On May 31, 2010, at 01:30 UTC, on the Mediterranean, outside Israeli territorial waters, which is to say, in international waters, Israeli naval forces intercepted a flotilla comprising 6 ships, sailing under the flags of third neutral states. As a result of this action, no less than 10 passengers of the flotilla are dead, several are injured, as well as several Israeli military personnel. It appears undisputed that at least 60 passengers are injured as well as at least 10 Israeli soldiers. Aside from these facts, everything else seems unclear, and many efforts will be required to clarify what exactly took place. This analysis aims, not to clarify the facts, which requires the examination of sources of evidence unavailable at this time to anyone but Israel, but to clarify the status of the law regarding this incident. Because international law is itself uncodified and due to the existence of several interacting instruments, customs and standards, all due care has been taken to examine all possible lines of argument, to an extent the reader will either appreciate or possibly find too exhausted. Nonetheless it is a jurist’s duty to fairly examine the issue, and no effort has been spared.
Speaking for myself, I condemn these Israeli actions, whether they were conformant to law or not. Legality must not be the only element of judgement of human conduct, and there is no reason to limit one’s view to such a narrow standard. I hold Israeli actions lacked opportunity, justification, proportionality and humanity, in the ordinary, common sense meanings every day English attributes to these words.
In order to determine the legal implications of the flotilla incident (hereinafter the incident) it is necessary to begin by stating the situation which obtained previously, and, particularly, the declarations issued by the parties. Arguments involving the legality, propriety or right to exist of the state of Israel are beyond the scope of this analysis: Israel is a state, it fulfills the objective conditions required by international law as codified by the Convention of Montevideo of 1933, and any argument to the contrary ignores reality (both legal and factual).
After the “Six-Day War” of 1967, the Gaza Strip, which had hitherto been controlled by Egypt, becamed an occupied territory under Israeli power. Many Arab citizens–some of which had previously fled other areas of Palestine as a result of the 1948 Arab-Israeli war–lived in that territory, under military administration of the occupying power.
After the war, the United Nations Security Council issued its Resolution 242, of November 22, 1967, which attempts to establish a basis for the restoration of peace and security in the area. This resolution, of difficult interpretation for reasons beyond the scope of this study, included a set of requirements on the parties: amongst those requirements are the withdrawal of Israel from occupied territories, as well as requirements for Arab parties to reach peace with Israel. A reference is made on ¶ 1 to secure and recognized boundaries, which, as well as other matters, contributes to making the resolution difficult to interpret. Vitally, ¶ 2(a) of the resolution states:
2. Affirms further the necessity
(a) For guaranteeing freedom of navigation through international waterways in the area;
In 1993, the Palestinian Authority started acting as the civil administration of the Gaza Strip, in accordance to agreements with Israel, as an interim measure towards a future Palestinian state, an outcome which has today not yet taken place. In 2005, Israel claimed to have “disengaged” from the occupied Gaza Strip, without having reached a satisfactory agreement with the Palestinian Authority which could serve as the basis for the formation of an actual Palestinian state. As a result, Israel still claims control over the airspace over Gaza, as well as the surrounding waters and most of the land borders, except those under control of Egypt, which has reached agreements with Israel constraining the items which may pass through.
In 2006, Hamas, which is a political and militant force, won the parliamentary elections for the Palestinian Authority. This victory resulted in an irregular transfer of power, mediated by violence, and an effective splitting of the territory controlled by the Palestinian Authority. Hamas has since had effective control of internal matters within Gaza.
From November 2008, Israel has blockaded Gaza. This blockade affects both the land borders controlled by it, as well as the territorial waters. Israel claims a naval blockade is in force. The border with Egypt is not entirely blockaded but there are stringent restrictions on the items which may pass through. Towards the end of 2008, the situation escalated into active military operations, which ended with unilateral cease fires on both sides.
Since, the naval blockade has continued, drawing international criticism both from state actors and human rights organisations. Likewise, rocket attacks from Gaza have taken place, at times intensively, at times not at all, in contraventions of the laws of war.
As a response to the blockade, several international efforts have taken place in order to attempt to send aid to Gaza. It must be understood that although Israel permits certain forms of humanitarian relief to go through, it has set certain restrictions which, particularly, after the destruction resulting from the military operations in 2008–9, effectively impede the reconstruction of civilian objects. The most onerous of these, if not the only one, is the restriction of cement, on the basis that it could be used for the construction of smuggling tunnels.
The particular case which concerns us, and which led to the incident, involved an international effort, organised by several NGOs, amongst them the Foundation for Human Rights and Freedom and Humanitarian Relief, which Israeli sources have linked to Hamas, amongst other Islamist groups.
Pursuing to this plan, a flotilla comprised of 6 ships approached Gaza with humanitarian aid, including items such as cement which Israel had hitherto not let through its blockade. When Israeli authorities warned the ship of the existence of a naval blockade, and invited them to disembark on the port of Ashdod, where aid would be unloaded and allowed items would be sent to Gaza under the observation of the passengers, the flotilla refused to acquiesce to this demand. A spokesman for the flotilla stated the following:
“This mission is not about delivering humanitarian supplies, it’s about breaking Israel’s siege on 1.5 million Palestinians… We want to raise international awareness about the prison-like closure of Gaza and pressure the international community to review its sanctions policy and end its support for continued Israeli occupation.”
After conversations failed to convince the flotilla to alter its course, Israeli military personnel launched a boarding operation in order to take control of the ships. It is hotly disputed whether Israeli forces opened fire before boarding took place, whether the passengers of the flotilla immediately attacked Israeli boarding personnel, whether such personnel boarded opening fire, and several other factual matters. While the resolution of these factual matters is of the utmost relevance in establishing the personal liability of the people involved (if any), an attempt will be made to show that its legal relevance for the incident as a whole is, at best, severely limited, on the light of other factors at play which are undisputed.
In any event, and as a result of the boarding action, at least 10 passengers of the flotilla died, several dozens were injured, as well as 10 IDF soldiers.
After the ships were captured, the passengers were detained and processed in accordance to Israeli laws dealing with illegal immigration. While not the object of this analysis, It must be remarked that the laws at issue hardly seem to fit the fact pattern in question. Again, facts are disputed in regards Israeli treatment of detained and injured passengers, but those matters are beyond the scope of this analysis.
There has been much diplomatic activity in the aftermath of the incident. Of particular relevance are the declarations of the Turkish state, under which the flagship of the flotilla sailed, and where the most serious confrontation took place, as well as the Statement by the President of the Security Council of the United Nations. Among other points, the statement reads as follows:
“The Security Council deeply regrets the loss of life and injuries resulting from the use of force during the Israeli military operation in international waters against the convoy sailing to Gaza. The Council, in this context, condemns those acts which resulted in the loss of at least 10 civilians and many wounded, and expresses its condolences to their families.”
This statement has been criticised on both sides. Supporters of the convoy regard it as insufficient, because of its condemnation of the acts, but not explicitly of Israel, while supporters of Israel consider it ignores Israel’s right to self-defence and its legal powers in pursuance of a legal naval blockade.
Some first notions to the uninitiated in international law. Because states are sovereign entities, by and large they cannot be forced to act or not act against their own will. In fact, that would be in itself a good first-pass on the notion of sovereignty. Because of this, international relations were at first characterised by the mere mechanisms of war, threats of force, and so on. As time passed by and the international community gained greater cohesiveness, and probably aided by advances in communications, transport, and the need for standardisation of some technical matters, relations between states became governed principally by law, and not by force. However, there is no “world parliament” to make laws for the states to keep. Rather, state have created mechanisms by which they can express their binding consent to be obliged by certain instruments. Likewise, there are some norms that are regarded so essential by the international community, that they bind all states, whether they accept them or not. These latter norms can be called jus cogens, peremptory norms of international law, etc. Additionally, many norms of behaviour in the international community arise from international practice–custom, so to speak.
This normative dispersion, in the sources of law as well as the means by which law comes into effect, makes international law very tricky to determine with certainty. Some aspects which may not have been at issue in the past are often difficult to resolve. However, this does not mean that international law isn’t binding, from a legal standpoint, on states.
These are the fundamental sources of law that apply to the present case, either directly or indirectly, or which can affect the matters of fact that are necessary to determine the outcome of the case at issue.
Furthermore, other sources of law include custom, which is defined as the persistent international practice which states believe as opinio juris–as their best understanding of what the law is–has binding force, jurisprudence produced by international tribunals and very particularly the International Court of Justice (hereinafter ICJ), as well as so-called general principles of law, which are legal maxims that are considered to inform and complement the rules of interpretation. In all cases, when a statement that “such and such is thus according to international law”, sources will be referred to, if they are not obviously deducible from the list above.
The first problem which must be studied is that which refers to the blockade of Gaza. In particular, it must be studied whether, as Israel claims, a lawful blockade of Gaza is, at present, in effect. Although international practice in the matter of blockades is, fortunately, uncommon, some rules may be deduced from existing instruments.
First off, there are some clear, undisputed, universally recognised requirements for the existence of a lawful blockade. This can be found in the San Remo Manual, which is a non-binding instrument that codified the state of international practice existing at the time of its compilation on the matter of the law applicable to armed conflicts at sea. This is part of International Humanitarian Law (hereinafter IHL) because it refers to the lawful means to wage armed conflicts. Much of the Manual bases itself on the Declaration concerning the Laws of Naval War, done in London, on February 26 , 1909. These Declaration had the purpose of clarifying existing international practice, so we can see that the problem of codification of international law is by far not sorted out and has obtained and caused problems for a long time now. Many of the norms are the same on the Declaration and the Manual, and in future all references shall be to the Manual because it is far more up-to-date. However, this fragment from the Declaration is of interest, inasmuch as it determines the existence of a long-lasting international practice–and codification–which supports a certain scope for the application of the law of naval conflicts.
BLOCKADE IN TIME OF WAR
Article 1. A blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy.
The importance of that statement lies in the fact that, as a prerequisite to anything else, the blockade must a) take place in time of war, b) not extend beyond coasts belonging to or occupied by the enemy. It is clear from international practice that the reference of Ch. 1, Art. 1, must be understood to be applicable within the scope of an international conflict.
Since international practice is being invoked, perhaps the sceptical reader will benefit from a historical reference in this regard. The following fragment refers to the American Civil War, and the implications a blockade entailed to its internationality or lack thereof.
The first crisis occurred when England issued a proclamation of neutrality, which rested upon the logic of the Union’s declared blockade. According to English reasoning, although Lincoln proclaimed the rebels to be insurrectionists and thus not recognizable under international law as a belligerent power engaged in war, his declared blockade was an act of war, which would have to be conducted against a sovereign state. Thus Lincoln had actually granted belligerency status to the Confederacy and thereby forced foreign powers to do the same. By proclaiming neutrality, England afforded the Confederacy the status of a belligerent power. Other European nations followed England’s lead. Belligerency status gave the Confederacy the right, according to international law (signed by European nations after the Crimean War in 1856), to contract loans and to purchase arms from neutral nations. It also allowed England to provide safe harbors for both Union and Confederate warships and merchant vessels, to build blockade runners and warships for the Confederacy, and to formally debate in Parliament the merits of active intervention.
Likewise, the Manual declares a similar scope for its norms, implying international practice and law has not significantly changed in this regard since the Declaration.
Part I : General provisions
Section I : Scope of application of the law
1. The parties to an armed conflict at sea are bound by the principles and rules of international humanitarian law from the moment armed force is used.
It is not difficult to interpret that, when ¶ 1 speaks of “The parties to an armed conflict at sea” it is referring to states. This can be inferred from the fact that non-state actors are not in possession of naval forces, Hamas not being an exception to this rule, and therefore cannot give rise to an armed conflict at sea. Additionally, this reality is made yet clearer on ¶ 93.
93. A blockade shall be declared and notified to all belligerents and neutral States.
The notification obligations make it clear that belligerents must be involved. The question on whether non-state actors may be regarded as belligerents for the purposes of the law of armed conflicts on land is more complex, but it is not relevant to the present case. Clearly, the scope of the norms presented on the Manual, as well as on the Declaration, is that of international war between naval powers, inapplicable to the Israeli conflict with Hamas. Therefore, there is a serious problem to Israel’s claims under the law of naval blockades, because its application is entirely dependent on the existence of a naval armed conflict, which is not the case. (The sceptical reader may consult the Manual, ¶¶ 4–6, where this is made distinctly clear.)
It has been claimed that Israel could avoid this problem by accepting Hamas’ status as a belligerent. First off, Israel has not done so, and for tactical reasons which relate to the application of certain norms which protect belligerents, it is extremely unlikely to do so. In any event, it had not done so before the incident. Second, even in the case that Israel accepted Hamas as a belligerent, there would still be a serious bar to the application of the Manual, because as much as Hamas would wish it otherwise, it has, at present, no naval forces. This makes the arising of a naval armed conflict entirely impossible, and the scope of application of ¶ 1 is, as many things related to IHL, a matter of fact.
Given that the claim that a lawful naval blockade exists, under the governing law of naval armed conflict, of the coast of Gaza, cannot survive, it must be questioned whether a pacific blockade may be in place instead. A pacific blockade is a measure which is short of war, and is put in place by a power or coalition of powers in order to coerce a weaker state to do or not to do something. The pacific blockade, however, endeavours not to escalate the situation to an actual state of war. Its opposability to neutral parties was always dubious, though not clearly out of the question. The institution of the pacific blockade was born in international practice as a clearly asymmetric measure of the strong against the weak. Pacific blockades often did not fulfill the requirements of actual naval blockades in accordance to the Manual and previous practice. Thus, the Manual states that for a blockade to be lawful it must be effective (¶ 95), which means that the forces detailed to enforcing the blockade must be sufficient, and must apply impartially to vessels of all states (¶ 100). Neither of these requirements applies to pacific blockades. Is there, then, a possible claim that Gaza is under a pacific blockade by Israel? The answer must be that a pacific blockade of Gaza may not lawfully exist at this time, because this type of blockades must be approved by the United Nations Security Council (hereinafter UNSC) and the Gaza blockade has not been so approved. This is post-UN-charter international practice. It is quite consistent with the principle set down on Art 2 of the Charter which forbids the threat or use of force except in self-defence. Since international practice is being referred to, the sceptical reader may profit from consulting the Dictionary of International Law, on this matter, available on Google Books.
Having discarded both a naval blockade under the law of armed conflict at sea and a pacific blockade under binding international custom, it is necessary to consider whether a different sort of justification can be found for the measure in international law. In particular, Israel may claim that even if its previous claim is not sustained, its actions are legal under the right to self-defence provided for on Ch. VII, Art. 51 of the UN Charter (hereinafter UNC). It is obvious that notwithstanding the existence of a general prohibition of threats and use of force, and within the requirements of IHL, states have a right to defend themselves from armed attacks. It is also undeniable that armed attacks have been taking place from the Gaza Strip, in particular rocket attacks which contravene IHL because they are not by their inherent nature capable of distinction. When we speak of distinction, we refer to the obligation that attacks distinguish between military and civilian objects, and do not target the latter as such, although collateral damage to civilian objects is permited within certain constraints.
This claim is possibly valid, although it presents certain problems which we will now observe. Likewise, quite what the limits of the rights derived from such claim are, is not easy to determine, but it must be understood that they would, being of a general nature, be narrower than those a state could exercise on the basis of naval conflict law.
The clause which presents problems for this claim is the following:
Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
The reason why this raises a problem, is that, as we had previously remarked, there is in fact a previous resolution of the UNSC, Resolution 242, which affirms the necessity of maintaining freedom of navigation in the international waterways in the area. This language was in its day directed against Arab blockades of the Israeli coast, but it is equally applicable to the Israeli blockade of the Gazan coast. Since the UNSC has issued this resolution which has binding force on the matter of freedom of navigation, the claim of self-defence appears barred by the clause of Art 51 UNC cited above. In any event, this is a factor that must, at the very least, be very strongly regarded in determining the extent to which the right to self-defence, which no-one may deny, can be exercised in this particular way, by interfering with the freedom of navigation of the international waterways in the area.
What would be the limits and opposability against neutral states of such a sui generis blockade founded on the right to self-defence? Given there is no international practice of this kind, no international instruments regulating it, and, in sum, no legal references which are applicable to the case, we must then state that the imposition of such a measure must a) be conformant to the law of naval conflict in regards its limits, since we can argue that, a fortiori, if the absence of a conflict at sea impedes the existence of a lawful naval blockade, it follows that the resultant measures must be less onerous than a naval blockade would be; b) it must be conformant to IHL, and not exclusively to the law of naval conflicts but to the whole body of applicable IHL; and c) it must be conformant with other obligations Israel may bear under international law, and very particularly so in regards interference with neutral states’ shipping. We will deal with these 3 aspects in this order.
As to naval conflict, these are some important aspects regarding naval blockades, taken from the Manual. A blockade may not be declared in order to starve a civilian population or deny it other objects essential to its survival, and may not be declared in cases in which the damage to the civilian population (actual or expected) is excessive given the direct military advantage expected from the blockade (¶ 102). Merchant shipping running the blockade may be captured or attacked (¶ 98), but there are certain ships which are exempt from attack, amongst which are ships which are engaged in humanitarian missions and have safe conduct by agreement of the belligerents (¶ 47(c)(ii)). These ships, even when they lose their exemption, for instance due to not submitting to searches (¶ 48(b)), may not be attack unless these 4 conditions are fulfilled: a) capture is not feasible, no other method exists to exercise military control, the non-compliance is sufficiently grave that the ship can be regarded as a military objective, and damage or casualties are proportionate to the military objective expected (¶ 52). These conditions are cumulative, which is to say, they must all obtain to justify an attack. A military objective is defined in ¶ 40, and must make an effective military contribution. Additionally its capture, neutralisation or destruction must offer a definite military advantage. Goods on neutral vessels may only be captured if they are contraband (¶ 147) which excludes goods not subject to use in armed conflict (¶ 150(f)).
Incidentally, this is the time to state that Israel’s claims on the obligation of a blockading power to make it effective have misrepresented the law. Whereas it is true that effectiveness is a requirement for a legal naval blockade, it is nonetheless just as true that an effective blockade does not require the blockading power to stop any and all shipping. As a matter of fact, the exceptions contained in ¶ 47, would allow a blockading power to permit humanitarian relief to go through without thereby jeopardizing the effectiveness–and consequently the legality–of the blockade.
It is difficult to establish what regulations and with what modulation would be applicable to such a sui generis blockade, but those are the most punitive which would be permited by the law of naval conflict in any event.
Aside from the IHL specific to naval blockades, a sui generis blockade based on the title of self-defence under Art 51 UNC would have to comply with all relevant IHL. This is especially important in this case, because Israel’s policies on materials which may and may not go through to Gaza would be greatly impacted by, inter alia, Art 59 of the Fourth Geneva Convention (hereinafter GCIV). This article states that an occupying power is obliged to let relief schemes through, under certain conditions, if the whole or a part of the occupied territory is inadequately supplied.
If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.
Note the verb shall: this obligation is unconditional, and it is so stated on the commentary to the GCIV by the International Committee of the Red Cross (hereinafter ICRC).
This presents us with the objection which Israel has raised, that it is not an occupying power, since at least the time of its “disengagement” from the Gaza Strip. Israel had previously claimed not to be an occupying power on the basis that the territories at issue were not legally held by another state when Israel seized them. These are legally complex matters, but on the light of existing declarations and rulings Israel position was certainly untennable before the disengagement, and is still untennable today. In regards the untennability of the claim that the territories are disputed, and not occupied, it is especially relevant to consider the Advisory Opinion of 9 July 2004 of the ICJ. This opinion, inter alia, states that “all these territories (including East Jerusalem) remain occupied territories and that Israel has continued to have the status of occupying Power” (extracted from the Summary of Advisory Opinion of 9 July 2004).
Israel claims under Art 6 GCIV its obligations as an occupying power terminate 1 year after the close of military operations. The problem with this claim, aside of the fact that Israel claims at the same time that it is engaged in a conflict with Hamas, is that such military operations have not closed. What is a blockade if not a military operation? The effective military control which Israel exercises of Gazan airspace and territorial waters, as well as over all its land border except that with Egypt, where Israeli control is exercised indirectly through an agreement with Egypt, makes the claim that occupation has ended extremely difficult to defend. The UN regards Israel as the occupying power of Gaza, as is easily deduced from the continued operation of the UN Office for the Coordination of Humanitarian Affairs–occupied Palestinian territory. If Israel claims that it is not an occupying power, that it exercises no effective control over Gaza, and that military operations have closed, it cannot at the same time claim that a conflict exists against Hamas, that a naval blockade is in place against Gaza, that cement may not go into Gaza, and that such provisions are an exercise of the right to self-defence of Art 51 UNC. These things are incompatible.
Having disposed of the argument that the territories at issue are not occupied, we must proceed to the logical implications of applying Art 59 GCIV. It is undeniable that such items as cement are not adequately supplied in Gaza. As a result, it must be stated that a sui generis blockade on the mere basis of Art 51 UNC may not violate Art 59 GCIV. Given the extent of the blockade, the state of supplies in the territories, and the balance of forces, a sui generis blockade of this magnitude is illegal.
Furthermore, it is the case that such a blockade, not being based on the special law applicable to naval conflict, must instead comply with general norms of IHL, and in particular with the principles of distinction and proportionality. Distinction refers to the grounding principle of IHL that military operations must distinguish between military targets (objects, persons, etc), which are permited targets of such operations, and civilian objects and persons, which are not. Operations must take place against specific military targets and not simply against areas where military targets lie. Operations which inherently cannot distinguish between military and civilian objects and persons are barred, such as mass, indiscriminate bombardment of urban areas. Damage to civilian persons and objects is permited so long as it is incidental. The principle of proportionality refers to the fact that military operations must not be carried out if the damage to civilian persons or objects is excessive to the direct military advantage gained by such operations. It is unnecessary to demonstrate that the blockade lacks distinction, indeed it can hardly not lack distinction by its own nature. It is likewise clear that the banning of items such as cement, necessary for the reconstruction of damages to civilian objects, offers harm to civilian persons in excess of the military advantage expected. This is more so when the argument used to ban it rests on the possibility of the building of smuggling tunnels, given that such smuggling tunnels would emerge to areas fully controlled by Israel or by Egypt, and that effective control over the land border is in place.
Therefore, from the viewpoint of conformance to general norms of IHL, the blockade must be regarded as illegal.
A blockade is not an action which has its impact on the blockaded territory alone. In fact, this incident is proof that blockades can cause serious disturbance to neutral shipping. Whatever position one takes on the matter, when a power claims (lawfully or not) the right to order ships to alter course, not to dock on certain ports, and so on, under penalty of capture, a serious interference with the rights of all neutral states is taking place. When a blockade complies with all relevant norms of naval conflict, this interference is considered justified, because it is directed towards attaining a direct military advantage, which is a recognised goal and an extention of the right states have to engage in self-defence. However, when blockades do not comply with the law on naval conflict, such as in the case of pacific blockades discussed earlier, or, even more so, a fortiori, in a sui generis blockade such as this one, the rights of neutral parties cannot be universally assumed to take a second place to the maintenance of the blockade. Inasmuch as Israel was not at a state of war, but, on the contrary, maintained normal diplomatic relations with the states which flags were flown by the ships at issue, and in fact very tight diplomatic relations with some of them, Israel is not well placed to claim its self-defence rights allow it to override the general international law related to navigation, much less within international waters.
The applicable maritime law which determines the rights of states in international (and other) waters, is the United Nations Convention on the Law of the Sea (hereinafter UNCLOS). This convention to which Israel is a signatory codified prevailing international practice, and introduced certain norms which are widely regarded as international custom.
First off, international waters are characterised by freedom of navigation for all states (Art 87(1)(a)). This freedom entails that ships from all states can sail at will within these waters, free from interference (Art 90). The interference which such ships must support in the high seas is defined, absent other treaties which may operate between particular states, on Art 110(1). The circumstances under which such interference is permited are limited to the suspicion of piracy, slave trade, unauthorised broadcasting, sailing without a flag, or sailing under a false flag when the ship is of the same nationality as the interfering warship. Such suspicion requires reasonable grounds, and is moot since it has not been raised in regards the incident. Aside from such rights of visit, a ship is immune from foreign warships in international waters unless a) there is a state of war between its state of nationality and that of the warship, or b) its state of nationality consents to that of the warship to grant it rights which it would otherwise not have. Again, neither circumstance obtained in the incident.
Given these rights of all states, the question is to what extent must they yield to accomodate a sui generis blockade founded on the right to self-defence. There is no legal guidance of this point, because such sui generis blockades are hitherto unknown in international practice. It would seem that, taking into consideration that pacific blockades cannot entirely override the rights of neutrals to navigate and dock on the blockaded coast, a fortiori, such a sui generis blockade may not have more onerous an impact and indeed must have a less onerous one. To what extent the rights at issue may be modulated by the existence of such a blockade is a question which I find myself unable to definitively answer.
Matters of innocent passage are not analyzed because they are moot to the case. The incident took place on international waters, where freedom of navigation, not innocent passage, is in effect.
The blockade of the Gaza Strip is not a naval blockade in accordance to the law of armed conflict at sea, because there is no armed conflict at sea. It is not a pacific blockade, because it is not authorised by the UNSC. It must be therefore either be illegal, or grounded on the right to self-defence of Art 51 UNC. Inasmuch as a claim is made on the latter basis, this claim is barred or at least strongly impeded by UNSC Resolution 242, ¶ 2(a), but in any event, should it be legal, such a blockade must comply with the relevant IHL, including the special IHL on blockades as well as the general IHL regarding armed conflict, and with the relevant norms of international law which affect the rights of neutral parties to freely navigate. That requires the blockade to obey Art 59 GCIV, as well as the principles of distinction and proportionality. The rights of third parties may not be overridden to a greater extent, and must be overridden to a lesser extent, than it would be the case under a pacific blockade. Therefore, the blockade, in the terms in which it was claimed and in which it effectively operated, is illegal.
Having dealt with the legal status of the blockade, the matter regarding the interception and subsequent attack of the flotilla results from the simple application of universally recognised principles.
Since the blockade claimed by the Israeli forces was illegal, and they had no other grounds on which to exercise a right to visit under Art 110 UNCLOS, it follows that the interception and subsequent attacks were contrary to law. From this finding, it is obvious that the passengers of the flotilla held, correspondingly, a right to self-defence, in which proportionate force should have been (and probably was) used.
One nonsensical claim must be dealt with at this point. It has been said that Israeli forces engaged in an act of piracy. This characterisation gravely misrepresents the law. Piracy is well defined in Art 101–2 UNCLOS, and can only be committed for private gain by private ships, or by government ships which have mutinied. If anything, it is clear Israel does not repudiate the acts of its armed forces, but on the contrary stands by then as acts of state, fully juri imperii. Thus, whatever legal qualification one finds appropriate to describe these acts, piracy is entirely out of place.
Israel has international liability on the basis of the articles on the Responsibility of States for Internationally Wrongful Acts, for breaching, inter alia, its international obligation not to interfere with the freedom of navigation of other states in international waters, for instituting an illegal blockade, for intercepting and attacking foreign shipping without regard to applicable principles of IHL, inter alia, distinction, proportionality, and precautions in attack, for illegally capturing foreign shipping, and for illegally holding goods not subject to capture under relevant IHL.