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The Legality of Interdicting the Turkish Flotilla

flotillaSince the announcement of the interdiction of the flotilla of aid headed for Gaza from Turkey and the attendant loss of life, I have wondered whether the widespread declamations that the Israelis’ actions were clear violations of international law and, consequently, those on the boats were fully justified in defending themselves were right or not. Galrahn of Information Dissemination, a blog on maritime strategy and strategic communications, has weighed in:

Under international law, the consensus of the maritime attorney’s I have spoken to is that the boarding operation by Israel was legal. The coast of Gaza has been under maritime blockade by Israel, a blockade that was well known – indeed running the maritime blockade for political purposes was the specific intent of the protesters. It is why the press had been reporting all week that the situation was likely leading towards a confrontation. Is anyone surprised that Israel had an established maritime blockade and enforced that maritime blockade? I’m certainly not, Israel made clear all week that the flotilla would not be allowed to pass.

The maritime blockade is a result of the war between Israel and Hamas. Ones political position on that ongoing war is completely irrelevant to the reality that the maritime blockade was established. Knowledge of the maritime blockade by the protesters is also not in debate, and neither is knowledge the flotilla intended to violate the blockade – they made this clear themselves in the press. Once the flotilla made it clear in the press they intended to run the maritime blockade, according to international law, and even US law, the flotilla was considered to be in breach by attempting to violate the blockade.

It was at that point the IDF had legal authority – under international maritime law governing maritime blockades during wartime – to board the vessels and prevent the vessels from running the blockade. Yes, this action may legally be taken in international waters if those waters are recognized as part of the area under the maritime blockade. It is important to note that the action took place within the zone that was publicly known to be part of the maritime blockade of Gaza, and part of that zone is in international waters.

I don’t claim that Galrahn’s statements are dispositive. He does have excellent contacts and, consequently, what he says in this area should carry some weight.

I still don’t know whether the Israelis’ actions were legal or not. However, Galrahn’s comments support my view that it’s not an open and shut case.

Let me be very clear: I think the Israelis’ interdicting the flotilla at all was a tactical and strategic error. Moreover, as observed by my friend Mark Safranski, it demonstrates that Israel does not understand fourth generation warfare, a deficit they may come to regret.

One more thing. I think the White House is to be commended for its statement on the affair. The dual emphases on regret for the loss of life and the need for more information before reaching a conclusion were IMO pitch-perfect. Credit where credit is due.

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About Dave Schuler
Over the years Dave Schuler has worked as a martial arts instructor, a handyman, a musician, a cook, and a translator. He's owned his own company for the last thirty years and has a post-graduate degree in his field. He comes from a family of politicians, teachers, and vaudeville entertainers. All-in-all a pretty good preparation for blogging.

Comments

  1. PD Shaw says:

    Doesn’t this imply that Gaza is a sovereign state? It seems to me that Israel’s supporters have been arguing that it is not a state for purposes of the International Criminal Court.

    I only have knowledge of the state of the law as it existed between the years 1860 and 1865, from which I would conclude that (a) squabbles involving national identity may be a poor fit for general legal principles and (b) you don’t want to piss off other countries who might lend aid and support to your opponent.

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  2. Pete says:
  3. PD Shaw says:

    Professor Julian Ku’s summation seems fair:

    There are some very hard legal issues here: Is Israel’s naval blockade legal? (Probably). If so, was the boarding in international waters legal? (Maybe). And even if so, did the IDF use disproportionate force? (I have no idea). This last question is really the key issue here, and it is also the one that is never going to be resolved with any certainty given that it is dependent on neutral factual determinations that will never happen here.

    It would no doubt be in Israel’s interest to agree to third party mediation on these issues, but Israel probably trusts nobody (probably justifiably) except maybe the United States. And I sure as heck don’t want the U.S. to volunteer.

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  4. Annie says:

    Interesting to read Galrahn’s position on this. He does leave our some important aspects though:

    #1. Even if you follow his line of reasoning that the blockade was legal and should be enforced by Israel, he doesn’t address the opinion by some that IDF could have used other, non-violent means to stop the ship without boarding it, and certainly without violence (this is also given that the IDF initiated violence first, which is still being debated).

    and #2, the allegation that the ship raised a white flag of surrender and the IDF did not cease violence.

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  5. Brett says:

    Israel was well within its rights to stop and search the ships (and confiscate any ships carrying contraband that wasn’t food and other forms of humanitarian aid), but I’m not so sure they were within their rights to just stop the ships from going to Gaza, period. Blockades, at least under current international law, usually don’t apply to basic humanitarian aid to a civilian population.

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  6. Omry Yadan says:

    Brett,
    The catch 22 he is that Israel cannot take the word of the people on the boats that they are not smuggling arms and ammo to Hammas.
    A very clear offer was made to the ships (before they sailed and during the encounter on Radio) to deliver the aid to Ashdod port (About 40km north of Gaza), where it will be examined and passed on to Gaza UNDER THE OBSERVATION OF THE ACTIVISTS.
    They refused, because what they were after was not to deliver the aid, but to confront Israel troops to rip political gain.

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  7. steve says:

    “The maritime blockade is a result of the war between Israel and Hamas.”

    A lot hangs on this part. Are they really officially at war? Can you be at war with a non-state entity? Does this mean we could legally blockade and interdict all shipping into Pakistan?

    Lastly, now that Israel has told Turkey to f*ck off, will any European country support them? Are we pretty much their sole support now? If so, will we stop letting them dictate to us?

    Steve

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  8. Zelsdorf Ragshaft III says:

    The United Stated disallowed the Soviets from installing missles in the sovereign state of Cuba. The people behind the shipment of goods to Gaza were not truely interested in aiding the Palistinians, their goal is to arm Hamas with increasingly dangerous weapons. Weapons which are too large to be brought in by tunnel. You can discuss the legality or illegality of this act. It really makes no difference. Isreal is not about to allow the importation of scuds into Gaza. It is sometimes really hard to understand why people in this country give favor to those who would take their lives and country without hesitation. They would murder your children before your eyes and claim it was the will of Allah.

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  9. Annie says:

    IMO, even if the blockade is “legal” under international law, it’s not legal under natural law. When will we begin to learn that sanctions and blockades do not hurt the government we are trying to hurt, but rather hurt the innocent civilians? Regardless of what you think about Hamas, the blockade truly hurts the innocent more than anyone. It’s a crime against humanity and I think it’s morally wrong for us to aid in upholding it.

    @ Zelsdof – that’s jumping to a serious conclusion. Have they found these supposed weapons that the flotilla was delivering to Gaza?

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  10. JKB says:

    Is their doubt that Israel, a sovereign state, is in a state of hostilities with Hamas? The rockets and terrorist attacks emanating from Hamas territory would seem to put that to rest. Oh and the fact that there are near continuous peace talks would indicate a state of hostilities. Also, while blockade is a sovereign act, it is only necessary that the port/ports blockade be party to the hostilities, i.e., not controlled by a neutral power.

    A very old law definition of blockade is:

    BLOCKADE, international law. The actual investment of a port or place by a
    hostile force fully competent to cut off all communication therewith, so arranged or disposed as to be able to apply its force to every point of practicable access or approach to the port or place so invested.

    It requires that the communication via sea be cut off completely otherwise the legitimacy of the blockade can be challenged. That is why the vessels could not make a Gaza port regardless of their cargo. That is why Israel offered to let the vessels off-load in an Israeli port and then transport the cargo overland to Gaza. The vessels sailed for a blockaded port, knowing it was blockade and stated that as their intent. Perhaps their are modern niceties, but historically, those vessels were subject to be taken and their cargos seized by Israel as soon as they hit international waters since they were in breach of the blockade by their stated intent.

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  11. JKB says:

    Annie – Can you provide citations to where Israel prevented, delayed or otherwise interfered with humanitarian aid being delivered by the UN or others (outside of short duration active combat situations)?

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  12. Franklin says:

    Isreal is not about to allow the importation of scuds into Gaza.

    Well according to David Frum (who is firmly on the Israelis’ side), about the only thing on those flotillas that could be related to war was cement, which Israel points out can be used to build bunkers.

    Cement: not exactly a WMD.

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  13. steve says:

    The definitive post on the topic is here.

    http://www.cnas.org/blogs/abumuqawama/2010/06/fast-roping-101.html

    Steve

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  14. Annie says:

    It’s not just a matter of blocking humanitarian aid – it’s an economic blockade which keeps them in complete poverty. However, Israel does have limits as to the amount and type of goods which can go into Gaza. The UN has condemned them several times for not allowing nearly enough aid to enter Gaza. They’ve also delayed medical & food supplies (several times in 2009) to the point that they were expired and completely useless.

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  15. JKB says:

    Destroying economic capability is a purpose of war. That is how we won WWII, by destroying Germany’s production capacity. Economic activity brings in money, that is then used to finance the war. Economic activity produces goods needed to wage war. It is a sad fact of war that civilians suffer but then Hamas was elected so the majority of the citizens support(ed) their hostility towards Israel.

    Unfortunately, if Hamas is confiscating the humanitarian supplies for their use or to build support for their regime, it is Hamas who place the humanitarian supplies in jeopardy. If Hamas cared about their people, they would use the UN and independent observers to verify that none of the supplies were being diverted to their military or political forces. That’ll never happen. The UN could do more to ensure the aid is only going to the populace and not being taken by Hamas forces.

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  16. PD Shaw says:

    JKB,

    What you’ve written about blockades would appear to be Lincoln’s position during the civil war: Contrary to other views at the time, it was lawful to use a blockade against an entity without legal right to exist. I will not argue against Lincoln.

    The Union blockade was also directed as much towards the economy of the South as anything. Cotton was probably the most commonly seized contraband and that was not because it’s potential to kill.

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  17. PD Shaw says:

    Franklin, is cement a form of humanitarian aid? If not, I expect that it the type of thing a blockade is supposed to seize.

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  18. steve says:

    ” Contrary to other views at the time, it was lawful to use a blockade against an entity without legal right to exist.”

    The CSA would seem to come much closer to what we think of as a nation-state. Hamas is a political party, or a group of thugs depending on how you look at it. At any rate, I think this is mostly a matter of might makes right.

    “Franklin, is cement a form of humanitarian aid?”

    Makes a piss poor weapon. Given that the basic human needs are generally thought to be food, water and shelter, I guess Gaza should just use all of its trees to build and repair housing? Houses there dont need foundations?

    Steve

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  19. I’ve read somewhere about chunks of cement shaped like bombs with the necessary guidance hardware on them to use in place of real bombs. As long as it hits the target a 3,000 lb piece of cement dropped from a fighter or bomber has a tremendous amount of kinetic energy on impact that can easily destroy a tank, building, or whatever while minimizing collateral damage significantly. Hamas lacks a decent delivery system for such a weapon, but that’s not true of all of Israel’s neighbors.

    Aside to Annie, as a rule I take condemnation from the UN as a contraindicator of what it right.

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  20. just me says:

    Well according to David Frum (who is firmly on the Israelis’ side), about the only thing on those flotillas that could be related to war was cement, which Israel points out can be used to build bunkers.

    I would point out that the flotilla was intentionally designed to be a political statement.

    The organizers at this point weren’t about getting weapons into Gaza, but getting Israel to stop them so they could cry about how mean they are. Israel’s mistake was stepping into the target zone and taking the hit the way they did.

    However, I do think Israel has every right to seek to stop weapons that can be used against them from going into Gaza, and if they start turning a blind eye towards political flotillas, then at some point the weapons will probably get on the boats.

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  21. Joe says:

    This whole issue just gets worse and worse. Everyone seems to be playing a political angle, even humanitarian aid workers.

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  22. Annie says:

    Charles, I generally dislike the UN and don’t think that the US has any business being a part of it. I also don’t believe in the US officially condemning or supporting Israel whatsoever, but I cannot say I agree that Israel was right in this case.

    I was only referring to their condemnation in reply to the previous poster who acted like Israel had never done anything wrong. In fact, they had delayed and prevented the delivery of humanitarian aid to Gaza, and that is why they were condemned by the UN.

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  23. Annie, no problem. Humanitarian aid is delivered to Gaza overland by the UN every single day. This flotilla was not and is not about delivering humanitarian aid.

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  24. steve says:

    “Hamas lacks a decent delivery system for such a weapon, but that’s not true of all of Israel’s neighbors.”

    If someone had a delivery system able to handle a 3,000 pound payload, it seems unlikely that cement would be among the first 5 or 6 things they would choose to use.

    Steve

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  25. JKB says:

    First off this is not an embargo, it is a maritime blockade. Nothing lands in Gaza from the sea. Blockades have been part of the law of war forever. If Israel allows ships to land the blockade can be challenged.

    BTW, the aid these ships carried has been transferred to Gaza. It was equivalent to about 25% of what Israel ships on a single day.

    I don’t claim Israel can do no wrong. Only that they are acting in accordance with international law in regards to the conduct of hostilities against those who have repeatedly reasserted their hostilities toward Israel.

    It is not the view of Lincoln but the view of the Supreme Court of the United States as outlined in the Prize cases.

    The parties belligerent in a public war are independent nations. But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents, claims sovereign rights as against the other.

    In any case, the Middle East Peace process has established Hamas as a legitimate belligerent in the conflict.

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  26. PD Shaw says:

    As I read the Fourth Geneva Convention, Israel, assuming its a contracting party is not required to allow concrete and building materials to pass, only

    medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

    Article 23

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  27. PD Shaw says:

    Following up on Article 23, the Red Cross explains medical and religious supplies, unlike food, clothing and tonics (?) “cannot be a means of reinforcing the war economy and can therefore be sent to the civilian population as a whole.” Food and clothing must be directed to children only. “This distinction is based on military considerations. The intention is to keep a strict check on the destination of provisions which might reinforce the economic potential of the enemy if used for other purposes.”

    Red Cross Commentary

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  28. Dodd says:

    Let me be very clear: I think the Israelis’ interdicting the flotilla at all was a tactical and strategic error. Moreover, as observed by my friend Mark Safranski, it demonstrates that Israel does not understand fourth generation warfare, a deficit they may come to regret.

    Well, what can they do. Make an empty threat, and they lose control of the blockade. Pretend nothing’s happening and let ship through and they lose control of the blockade. Either way, ships full of weapons won’t be far behind.

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  29. Zelsdorf Ragshaft III says:

    Anne, I never said there was missles on the ships trying to run the blockage. But the Israelis had no way of knowing if there was or was not without looking. Since they refused to pull in to a port to have the cargo examined and sent on to Gaza unless you are willing to take the word of those who think your very existance is an abomination, visual verification seems in order. The video shows just how peaceful those individuals on the deck were. Israel has the right to prevent shipping from reaching Gaza. They chose a soft method. I would have sunk the blockage runners. Probably would prevent a return event. My point was Israel cannot afford to care what the UN does or does not do regarding this incident. Iran is behind most of this mischief. You are either on the side of your friends or you fail to understand the aims of the enemy.

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  30. [...] Dave Schuler on the legal questions involved in the Israeli boarding of the [...]

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  31. Tlaloc says:

    The maritime blockade is a result of the war between Israel and Hamas.

    What war? Hamas is not a state unto itself (or so Israel keeps arguing). That means there is no war between Israel and Gaza. That means there’s no legal right for Israel to blockade Gaza. Blockades are conducted between state actors.

    Well, at least legal blockades are. The illegality of the Gaza blockade renders the seizure of the flotilla as an act of war by Israel against the states whose flags the ships flew.

    It’s hard to imagine how Israel could have screwed the pooch harder with this debacle. They simultaneously made themselves look weak and stupid (by so badly flubbing a raid that your elite commandos were almost beaten into submission by peace activists!), called attention to the illegality of their actions in Gaza, destroyed the effectiveness of the illegal blockade (since Egypt has now opened their side of it), drove a bigger wedge between themselves and turkey (to the point where a shooting war is no longer an impossibility), and finally was so brazenly immoral that even the US is refusing to veto UN condemnations.

    That’s a hell of a lot of harm to do to your declared self interests in one stroke. Netanyahu really is the Israeli version of Bush.

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