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Thursday, June 23, 2011

Maritime law expert: "Israel cannot and must not allow ships to Gaza"

An English translation of an article in Zeit Online:

Wolff Heintschel von Heinegg is an international and maritime law expert who teaches at Europa-Universität Viadrina in Frankfurt [Oder]. He has also served as an adviser to the Turkel Commission that Israel established in the summer of 2010. The commission has been tasked with determining how and why violence erupted on 31 May 2010 between passengers on the Gaza humanitarian convoy and Israeli soldiers.



ZEIT ONLINE: The deployment of Israeli forces in May of last year against a humanitarian convoy headed for Gaza unleashed cries of protest worldwide. Now a second and far larger international convoy is on its way to Gaza – a convoy that aims to break Israeli’s sea blockade of Gaza. Is this blockade even allowable from a legal standpoint?

Wolff Heintschel von Heinegg: Well that depends on how you characterize the conflict between Israel and the Palestinians. When jurists come together, they often disagree on this matter. But there’s definitely a consensus on one thing – namely that what you have here is an armed conflict. Which means that the laws governing such conflicts apply; and under these laws, sea blockades are allowed.

ZEIT ONLINE: But doesn’t the conflict also have to involve two or more states?

Heintschel von Heinegg: Right. And the problem is that Palestine is not a state – at least not yet – which is why many feel that the conflict is not an international armed conflict. And if you take that view, then blockade laws don’t apply. But if you take an objective look at the relevant legal analyses, it’s readily apparent that the basic admissibility of the Israeli blockade has never been called into question.

ZEIT ONLINE: You yourself have characterized Israel’s action against the convoy in 2010 as being perfectly legitimate. Why is that?

Heintschel von Heinegg: If a blockade is allowable in this conflict, then it’s also allowable to take measures to set up such a blockade. There’s only one principle that characterizes a blockade: the principle of effectiveness. In other words, the blockade has to prevent ships from entering or leaving the blockade zone. If the blockade fails to do this even once, it is ineffective and thus immediately becomes legally ineffective as well.

ZEIT ONLINE: So this means that when it comes to this blockade, Israel is in a catch-22 situation, right?

Heintschel von Heinegg: Right. The Israelis simply can’t afford to let any ship through, if they want to prevent another ship from passing through the blockade zone a few hours later.

ZEIT ONLINE: The operators of the 2010 humanitarian convoy said right from the outset that the ships were headed for Gaza. Didn’t saying this make them subject to criminal prosecution?

Heintschel von Heinegg: The mere fact that they set sail for Gaza does not constitute a criminal act. But: if you come out and say, in a public forum, that you’re heading to Gaza for the express purpose of breaking the blockade, this is clear evidence of a blockade breaking attempt. And when that happens, the state that has imposed the blockade doesn’t need to wait until the ship in question reaches the 20 nautical mile boundary; instead, it’s got the right to intervene beforehand. Because the state that’s imposing the blockade is not only entitled but also duty bound to maintain its blockade.

ZEIT ONLINE: What do you think the people onboard the current humanitarian convoy are going to be facing?

Heintschel von Heinegg: Any ship that actually breaks the blockade simply has to reckon with the fact that that military force is going to be used against them. Plus the state that’s imposing the blockade is under no obligation to wait until someone actually crosses the blockade line. All that has to happen is for there to be clearly discernible intent – in which case measures can be taken long before the blockade line is crossed.

ZEIT ONLINE: What form could or should such measures take?

Heintschel von Heinegg: Normally such measures unfold without any major problems. The state imposing the blockade stops the vessel, orders it to proceed to a specific port, inspects the ship’s cargo, and then turns the matter over to the courts. But if there’s resistance to the measures taken by the state that’s imposing the blockade, then this state needs to quell this opposition. Which means that any attempt to evade the blockade or the forces enforcing it needs to be met with reasonable force.

ZEIT ONLINE: In your view, was Israel’s reaction to the humanitarian convoy in 2010 a smart move given the humaniarian situation inGaza?

Heintschel von Heinegg: Well this is how it always is when it comes to such legal issues. In such situations, the actors don’t always act logically, or judiciously; nor are such actions necessarily the politically smart thing to do. A state that imposes a blockade is obligated to supply the civilian population in the blockaded zone with the goods they need in order to survive. But the Israelis have always done this. At the time of the humanitarian convoy in 2010, it was the same in that they said: Feel free to sail into the harbor; we guarantee that we’ll hand over your humanitarian cargo. But it was clear from the get-go that certain parties didn’t want that at all, because then they wouldn’t have achieved the same impact on public opinion.

ZEIT ONLINE: What would you advise the Israeli Prime Minister to do if the next humanitarian convoy approaches the boundary of the blockade zone?

Heintschel von Heinegg: If the Prime Minister wants to maintain the blockade, then he’s simply got to enforce it. If he doesn’t enforce it, it’ll be a dead letter; and then he’d have to resort to other measures; and then the legal situation wouldn’t be so simple. Because then he’d have to invoke the right of self -efense, which is often invoked in cases where it’s simply not appropriate to do so. Our [Germany’s] anti-terrorism operations are a prime example of this.

ZEIT ONLINE: Do you think the Israelis are going to react to this second convoy the same way they reacted to the first one?

Heintschel von Heinegg: I think Israel is better prepared this time around. Last time they tried to approach the convoy ships in rubber dinghies and then climb onboard from these dinghies, in order to take control of the ships. And then they used helicopters. I suspect that the Israeli forces were simply unprepared for the resistance they met from some of the passengers on board those ships and were taken completely by surprise.

ZEIT ONLINE: Is the legal situation now more touchy due to the fact that there’s already been a conflict with a convoy?

Heintschel von Heinegg: I think the reverse is the case. I hope that the relevant legal principles won’t be misused again, since the law of armed conflict applies here – not a cockeyed human rights perspective. Also, Israel didn’t act at all capriciously the first time around. It would have been quite difficult for the Israelis to sink those ships without concerning themselves with the fate of the passengers and cargo onboard. Israel only took measures that were prescribed by law – namely preventing the ships from reaching Gaza. This was the most moderate measure available to them.

ZEIT ONLINE: People are suffering in Gaza, even though they have access to the goods they need in order to survive. Isn’t it legitimate for people to want to help the citizens of Gaza?

Heintschel von Heinegg: The motivation of the blockade breakers – regardless of whether they’re acting for virtuous or reprehensible reasons – is completely irrelevant from a legal standpoint. I, of course, have great respect for human rights activists who give of their time to pursue their goals, but you can’t get around the fact that there are certain legal boundaries. Also, I presume that these humanitarian actions are also publicity stunts aimed at mobilizing public opinion. No one would argue the fact that the citizens of Gaza have it really tough, compared to our own standards. But I don’t really see any pressing humanitarian need here.

ZEIT ONLINE: In your view, is there an alternative to these humanitarian convoys?

Heintschel von Heinegg: Sure there is. There are a few humanitarian organizations out there that have impeccable credentials that no one in their right mind would call into question – the most important one being the International Committee of the German Red Cross. If you really want to help the citizens of Gaza, you go to the Red Cross – an organization that the Israelis accept without hesitation.

ZEIT ONLINE: The border crossing between Gaza and Egypt was recently reopened. Do you think this will have a counterproductive effect on the naval blockade?

Heintschel von HeineggIsrael has traditionally been able to rely on Egypt, and the border between Gaza and Egypt hasn’t been particularly permeable in the past. But this has changed. The strategic importance of the blockade in terms of protecting Israeli securityhas definitely declined. But nonetheless, the reliability of Israel’s maritime measures will not be affected in any way by the change in the status of the Gaza-Egypt border.


(h/t Kenneth)