Legal Issues Raised by Israel’s Blockade of Gaza (UPDATED)

Legal Issues Raised by Israel’s Blockade of Gaza (UPDATED)

In this post I simply want to direct readers to places where they can read about the legal issues raised by the Israeli blockade of Gaza and about Israel’s attempt to enforce that blockade earlier this week. I am sure we will return to these matters on EJIL:Talk! in the next few days. Douglas Guilfoyle, who has written several posts on this blog on issues relating to maritime interdiction has a piece in the Times (of London) in which he states that:

International law tells us that states may create and enforce blockades during an armed conflict, but it also tells us that those blockades must meet humanitarian standards to be lawful.    . . .

The law or armed conflict requires that blockading states allow aid through to the civilian population; however, the blockading state may control the channel through which aid is delivered, and that is what Israel has been doing. The authority to intercept vessels and control aid deliveries, however, is available only in a lawful blockade. To be lawful, a blockade must not be implemented where the damage to the civilian population is excessive in relation to the concrete and direct military advantage anticipated from the blockade, and this is where Israel’s legal position is open to question.

He then goes on to examine the legality of the operation to enforce the blockade and considers whether the Israeli soldiers acted lawfully in self-defence – a matter which may prove to be as important  and worthy of analysis as the legality of the blockade. Douglas then turns to and categorically rejects the charge that the operation was an act of piracy, as does Julian Ku at Opinio Juris.  Douglas has also given two interviews on the BBC which are worth listening to. See here and also here (around the 19 min mark). Afua Hirsch, Legal Correspondent at the Guardian also has a piece considering the legal issues here.

Also at Opinio Juris, Kevin Jon Heller has an excellent post in which he suggests that the legality of the blockade depends on the type of armed conflict is Israel is involved in in Gaza. He accepts that if Israel is involved in an international armed conflict (IAC) in Gaza then it has the right to blockade Gaza. However, he questions whether blockades are lawful in non-international armed conflicts. So:

Israel’s defense of the blockade thus appears to create a serious dilemma for it.  Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas.  And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza.  Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas.  But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention.

 Kevin’s post raises what I think is a very important question – whether Israeli is still in belligerent occupation of Gaza. Marko has dealt with this issue on the blog (see here). If Israel is in belligerent occupation then it has obligations to permit humanitarian relief. It would not simply be a matter of the law of blockade (which Douglas discusses) or about the prohibition of starvation or methods of warfare which cause damage to the civilian population that are excessive in relation to the miltary aim pursued. In the case of occupation, the Occupying Power has a more direct obligation. In particular, Art. 59 of the Fourth Geneva Convention (GCIV)

If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.

Such schemes, which may be undertaken either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing.

All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection.

A Power granting free passage to consignments on their way to territory occupied by an adverse Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.

The ICRC commentary to Art. 59 states that:

The obligation on the Occupying Power to accept such relief is unconditional. In all cases where occupied territory is inadequately supplied the Occupying Power is bound to accept relief supplies destined for the population.

Whether or not Israel is in breach of its obligations under this provision would depend on whether or not the population is inadequately supplied (as asserted by the UN and denied by Israel). Of course, even if it were, Israel would still then have the right to search and regulate the passage of the relief supplies. Israel claims (see Press Release here) that:

The organizers of the flotilla scorned Israel’s efforts to prevent the vessels from reaching Gaza, via diplomatic dialogue, announcements in advance and declarations over the radio. The organizers of the flotilla similarly rejected Israel’s offer to transfer the aid on board directly to Gaza via Israel, thereby attesting that their goal was to “break the blockade.”

Assuming this was correct, Israel would be right to prevent the attempt to deliver the aid but that would just take us back to the question of the level of violence used in carrying out the operation (on which see Douglas)!

UPDATE: Readers may be interested in looking at material from the Israeli government on legal aspects of the blockade and the interception of the flotilla. The Israeli Defence Forces Military Advocate General’s website has some information on legal aspects regarding the interception of the Gaza flotilla (see here). Also, the Israeli Ministry of Foreign Affairs has legal analysis here.