International legal implications of Israel's attack on the Gaza aid flotilla.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 3:00 p.m., Friday, March 25, by its moderator, Naomi Roht-Arriaza of the University of California, Hastings College of the Law, who introduced the panelists: Sari Bashi of Gisha-Legal Center for Freedom of Movement; Daoud L. Khairallah of Georgetown University Law Center; Sarah Weiss Ma'udi of the Office of the Legal Adviser, Ministry of Foreign Affairs of Israel; and Naz Modirzadeh of the Harvard Program on Humanitarian Policy and Conflict Research.

REMARKS BY SARI BASHI *

Let me start with the context of the Gaza aid flotilla incident, which we believe is crucial to understanding the Israeli maritime closure of Gaza, now in place for 44 years.

HISTORY

Since the Israeli occupation of Gaza in 1967, Israel has prevented use of Gaza's territorial waters for movement of persons or goods. The Oslo Accords signed in the 1990s contemplated permitting fishing up to 20 nautical miles from Gaza's coast, but in reality fishing is only permitted for up to 3-6 miles from the coast. A deep water seaport was to be built by agreement, and construction began in 2000, but in 2001 Israel bombed the construction site and has not permitted reconstruction to take place.

In 2005, Israel removed civilian settlers and its permanent ground troop presence from Gaza. Israel claimed an end to the occupation of Gaza and, consequently, an end to Israeli responsibility over Gaza. Notwithstanding the withdrawal, I believe that the law of occupation continues to apply in Gaza because of continued Israeli control, and Gisha will issue a position paper to that effect later this year.

Even after 2005, Israel continued to prevent access to and from Gaza via the sea. It described the source of such exercise of authority generally as a different body of law--the law of armed conflict.

Until 2007, Israel's policy of allowing goods to enter and leave Gaza by land was reportedly a policy of free access, subject only to restrictions stemming from security needs. Human rights groups often disagreed with this characterization, alleging that closures of the crossings were designed to apply pressure on the population in Gaza in response to political developments or attacks by armed groups in Gaza on Israeli civilians or soldiers.

Closure Policy as Economic Warfare

In 2007, after the Hamas movement took over internal control of Gaza, Israel declared a policy of "economic warfare," seeking to paralyze the economy in order to "weaken Hamas." Israel said it would only permit the entrance of goods "essential to the survival of the civilian population."

Remarks by senior security officials reveal a direct relationship between the behavior of militants or political actors--including rocket fire on Israeli civilians--and permission for civilians in Gaza to receive basic goods. At various points, crossings were closed or truckloads of goods were blocked following escalations of violence.

The lists of items permitted or banned show a policy designed to prevent economic development. So, for example, table salt was permitted into Gaza as a humanitarian consumption item, but industrial salt was banned because it was an input for local food production, which would allow people in Gaza to engage in production and economic activity. Mathematical formulas (revealed in Gisha's Freedom of Information petition) were set to determine how much food would be allowed into Gaza by security officials, as a way of setting a minimum level to which the food supply could be reduced without causing health problems.

Declaration of Naval Blockade

On January 3, 2009, in the midst of the war in Gaza, Israel declared a "naval blockade" that remains in effect today. What changed with the 2009 declaration of a naval blockade?

Before the declaration of the maritime closure, Israel was preventing ships from entering or leaving Gaza, regardless of whether suspicion existed that they might be carrying arms. (Exceptions occurred, however; for example, in August-December 2008, five ships were permitted to reach Gaza's shores.)

After the declaration of the maritime closure, Israel was preventing ships from entering or leaving Gaza, regardless of whether suspicion existed that they might be carrying arms.

Even before the blockade, most countries did not send ships to Gaza anyway because most countries, including the United States (if the CIA world Factbook can be believed), consider Israel to be the occupying power in Gaza, so they respected Israel's ban on travel via the sea, and instead coordinated shipments via land with Israel.

CONCERN ABOUT PICK AND CHOOSE ATTITUDE TOWARD INTERNATIONAL LAW

I believe there are two basic options for considering the legal framework governing the flotilla events, and under each framework, Israel has both rights and obligations. So, either the law of occupation applies to Israel's actions in Gaza, or it does not apply.

Option I

If the law of occupation applies to Israeli actions vis a vis Gaza, then:

(1) the conflict is international (stemming from the 1967 war).

(2) Israel owes obligations to facilitate normal life (under Hague 43, to maintain "public order"), meaning that all civilian goods must be permitted into and out of Gaza in sufficient scope and quantity, subject only to legitimate security restrictions.

(3) Israel may decide, as the occupying power, the avenues by which goods of all kinds (not just humanitarian) can reach Gaza, subject to the requirements of Hague 43; so Israel can decide that no ships will enter Gaza, irrespective of cargo.

(4) the prohibition on collective punishment applies.

(5) a declaration of a naval blockade is not necessary to prevent ships from arriving at Gaza's coast, but it is necessary to stop them in the high seas.

But there is a legal problem with declaring a blockade (i.e., stopping ships in international waters):

(1) the goal of the blockade is also economic, but Israel has the obligation to facilitate, not cripple, Gaza's economy.

(2) it is not clear whether a state can declare a blockade of territorial waters in which the state is exercising effective control. This would be similar to Israel declaring a blockade of its own Ashdod port.

(3) the fact of control may be relevant to proportionality. Israel has effective control in Gaza's waters and on its coasts, so it is not clear whether Israel is justified in stopping ships on the high seas.

Conclusions

If Gaza is occupied territory, then Israel can prevent all ships from entering Gaza, irrespective of what they are carrying. But it must allow civilian goods to enter and leave through other avenues, commensurate with the obligation to allow normal life, economic activity, and so on.

If Gaza is occupied territory, Israel can still exercise its belligerent right to search and visit ships on the high seas, to ensure that they are not carrying weapons to Gaza, but Israel probably cannot interdict ships in international waters that are not carrying weapons--Israel may allow these ships to reach Gaza's territorial waters, and then it may stop them.

Option II

The second option is that the law of occupation does not apply to Israeli actions vis a vis Gaza, and the authority to stop ships stems from the 2009 declaration of a naval blockade. This raises four problems: (1) is it an international armed conflict? (2) Israel was stopping ships even before the naval blockade, and claimed authority to do so; (3) Hamas has not been given belligerent status; and (4) proportionality.

If Gaza is not occupied, declaration of a naval blockade is necessary to prevent ships from arriving at Gaza's coast (beyond the "search and visit" right).

First, doubts arise over whether the conflict is international, if there is no occupation. This is because there is no international border between Gaza and Israel, just the 1949 armistice line.

Second, Israel was preventing ships from reaching Gaza, independent of any suspicion of weapons, even before the declaration of a naval blockade--through what source of authority?

Third, a declaration of a naval blockade implies recognition of a state of belligerency between Israel and armed groups in Gaza, affording the latter the protections of the Geneva Conventions as belligerents. But Israel tries Hamas fighters as criminals and does not recognize them as belligerents.

Fourth, a declaration of naval blockade must have clear military objectives and must be proportional. Restricting purely civilian goods to a humanitarian "minimum" seems disproportional. Also, what are the goals? Are they military goals or political goals? How will we know if they have been met? What is the timeline? How do we judge success?

Recall that access to the sea has been continuously blocked for the last 44 years. The maritime closure still seems disproportional now, despite the welcome "easings" that took place in the wake of the flotilla incident:

(1) continued ban on travel for persons

(2) ban on export

(3) ban on construction materials

This analysis is distinct from the question of whether Israel can prevent ships carrying weapons from reaching Gaza, even if Gaza is not occupied. We would say yes, Israel has a belligerent right to visit and search. It is not clear why that is not sufficient. That means that if the cargo is civilian, it must be permitted into Gaza.

I would argue that the maritime closure cannot be separated from the overall closure policy, which started long before Israel declared the maritime...

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