Friday, June 4, 2010

Legal issues on blockade

Condemn Israel - Then Investigate

by Elliot Chodoff

The world has put on its usual show this past week, roundly condemning Israel for intercepting the Gaza-bound flotilla, and then calling for an investigation of Israel's actions. Normal legal processes, such as investigating prior to condemnation, don't apply. The verdict is already in: condemn Israel, let's not be confused by the facts.

(An investigation will find that Israel did not use methods that are acceptable to international bodies like the UN. For example, rather than hailing the ship and boarding it, Israel might have utilized the quietly criticized, but otherwise accepted, N. Korean tactic of a submarine-launched torpedo to sink the ship. This would have spared the world the drama of "peace activists" having to try to smash the skulls of IDF naval commandos with steel rods. Alternatively, Israel could have adopted the Iranian post-election crowd control method, raking the ship's deck with machine gun fire. It worked for Ahmedinejad; barely a peep was heard from the UN and its assorted organs, and Iranian protest has become a thing of the past.)

A number of points bear noting:

- Gaza is under Israeli blockade

It is a blockade, neither a siege nor proxy occupation. Blockade is a legal form of warfare, and does not constitute collective punishment (according to the Geneva Convention). The blockade was not imposed as a result of the Israeli disengagement, but rather as a response to Palestinian belligerency as expressed in cross-border terrorist attacks, ambushes of military patrols, rocket fire into Israeli towns, and the holding of Cpl. Gilad Shalit. Blockades are legal actions; even the UN allows itself the option to impose them (UN Charter, Article VII, Chapter 42).

Further, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, compiled in 1994, states (emphasis added):

93. A blockade shall be declared and notified to all belligerents and neutral States.
94. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.
95. A blockade must be effective. The question whether a blockade is effective is a question of fact.
96. The force maintaining the blockade may be stationed at a distance determined by military requirements.
97. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules set out in this document.
98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.
99. A blockade must not bar access to the ports and coasts of neutral States.
100. A blockade must be applied impartially to the vessels of all States.


Which one of these rules did Israel violate? (Hint: None!) It should be noted, that paragraph 98 states that after resisting capture, the vessel may be attacked. The Israeli Navy could legally have fired on the ship after the "activists" on board resisted.

- Blockades may be enforced in international waters

According to The Commander’s Handbook on the Law Of Naval Operations” (US Department of Defense, 1 Jul 2007), a ship is considered to be running the blockade when it leaves port, not when it crosses into blockaded waters. (I am indebted to David Olesker for pointing this out at:

- Blockade runners are engaging in an act of war and are subject to attack

"Merchant vessels flying the flag of neutral states may not be attacked unless they 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," says the San Remo Manual.

So much for the law. While even Israel's friends refer to the operation to stop the flotilla as a "botched raid", I disagree. While the outcome was certainly far from optimal, "botched" implies something very different. The commandos were sent into what they knew was going to be a difficult and confusing situation, with orders to use minimal force to protect innocent "activists." They met a violent mob and nandles them rather well.

A few points are worth consideration. First, the mission's objective was to prevent the ships from reaching Gaza. This was successfully accomplished. Second, five of the six ships stopped were boarded without incident.

Next, the commandos were armed appropriately for this mission. They were charged with taking control of the ships and those on board, and did so, using minimum force considering the circumstances. I have yet to read or hear a better alternative plan. Had they gone in with greater force, the results would have been worse.

Emerging information points to the fact that those who resisted on the Mavi Marmara were paid, trained, Islamic mercenaries and not simply not "activists." This group was divided into squads, apparently had firearms that were thrown overboard when the fighting ended, were well trained, possibly ex-military. Most important, some at least, were on the trip planning to die as martyrs.

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