Analysis: The Blockade on Gaza

, June 24, 2010

Imagine a terrorist organization, designated as such by the EU and the U.S., violently seized control of an area, and smuggled in vast quantities of heavy weaponry via both land and sea.  Now imagine that this terrorist organization decided to wage a violent campaign against a neighboring state, by bombing its civilians – including women, children and the elderly – with over 10,000 rockets.  Then imagine that over 500 protesters, the majority of whom belong to a radical Islamic organization known to fund and support terrorist groups, wanted to join forces with this terrorist regime.

It would seem illogical that international law would not provide the tools to confront such a rogue terrorist enterprise.  And indeed, the body of international law that applies to armed conflict does not remain silent on these matters, and provides states with legitimate, legal measures that they can employ.

The scenario described above is the very situation in which the State of Israel currently finds itself.  In 2005, Israel implemented its “disengagement plan,” completely withdrawing from the Gaza Strip, leaving no Israeli military or civilian presence. 

While Israel hoped that disengagement would serve as a springboard for improving relations with its neighbors, the very opposite occurred: Hamas, an EU and U.S. designated terrorist organization,  took control of Gaza and stepped up rocket attacks against Israeli civilians. To date, Hamas has fired over 10,000 rockets at civilian targets in Israel proper. The heavy armament used in these attacks is smuggled into Gaza via land and sea,and one need not look any further than the Karin A episode, in which the Israeli navy intercepted over 50 tons of advanced weaponry headed towards the Hamas regime in Gaza, for proof of such maritime smuggling.

Israel, as a democratic State, looks for legal tools to curb such smuggling and respond to Hamas’ terrorist attacks against its citizens.  One of the tools available under international law is the maritime blockade.  Israel, finding itself in a state of armed conflict with Hamas, has opted to employ this legal measure.

A naval blockade is a recognized and legitimate tool under international law.  Indeed, naval blockades have been imposed throughout the 20th century, and the naval manuals of several western countries, including the US and UK, , recognize the maritime blockade as an effective, legal measure available in the face of armed conflict with a terrorist entity.

As set forth in the San Remo Manual on International Law Applicable to Armed Conflict at Sea, in order for a maritime blockade to be valid, several conditions must be met.  These include due notification of the blockade and its location; the effective and impartial enforcement of the blockade; the allowance for access to the ports and coasts of neutral states; and the creation of alternative routes for the provision of humanitarian assistance to civilians.

Israel has met its obligations under international law by providing due notice of the existence of the blockade  and its exact coordinates through professional maritime channels, government websites and diplomatic channels;  it has effectively and impartially enforced the blockade since its implementation; it has not impeded access to the ports or coasts of neutral states; and it has provided an alternate land corridor for the transfer of humanitarian goods, such that 15,000 tons reach the Gaza Strip weekly.

International law provides not only for the legal implementation of a maritime blockade but also for its legal enforcement. Under international law, as reflected in the above mentioned San Remo Manual, any vessel that breaches or attempts to breach a blockade, irrespective of the cargo on board, or the vessel’s nature, enemy or civilian, may be subject to legal measures to enforce the blockade.  These legal measures include capture of, or even attack upon, the vessel. Enforcement measures may be undertaken at a distance from the naval blockade and in international waters if there are reasonable grounds to believe that a vessel intends to violate the blockade.   The U.S. Naval Handbook notes that an attempted breach of blockade occurs from the time a vessel leaves a port with the intention of breaching the blockade.

Let us return to our initial scenario – on May 30th, six ships carrying over 500 protesters, including hundreds of members of the Insani Yardim Vakfi (IHH) – a radical Islamic organization that funds and supports terrorist groups, including Hamas – set sail with the clear intent to violate the legal maritime blockade in effect off the coast of Gaza. Many of these radical activists came armed with light weaponry – knives and bats – and noted in interviews on Turkish television on the eve of their voyage that should Israel attempt to enforce its naval blockade, it would be met with “fierce opposition.” As one protester put it, “This mission is not about delivering humanitarian supplies, it’s about breaking Israel’s siege.” (Greta Berlin, AFP, 27 May ’10).  These activists were warned of the blockade several times, in real time, by Israeli naval personnel, and were told that if the ships did not change course, legal enforcement measures would be undertaken. These activists were well aware of Israel’s right and intention to enforce the blockade. 

Israel hoped to enforce the blockade in a peaceful and orderly manner, as with past successful missions to enforce the blockade.  On  the ships in the May 30th flotilla where no violent resistance was encountered, Israeli enforcement measures were peacefully implemented.  However, on the ship where Israeli personnel were met with violence, they were, unfortunately, forced to act in self defense.

Terrorist organizations constantly invent new methods of warfare.  The challenge facing Israel and other Western democracies is how, within the confines of the law, to fight terrorists who unabashedly ignore the law. Israel’s recent blockade enforcement efforts stand the test of international law. 

Irit Kohn

Irit Kohn, Esq., joined the Israel Ministry of Justice in 1989 and from 1995 to 2005 was director of its International Affairs Department. In that position she was involved in one of the first cases involving universal jurisdiction as head of the legal team defending Prime Minister Sharon in Belgium in 2001. In 2011, she was elected President of the International Association of Jewish Lawyers and Jurists.