The Electronic Intifada 6 June 2010
In the aftermath of Israel’s 31 May attack on the Freedom Flotilla that left nine dead and scores wounded, each side claimed their actions were protected under international law. While the Israelis cited self-defense, and the Flotilla passengers reiterated that they were peace activists on a humanitarian mission that were attacked in international waters where neither Israel (nor any other state) has any claim. This has caused some confusion, especially in light of the extensive airtime given to Israeli officials by most mainstream media outlets. However, it must be known that under established rules of international law, Israel had no right to attack a peaceful convoy on international waters; and indeed such an attack constitutes an international crime or even an act of war.
The Israeli argument is predicated on the assumption that the blockade of Gaza is justified, that “there is no humanitarian crisis in Gaza,” and therefore, as Israel is at war with Hamas, intercepting the Flotilla was justified. What is cited is the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, which under Section II states that a blockade is a legitimate method of warfare. In an Al-Jazeera interview, Mark Regev, the spokesman for Israeli Prime Minister Benjamin Netanyahu, stated that “Israel is at war with Hamas.” Based on a very selective reading of the San Remo Manual, Israel considered the Flotilla to be breaching the blockade, and under Article 98 is therefore entitled to seize the ships. But is it really as clear-cut?
To know that, we must ascertain whether the blockade was indeed a legitimate means, as Israel states, to defend itself against Hamas. Under Article 102 of the San Remo Manual, it states that a blockade is prohibited if the damage to the civilian population is excessive in relation to the military advantage. A 2009 report by the UN Human Rights Council showed that Israel’s restrictions of both imports to and exports from Gaza were unclear and often inconsistent, denying the civilian population adequate nutrition. Such arbitrary items that were barred include sage, cardamom, ginger, jam, fresh meat, fishing rods, among other items. Although there is much aid available, Israel was not allowing a sufficient amount to enter Gaza. This amounts to a breach of Article 33 of the Fourth Geneva Convention, which prohibits collective punishment. Nothing could be clearer than Israel’s Security Cabinet’s declaration in 2007 that as it viewed the whole of Gaza as “hostile territory,” they would restrict the flow of people and goods, effectively harming the livelihoods of ordinary civilians. In March 2009, 65 percent of the population was living under the poverty line, with 37 percent living in extreme poverty. The UN report states that “In so far as it constitutes collective punishment of all persons in Gaza, including the civilian population, the blockade is itself a violation of international humanitarian law.”
Considering that the blockade itself is illegal, and indeed the UN has asked Israel to lift the blockade, the San Remo Manual is not applicable since it only applies to legal blockades. Only if a blockade is legal does Article 103 of the Manual become effective, which states that if the civilian population of the blockaded territory is inadequately provided for, the blockading party must allow free passage of foodstuffs and essential goods, but has a right to inspect them. The reality of the matter is that Israeli is imposing the insufferable conditions.
In actual fact, since Israel is exercising “effective control” over Gaza, it is still the occupying power. Article 42 of the 1907 Hague Regulations states that “Territory is considered occupied when it is actually placed under the authority of the hostile army” and this imposes on Israel several responsibilities towards the civilian population, which as we have seen above, have not been fulfilled. Article 55 of the Geneva Conventions specifically provides that the occupying power must provide food and medical supplies at an adequate level, and reports by both the UN and several human rights organizations have shown this not to be the case. Grave breaches of the Fourth Geneva Conventions are war crimes. Under Article 146 of the Fourth Geneva Conventions each state “shall bring such persons [who committed grave breaches of the convention], regardless of their nationality, before its own courts.” Thus, those responsible in the Israeli government are liable to be tried for war crimes in any state.
Israel invoked the right to self-defense against what it said was attacks by passengers of the ships. However, it was Israel that intercepted the ship on the high seas. Under Article 87 of the UN Convention on the Law of the Sea, the high seas are open to all states and have certain freedoms, including the freedom of navigation. By intercepting the ship, Israel has breached this freedom. A war ship may only intercept a merchant vessel on the high seas if that vessel is engaged in piracy, the slave trade or is the same nationality as the warship (under the Law of the Sea as well as the Geneva High Seas Convention). In this case, there was no reasonable basis for this suspicion, and Israel did not claim any of these exceptions.
Furthermore, under the Law of the Sea, the flag state is to enforce its municipal laws as well as international law on its ship. That is, the ship is an extension of the flag state’s territory. In the case of the Turkish ship, in which Israeli forces forcefully entered, killed and wounded civilians, those Israelis are subject to Turkish law and are liable to be tried in a Turkish court for their actions. The civilians on the boat were entitled to self-defense limited by the principle of proportionality. As has been reported, the Israelis boarded the ship with firearms bearing live ammunition as well as anti-riot weapons and ordinance, while the civilians used sharp objects and sticks. What we know from the eye-witness accounts on board the Mavi Marmara was that a passenger was shot first.
The case would be simpler had it been Israeli civilians, or at least an unauthorized attack by Israeli military personnel. In actual fact, the matter is more complicated because this was an authorized action by the Israeli military, thus rendering it an act of war on Turkey. Even in a situation of war, civilians are not to be attacked. The Flotilla was clearly carrying civilians who were not carrying weapons (and this was confirmed before the ships left port and after the cargo was inspected by Israel) from the ages of one year old to 89 years old. Under Article 6 of the Charter Provisions of the Nuremburg Trials, murder or any other inhumane act against a civilian population is tantamount to crimes against humanity.
Israel not only has to answer to Turkey for attacking its vessel, but as Israel is Party to the 1988 International Maritime Organization’s Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation, it has breached Article 3 which prohibits seizing a ship by force or any other form of intimidation, or to commit any acts of violence against the people on the ship.
What can be concluded is that Israel’s reliance on the Articles in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea to defend its actions against the Flotilla are invalidated by the fact that the blockade itself is illegal. In that case, Israel’s use of force against the Turkish vessel, the murder of civilians and its seizure of the other vessels constitute breaches of several Conventions to which Israel is a party to, a possible act of war against Turkey as well as crimes against humanity and war crimes, to which Israel must be held accountable.
Jinan Bastaki is a Law graduate of the London School of Economics. She has been active in the LSESU Palestine Society and is now residing in the United Arab Emirates. She is currently an LLM candidate at the University of California, Berkeley.
