There is no legal determination on Israel's naval blockade of Gaza, only opinions + debate

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 😉

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Hilarious! Two Egyptian guys try to get into Gaza via the tunnels, discover Hamas visa policy

This drama has played out on Twitter for the past 48 hours.

Since the Jan25 revolution in Egypt led to Husni’s Mubarak’s forced resignation, there has been speculation about a new and more open Egyptian policy to Gaza.

But, the adventures of two Egyptian guys [@dooolism and @tarekshalaby] trying to enter Gaza via Rafah (or, via the infamous Rafah-to Rafah-tunnels) shows us it hasn’t happened yet.

They reveal, among other things, that Hamas has a visa policy for human passage into Gaza via the tunnels.

Here is a summary or synopsis of their account:

@dooolism – so 2night [n.b. – Thursday] with possibly the worst plan ever conceived by mankind, @tarekshalaby and I will head 2 Areesh & attempt 2 get into #Gaza 2morrow. – 3:12 PM Apr 21st

@dooolism – @Tarekshalaby and I can enter most North American, European, Asian and African countries right now, but they won’t allow us into #Gaza #irony – 9:40 PM Apr 22nd

@dooolism – Hamas tunnel visa to #Gaza makes European Schengen visa like a walk in the park #justsayin – 9:10 PM Apr 22nd

@dooolism – Not looking good, Hamas minister of tunnels (yes there’s an unofficial official position ) denied our tunnel application to #Gaza – Friday, April 22, 2011 8:23:32 PM

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IDF Chief of Staff Ashkenazai also takes responsibility for Flotilla Fiasco

According to a report in Haaretz, the IDF Chief of Staff Gaby Ashkenazi testified Wednesday, at the Turkel Commission investigating the “maritime incident” which occurred when Israeli forces boarded the Mavi Marmara and five other ships sailing toward Gaza in a “Freedom Flotilla” on 31 May, that “the raid quickly became ‘chaotic’, and the soldiers had no choice but to ‘continue with the plan’ … From the moment the operation began, it was clear that the circumstances were unprecedented’, he said, adding that as commander he took full responsibility for the troops’ actions”.

Ashkenazi is the third high-ranking Israeli official to take responsibility for the Flotilla fiasco.  Earlier, Israeli Prime Minister Benyamin Netanyahu and Israel’s Defense Minister Ehud Barak also said the responsibility was theirs.

Haaretz also reported that “despite initial reports that military personnel would not testify before the Turkel committee, Ashkenazi has authorized Military Advocate General Brig. Gen. Avichai Mandelblit to testify before the panel.  Ashkenazi also approved the questioning of General (Res.) Giora Eiland, who headed the IDF’s internal inquiry into the deadly raid”.  This is reported in Haaretz here.

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More on Flotilla fiasco from Netanyahu and from Ehud Barak

Barak Ravid wrote in Haaretz about Prime Minister Netanyahu’s testimony before Israel’s non-IDF commission of inquiry into the Flotilla fiasco that Netanyahu yesterday called a “maritime incident” that: “Prime Minister Benjamin Netanyahu seemed visibly unprepared for his public testimony before the Turkel Committee yesterday – hesitating over key details, evading questions and finally [later] publishing three statements clarifying and even denying what he had said just hours earlier … [The committee is headed by former Supreme Court justice Jacob Turkel.] But while his [Netanyahu’s] opening address, in which he enumerated Hamas’ crimes and Israel’s attempts to persuade the Turkish government to stop the flotilla, went smoothly, the subsequent questions – on issues such as the government’s decision-making process, Israel’s intelligence on the flotilla and Netanyahu’s personal responsibility for the incident – showed no evidence of these preparations. He refused to answer six questions entirely, saying he would do so only at a closed hearing.  And he said he didn’t know the answers to many other questions – such as how much humanitarian aid was entering Gaza before the raid.   But the Turkel Committee’s spokesman, Ofer Leffler, said Netanyahu did answer all six questions in his subsequent closed-door testimony, and had promised to respond in writing to those to which he did not know the answers yesterday”.

Ravid wrote that when asked who decided on the raid, “Netanyahu replied that it was the Israel Defense Forces’ decision”…

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Netanyahu tells Israeli commission that naval blockade of Gaza will continue

Israel’s Prime Minister Benyamin Netanyahu said Monday to Turkel Commission investigating what Netanyahu called the “maritime incident” that occurred when Israeli naval forces boarded the Freedom Flotilla at sea on 31 May that “As part of the effort to prevent the entry of weapons into the Gaza Strip, my government has continued the naval blockade that was imposed by the previous government during ‘Operation Cast Lead’ in January of 2009 as well as continuing the limitations and oversight on the movement of goods at land crossings that was put in place in September 2007 … Our policy, therefore, is intended to maintain the naval blockade which supports the security blockade”.

Netanyahu, who was the first person to testify at the first official session of the Turkel Commission, promised that “During the closed forum [a future event with restricted or no media coverage], I will expand on my statement and explain why none of our diplomatic efforts would have prevented the Marmara’s desire to try to break the blockade”.

The Israeli Prime Minister did note, in today’s statement, that “Given the lack of effective pressure by the Turkish government and the lack of any desire on the part of the flotilla organizers to redirect their ships to alternative ports, none of the diplomatic efforts were effective:
•We tried to prevent the launch of the flotilla at the diplomatic and security levels. We did not succeed.
•We suggested transferring the goods through the Ashdod and El-Arish ports. We did not succeed.
•We held continuous contacts vis-à-vis and with the most senior levels of the Turkish government. We did not succeed” …

Netanyahu pinned this list of Israeli failures on Turkey’s unsuccessful effort [with Brazil] to help work out a deal concerning Iran’s nuclear program: “I must point out that on the 17th of that month [May], the Turkish prime minister met with Iranian president Ahmadinejad and with the Brazilian president to make a joint statement regarding an Iranian nuclear that was opposed by the United States and the other permanent members of the UN Security Council. Turkey thereby strengthened its identification and cooperation with Iran just days before the flotilla”.

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Israeli decision to participated in UN Panel on Freedom Flotilla: "UNprecedented"

Given Israel’s new-found appreciation of international law, it should not be too surprising: “Prime Minister Benjamin Netanyahu today (Monday), 2.8.10, informed UN Secretary-General Ban Ki-Moon that Israel would participate in the panel that he is establishing in the wake of the 31.5.10 events regarding the flotilla”, the Israeli Prime Minister’s office has announced.

According to the statement, Netanyahu said that “Israel has nothing to hide. The opposite is true. It is in the national interest of the State of Israel to ensure that the factual truth of the overall flotilla events comes to light throughout the world and this is exactly the principle that we are advancing.”

The Prime Minister consulted his “Security Cabinet” — a “seven-member ministerial forum” — before the decision was announced,  and, the statement said, “diplomatic contacts … have been held in recent weeks in order to ensure that this was indeed a panel with a balanced and fair written mandate”.

Haaretz’s Barak Raviv wrote that This is the first time Israel has ever agreed to participate in a UN probe regarding the Israel Defense Forces … UN Secretary General Ban officially announced Israel’s participation in the international inquiry, calling it an ‘unprecedented development’ … Ban also announced those who are planned to head the UN inquiry, saying the ‘panel will be led by eminent personalities: former Prime Minister of New Zealand, Mr. Geoffrey Palmer as Chair and the outgoing President of Colombia, Mr. Alvaro Uribe as Vice-Chair. The Panel will have two additional members, one each from Israel and Turkey. It will begin its work on 10 August and submit the first progress report by mid September’.”

Ban reportedly added that he hoped “the Panel will fulfill its mandate based on the Presidential Statement of the Security Council and with the fullest cooperation of the relevant national authorities of the two countries … It will also give me recommendations for the prevention of similar incidents in the future”… This is reported in Haaretz here.

Libyan-chartered ship docks in El-Arish

The New York Times is reporting from Cairo that the port director in El Arish says the Libyan-chartered Amalthea, docked at about 1 p.m today. and was expected to immediately begin unloading its cargo.

The NYTimes further reports, a propos continued speculation about some kind of “deal” or other: that “Seif al-Islam Qaddafi, son of Libyan leader. Muammar Qaddafi, said in an interview with Ash-Sharq al-Awsat “that the Israelis ‘agreed to let Libya spend $50 million’ through the United Nations Relief and Works Agency for Palestine Refugees [UNRWA]. The money, he said, would be used ‘to support the Palestinians and for reconstruction, including allowing construction materials and prefabricated homes’ … A spokesman for the United Nations agency did not immediately comment”. This report is posted here.

This is all a bit mysterious, because Libya was always free to contribute as much as it liked to UNRWA, for the Palestinians, whenever it liked (though it probably did not do so, previously, up until now…)

Juan Cole has also posted on his blog, Informed Comment, an item reporting that “al-Quds al-Arabi reports in Arabic that the Qadhafi Foundation is maintaining that it extracted several concessions from Israel in return for diverting to the Egyptian port, including a pledge that travel abroad for treatment of ill Palestinians in Gaza would be expedited and reconstruction projects would be allowed to go forward (one in 8 Palestinians in Gaza had their homes destroyed in the 2008-2009 Israeli assault on the Strip.)”… This, published here, is also a bit mysterious…

Larry Derfner wrote today in his column for the Jerusalem Post that “Given the way Israel behaves now, it’s pretty sad to remember that it was envisioned as a country where the Jews ran their own national affairs – but nobody else’s. Now it’s not enough for Israel to have its own coast, its own territorial waters, its own airspace – no, we’ve got to control Gaza’s coast, Gaza’s territorial waters, Gaza’s airspace, too. The Gaza Strip is part of our sphere of influence. Let any Turkish ship, Libyan ship or any other ship we don’t like try to sail into Gaza, and they’ll get a taste of gunboat diplomacy, Israeli-style” …

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Libyan-chartered ship is now moored at El-Arish

The drama is over.

Just as the plan indicated, the Amalthea, a Libyan-chartered Greek cargo ship carrying food and medicine destined for Gaza went to the Egyptian port of El-Arish, on the northern coast of the Sinai peninsula, east of the Suez Canal, and not very far from the Rafah crossing into the Gaza Strip.

The Amalthea is one of seven ships now moored off El-Arish, and it is expected to dock imminently.

However, until the last minute, officials of the Gadhafi charity which chartered the ship insisted that their destination was Gaza.

Haaretz has reported that for the final day of its trip, “Israeli naval vessels were shadowing and monitoring the Amalthea, which had been immobile for much of the night due to engine trouble. ‘We are not surrounding; we are following’, a military spokeswoman in Tel Aviv said … An Al-Jazeera correspondent aboard the ship said two of the Israeli ships were on the port side of the vessel, to prevent it from changing direction and sailing to Gaza”.

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Tracking the Libyan-chartered boat

A Libyan-chartered boat, loaded with 2,000 tons of food and medical supplies destined for Gaza, was immobile for several hours earlier Tuesday in the waters of the Mediterranean off Port Said, Egypt. It began to move again around 5 pm.

It could be headed to the Egyptian port of El-Arish, as it has apparently official listed as its destination, or to Israel’s Ashdod Port — or even to Gaza.

People associated either with the ship or with the Libyan aid group that chartered it have sounded accommodating and non-confrontational for days. Yet, as some Palestinians [in Gaza and in Jerusalem] — and others — encourage the ship to head to Gaza in defiance of Israel’s formal naval blockade, Israeli military officials have raised their tone as well.

UPDATE: The IDF spokesperson has just sent a tweet assuring that “Contrary to media reports, no ultimatum was issued to crew of Libyan boat by Israeli Navy … Rather, the Navy had emphasized that the boat could not be allowed to enter Gaza Port” A few hours earlier, the IDF sent these two tweets: “Israeli Navy has begun preparations to stop Libyan boat in case boat persists in trying to enter maritime closure area”. and “The Israeli Navy has initiated communication with the Libyan ship”. It is still not clear, but the boat appears to be turning slightly in the direction of El-Arish.

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Israeli international law expert discusses naval blockade of Gaza

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.

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