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Tuesday, July 20, 2010

The legal basis of Israel's naval blockade of Gaza

For those of you who have been arguing at the water cooler or just plain want to know, here's an explanation of why Israel's blockade of Gaza - including intercepting ships like the Mavi Marmara on the high seas - is legal under international law.
What is the legal basis of Israel's naval blockade of Gaza? The relations between Israel and Hamas (which has ruled the Gaza Strip since 2007) are in the nature of armed conflict, meaning that the rules of the laws of armed conflict apply. This means that Israel may control shipping headed for Gaza - even when the vessel is still on the high seas. Israel may not do so in the territorial sea of a third country, such as Cyprus, but in time of armed conflict Israel may check vessels on the high seas that are headed for Gaza.

A naval blockade means preventing the passage (entry or exit) of all vessels to or from the ports and coastal areas of the enemy, irrespective of the kind of cargo carried by these vessels. One has to define clearly the borders of the area to which the blockade applies. The blockade has to be distinguished from other institutions of naval warfare, such as exclusion zones and security zones.


In order to be legal, several conditions have to be fulfilled. The first is the requirement to give widespread notice when a blockade is applied and to make sure that any ship that is stopped knows that there is a blockade. Nowadays the problem of notification is much easier than in the past because of the great improvement in communications.

Another condition for the legality of a sea blockade is effectiveness. It is not enough simply to declare a blockade. It has to be enforced, otherwise it is not valid and legal.

According to a further condition, a blockade should not cut off an unrelated foreign state from access to the sea. In the case of Gaza, the blockade does not prevent Egypt from reaching the sea.

Furthermore, a blockade has to be based on equality: It must apply to everybody. Of course there is always the possibility that the blockading party may give special permission to certain neutral ships to go through, but these are exceptions.

A blockade has to permit the passage of humanitarian assistance if needed. However, the San Remo Manual includes two conditions (in Article 103): first, the blockading party may decide where and when and through which port the assistance should reach the coast. In addition, the state may require that a neutral organization on the coast should control the distribution of the items. For instance, in Gaza, does it reach the civilians or Hamas?

Finally, there is the condition that a state may not starve the civilian population (San Remo, Article 102). This conforms also to the general principles of the laws on armed conflict.
Read the whole thing (it's relatively short and readable even for non-lawyers).


At 5:12 PM, Blogger NormanF said...

With Israel's change to a containment of Hamas policy, the arguments against the naval blockade of Gaza now look silly. That is perhaps why the promised "summer of the flotillas" has now vanished off the international horizon. There is no reason to expect the naval blockade, which has a sound basis in international law, to be lifted any time soon.

At 7:53 PM, Blogger Hatfield said...

So, if the relationship between Hamas, the rulers of Gaza, and Israel is one of armed conflict, why does Israel supply Gaza with electricity and water? And due to the armed conflict nature of their relationship, why should Israel provide the necessities of life to its enemies?

At 11:30 AM, Blogger NormanF said...

Xhosa, I agree with you Israel should complete the Disengagement. That means no money, no goods and no electricity and water for Gaza from Israel. They can either provide for themselves or buy it from Egypt. I do not understand the logic behind Israel's propping up a regime whose objective is Israel's destruction. Get out of Gaza for good!


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