On the blockade of Gaza and the Flotilla Raid
So I’ve been doing copious amounts of research into all of this over the past week, and thought I’d put it down here for all of you as well as for my own recollection.
What follows is notes I’ve made on the legality of the blockade of Gaza, as well as the legal issues of the flotilla raid.
- How legal was the Flotilla raid?
- Is the blockade of Gaza legal?
- So now we’ve established that Israel had the right to invade the flotilla if the blockade was legal, and the UN never condemned the blockade. So why is it illegal?
- But the blockade could be illegal anyway
- So is it colletive punishment?
- Excuses for blockade
- But the blockade was already in place **BEFORE** Hamas was elected
- Hamas was sanctioned by the international community – despite being elected in fair and monitored elections
- But Hamas doesn’t recognize Israel! How can Israel negotiate with a party that doesn’t recognize its right to exist!?
- Well what about Gilad Shalit?! Surely his kidnapping is illegal?Well what about Hamas’ terrorist actions and its illegal takeover of Gaza during the Civil War?
- Chronology of events
- Lastly, a final note…
How legal was the Flotilla raid?
So let’s look at the Flotilla raid alone, and the blockade later.
First of all, supporters of Israel argue that under the San Remo manual on Maritime Law, the raid was perfectly legal.
This is what is said in Article 67(a), Section 5:
67. Merchant vessels flying the flag of neutral States may not be attacked unless they:
(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;
This tells us that it is actually legal for a country like Israel to stop merchant vessels in international waters if they are attempting to resist a blockade.
However, the blockade must be legal.
This brings us to the blockade:
Is the blockade of Gaza legal?
At first, I was under the impression that a blockade is only legal if ratified by the UN Security Council under Article 42 of the UN Charter.
It states that:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
However, pro-Israeli online propagandists brought it to my attention that it was a misreading of Article 42. Article 42 gives the UN power to create blockades and denounce them as illegal – but the UN Security Council never passed a resolution condemning the blockade (thanks USA). The best they could do was a few statements by the Secretary General Ban Ki-Moon and a “Presidential Statement” condemning the embargo. The Goldstone report on the war in Gaza also suggested it is a war crime.
See here for UN statements on the blockade.
See here for the Presidential Statement.
Also, the 1909 Declaration Concerning the Laws of Naval War (the London Declaration), also makes it clear that blockades are an acceptable form of warfare, when two belligerent nations are at war.
So now we’ve established that Israel had the right to invade the flotilla if the blockade was legal, and the UN never condemned the blockade. So why is it illegal?
The problem with this, is that these measures make acceptable blockades amongst nations at war. They specifically state that nations must be in International Armed Conflict (IAC).
The reason this creates complexity in the matter, is because Israel’s official position is that they are not in armed conflict with the Palestinians, nor with Gaza specifically. The reason they do not want to be in armed conflict, is because that would mean they have to abide by the Geneva Conventions.
Kevin John Heller of OpinioJuris says it well:
If the “cost” of the blockade is formally recognizing Hamas as a belligerent, maintaining the blockade would mean recognizing Hamas fighters as privileged combatants. (Just as the armed forces of any state are privileged combatants.) That would be fundamentally unacceptable to Israel, because Hamas fighters would then be entitled to attack Israeli combatants and would have to be treated as POWs upon capture.
Craig Murray, former British Ambassador, and an Honorary Research Fellow at the University of Lancaster School of Law, and head of the Foreign Office Maritime Section also puts it well:
Israeli apologists have gone on to say they are in a state of armed conflict with Gaza.
Really? In that case, why do we continually hear Israeli complaints about rockets fired from Gaza into Israel? If it is the formal Israeli position that it is in a state of armed conflict with Gaza, then Gaza has every right to attack Israel with rockets.
But in fact, plainly to the whole world, the nature and frequency of Israeli complaints about rocket attacks gives evidence that Israel does not in fact believe that a situation of armed conflict exists.
Secondly, if Israel wishes to claim it is in a state of armed conflict with Gaza, then it must treat all of its Gazan prisoners as prisoners of war entitled to the protections of the Geneva Convention. If you are in a formal state of armed conflict, you cannot categorise your opponents as terrorists.
The problem gets even more confusing, when you consider that the whole thing is considered an external arms conflict by the UN Security Council. They’ve reaffirmed this as recently as 2001 in United Nations Security Council Resolution 466.
But Israel clearly does not consider itself to be in armed conflict, because that would make the rockets fired by Hamas an acceptable resistance to an occupation, as well as the kidnapping of Gilad Shalit.
So either Israel is in armed conflict, and thus an illegal occupying power violating human rights as well as the Geneva Convention.
Or Israel is not in armed conflict, as they claim, making the blockade illegal.
But the blockade could be illegal anyway
So even if that little conundrum doesn’t convince you that the blockade is illegal, there is the little problem of human rights.
First of all, the San Remo Manual also states in Paragraph 102 that it is illegal to apply a blockade on an entire population, according to Craig Murrey, and according to Dr. Ben Saul.
Secondly, collective punishment is illegal according to Article 33 of the Geneva Convention – which Israel has ratified.
So is it collective punishment?
This site has an excellent write up on why the blockade is definitely causing a humanitarian crisis in Gaza.
I highly recommend everyone gives it a read, but I’ll copy/paste the most important facts:
The amount of goods allowed into Gaza by Israel falls far short of the minimum required to avoid malnutrition, poverty, and prevent or treat a variety of illnesses. According to Amnesty International’s recently-released annual report, the siege has resulted in “mass unemployment, extreme poverty, food insecurity and food price rises caused by shortages.” Consider the following statistics:
- 61 percent of households face food insecurity, defined as inadequate physical, social or economic access to food, and rely on assistance from aid agencies. An additional 16.2 percent are considered vulnerable to food insecurity. 
- 65 percent of the food insecure are children under the age of 18. 
- Unemployment is at 40 percent 
- 10 percent of children under five are stunted (low height for age, usually attributed to a chronic lack of protein and micronutrients, including iron and essential vitamins), a steadily increasing trend over recent years, according to UNICEF. 
- More than 10 percent of children are chronically malnourished, according to the World Health Organization, a significant increase since siege began.
- The number of children under five suffering from acute malnutrition nearly doubled between 2006 and 2008 from 1.4 to 2.4 percent, according to UNICEF.
- 65 percent of children aged 9-12 months, and 35 percent of pregnant women are anemic. 
- According to a recent poverty survey conducted by the United Nations Relief and Works Agency, the number of Palestinian refugees completely unable to secure access to food and lacking the means to purchase even the most basic items, such as soap, school stationery and safe drinking water (‘abject poverty’) has tripled since the imposition of the blockade in June 2007
- A majority of Gazans experience rolling blackouts of up to 12 hours a day, every day as a result of a chronic shortfall in electricity production resulting from the blockade 
- Due to insufficient wastewater treatment capacity, Gaza’s water authorities release 60-80 million liters a day of raw and partially treated sewage into the Mediterranean Sea, in order to avoid sewage flooding residential areas.
- Water supply for domestic use is insufficient, raising hygiene and health concerns. In order to pump water to households, the water wells must receive electricity in synchronization with electricity supply to the same households. Almost all the households receive water for only 5-7 hours a day.
Excuses for blockade
I wanted to include this section because I know most people have no idea what the facts are on the blockade, and are basing their judgments mostly on what they hear repeated on TV.
Israel’s main arguments for the blockade are:
- that it is trying to turn the people of Gaza against Hamas
- in reaction to Hamas’ firing of rockets into Israel, and to stop this
- to protest Hamas’ refusal to recognize Israel
- to have Gilad Shalit returned.
But the blockade was already in place **BEFORE** Hamas was elected
Most people don’t know that Gaza has been under economic blockade since the year 2000/2001, when Israel placed an embargo on Gaza after the 2nd Intifada.
According to the UN Conference on Trade and Development (UNCTAD), in January 2003
‘(T)he Israeli **blockade** and closures over the past two years had pushed the Palestinian economy into such a stage of ‘de-development’ that as much as US $2.4 billion had been drained out of the economy of the West Bank and the Gaza Strip’
Taken from here
This makes it obvious that the blockade started much earlier than Hamas’ election in January 2006.
Also, according to Hamas spokesman Osama Hamdan, Israel opened Gaza’s borders in 2006 for 70 days out of the entire year. That is a blockade whether you like it or not, and it means Hamas was elected into a blockade, and never given a chance to show how well they can govern the land.
Hamas was sanctioned by the international community – despite being elected in fair and monitored elections
According to wikipedia:
The 2006–2007 economic sanctions against the Palestinian National Authority were economic sanctions imposed by Israel and the Quartet on the Middle East against the Palestinian National Authority and the Palestinian territories following the January 2006 legislative elections that democratically brought Hamas to power.
How is it possible that the international community would agree to sanction a fairly elected government?? Was it a sham election? Was it fair?
After polls closed, officials and observers called the vote “peaceful”; Edward McMillan-Scott, the British Conservative head of the European Parliament’s monitoring team described the polls as “extremely professional, in line with international standards, free, transparent and without violence”. His colleague, Italian Communist MEP Luisa Morgantini said there was “a very professional attitude, competence and respect for the rules.”
Taken from here
So I find it staggering to believe that the international community, and especially the US, with its militant belief in democracy, would vote to sanction a nation based on the fact that they don’t agree with their democratically elected party.
These two facts show that the blockade had nothing to do with Hamas, nor with Hamas’ firing of rockets.
But Hamas doesn’t recognize Israel! How can Israel negotiate with a party that doesn’t recognize its right to exist!?
This is probably the most absurd and repulsive things repeated on TV worldwide. It is taken to be fact by pretty much everyone.
The problem is that Hamas has recognized Israel – according to its 1967 borders outlined by UN Sec. Council Resolution 242
Well what about Gilad Shalit?! Surely his kidnapping is illegal?
Well as pointed out above in the blockade section, Israel does not consider itself to be at war with Palestine, and thus its entire blockade of Gaza is illegal. Hamas thus has full right to resist this illegal act by a foreign nation.
If Israel changes its tune and decides it is in IAC with Hamas, then the kidnapping of Shalit was absolutely legal and just, and Israel must instead comply with the Geneva Conventions and treat Palestinian prisoners as POWs.
Well what about Hamas’ terrorist actions and its illegal takeover of Gaza during the Civil War?
Despite popular belief, Hamas had full right to initiate an armed conflict with Fatah, although it wasn’t even the party that initiated the war.
This is because Fatah refused to relinquish control after Hamas’ win in the 2006 elections. It was pushed by the US and Israel not to do so:
Over 2006 and 2007, the United States supplied guns, ammunition, and training to Palestinian Fatah activists to take on Hamas in the streets of Gaza and the West Bank in a U.S. effort that cost $59 million and covertly persuaded Arab allies to supply more funding. A large number of Fatah activists were trained and “graduated” from two West Bank camps while Jordan and Egypt trained two Fatah battalions, one of which was deployed to Gaza in May.
According to Vanity Fair, in 2006 the United States initiated a “covert initiative, approved by Bush and implemented by Secretary of State Condoleezza Rice and Deputy National Security Adviser Elliott Abrams, to provoke a Palestinian civil war.”
Taken from here
Chronology of events:
So Hamas won the elections in 2006.
They were immediately sanctioned by the international community despite winning the elections fairly.
Fatah refused to relinquish control.
Fatah uses it’s newly acquired weapons from the US and Israel to fight Hamas’ legitimate attempt to take control of the government it was elected into.
This all happened from March to December of 2006.
This is all taken from here
Also remember, the blockade of Gaza was in place during all of this time!
Hamas was thus fully in the right to attack Fatah, and fully in the right to resist an illegal occupation and illegal blockade.
Lastly, a final note…
Israel is an occupying force according to Resolution 242 passed in 1967. That means that:
a) Israel has been violating UN resolutions for almost 50 years.
b) Israel has been violating the Geneva Conventions for decades.
c) Palestinians (including Hamas) have the legitimate right to resist this occupation.
My own observation is that every dialogue about Hamas or Israel seems to regard the Gaza Strip as a separate entity. Everyone is assuming that the Gaza Strip is somehow independent of the West Bank, and should thus be treated differently just because of the political troubles between the two regions.
This is totally false. The Gaza Strip is part of one nation, and one land, attributed to a Palestinian nation-state according to Resolution 181 passed in 1948.
That fact makes the entire question of who is in the right and who is in the wrong entirely redundant. Who cares if Israel is occupying the Gaza Strip or not?? Israel is occupying Palestine. Who cares if the blockade of Gaza is legal or not, Gaza is part of a larger Palestinian state, that Israel has been occupying long before any of these recent events.
So to demand the Palestinians to stop firing rockets into Israel is absolutely illogical.
To claim that Hamas should stop resisting Israel before a peace treaty can be made is absolutely illogical.
This is because Palestinian land is occupied, and has been occupied for 60 years. That is the first transgression. All fighting following that event falls under legitimate resistance against an occupying force.
No one condemned the Finns for resisting the Soviets.
No one condemned the South Koreans for resisting the North Koreans.
No one condemned the French for resisting the Germans.
So why does everyone condemn the Palestinians for resisting the Israelis??
If Mexico attacked Canada, and the UN passed a resolution condemning it and demanding Mexico withdraw from Canadian land, Mexico can’t then occupy that land for 60 years and demand that Canadians stop resisting before they withdraw. That is inherently illogical, and an absolutely twisted worldview.
It seems that the Security Council did made the blockade illegal. Back in UNSCR 1860, passed in January 2009. It called for:
unimpeded provision through Gaza of food, fuel and medical treatment
I take that as sufficient evidence that the UN Security Council has declared the blockade illegal, which makes all the rest of the haggling going on furiously in the internet redundant. The blockade is illegal – and so was the flotilla raid.
Dr. Ben Saul writes an article stating that flotilla raid was illegal because the blockade is illegal.
He uses the collective punishment argument, citing Paragraph 102 of the San Remo Manual.
The article is of interest to us because he mentions some specific laws that Israel violated if you take the blockade to be illegal.
Thirdly, it violated the fundamental principle of freedom of navigation on the high seas, codified in the UN Convention on the Law of the Sea of 1982.
Fourthly, under international human rights law, the apprehension and detention of those on board the vessels likely amounts to arbitrary, unlawful detention, contrary to article 9 of the International Covenant on Civil and Political Rights, since there is [no?] lawful basis for detention.
Fifthly, if Israeli forces killed people, they may not only have infringed the human right to life, but they may also have committed serious international crimes. Under article 3 of the Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988, it is an international crime for any person to seize or exercise control over a ship by force, and also a crime to injure or kill any person in the process.