Legal Brief: Flotillas and the Gaza Blockade

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Jul 20, 2011 Palestine-Israel
[Image from www.diakonia.se] [Image from www.diakonia.se]

Legal Brief: Flotillas and the Gaza Blockade

By : Jadaliyya Reports

[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

Contact Us
Diakonia IHL Programme
berenice_diakonia@palnet.com
+972(0)25322972 ext(111) / +972(0)545432096


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[1] IDF press release from 26 June 2011 http://idfspokesperson.com/2011/06/26/the-idfs-lawfully- enforced-naval-blockade-on-the-gaza-strip/ While the technical- legal term is blockade, the term closure can be used to describe the reality under which the population in Gaza lives.

[2] New travel arrangement mechanism will be introduced, with priority given to certain categories of travelers including patients, foreign passports holders and students. See UNOCHA protection of civilians weekly report 24 June 2011 in http://www.ochaopt.org/documents/ocha_opt_protection_of_civili ans_ weekly_report_2011_06_24_english.pdf

[3] For more elaboration see: http://www.diakonia.se/sa/node.asp?node=3500

[4] http://www.jewishvirtuallibrary.org/jsource/Society_&_Culture/T urkelCommission.pdf, page 71.

[5] On the general question of the economic law of belligerent occupation, see E. Feilchenfeld, The International Economic Law of Belligerent Occupation, Buffalo, William S. Hein & Co., 1943 (reprinted in 2000).

[6] Art 102. The declaration or establishment of 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 See criticism by Prof. Yuval Shany and Dr. Amichai Cohen on http://www.ejiltalk.org/the-turkel-commissions-flotilla-report-part- one-some-critical-remarks

[7] “With the blockade ongoing and despite the new access regime, the current economic situation in the Gaza Strip is unsustainable and the high level of food insecurity persists: ...more than half of the Gaza population is unable to secure sufficient income to meet their essential food and non-food requirements. ... The recent decrease in unemployment in the Gaza Strip is mainly linked to the construction and agricultural sectors which have some of the lowest wages and employ mainly unskilled/casual laborers. ... The new access regime was supposed to bring about significant improvements in the crossings and even potentially open new trading points. However, with the closing of Karni, Kerem Shalom is the only official crossing in operation. The crossing’s opening remains unreliable and exposes the population to vulnerability in the event of any sudden, prolonged closing. ... The new access regime did not translate into a tangible relaxation of exports despite the 8 December 2010 cabinet decision by the GoI, and the consecutive agreement with the Quartet Representative in February 2011”. http://unispal.un.org/pdfs/WFPGazaFoodRep0611.pdf

[8] http://www.ochaopt.org/documents/ocha_opt_Gaza_Fact_Sheet_ July_2011.pdf

[9] See also art. 102(b) of the San Remo Manual.

[10] http://www.icrc.org/eng/resources/documents/update/palestine- update-140610.htm. The legal basis for the ICRC position seems to be art. 50 of the 1907 Hague Regulations concerning the Laws and Customs of War on Land and art. 33 of GCIV.

[11] http://www.huffingtonpost.com/2011/01/05/israel-gaza-collapse- wikileaks_n_804583.html

[12] Ibid ft. 8

[13] Israel is clearly disregarding Security Council Resolution 1860 of 2009, which "calls for the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment." UN Doc. S/RES/1860 (2009), paragraph 2.

[14] Notice should be given to ICRC’s statement that "the fact that consent is required does not mean that the decision is left to the discretion of the parties. If the survival of the population is threatened and a humanitarian organization fulfilling the required conditions of impartiality and non discrimination is able to remedy this situation, relief actions must take place. In fact they are the only way of combating starvation when local resources have been exhausted...” (ICRC Study Vol II, page 1205 re art. 18(2) IIAP).

[15] The text of the Declaration is available at http://www.icrc.org/ihl.nsf/FULL/255?OpenDocument

[16] See HCJ 769/02 in the assassination case of 2006 elyon1.court.gov.il/files_eng/02/690/007/.../02007690.a34.pdf
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Past is Present: Settler Colonialism Matters!

On 5-6 March 2011, the Palestine Society at the School of Oriental and African Studies (SOAS) in London will hold its seventh annual conference, "Past is Present: Settler Colonialism in Palestine." This year`s conference aims to understand Zionism as a settler colonial project which has, for more than a century, subjected Palestine and Palestinians to a structural and violent form of destruction, dispossession, land appropriation and erasure in the pursuit of a new Jewish Israeli society. By organizing this conference, we hope to reclaim and revive the settler colonial paradigm and to outline its potential to inform and guide political strategy and mobilization.

The Israeli-Palestinian conflict is often described as unique and exceptional with little resemblance to other historical or ongoing colonial conflicts. Yet, for Zionism, like other settler colonial projects such as the British colonization of Ireland or European settlement of North America, South Africa or Australia, the imperative is to control the land and its resources -- and to displace the original inhabitants. Indeed, as conference keynote speaker Patrick Wolfe, one of the foremost scholars on settler colonialism and professor at La Trobe University in Victoria, Australia, argues, "the logic of this project, a sustained institutional tendency to eliminate the Indigenous population, informs a range of historical practices that might otherwise appear distinct--invasion is a structure not an event."[i]

Therefore, the classification of the Zionist movement as a settler colonial project, and the Israeli state as its manifestation, is not merely intended as a statement on the historical origins of Israel, nor as a rhetorical or polemical device. Rather, the aim is to highlight Zionism`s structural continuities and the ideology which informs Israeli policies and practices in Palestine and toward Palestinians everywhere. Thus, the Nakba -- whether viewed as a spontaneous, violent episode in war, or the implementation of a preconceived master plan -- should be understood as both the precondition for the creation of Israel and the logical outcome of Zionist settlement in Palestine.

Moreover, it is this same logic that sustains the continuation of the Nakba today. As remarked by Benny Morris, “had he [David Ben Gurion] carried out full expulsion--rather than partial--he would have stabilised the State of Israel for generations.”[ii] Yet, plagued by an “instability”--defined by the very existence of the Palestinian nation--Israel continues its daily state practices in its quest to fulfill Zionism’s logic to maximize the amount of land under its control with the minimum number of Palestinians on it. These practices take a painful array of manifestations: aerial and maritime bombardment, massacre and invasion, house demolitions, land theft, identity card confiscation, racist laws and loyalty tests, the wall, the siege on Gaza, cultural appropriation, and the dependence on willing (or unwilling) native collaboration and security arrangements, all with the continued support and backing of imperial power. 

Despite these enduring practices however, the settler colonial paradigm has largely fallen into disuse. As a paradigm, it once served as a primary ideological and political framework for all Palestinian political factions and trends, and informed the intellectual work of committed academics and revolutionary scholars, both Palestinians and Jews.

The conference thus asks where and why the settler colonial paradigm was lost, both in scholarship on Palestine and in politics; how do current analyses and theoretical trends that have arisen in its place address present and historical realities? While acknowledging the creativity of these new interpretations, we must nonetheless ask: when exactly did Palestinian natives find themselves in a "post-colonial" condition? When did the ongoing struggle over land become a "post-conflict" situation? When did Israel become a "post-Zionist" society? And when did the fortification of Palestinian ghettos and reservations become "state-building"?

In outlining settler colonialism as a central paradigm from which to understand Palestine, this conference re-invigorates it as a tool by which to analyze the present situation. In doing so, it contests solutions which accommodate Zionism, and more significantly, builds settler colonialism as a political analysis that can embolden and inform a strategy of active, mutual, and principled Palestinian alignment with the Arab struggle for self-determination, and indigenous struggles in the US, Latin America, Oceania, and elsewhere.

Such an alignment would expand the tools available to Palestinians and their solidarity movement, and reconnect the struggle to its own history of anti-colonial internationalism. At its core, this internationalism asserts that the Palestinian struggle against Zionist settler colonialism can only be won when it is embedded within, and empowered by, the broader Arab movement for emancipation and the indigenous, anti-racist and anti-colonial movement--from Arizona to Auckland.

SOAS Palestine Society invites everyone to join us at what promises to be a significant intervention in Palestine activism and scholarship.

For over 30 years, SOAS Palestine Society has heightened awareness and understanding of the Palestinian people, their rights, culture, and struggle for self-determination, amongst students, faculty, staff, and the broader public. SOAS Palestine society aims to continuously push the frontiers of discourse in an effort to make provocative arguments and to stimulate debate and organizing for justice in Palestine through relevant conferences, and events ranging from the intellectual and political impact of Edward Said`s life and work (2004), international law and the Palestine question (2005), the economy of Palestine and its occupation (2006), the one state (2007), 60 Years of Nakba, 60 Years of Resistance (2009), and most recently, the Left in Palestine (2010).

For more information on the SOAS Palestine Society 7th annual conference, Past is Present: Settler Colonialism in Palestine: www.soaspalsoc.org

SOAS Palestine Society Organizing Collective is a group of committed students that has undertaken to organize annual academic conferences on Palestine since 2003.

 

[i] Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event, Cassell, London, p. 163

[ii] Interview with Benny Morris, Survival of the Fittest, Haaretz, 9. January 2004, http://cosmos.ucc.ie/cs1064/jabowen/IPSC/php/art.php?aid=5412