Here are some excerpts, which I’m recording here as notes for the record, from a discussion about the Israeli seizure of the Flotillas headed to Gaza and Israel’s continuing naval blockade of Gaza, in comments made on a post on Mondoweiss, written by Steve Fake and published on 19 July, entitled “Destination? Gaza!: The Freedom Flotilla II meets the Israeli military:, which is posted here.
What I found interesting was the exchange about legality.
Hostage wrote on July 20, 2011 at 7:26 am:
The official commentary on Article 59 of the Geneva Conventions describes many of the customary prohibitions that Israel is deliberately violating regarding supplies of essential items and relief consignments to a civilian population. The convention provides that free passage of relief consignments is mandatory:
“The principle of free passage, as set forth in this clause, means that relief consignments for the population of an occupied territory must be allowed to pass through the blockade; they cannot under any circumstances be declared war contraband or be seized as such by those enforcing the blockade. The obligation to authorize the free passage of relief consignments is accompanied by the obligation to guarantee their protection. It will not be enough merely to lift the blockade and refrain from attacking or confiscating the goods. More than that will be required: all the States concerned must respect the consignments and protect them when they are exposed to danger through military operations“.
The official commentary also stipulates that the safeguards for verification and supervision,
“which were prescribed in the interests of the Powers granting free passage, must in no case be misused in order to make the rule [i.e. free passage] itself inoperative or unduly delay the forwarding of relief“.
France and Turkey were the parties to the landmark S.S. Lotus case in which the PCIJ ruled that “the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State.” The US abstained from the vote on UN SC 1860. I doubt that Bibi is eager to take on a permanent member of the Security Council in an international court over the the legality of Israel’s blockade or which state owns Gaza’s territorial waters 😉
Fredblogs wrote on July 21, 2011 at 4:31 pm:
… Just because it is legal to fight and capture an enemy soldier, does not mean you can prosecute him (unless he has committed war crimes). POWs aren’t prosecuted, they are locked up until traded back or until hostilities have ended.
In the case of blockades, you can only make them POWs if they have committed certain specified acts. For passengers, that is that they personally committed acts of hostility against the captor (San Remo 166a). That would be the passengers who actually fight. For crew it is that and also those who commit a list of other acts, including breaching a blockade (San Remo 166c) if they are “breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;” (San Remo 67a). I don’t know whether “breaching a blockade” includes heading toward the blockaded port, passing into the declared enforcement area of the blockade, or just entering the specific waters of the blockaded place…
Hostage wrote on July 21, 2011 at 8:09 pm:
It really isn’t the end of the matter since neither the U.N. HRC, nor the ICRC has the authority to “declare” a blockade illegal.
They most certainly do have the power. There are no international courts with compulsory jurisdiction, so states have always entrusted treaty bodies with the authority to make determinations and report violations of international law. In a number of cases the ICJ has advised that other UN organs can make legal determinations within their area of competence. The UN HRC has a mandate from the General Assembly “to address situations of violations of human rights, including gross and systematic violations”. See General Assembly Resolution 60/251, 15 March 2006 entitled “Human Rights Council” and the “Report of the 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, A/HRC/15/21, 22 September 2010. UN HRC also operates human rights treaty bodies for the Contracting State Parties. Israel is bound by the terms of its acceptance of those agreements to act on the decisions of the treaty body panels of experts.
The ICRC has been formally entrusted with the role of guardian of international humanitarian law. It also published the official explanation of the San Remo Manual article 102 which explained that any blockade may become illegal and stipulated some of the possible conditions … Judge Schwebel noted that when the General Assembly adopted the consensus Definition of Aggression it was concluding more than fifty years of sporadic discussions among the members of the international community of states on that subject. The definition included military occupations and blockades as specific examples of constituent acts of the crime of aggression. Shortly after the attack on the first flotilla, the ICC review conference voted to incorporate that definition into the Rome Statute. So, the notion that there is an authoritative international convention that grants any state permission to unilaterally employ a blockade over the objections of the ICRC, UNHRC, UNRWA, & etc. is utter nonsense. Every time an Israeli official travels abroad, he or she is at risk of being arrested for crimes against humanity in connection with the blockade.
Fredblogs wrote on July 22, 2011 at 6:40 pm:
Which might actually matter, if Israel were a signatory to the 1st additional protocol. Which it isn’t. So it doesn’t matter.
Wait, even if Israel were a signatory, it’s not offers of “relief consignments” that would be the hostile act, it would be fighting the soldiers. Even in the section you cite goes against you: Parties (e.g., blockaders) “a) shall have the right to prescribe the technical arrangements, including search, under which such passage is permitted;”
Which is lifted, almost word for word from San Remo paragraph 103(a):
“the right to prescribe the technical arrangements, including search, under which such passage is permitted; and”
Remember, if you are going to allow blockades at all (ever), which International law does, then you aren’t going to require that any blockader just take someone’s word that they aren’t smuggling weapons or other contraband. It would make the whole blockade pointless if anyone could just waltz across with a smile and a “I’m a humanitarian ship”.
Hostage wrote on July 22, 2011 at 10:05 pm:
Which might actually matter, if Israel were a signatory to the 1st additional protocol. Which it isn’t. So it doesn’t matter.
Even the Israeli Supreme Court has ruled that the customary rules in Additional Protocol 1 are part of Israeli law. HCJ 769/02 (11 December 2005) The Public Committee against Torture in Israel v. Government of Israel, at ¶ 20 says:
In addition, the laws of armed conflict are entrenched in 1977 Additional Protocol I to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, hereinafter The First Protocol. Israel is not party to that protocol, and it was not enacted in domestic Israeli legislation. Of course, the customary provisions of The First Protocol are part of Israeli law.
So, once again:
*The San Remo Manual explanation; the GCIV Article 59 and 1st Add. Article 70 commentary on the rule of free passage stipulate that Israel’s right of supervision can not be used to make the rule of free passage through the blockade to the coast of the blockaded belligerent inoperative and that offers of relief can not be regarded as interference in the armed conflict or as unfriendly acts.
*ICRC Customary Rule 55. “Access for Humanitarian Relief to Civilians in Need” says:
The Fourth Geneva Convention requires States to “allow the free passage of all consignments of medical and hospital stores” intended only for civilians and “the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases”. Additional Protocol I broadens this obligation to cover “rapid and unimpeded passage of all relief consignments, equipment and personnel”. This broadening is generally accepted, including by States not, or not at the time, party to Additional Protocol I.
Many military manuals contain the obligation to allow and facilitate access of humanitarian relief to civilians in need. The obligation to allow and facilitate access of humanitarian relief to civilians in need is also supported by official statements and reported practice. The United Nations, in particular, has on many occasions called for respect for the rule. The UN Security Council, for example, has called for unimpeded access for humanitarian relief efforts in Iraq and in all areas affected by the conflict between Armenia and Azerbaijan.
It is also relevant that under the Statute of the International Criminal Court, extermination, defined as including “the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population”, constitutes a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The legislation of numerous States provides for the crime of extermination.
*Customary IHL Rule 103. Collective Punishments says
The prohibition of collective punishments is stated in the Hague Regulations and the Third and Fourth Geneva Conventions. The prohibition is recognized in Additional Protocols I and II as a fundamental guarantee for all civilians and persons hors de combat.
*The overwhelming majority of UN Security Council members say that Israel is in violation of resolution 1860 which called for unimpeded access for humanitarian aid. link to un.org
even if Israel were a signatory, it’s not offers of “relief consignments” that would be the hostile act, it would be fighting the soldiers.
You’ve never cited a permissive rule that allows the enforcement of a blockade outside the published coordinates. Israel acted prematurely and used excessive force when it attacked a neutral foreign-flagged aid ship in international waters. The passengers and crew had an individual right of self-defense against the illegal use of force by the IDF.
Even in the section you cite goes against you: Parties (e.g., blockaders) “a) shall have the right to prescribe the technical arrangements, including search, under which such passage is permitted;”
Israel has refused to prescribe any arrangements whatsoever under which free or unimpeded passage of vessels to the coasts of Gaza is permitted. So, you are failing to even address the rule of free passage through the blockade: “the right to prescribe the technical arrangements, including search, under which such passage is permitted”
Hostage wrote on July 22, 2011 at 11:30 pm:
BTW, thanks for the link to the ICRC “official” explanation. Which is actually the Red Cross’s explanatory commentary, and doesn’t claim to be a legally binding “official” explanation.
The commentaries are published by the ICRC Legal Commission for the benefit of government officials and legal practitioners responsible for applying the conventions and protocols. Unlike the San Remo “explanation”, they are legal opinions, not merely discussions about legal principles. They’re based on the “travaux preparatoires” of the Convention which are preserved in the Final Record of the Diplomatic Conference of Geneva of 1949 & protocols et. seq. They’re are frequently cited in accordance with Article 38 of the ICJ Statute which provides that the teachings of the most highly qualified publicists of the various nations are a subsidiary means for the determination of the rules of law.
It makes exactly the point I made in other posts. 102a isn’t violated and 102b is based on military necessity and amount of damage done to the civilians.
The ICRC doesn’t interpret Article 50(1) and 50(2) of the 1st Additional Protocol in that way at all. For example, you can’t starve 10% of the children of an occupied territory on the basis of “military necessity”. In fact, the ICJ advised that Article 51 of the UN Charter doesn’t apply to belligerent occupation regimes at all. It already ruled that Israel’s regime in the territories was violating the right of Palestinians to adequate supplies of food, water, and a decent standard of living.
There is a jus in bello right of visit, but there is no jus in bello right to blockade an occupied territory. There is no state practice to support the notion that the jus ad bellum right of self-defense permits preventive interdiction of arms flows on the high seas. See Craig M. Scott, Israel’s seizure of the Gaza?bound flotilla: applicable laws and legality, Peer Zumbansen, John W. Cioffi, Lisa Philipps, Nassim Nasser (eds), Osgoode Hall Law School, Research Paper No. 42/2010, Electronic copy available at: link to ssrn.com
James wrote on July 20, 2011 at 1:19 am:
“Israel has declared a blockade on Gaza and justified previous fatal attacks on neutral civilian vessels on the High Seas in terms of enforcing that embargo, under the legal cover given by the San Remo Manual of International Law Applicable to Armed Conflicts at Sea.”
“There are however fundamental flaws in this line of argument. It falls completely on one fact alone. San Remo only applies to blockade in times of armed conflict. Israel is not currently engaged in an armed conflict, and presumably does not wish to be. San Remo does not confer any right to impose a permanent blockade outwith times of armed conflict, and in fact specifically excludes as illegal a general blockade on an entire population.”
“It should not be denied that Israel suffers from sporadic terrorist attacks emanating from Gaza.
However this does not come close to reaching the bar of armed conflict that would trigger the right to impose a limited naval blockade in terms of San Remo. To make a comparison, in the 1970?s and 1980?s the United Kingdom suffered continued terrorist attack from the Irish Republican Army, with much more murderous impact causing many more deaths than anything Israel has suffered in recent years from Gaza. However nobody would seek to argue that the UK would have had the right to mount a general naval blockade of the Republic of Ireland in the 1970?s and 1980?s, even though the Republic was undoubtedly the base for much IRA supply and operations. Justifications of Israeli naval action against neutral civilian ships by San Remo is based on special pleading and an impossibly strained definition of the term “armed conflict”.
link to canpalnet-ottawa.org
Hostage wrote on July 21, 2011 at 3:39 am:
Which means that the laws governing such conflicts apply; and under these laws, sea blockades are allowed.
When jurists come together they also agree that fact-finding missions performed by officials “on mission” for the relevant treaty monitoring bodies have a legal mandate to report violations of international conventions within their areas of competence. If the ICRC and the UN HRC say that a particular blockade has become illegal, that’s really the end of the matter. As usual, the US and Israel have hand-picked an ad hoc inquiry commission to offer rebuttal and conceal that fact, while muddying the waters. There is nothing new about that.
Fredblogs wrote on July 21, 2011 at 4:40 pm:
It really isn’t the end of the matter since neither the U.N. HRC, nor the ICRC has the authority to “declare” a blockade illegal. If by “declare” you mean “issue a legally binding determination”. They have the authority to _say_ that they think it’s illegal, but so do you. Just like I have the authority to _say_ that I think it is legal, but not the authority to “declare” it legal.
Whether it is actually legal boils down to whether “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”. (San Remo 102b).
Israel thinks it isn’t, the Palestinians think it is, and there is no objective body to decide which is true.
This is an excerpt from the exchange of comments on a Mondoweiss post published here.