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Tuesday, June 29, 2010

Another wrapup on the legality of the blockade

Excerpts of a new article from the Carnegie Council:

Putting aside overheated rhetoric and pseudo-legal analyses, I asked a group of international law experts about the blockade of the Gaza Strip and the methods employed by Israel to enforce it. These are their answers:

Q. Did Israel commit piracy?
The short answer is no, states U.S. Navy Commander James Kraska, who teaches international humanitarian law (IHL, otherwise known as the Law of War) at the U.S. Naval War College. Article 101 of the United Nations Convention on the Law of Sea defines piracy as "a private act, typically with some sort of pecuniary interest. And by private, that means it's not going to be a governmental act," he explains.

Q. Are naval blockades a legal form of warfare?
Though it has a negative impact on enemy civilians and neutral third parties, blockading a state is a "legitimate method of naval warfare," says Marko Milanovic, a legal scholar at Cambridge University. However, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), considered to be the consensus view of customary law on the issue, does contain a few caveats.

Q. Can Israel blockade a foreign, non-state entity like Gaza?
In August 2005, Israel withdrew its soldiers and settlers from the Gaza Strip. However, since then, no independent state of Palestine has emerged—leaving the small evacuated territory in a weird legal limbo. This, in turn, makes adjudicating the Israeli naval action tricky because, while blockades clearly apply in the case of two states at war, the law falls silent with regard to non-state combatants like Hamas, notes Milanovic.

Now, were Gaza still under military occupation (as the UN considers it to be), there would be no problem blockading it. Indeed, Common Article 2 of the Fourth Geneva Convention states that IHL extends to undeclared wars and occupied territory, says Wolff Heintschel von Heinegg, a law professor at the Viadrina European University. This being the case, the IHL rules governing naval blockades also apply to Gaza.

However, if Gaza is not occupied, as Israel claims, things get messy again......

...Just as it is not a foreign state, Gaza is also not an Israeli province in rebellion. Still, he says one could argue that if a state can employ a naval blockade in such radically different cases, then "you must also be able to blockade territory that is somehow in the middle..."


Q. Is the Israeli blockade a form of collective punishment?
Human Rights Watch, Amnesty International and the International Committee of the Red Cross have all decried the Gaza blockade as collective punishment. In doing so, they all look to Article 33 of the Fourth Geneva Convention, which states, "No protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited…"

This prohibition has its roots in the experience of German reprisal killings during World War II, Bell notes. Keeping that in mind, to then argue that Article 33 applies to the Israeli naval blockade of Gaza is "bizarre," he says, adding that there "has never even been a claim in any legal forum … that economic sanctions of any kind or blockades of any kind constitute collective punishment."

The collective punishment argument is likewise critiqued by other academics. Von Heinegg, for example, contends that it "has no basis in the law" because the only limits set for blockades are in San Remo. To be illegal, the Israeli blockade would have had to be instituted—not to stop the importation of rockets—but just to starve Gazans. Or, if, intentions aside, the blockade were to kill hundreds of innocent Palestinians.

Neither is the case, he explains.

Q. Can Israel intercept a blockade-runner in international waters?
Speaking in a private capacity, Major John Dehn, a law professor at the West Point Military Academy, says that, if a state has instituted a legal blockade, then it can board neutral ships in international waters. However, there must also be a reasonable belief that "the vessel is trying to breach a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture."

In radio exchanges with Israeli navy personnel on May 30, the flotilla crew made it clear that they intended to run the Gaza blockade. Therefore, Israel was well within its rights to stop the boats.
Read the whole thing.

(h/t Yaakov Lozowick)