the blockade on gaza - irit kohn

8/9/2019 The Blockade on Gaza - Irit Kohn

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The Blockade on Gaza

Legal analysis by Adv. Irit Kohn, formerly in the Israeli Ministry of Justice

Imagine a terrorist organization, designated as such by the EU and the U.S., violently

seized control of an area, and smuggled in vast quantities of heavy weaponry via

both land and sea. Now imagine that this terrorist organization decided to wage a

violent campaign against a neighboring state, by bombing its civilians including

women, children and the elderly with over 10,000 rockets. Then imagine that over

500 protesters, the majority of whom belong to a radical Islamic organization known

to fund and support terrorist groups, wanted to join forces with this terrorist regime.

It would seem illogical that international law would not provide the tools to confront

such a rogue terrorist enterprise. And indeed, the body of international law that

applies to armed conflict does not remain silent on these matters, and provides

states with legitimate, legal measures that they can employ.

The scenario described above is the very situation in which the State of Israel

currently finds itself. In 2005, Israel implemented its "disengagement plan,"

completely withdrawing from the Gaza Strip, leaving no Israeli military or civilian

presence.

While Israel hoped that disengagement would serve as a springboard for improving

relations with its neighbors, the very opposite occurred: Hamas, an EU and U.S.

designated terrorist organization, took control of Gaza and stepped up rocket

attacks against Israeli civilians. To date, Hamas has fired over 10,000 rockets atcivilian targets in Israel proper. The heavy armament used in these attacks is

smuggled into Gaza via land and sea,and one need not look any further than the

Karin A episode, in which the Israeli navy intercepted over 50 tons of advanced

weaponry headed towards the Hamas regime in Gaza, for proof of such maritime

smuggling.

Israel, as a democratic State, looks for legal tools to curb such smuggling and

respond to Hamas' terrorist attacks against its citizens. One of the tools available

under international law is the maritime blockade. Israel, finding itself in a state of

armed conflict with Hamas, has opted to employ this legal measure.

A naval blockade is a recognized and legitimate tool under international law. Indeed,

naval blockades have been imposed throughout the 20th

century, and the naval

manuals of several western countries, including the US and UK, , recognize the

maritime blockade as an effective, legal measure available in the face of armed

conflict with a terrorist entity.

As set forth in the San Remo Manual on International Law Applicable to Armed

Conflict at Sea, in order for a maritime blockade to be valid, several conditions

must be met. These include due notification of the blockade and its location; the

effective and impartial enforcement of the blockade; the allowance for access to the


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ports and coasts of neutral states; and the creation of alternative routes for the

provision of humanitarian assistance to civilians.

Israel has met its obligations under international law by providing due notice of the

existence of the blockade and its exact coordinates through professional maritime

channels, government websites and diplomatic channels; it has effectively and

impartially enforced the blockade since its implementation; it has not impeded

access to the ports or coasts of neutral states; and it has provided an alternate land

corridor for the transfer of humanitarian goods, such that 15,000 tons reach the

Gaza Strip weekly.

International law provides not only for the legal implementation of a maritime blockade but

also for its legal enforcement. Under international law, as reflected in the abovementioned

San Remo Manual, any vessel that breaches or attempts to breach a blockade, irrespective

of the cargo on board, or the vessel's nature, enemy or civilian, may be subject to legal

measures to enforce the blockade. These legal measures include capture of, or even attack

upon, the vessel. Enforcement measures may be undertaken at a distance from the naval

blockade and in international waters if there are reasonable grounds to believe that a vessel

intends to violate the blockade. The U.S. Naval Handbook notes that an attempted breach

of blockade occurs from the time a vessel leaves a port with the intention of breaching the

blockade.

Let us return to our initial scenario on May 30th

, six ships carrying over 500

protesters, including hundreds of members of the Insani Yardim Vakfi (IHH) a

radical Islamic organization that funds and supports terrorist groups, including

Hamas set sail with the clear intent to violate the legal maritime blockade in effect

off the coast of Gaza. Many of these radical activists came armed with light

weaponry knives and bats and noted in interviews on Turkish television on the eve

of their voyage that should Israel attempt to enforce its naval blockade, it would be

met with "fierce opposition." As one protester put it, "This mission is not about

delivering humanitarian supplies, it's about breaking Israel's siege." (Greta Berlin,

AFP, 27May10). These activists were warned of the blockade several times, in real

time, by Israeli naval personnel, and were told that if the ships did not change course,

legal enforcement measures would be undertaken. These activists were well aware

of Israel's right and intention to enforce the blockade.

Israel hoped to enforce the blockade in a peaceful and orderly manner, as with past

successful missions to enforce the blockade. On the ships in the May 30th flotilla

where no violent resistance was encountered, Israeli enforcement measures were

peacefully implemented. However, on the ship where Israeli personnel were met

with violence, they were, unfortunately, forced to act in self defense.

Terrorist organizations constantly invent new methods of warfare. The challenge

facing Israel and other Western democracies is how, within the confines of the law,

to fight terrorists who unabashedly ignore the law. Israel's recent blockade

enforcement efforts stand the test of international law.


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