can Gaza be considered an enemy even though it is not a state? You have things called international conflict. Also, the laws of war apply to internal conflicts (Common Article 3 of all Geneva Convention gives the minimum that applies). With regard to the status of Gaza is the $64 million dollar question – it was under Ottoman sovereignty 1570-1917, then under Britain till 1948 (Who was sovereign? The most common position is that it was both Britain and the League of Nations0. Then Egypt never annexed, gave Gaza autonomy, but under occupation. In [1956 and in] 1967, Gaza was occupied by Israel, but not annexed. I would say it is an area sui generus, which means a special situation — this is the best description, because nobody knows exactly what it is, though others say it is self-governing.
Q: According to UNSC resolution 1860, Gaza is part of Palestinian territory, and that is why is is occupied, not because of “effective control”/
A: part of other side, under occupation, under its control? Yes, Gaza is part of Palestinian territory but so far there does not yet exist a Palestinian state, yet. It is a special area which hopefully one day will be part of a Palestinian state.
Q: Part of the notion of assigning a legal status is exactly what negotiations have been about…
A In both 1993 and 1995 it was agreed that there would be negotiations, but so far negotiations have failed. The Road Map of 2003 specifically says Palestinian state should be established by agreement with Israel.
Q: Can you please explain again the difference in treatment accorded to a merchant ship + a war ship [attempting to break a blockade]
A: When you see a ship is trying to go to Gaza you can stop it to see what’s going on and to persuade – but if a merchant ship continues you can attack it. If it is a warship, you can only protest…
Q: Whole notion of naval blockade is linked to this notion of sending humanitarian goods to the Gaza Strip “under seige”. What is Israel’s responsibility to this sui generus entity that has two entrances and exits – one via Israel and one via Egypt.
A: Absolutely right there are two ways There is also the 2005 agreement to send goods through Egypt – so the idea was both Israeli and Rafah crossings should be open to the Palestinians. There is a very interesting Supreme Court judgment on electricity [n.b. – this was handed down on 28 January 2008 in a case brought by GISHA] – that since the 2005 evacuation, Israel has no responsibility to supply, because in particular there is also Egypt — but because has been in control of Gaza for so many years, Israel has a moral responsibility to help the people of Gaza get what they need for their daily lives.
Q: Is the EU participating in the siege [on the land crossings into Gaza]?
A: There is no siege now, because Gaza is getting a lot of goods from Israel. Now, even cement goes in (but via the port of Ashdod and with control by independent group to ensure aid goes to civilians, not Hamas). Let me remind you that even during the war of 2008, the border open every day for 1.5 hours…We shouldn’t forget the good things Israel has done.
Q: If Israel had allowed any of the ships in the Flotilla to go it, what would have happened to blockade?
A: The state that applies the blockade can make exceptions. But if all ships are allowed in, then there is no blockade. But if the state imposing blockade gives certain ships special selected permission — or if ship is in distress — it is ok. But it should not be the rule, exceptions should not be permanent … Israel may control any ships if there is a suspicion they carry goods which may increase the war capacity of Hamas — the suspicion they are carrying arms or personnel to help Hamas. I think other materials may not justify intervention against the ships. Not all goods justify this search — there must be a real suspicion. And not all ships on high seas, without any reason…
Q: If Gaza is a sui generis territory, what does it mean if it is occupied?
A: … Gaza’s status is, again, undecided. Some say if Israeli still in control of air space or sea, or territory, then it is occupying. Other opinions say that according to the Hague 1907 regulations – an occupier is only occupier if it controls the whole territory. And Israel does not control the whole territory of Gaza. In my opinion, Israel is not in control of Gaza, therefore we are the occupier, but in the areas it controls [air and sea of Gaza] there Israel is responsible (if there is an accident, eg) … In my opinion, the distinction is between full control of territory, or only part of it.
Justice Barak said there is an international conflict and not an internal conflict with Gaza, because it is not part of Israel. Gaza has never been annexed by Israel, neither has the West Bank …
Q: So, customary international law says that after a search of merchant boat, or there is attempt to capture it — and it continues — at what point can it be attacked and sunk if it carries civilians or civilian goods?
A. The idea is to get control of the ship and not to drown it…”
This entire discussion can be viewed on the JCPA website here. [Go to Institute for Contemporary Affairs, then on either sidebar click on video archive, then select this event.]