The illegal siege of Gaza

Even in western media that are ordinarily friendly to Israel, from the Times of London to Libération in Paris, the seizure of the Gaza relief convoy has been widely denounced as an act "piracy" on the high seas. Is it? And is there any basis in international law for Israel's actions on the Mediterranean or within Gaza itself?

Strictly speaking, Israel's conduct on May 31st was not an act of piracy.  Olivier Corten, a French expert in international law, argues:  "....piracy refers to acts committed for private purposes.  It therefore excludes interventions by states or their armies."  In a broader sense, though, the commandos acted as "pirates" in boarding and detaining vessels in international waters that had a legal right to unobstructed passage. 

Defenders of the raid are insisting that Israel was justified in boarding the boats and enforcing its blockade of Gaza under the following provisions of the law of war [San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 1994]:

"67. Merchant vessels flying the flag of neutral States may not be attacked unless they:
(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture…
"98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked."

This argument is flawed in its premises for two related reasons:

1. There is no "blockade" under international law

Israel's economic isolation of Gaza is not a proper "blockade" under international law.  The standard definition of "blockade" is "an act of war by which a belligerent prevents access to or departure from a defined part of the enemy’s coasts."  Gaza is a totally dependent, and sometimes occupied, territory subject to Israel's military and economic domination.  It is not a "belligerent" or "enemy" state engaged in hostilities with another state.  Neither Turkey nor Greece, who share Cyprus (from whose waters the fleet sailed), is in an armed conflict with Israel.  An embargo can be properly directed at hostile state actors, not dependent civilian populations like the Gazans.

2. The "blockade" itself was illegal at its inception under these provisions of the San Remo Manual:

"102. The declaration or establishment of a blockade is prohibited if:
(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or
(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade..."

The "objects essential to survival" in the flotilla's 15,000-ton cargo were described in today's Jerusalem Post:

"Among the equipment that the IDF agreed to show reporters were medical supplies, including [500] electric vehicles [wheelchairs] for handicapped people, wheelchairs, stretchers, hospital beds and boxes of medicine. They also showed crates full of dry food products and children’s toys.According to [Colonel] Levi, the soldiers also found construction equipment, including sacks of concrete and metal rods. He said that Israel did not allow those products to enter into the Gaza strip for fear that they would be used to construct fortifications for terrorists and for weapons manufacture." [My emphasis and additions.]

Colonel Levy failed to mention that construction equipment is sorely needed in Gaza because Israel has systematically bulldozed Palestinian dwellings in creating free-fire zones along the borders with Israel and Egypt.  

Levy also failed to mention that the fleet's human cargo of 600+ detainees, from 60 countries, included European legislators, a former U.S. ambassador to Israel, a recipient of the Nobel Peace prize and an 85-year-old survivor of the Holocaust.

The violent seizure of the vessels, which contained no arms or other military equipment, was clearly "excessive in relation to the concrete and direct military advantage" under the section of the San Remo Manual cited above.  In fact, Israel derived no "military advantage" whatsoever from its assault on the flotilla in international waters.

Israel's policies in Gaza, including its illegal embargo, are part of a pattern of "collective punishment" that has been described by Israeli human rights groups such as Gisha.org:  "imports are currently [January 2010] at approximately 25% of what Gaza needs, or about 2,500 truckloads of goods per month (including grain and animal feed transferred not on trucks but rather via the conveyer belt), as opposed to the 10,400 truckloads/month entering before the June 2007 closure began."

Gisha.org notes that the blockade bans the importation of the following items:

“...sage, cardamom, cumin, coriander, ginger, jam, halva, vinegar, nutmeg, chocolate, fruit preserves, seeds and nuts, biscuits and sweets, potato chips, gas for soft drinks, dried fruit, fresh meat, plaster, tar, wood for construction, cement, iron, glucose, industrial salt, plastic/glass/metal containers, industrial margarine, tarpaulin, sheets for huts, fabric (for clothing), flavor and smell enhancers, fishing rods, various fishing nets, buoys, ropes for fishing, nylon nets for greenhouses, hatcheries and spare parts for hatcheries, spare parts for tractors, dairies for cowsheds, irrigation pipe systems, ropes to tie greenhouses planters for saplings, heaters for chicken farms, musical instruments, size A4 paper, writing implements, notebooks, newspapers, toys, razors, sewing machines and spare parts, heaters, horses, donkeys, goats, cattle, and chicks.”

Israel's ban on the importation of most construction materials should be viewed in the context of what Israel calls "economic sanctions" and what human rights groups call "collective punishment."  Gaza is unable to meet its needs internally, as Gisha.org points out, because "Gaza's factories are closed or are functioning at less than 10% capacity because of the inability to obtain raw materials and the inability to export finished goods."

There's an acute shortage of housing in Gaza due to Israeli demolitions and extensive damage caused by the fighting in 2009.  The flotilla's cargo included timber, cement and 100 prefabricated houses.  While Israel argues that Hamas would appropriate the building materials for the construction of bunkers and other fortifications, it has offered no relief to the tens of thousands of Palestinians who lost their homes more than a year ago.  (The fighting also disabled about 700 Palestinians, for whom the wheelchairs were intended.)

Gaza's population is totally dependent on Israel's whims to meet its basic needs for food and everything else.  Gisha.org notes, for example:

"...Israel permits Gaza residents to receive small packets of margarine, considered a consumption item. Israel bans, however, the transfer of large buckets of margarine, because the buckets are designed for industrial use, rather than home consumption, meaning that they could be used to allow a local factory to produce biscuits."  Similarly, requests to permit empty cans intended for the preservation and marketing of Gaza-produced tomato paste have been refused, but requests to transfer prepared, Israeli-made tomato paste are permitted."

As long as direct U.S. military aid to Israel continues at its present level of $2.4 billion per year, Israel can just hunker down and continue to act with impunity despite international condemnation for its acts.  The high level of support places the U.S. in unique position to influence the Netanyahu government to open serious negotiations with Palestianians toward an overall settlement of this endless conflict.  If that's the real goal of the aid missions to Gaza, as Israel claims, then the world has to hope they succeed.

[Photo: Jabalia, Gaza Strip, after the fighting in 2009 (Wikimedia Commons)]