Israel Matzav

Israel's seizure of the flotilla of fools was legal under International Law

For those looking for a clear and concise explanation of why Israel's seizure of the flotilla of fools was legal under international law, I suggest reading this article by Eric Posner in the Wall Street Journal (for those without access to the site, the full article is here).

The catch here is the meaning of "armed conflict." Traditionally, armed conflict can take place only between sovereign states. If Gaza were clearly a sovereign state, then Israel would be at war with Gaza and the blockade would be lawful. If, however, Gaza were just a part of Israel, Israel would have the right to control its borders— but not by intercepting foreign ships outside its 12-mile territorial sea or contiguous zone.

Gaza is not a sovereign state (although it has its own government, controlled by Hamas) and is not a part of Israel or of any other state. Its status is ambiguous, and so too is the nature of the armed conflict between Israel and Hamas. Thus there is no clear answer to the question whether the blockade is lawful.

However, the traditional idea of armed conflict involving only sovereign states has long given way to a looser definition that includes some conflicts between states and nonstate actors. The international rules governing blockades attempt to balance belligerents' interest in security and other countries' economic interests in shipping. During war, security interests prevail.

War-like conditions certainly exist between Israel and Hamas. And because Israel intercepts only self-identified blockade runners, its actions have little impact on neutral shipping. This balance is reflected in the traditional privilege of states to capture foreign pirates on the high seas.

So Israel's legal position is reasonable, and it has precedent. During the U.S. Civil War, the Union claimed to blockade the Confederacy while at the same time maintaining that the Confederacy was not a sovereign state but an agent of insurrection.

When the Union navy seized ships trying to run the blockade, their owners argued that a country cannot interfere with shipping on the high seas except during war, and one cannot be at war except with another sovereign state. The U.S. Supreme Court approved the captures in an ambiguous opinion that held that an armed conflict existed, even though one side was not a sovereign state. The opinion suggests a certain latitude for countries to use blockades against internal as well as external enemies.

Human Rights Watch argues that a blockade to strike at a terrorist organization constitutes a collective penalty against a civilian population, in violation of Article 33 of the fourth Geneva Convention. This argument won't stand up. Blockades and other forms of economic sanction are permitted in international law, which necessarily means that civilians will suffer through no fault of their own.

Read it all.

posted by Carl in Jerusalem @ 12:39 PM