Berkowitz - The Gaza Flotilla and International Law

Peter Berkowitz
Hoover Institution
policy review no. 168
01 August '11



Further politicization of the global legal system

On May 31, 2010, in defense of a naval blockade imposed on the Gaza Strip, Israel seized control of the Mavi Marmara in international waters, detained the passengers, and towed the ship to the Israeli port city of Ashdod. During the previous three days and without incident, Israel had boarded, inspected, and brought to Ashdod the other five ships that had set sail from Turkey as part of the “Gaza Freedom Flotilla.” But on the Mavi Marmara, passengers wielding pipes, knives, and axes attacked Israeli commandos as they rappelled from helicopters down to the ship’s deck. Nine passengers were killed in the operation and several dozen were injured. Seven commandos were injured as well.

The flotilla’s ostensible purpose was to bring humanitarian goods to the Palestinian population of Gaza. In fact, humanitarian goods had been arriving in Gaza over land through Israel, and Israel had repeatedly volunteered to deliver the flotilla’s humanitarian cargo through the established land crossings. The flotilla’s real and obvious goal was, as one of the organizers put it, “breaking Israel’s siege.”

The international outcry in response to Israel’s raid on the Mavi Marmara was immediate. Little attention was given to the Turkish flotilla’s deliberate provocation or to the possibility that Israel had acted ineptly or unwisely. The focus rather was on the accusation, often couched as a conclusion, that Israel had acted unlawfully.

Little attention was given to the Turkish flotilla’s deliberate provocation or to the possibility that Israel had acted ineptly or unwisely.

On May 31, almost as soon as the news broke, un Secretary General Ban Ki Moon insisted that it was incumbent upon Israel to explain its actions to the world: “I condemn this violence . . . it is vital that there is a full investigation to determine exactly how this bloodshed took place . . . I believe Israel must urgently provide a full explanation.”

Also on May 31, Richard Falk, un special rapporteur on the Situation of Human Rights in the Occupied Palestinian Territory, immediately pronounced Israel in egregious violation of international law: “Israel is guilty of shocking behavior by using deadly weapons against unarmed civilians on ships that were situated in the high seas where freedom of navigation exists, according to the law of the seas.” Falk called for an investigation on the grounds that “It is essential that those Israelis responsible for this lawless and murderous behavior, including political leaders who issued the orders, be held criminally accountable for their wrongful acts.” He characterized the Gaza blockade as “a massive form of collective punishment” constituting “a crime against humanity, as well as a gross violation of the prohibition on collective punishment in Article 33 of the Fourth Geneva Convention.” He insisted that failure to punish Israel’s lawlessness would itself be criminal: “As special rapporteur for the Occupied Palestinian Territories, familiar with the suffering of the people of Gaza, I find this latest instance of Israeli military lawlessness to create a situation of regional and global emergency. Unless prompt and decisive action is taken to challenge the Israeli approach to Gaza all of us will be complicit in criminal policies that are challenging the survival of an entire beleaguered community.” Such was Israel’s “flagrant flouting of international law” that, to end its blockade of Gaza, Falk concluded, “the worldwide campaign of boycott, divestment, and sanctions against Israel is now a moral and political imperative, and needs to be supported and strengthened everywhere.”

Many nations promptly condemned Israel and some presumed its guilt that day. According to the bbc, within hours of the boarding of the Mavi Marmara French Foreign Minister Bernard Kouchner announced he was “deeply shocked” by Israel’s action and called for an inquiry, and French President Nicolas Sarkozy accused Israel of a “disproportionate use of force.” Sweden summoned the Israeli ambassador to discuss the “unacceptable action.” The Turkish foreign ministry issued a statement declaring the incident a “flagrant breach of international law” while Turkish Prime Minister Recep Tayyip Erdogan proclaimed Israel’s raid “totally contrary to the principles of international law” and an act of “inhumane state terrorism.” And the Arab League called for an emergency meeting the next day to discuss Israel’s “terrorist act.”1

On June 1, the un Security Council issued a presidential statement. By condemning Israel’s raid and by demanding a “prompt, impartial, credible, and transparent investigation conforming to international standards,” the Security Council indicated that there was sufficient evidence to be concerned that serious breaches of international law had occurred.

Not to be outdone, the notorious un Human Rights Council on June 2 issued resolution 14/1 on “The Grave Attacks by Israeli Forces against the Humanitarian Boat Convoy.”2 The hrc resolution “condemns in the strongest terms the outrageous attack by the Israeli forces against the humanitarian flotilla of ships which resulted in the killing and injuring of many innocent civilians from different countries.” And it authorized “an independent, international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance.”

The widespread accusations of unlawful conduct directed at Israel — coming, it should be said, not from some abstract international community, but from officers and official bodies of the un, European states, Turkey, and Arab states — were high on outrage and low on legal analysis. This is in keeping with the growing tendency in international affairs to transform hard political questions into conclusive legal judgments. The transformation increasingly yields gross abuses of law fraught with substantial political implications. The denunciations of Israel’s response to the Gaza Flotilla provide a case in point. To counteract the harm they can cause to a state’s interests when they gain international currency and exert worldwide influence, even far-fetched and perverse legal arguments must be addressed and refuted in legal terms.

In fact, the legality of Israel’s stopping and seizing of the Mavi Marmara and the other five ships of the Gaza Freedom Flotilla turned on the legality under international humanitarian law (a part of the international law of war governing the conduct of war, also known as ihl, the law of armed conflict, or the laws of war) of the naval blockade. If the blockade was legal, then Israel was perfectly within its rights to stop on international waters ships whose announced intention was to break it, and Israeli commandos were within their rights to defend themselves against the potentially lethal attacks to which they were subject as they boarded the Mavi Marmara. Israel’s blockade was legal given the state of armed conflict between Israel and Hamas, the de facto ruler of Gaza; the widely accepted use of naval blockades in war; and the conformity of Israel’s blockade to the requirements of maritime law — it was duly declared, effective, nondiscriminatory, and allowed the passage of humanitarian assistance to the civilian population of Gaza.

(Read full "The Gaza Flotilla and International Law")

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