Saturday, June 19, 2010

Israel’s Right to Blockade

 

by Joseph Klein

 

Does Israel's blockade of the Hamas-controlled Gaza Strip and its enforcement of the blockade comply with international law? The evidence suggests that the answer is an overwhelming yes:

The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), the first international instrument to acknowledge the legality of blockades, specifically recognized the right of nations to blockade their enemy.

So does the San Remo Manual, which is a compilation by international law experts of agreed upon international law on blockades and related subjects. The blockade must be declared against a belligerent, and notified to all belligerents and neutral states (Article 93). The declaration must specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline (Article 94). The 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 the San Remo Manual (Article 97).

A blockade is prohibited, according to the San Remo Manual, if (a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or (b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade (Article 102).

Hamas is the self-declared enemy of Israel, sworn to its destruction, as set forth in Hamas' Charter. Hamas has backed up its belligerency toward the Jewish state by suicide bombings and thousands of rocket attacks launched from Gaza against civilians in Israel. Hamas's armed terrorist militia is funded, trained and armed by Israel's enemy countries, including most notably Iran which has managed to smuggle some arms to Hamas via land routes, and has attempted to do so by sea.  If Iran were as successful in arming Hamas with sophisticated rockets and other weaponry as it has been in arming Hezbollah on Israel's northern border, Israel would face an imminent existential threat on both its northern and southern borders.  Thus, the predicate for a blockade – a state of belligerency with the blockaded belligerent – is clearly established.

When Israel withdrew unilaterally from Gaza in 2005, it had made arrangements with the Palestinian Authority for freedom of movement across the Israeli-Gaza border on the understanding that the Palestinian Authority would implement certain specified security arrangements. Those arrangements were never implemented. Nevertheless, even after  Hamas' victory in parliamentary elections and its stated refusal to abide by any agreements reached between Israel and the Palestinian Authority, Israel did not immediately institute a blockade.  Only after Hamas kidnapped an Israeli soldier from the Israeli side of the border, took forcible control of Gaza from the Palestinian Authority and began launching rockets from Gaza into southern Israel did Israel restrict the flow of most goods entering into and leaving Gaza.

Hamas' supporters, including the Free Gaza Movement which helped organize the flotilla in which the fatalities occurred after Israeli commandos met armed resistance when they boarded one of the ships, argue that the blockade is nevertheless illegal under international law. Under Article 102 of the San Remo Manual (quoted above), they argue, the blockade is illegal because Israel's purpose is to starve the Gazan population and deprive them of other necessities for survival, and the damage to Gaza's civilian population is disproportionately excessive in relation to any legitimate military need.

However, this argument ignores two basic facts (not "biased opinions" as some might allege):

First, food and medical supplies have been permitted continuously into Gaza during the blockade, including even during Operation Cast Lead, showing that Israel's purpose was certainly not to starve the Gazan civilian population or to deny them other necessities for their survival. Since the end of Operation Cast Lead, the amount and variety of supplies permitted into Gaza have increased, despite the fact that there is still no agreement on effective security arrangements in accordance with Israel's understanding with the Palestinian Authority and that Israeli's kidnapped soldier is still in Hamas custody without access by the International Red Cross.

Second, Israel tried to work out a compromise with the flotilla organizers which would permit its humanitarian cargo to be delivered to the Gazan civilian population. Israel proposed on several occasions that once it had the opportunity to inspect the ships for arms and supplies that could be used for military purposes and to remove them, all other cargo on the ships would be delivered to the civilians in Gaza through international agencies.  Israel's offer was an attempt to balance its military security requirements with mitigation of damage to Gaza's civilian population by allowing the bulk of the cargo to reach them through reliable means. Both Hamas and the Free Gaza Movement leaders rejected the offer.

Aside from the fact that Muslim Brotherhood members and other Islamic jihadists were participating in the flotilla – raising questions about the true humanitarian nature of the mission – the organizers of the flotilla admitted that their main purpose was to break the blockade: "This mission is not about delivering humanitarian supplies, it's about breaking Israel's siege on 1.5 million Palestinians."

The Free Gaza blockade runners' willingness to deny the Gaza civilian population the humanitarian aid they claimed to be carrying if they could not succeed in breaking the blockade shows that Hamas' supporters – not Israel – were the ones willing to put Hamas' military objective of breaking the blockade over the needs of Gaza's civilian population.

Israel's enforcement of the blockade, including its boarding of the ships in the flotilla which refused inspection at an Israeli port, was fully in compliance with the following provisions of the San Remo Manual:

98. Merchant vessels (defined as a vessel, other than a warship, an auxiliary vessel, or a State vessel such as a customs or police vessel, that is engaged in commercial or private service) believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.

103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:

(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted;

and

(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.

104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.

The ships on which there was no violent resistance to an inspection encountered non-violence from the Israeli side.  But on the one ship carrying Turkish activists, who had declared their jihadist intentions, Israeli soldiers descended with only paintballs in hand (pistols not drawn) and encountered violent resistance.  They had the right to protect themselves and their colleagues with lethal force once they were attacked by packs of assailants using knives, metal rods, clubs, etc. who had also begun to take the soldiers' pistols away from them.

Hamas' supporters turn a blind eye to the terrorist group's violence against innocent Israeli civilians and to its crimes against its own people.  Here is an excerpt from a speech delivered by Hamas MP Fathi Hammad, which aired on Al-Aqsa TV on February 29, 2008:

Fathi Hammad: [The enemies of Allah] do not know that the Palestinian people has  developed its [methods] of death and death-seeking. For the Palestinian people, death has  become an industry, at which women excel, and so do all the people living on this land.  The elderly excel at this, and so do the mujahideen and the children. This is why they  have formed human shields of the women, the children, the elderly, and the mujahideen,  in order to challenge the Zionist bombing machine. It is as if they were saying to the  Zionist enemy: "We desire death like you desire life." (Emphasis added)

There can be no real peace so long as the Hamas terrorists and their state sponsors such as Iran want more innocent Jews to die for death's sake and will settle for nothing short of Israel's extermination, even at the expense of innocent Palestinian civilians. The Free Gaza Movement and their supporters should spend their time seeking to free Gaza from the grip of Hamas, not trying to end Israel's lawful blockade.

 

Joseph Klein

Copyright - Original materials copyright (c) by the authors.

 

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