Israel’s Maritime Blockade of Gaza was from the very start legal, having been meticulously examined in Maritime Law and accepted demands adopted for previous blockades undertaken by sovereign states.
– Part One: Israel’s Ministry of Foreign Affairs examines legal precedents for the execution of a blockade of Gaza.
– Part Two: Concurring Decision by the UN’s Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident
Part One: Official Statement from Israel’s Ministry of Foreign Affairs:
The Gaza Flotilla and the Maritime Blockade of Gaza
Legal Background – 31 May 2010
1. A maritime blockade is in effect off the coast of Gaza. Such blockade has been imposed, as Israel is currently in a state of armed conflict with the Hamas regime that controls Gaza, which has repeatedly bombed civilian targets in Israel with weapons that have been smuggled into Gaza via the sea.
2. Maritime blockades are a legitimate and recognized measure under international law that may be implemented as part of an armed conflict at sea.
3. 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.
4. 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.
5. In this vein, it should be noted that Israel publicized the existence of the blockade and the precise coordinates of such by means of the accepted international professional maritime channels. Israel also provided appropriate notification to the affected governments and to the organizers of the Gaza protest flotilla. Moreover, in real time, the ships participating in the protest flotilla were warned repeatedly that a maritime blockade is in effect.
6. Here, it should be noted that under customary law, knowledge of the blockade may be presumed once a blockade has been declared and appropriate notification has been granted, as above.
7. Under international maritime law, when a maritime blockade is in effect, no boats can enter the blockaded area. That includes both civilian and enemy vessels.
8. 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. 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.
9. Here we should note that the protesters indicated their clear intention to violate the blockade by means of written and oral statements. Moreover, the route of these vessels indicated their clear intention to violate the blockade in violation of international law.
10. Given the protesters explicit intention to violate the naval blockade, Israel exercised its right under international law to enforce the blockade. It should be noted that prior to undertaking enforcement measures, explicit warnings were relayed directly to the captains of the vessels, expressing Israel’s intent to exercise its right to enforce the blockade.
11. Israel had attempted to take control of the vessels participating in the flotilla by peaceful means and in an orderly fashion in order to enforce the blockade. Given the large number of vessels participating in the flotilla, an operational decision was made to undertake measures to enforce the blockade a certain distance from the area of the blockade.
12. Israeli personnel attempting to enforce the blockade were met with violence by the protesters and acted in self defense to fend off such attacks.
Part Two: Decision by the UN’s Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (a.k.a. The Palmer Report)
Succinct Determinations taken from The Palmer Report
Paragraph 82 – The fundamental principle of the freedom of navigation on the high seas is subject to only certain limited exceptions under international law. Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.
Paragraph 95 – Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade. The majority of the flotilla participants had no violent intentions, but there exist serious questions about the conduct, true nature and objectives of the flotilla organizers, particularly IHH. The actions of the flotilla needlessly carried the potential for escalation.
The Use of Force on the Mavi Marmara
Paragraph 133 – Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.
Paragraph 156 – The Panel’s recommendations in respect to Gaza are as follows:
- All relevant States should consult directly and make every effort to avoid a repetition of the incident.
- Bearing in mind its consequences and the fundamental importance of the freedom of navigation on the high seas, Israel should keep the naval blockade under regular review, in order to assess whether it continues to be necessary.
- Israel should continue with its efforts to ease its restrictions on movement of goods and persons to and from Gaza with a view to lifting its closure and to alleviate the unsustainable humanitarian and economic situation of the civilian population. These steps should be taken in accordance with Security Council resolution 1860, all aspects of which should be implemented.
- All humanitarian missions wishing to assist the Gaza population should do so through established procedures and the designated land crossings in consultation with the Government of Israel and the Palestinian Authority.
Naval Blockades in General
Paragraph 164 – In relation to the part of this chapter dealing with the prevention of incidents in the future relating to blockades generally, the Panel makes the following recommendations:
- States maintaining a naval blockade must abide by their obligations with respect to the provision of humanitarian assistance. Humanitarian missions must act in accordance with the principles of neutrality, impartiality and humanity and respect any security measures in place. Humanitarian vessels should allow inspection and stop or change course when requested.
- Attempts to breach a lawfully imposed naval blockade place the vessel and those on board at risk. Where a State becomes aware that its citizens or flag vessels intend to breach a naval blockade, it has a responsibility to take pro-active steps compatible with democratic rights and freedoms to warn them of the risks involved and to endeavour to dissuade them from doing so.
- States enforcing a naval blockade against non-military vessels, especially where large numbers of civilian passengers are involved, should be cautious in the use of force. Efforts should first be made to stop the vessels by non-violent means. In particular, they should not use force except when absolutely necessary and then should only use the minimum level of force necessary to achieve the lawful objective of maintaining the blockade. They must provide clear and express warnings so that the vessels are aware if force is to be used against them.
Although the Palmer Report did admonish the IDF for excessive force, intimidation and mistreatment of the civilian passengers, it acknowledged, “The naval blockade was imposed as a legitimate security measure” and “Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.”