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Operation Sea Breeze - Legal Status

A maritime blockade is in effect off the coast of Gaza, imposed by Israel, which is currently in a state of armed conflict with the Hamas regime that controls Gaza. The HAMAS has repeatedly bombed civilian targets in Israel with weapons that have been smuggled into Gaza via the sea. On 31 May 2010 a total of 9 passengers were killed, and dozens of others were injured, when Israeli commandos stormed a flotilla which had the declared purpose of breaking the blockade. The ship was led by a Turkish ship in international waters, about 60 kilometers off the coast of Israel.

David Isenberg wrote on June 8th, 2010 ["Was it good for the Jews? No!'], that "... the simple fact of the matter is that Israel had no right to attempt to board the ship in international waters. The humanitarian flotilla was in international waters, on the high seas. The principle of freedom of navigation is enshrined in international law, including in the Convention on the High Seas, the UN Convention on the Law of the Sea, and has attained the status of customary international law by which all states are bound. Under this principle, all states have the freedom to sail ships flying their flags on the high seas. Sovereignty over a ship is exclusive to the state whose flag the ship is flying. Any attempt to board the ship of another flag-state is therefore considered a breach of that state's sovereignty.

"Maritime blockades can not be imposed in international waters. Contrary to Israel's assertions, maritime blockades must be restricted to ports or coastal areas under the enemy's control, and may not be imposed in international waters. Israel's attempt to impose and enforce its blockade in international waters was therefore illegal. Israel's claim that it has a right to pursue a ship intending to breach its blockade from the time it begins its voyage, based on the so-called doctrine of continuous voyage, is a minority position in international law."

Stephen Zunes, wrote June 10, 2010, that "To rationalize what virtually the entire international legal community recognizes as an act of war, congressional Democrats have engaged in a series of falsifications and radical reinterpretations of international law. The first involved a radically overextended notion of maritime sovereignty. The attack took place in international waters, roughly 85 miles from the Israeli coast. International maritime law has long recognized that territorial sovereignty extends only 12 miles out to sea. A Libyan effort in the 1980s to extend its claim of sovereignty into the Gulf of Sidra beyond the 12-mile limit led to a series of deadly clashes between U.S. and Libyan armed forces in order, according to then-President Ronald Reagan, to enforce America's "global Freedom of Navigation program" to defend "our rights on and over the high seas under international law."" President Abdullah Gl said "Taking place in international waters, 69 miles from the Israeli territorial waters, this attack in which civilians including elderly, women, children and men of the cloth from different religions were targeted and in which international law was clearly violated should not be treated with indifference by the international community."

Turkish Prime Minister Recep Tayyip Erdogan was reported to have spoken on 02 June 2010. "... armed elements of the Israeli Army stopped humanitarian aid being brought to the Gazan people, from more than 32 countries, with 600 people inside carried by the Free Gaza Flotilla, in international waters, in an absolutely illegal way did they attack, spilling the blood of innocent humans.... The bloody massacre of Israel, brought against the ships bringing humanitarian aid to Gaza is a massacre deserving of any kind of curse and condemnation. This is openly an attack against international law, against the heart of humanity, against world peace... Despots, gangsters even pirates have specific sensitiveness, follow some specific morals. Those who do not follow any morality or ethics, those who do not act with any sensitivity, to call them such names would even be a compliment to them. "

Namik Tan, Turkey's ambassador to the United States, wrote on Saturday, June 5, 2010 "Because the attack took place in international waters, 72 miles off Israel's coast, it was illegal.... That flouting of international law, the loss of life and the inexplicable and protracted detention of the ships' passengers only partially explain why the Turkish public, along with the international community, is so stunned and angry... "

Turkey's ambassador to Azerbaijan Hulusi Kilic, said "These ships were moving in the open sea, in the international waters, they were 72 miles far from the territorial waters of Israel. This is the territory open for all. They attacked the civil ship like Somali pirates. People were killed though the captain of the ship raised the white flag. ... Today, they repeat fascists' behavior. ... Israel violate international law rules, use force towards people, embargo Gaza nation and blockade Gaza for 35 months."

Craig Murray, a former British ambassador and a former Head of the Maritime Section of the Foreign and Commonwealth Office, currently research fellow at Lancaster University's School of Law, interprets the Israeli attack as an act of "illegal warfare". Murray suggested in an analysis published on his website that "A word on the legal position, which is very plain. To attack a foreign flagged vessel in international waters is illegal. It is not piracy, as the Israeli vessels carried a military commission. It is rather an act of illegal warfare.... Israel is in a position of war with Turkey, and the act falls under international jurisdiction as a war crime ... If Israel does not consider itself in a position of war with Turkey, then it must hand over the commandos involved for trial in Turkey under Turkish law."

George Bisharat, a professor at Hastings College of the Law, argues that "Israel's deadly attack on the Gaza Freedom Flotilla was flagrantly illegal. The Flotilla, carefully searched for arms before disembarkation, enjoyed the right of free navigation in international waters, and Israel had no legal justification to interrupt its peaceful mission. Flotilla passengers were entitled to defend themselves against Israel's forcible boarding... collective punishment is specifically barred under Article 33 of the Fourth Geneva Convention. Israeli officials have repeatedly stated that the objective of the blockade is to weaken the Gaza economy and undermine support for Hamas. That is a political, not a military, objective, and it is impermissible under international law to target innocent civilians to achieve nonmilitary goals. Actions taken to enforce an illegal siege cannot themselves be legal."

Marcelo Kohen, a professor at the Geneva Graduate Institute and a defense counsel regularly involved in cases at the International Court of Justice, was adamant Israel has flouted the law: "it was not in accordance with international law, and this is not a matter of proportionality or not of the action itself. The action seems illegal because the naval blockade is illegal... Israel invokes the existence of an armed conflict, or a state of war, between Israel and Hamas. ... This is not accurate for many reasons. First of all, there is a ceasefire between Hamas and Israel. Secondly, Hamas is not a state. ... Indeed, a naval blockade is an act of aggression itself. This is what the General Assembly Resolution 3314 established. The resolution contains a definition of aggression and among the examples of aggression is the fact of a blockade against the ports or the coast of another state. In this case, there is no Palestinian state, but the international community and Israel have recognized the existence of a Palestinian territory..."

A blockade is traditionally understood to mean one state's use of naval force to "suspend all maritime communications to and from an enemy coast." The use of military vessels to disrupt enemy commerce goes back to ancient times, as evidenced by its use by the Greeks and Carthaginians. The popular conception of a blockade is that of a close-in blockade: the positioning of ships off the coast of a belligerent state for the purpose of prohibiting commerce. That formulation came about in the 17th century. It also was a central component of United States strategy during the Civil War and is considered a major contributor to the Northern victory.

The 20th century witnessed dramatic changes in naval warfare and corresponding changes in the employment of the blockade. World War I saw the first widespread use of the submarine and designated exclusion zones in which "wolfpacks" of German submarines waged unrestricted warfare. Recent developments in weapons systems and platforms, particularly submarines, supersonic aircraft, and cruise missiles, have rendered the in-shore blockade exceedingly difficult, if not impossible to maintain. Maritime blockades are a legitimate and recognized measure under international law that may be implemented as part of an armed conflict at sea. A blockade may be imposed at sea, including in international waters, so long as it does not bar access to the ports and coasts of neutral states. The naval manuals of several western countries, including the US and England recognize the maritime blockade as an effective naval measure and set forth the various criteria that make a blockade valid, including the requirement of give due notice of the existence of the blockade. A state may take action to enforce a blockade. Any vessel that violates or attempts to violate a maritime blockade may be captured or even attacked under international law.

At the turn of the nineteenth century, the 1856 Paris Declaration Respecting Maritime Law and the 1909 London Declaration sought to regulate blockade. As those rules for the most part have stood the test of time. The US Commander's Handbook on the Law of Naval Operations sets forth that a vessel is considered to be in attempt to breach a blockade from the time the vessel leaves its port with the intention of evading the blockade.

a. DEFINITION. A blockade is a belligerent operation intended to prevent vessels of all States from entering or leaving specified coastal areas which are under the sovereignty, under the occupation, or under the control of an enemy. Such areas may include ports and harbors, the entire coastline, or parts of it. International law does not prohibit the extension of a blockade by sea to include the air space above those portions of the high seas in which the blockading forces are operating.

d. EFFECTIVENESS. A blockade, in order to be binding, must be effective. This means that a blockade must be maintained by a force sufficient to render ingress and egress to or from the blockaded area dangerous.

f. APPLICATION OF BLOCKADE. A blockade must be applied equally (impartially) to the vessels and aircraft of all States. g. BREACH OF BLOCKADE. Knowledge of the existence of a blockade is essential to the offenses of breach of blockade and attempted breach of blockade; presumed knowledge is sufficient. (Breach of blockade is the passage of a vessel or aircraft through the blockade.)

1. Attempted Breach of Blockade occurs from the time a vessel or aircraft leaves a port or air take-off point with the intent of evading the blockade. It is immaterial that the vessel or aircraft is at the time of visit bound to a neutral port or airfield, if its ultimate destination is the blockaded area, or if the goods found in its cargo are to be trans-shipped through the blockaded area. There is a presumption of attempted breach of blockade where vessels and aircraft are bound to a neutral port or airfield serving as a point of transit to the blockaded area.

2. Capture. Vessels and aircraft are liable to capture for breach of blockade and attempted breach of blockade (see subparagraph 503d2). The liability of a blockade runner to capture begins and terminates with her voyage or flight. If a vessel or aircraft has succeeded in escaping from a blockaded area, liability to capture continues until the completion of the voyage or flight.

Law of Naval Warfare NWIP 10-2, Department of the Navy, Office of the Chief of Naval Operations, September 1955
[more recent versions, while widely quoted in part, appear to be RESTRICTED and are not available online]

In the late 1980s a panel of experts attempted to draft a restatement of the law applicable to armed conflicts at sea, a process that resulted in the San Remo Manual. In addition to restating the customary aspects of the law, the participants injected innovations not previously considered in the context of armed conflicts at sea. according to the Manual, the use of the blockade is subject to the jus ad bellum requirements of necessity and proportionality.

67. Merchant vessels flying the flag of neutral States may not be attacked unless they: (a) 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;

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.

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.

146. Neutral merchant vessels are subject to capture outside neutral waters if they are engaged in any of the activities referred to in paragraph 67 or if it is determined as a result of visit and search or by other means, that they: (f) are breaching or attempting to breach a blockade.

A blockade is prohibited 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." As long as starvation was not the sole purpose of the blockade, it could be legal.

Michael Oren, Israel's ambassador to the United States, called his country's raid on an aid flotilla en route to Gaza "perfectly legal, perfectly humane and very responsible" in an interview with Fox News. "Israel acted in accord with international law," he remarked. "Any state has the right to protect itself, certainly from a terrorist threat such as Hamas, including on the open seas."



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Page last modified: 11-07-2011 03:29:06 ZULU