Is the Israeli blockade of Gaza legal? It has been reliably reported that a forthcoming report from Ban Ki-moon's office will say yes. Here's an expert legal opinion.

July 20, 2011

In News

[This legal brief is the latest from Diakonia on the Gaza blockade and the use of flotillas.]

Legal Brief: Flotillas and the Gaza Blockade (July 2011)

The Gaza Strip is currently under a continued naval and land blockade.[1] New flotillas are trying to reach Gaza to provide assistance to the people of the Strip. In light of the deadly outcome of the previous flotilla of 31 May 2010, Diakonia IHL Programme would like to reiterate the relevance and importance of international humanitarian law (IHL).

The Gaza Strip is an occupied territory

The Gaza Strip remains an occupied territory as it is effectively controlled by the Israeli army (land, sea, airspace), which administers the supply of basic services (customs, currency, population registry, electricity, water, fuel etc.). The opening of Rafah border crossing has allowed movement of people only, and remains at large restricted.[2] Furthermore, even if the military presence of Israeli troops inside Gaza decreased, Israel has the ability to regain its military control over the Strip at will.[3]

The naval and land blockade is illegal

1. The land and naval blockade does not serve a concrete and direct military advantage

According to the January 2011 report of the Israeli Turkel Committee that investigated the incidents around the May 2010 flotilla “[a]s evidenced by the testimonies that the Commission heard, the land crossings policy sought to achieve two goals: a security goal of preventing the entry of weapons, ammunition and military supplies into the Gaza Strip in order to reduce the Hamas’ attacks on Israel and its citizens; and a broader strategic goal of ‘indirect economic warfare’ whose purpose is to restrict the Hamas’ economic ability -as the body in control of the Gaza Strip- to take military action against Israel”.[4]

A well established principle of the law of military occupation requires the occupier to respect a balance between its own military interests and the necessities of the occupied population.[5] This holds true also in the economic sphere, where the occupier must take into consideration the evolving needs of the Gazan population, including when imposing drastic economic measures such as a naval and land blockade.

Finally, economic warfare cannot be applied in order to secure a “concrete and direct military advantage”, as set out in art. 102(b) of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994 (hereinafter – San Remo Manual), which reflects customary international law.[6]

2. Continued disproportional harm to civilians

The naval blockade is part and parcel of the Gaza closure, which also includes the land blockade. Therefore, the two cannot be analyzed separately. Israel maintains its closure regime with regard to land crossings, despite the declared ease of restrictions during 2010. According to a recent report from the World Food Program of June 2011, the Gaza population remains food insecure and improvements expected of the new access regime are not significant. The WFP report states that the crossing’s opening remains unreliable and exposes the population to vulnerability and that it did not translate into a tangible relaxation of exports.[7] UNOCHA lately stated that measures taken to ease the blockade in June 2010 have had little real effect.[8] Therefore, there seems to be no evidence that the principle of proportionality, which is customary international law,[9] has been adhered to in the use of the closure policy as a method of warfare, since June 2010 until today. The harm to civilians remains high.

3. Continued collective punishment

ICRC position in its news release of 14 June 2010 was that “[t]he whole of Gaza’s civilian population is being punished for acts for which they bear no responsibility. The closure therefore constitutes a collective punishment imposed in clear violation of Israel’s obligations under international humanitarian law.”[10] Wikileaks released on 5 January 2011 a cable from 3 November 2008 which reported that “[a]s part of their overall embargo plan against Gaza, Israeli officials have confirmed to EconOffs on multiple occasions that they intend to keep the Gazan economy on the brink of collapse without quite pushing it over the edge… Some observers have told EmbOffs that political pressure arising from the issue of captured Israeli soldier, Gilad Shalit, may have influenced high-level Israeli officials to tighten their stance on monetary policy”.[11]

As long as the punitive as well as the collective nature of the land and naval closure remain in force, this measure remains unlawful. According to UNOCHA the Gaza blockade is a denial of basic human rights in contravention of international law and amounts to collective punishment.12

Violation of the obligation to ensure basic needs or facilitate rapid and unimpeded aid

The continued closure policy violates the occupant’s humanitarian obligations to ensure for the provision of basic needs and objects essential for the survival of the population (art. 55 IVGC, art. 69 IAP).[13] Violation of these obligations does not depend on intent to deny the population of its basic needs. It is a matter of fact, whether the obligation has been violated or not.

As an Occupying Power, Israel is under an obligation to “restore, and ensure, as far as possible, public order and safety” (regulation 43 Hague Regulations 1907), which includes the welfare of the population. This is an obligation whereby the occupant must pursue with all available, lawful and proportionate means, the public order and civil life in the occupied territory. As stated in the WFP report, much remains to be done to improve the dire humanitarian conditions of the civilian population in Gaza.

The continued humanitarian crisis points at another failure of the Occupying Power – the obligation to do all it can to facilitate the rapid and unimpeded access of aid agencies to the population in need (art. 59 IVGC, 70(2)IAP). According to ICRC commentaries on art. 70 IAP, the rationale is to avoid any obstacle and reduce formalities as far as possible.

The occupant is under an obligation to consider in good faith access of aid through the sea

Whenever the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide free passage of such foodstuffs and other essential supplies. This is subject to the right of the Occupying Power to prescribe the technical arrangements, including the right to search and condition that the distribution of such supplies shall be made under the local supervision of a protecting power or a humanitarian organisation which offers guarantees of impartiality, such as the ICRC (San Remo Manual, art. 103).

The party to the conflict can stop free passage if there are serious reasons tofear that the relief may be diverted from its destination, that the control may not be effective, or that it may provide definite advantage to the military efforts or to the economy of the enemy (art. 23 IVGC).

However, art. 70 IAP states that, “offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts”.[14] The occupant must observe its international obligations – including the right to prescribe the conditions under which aid is delivered- in good faith (art. 26 Vienna Convention on the Law of Treaties, 1969).

In light of the persistent operational inadequacy and malfunctioning of land crossings to Gaza -and even if land crossings were to operate reasonably- Israel must consider allowing access for humanitarian goods and personnel through the shores off Gaza. This is subject to Israel’s right to visit and search the ships prior to entry and exit. Dismissal of the sea option is only justified if imperative security reasons override. Additionally, if circumstances show that access through the sea may be more feasible and rapid than through land crossings, the former route should be allowed by the Occupying Power, unless military necessity arguments prevail.

Stoppage of the flotilla must be carried out in accordance with international law

1. The flotilla is not a legitimate military objective for attack

The flotilla is composed of neutral vessels, and thus should not be regarded as a legitimate military objective for attack, under art. 52 IAP. Its attack does not seem to offer, under the current circumstances, a definite military advantage. In case of doubt, it shall be presumed not to be a lawful military objective. Furthermore, even if the flotillas may be considered formally breaking the blockade, according to Art. 17 of the 1909 London Declaration on the Laws of Naval War, reflecting customary international law, neutral vessels may not be captured for breach of blockade except within the area of operations of the Israeli warships that has been established to render the blockade effective.[15]

2. Measures should be proportional and respect the civilian status of those on board

Due to the civilian nature of the flotilla and the people on board, and as long as the level of violence does not rise to a situation of hostilities, the occupant should avoid any use of measures that go beyond law enforcement. Further, measures should always be proportional to the threat.

Even if Israel views the advancement of the flotilla to the coast of Gaza as an act of warfare, it is bound by the core principles that govern the conduct of hostilities: (1) the distinction between civilians and combatants, (2) proportionality in the use of force between the potential harm to civilians and the military goal sought, and (3) precautions in and during attacks. Furthermore, the Israeli Supreme Court, for instance, has stated that the occupant should use the least harmful measure, including in situations where civilians take direct part in hostilities.[16]

Useful Links

Diakonia IHL Programme legal analysis on the question of “Humanitarian access through the sea”, released following the attack on the Mavi Marmara from May 31 2010 is available here.

List of Abbreviations

Art. : Article
GCIV: 4th Geneva Convention relative to the Protectionof Civilian Persons in Time of War, Geneva, 12 August 1949
IAP: First Additional Protocol to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977.
ICRC: International Committee of the Red Cross
UNOCHA: United Nations Office for the Coordination of Humanitarian Affairs.
WFP: World Food Program

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