Gaza Flotilla: A Legal Opinion "The Occupying Power Had to Facilitate the Passage"

Amidst the discussion of whether Israel had a right under international law to intervene against ships sailing in international waters, one of my colleagues, lawyer Dina Biygishieva argues that Israel, as an occupying power in Gaza,  had to facilitate the passage of the six ships of the Freedom Flotilla:

On 31 May the Israeli navy attacked humanitarian ships bringing aid to Gaza in international waters in the middle of the night. According to different reports approximately 10-16 humanitarian activists were killed and 50-60 were injured. The ships were seized by the Israeli navy. What could be a verdict on the Israeli actions under international humanitarian law?

Gaza Flotilla LiveBlog: Limiting an Enquiry, Maintaining a Blockade? (2 June)

The whole situation on humanitarian ships in international waters falls into scope of the regulation of different international sources of law. According to article 188 of the United Nations Convention on the Law of the Sea, high seas shall be reserved for peaceful purposes, and Article 110 provides that a warship that encounters a foreign ship on the high seas can only board the ship if there are reasonable grounds for suspecting that it is participating in unlawful activities such as piracy or the slave trade.


The Gaza flotilla was made up of civilian ships carrying humanitarian aid. There were no reasonable grounds for boarding the ships, much less for killing civilians on board.
 With respect to international maritime customary law. In the case of genuine security concerns, the action of Israeli navy should have been contacted by expressing concern with the flotilla to flag-bearing states and insisting on the boats’ retreat.

Regarding the use of force, the extent of Israel's actions should have been to divert the flotilla once it had reached [Israel's] territorial waters. Even then, once ensuring that the flotilla contained only humanitarian goods, Israel, as the Occupying Power in Gaza, would have been duty-bound to facilitate its passage.

By intercepting and boarding the ship in the high seas, Israel has acted in egregious violation of customary international law.

What follows next? Israel is bound by so-called Fourth Geneva Convention (Convention IV relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949). Provisions of the Convention clearly impose the obligation of meeting humanitarian needs of the people of occupied territories to the fullest possible extent. The welfare of Gaza ’s inhabitants is a precise duty of Israel duty under the Convention, and it includes their rights to health, education, food and adequate housing. The assault on the flotilla, widely publicized to be carrying essential humanitarian aid to Gaza, contravenes Israel's duty to facilitate the passage to humanitarian aid to territory it occupies.

Furthermore, the use of live ammunition to kill and injure civilians on board, even in circumstances in which there may have been some resistance to the take-ver of the ship, was a disproportionate response to the situation and a violation of the civilians' right to life, as set out in Article 6(1) of the International Covenant on Civil and Political Rights.

Comments

[Dave]

If I'm not mistaken, a state that has legally established a blockade can enforce it by boarding vessels in international waters if there is evidence that those vessels will breach the blockade.

The goal of this flotilla was not to provide aid, but rather to create a public relations nightmare for the Israelis. Turkey, the unofficial sponsor of this flotilla, should be ashamed of itself. The Turks are throwing around words like "massacre" and "disaster." I can only imagine what the Kurds are thinking of all of this.

[Jason]

Israel has every right to search these ships as they have previously shown to have weapons. The most recent ship had gas masks on board. Why might the Gazans need those for "humanitarian" purposes, hmmm?

By the way, before anyone else adds a comment, they MUST acknowledge that the blockade is co-sponsored and maintained by Egypt. That seems fair, right?

I mean we must be able to find some common ground and I haven't seen one Israel basher acknowledge that Egypt is on board with the blockade.

[wdavit]

Ali,

Thanks for this view point. It helps all understand the complexities of maritime law. However your point "had to facilitate the passage of the six ships of the Freedom Flotilla" was being covered by the Israelis. The IDF had been in contact with the ships way before the intercept point. In fact 5 of the ships agreed to be boarded with the obvious one saying no. As Israel noted they offered to transfer the goods once the had the chance to inspect it. They were of course denied this. It leads one to the conclusion the flotilla's aim was a political confrontation not getting aid through. If they were truly intent on getting the aid through they would have complied and not met the IDF with force. As for Israel they should have known better. Their poor planning led to this event unfolding and thus share part of the blame. There are better ways to divert a ship than boarding when a confrontation highly probable.

Thx
Bill

[Dave]

Re: Egypt

They could have docked in Egypt and could have worked with the Red Crescent.

[Eowyn9]

Both the UN and most of the international community regards the Gaza blockage as illegal under international law, therefore your argument about a legally-enforced blockade fails to apply.

[Kurt]

So, in other words, their purpose of pointing out the unjustness of this blockade and occupation is shameful? Yes, how dare they!

What's shameful is playing the guilt by association game Israel is playing, and impugning a holocaust survivor, MK, European legislators, US ambassador, Irish Nobel Peace Prize winner (and boy is there poetry), and smearing them as terrorists and invoking the word 'lynch' over and over to stir up a frenzy. I lived under eight years of that kind of thinking in the US.

The Kurds (and Armenians) are another subject. Pointing out another country's similar faults to Israel's does not excuse the latter, but merely highlights the similarity. Ergo, you oppose one as unjust, it only follows...

[Kurt]

Fine, here it is. Egypt is complicit. And, what was their military aid package from the US last year again? ...

As to the gas masks. Tear gas is now "humanitarian"? Seems to me that they were prepared for this. They knew they would be stopped. It was only announced as such.

[Kurt]

And yet again, this was about the unjust blockade. Thus, that is besides the point.

[John Doe]

Really? That was the goal? How do you know this? The Israelis are criminals, slaughtered innocent people. They have been oppressing the Palestinians, starving them, etc for decades. Israel should be ashamed.

[Azaelea]

The only reason that EGypt closed the border was under threat from the US at the instigation of, yep, Israel !!!!!!!!!!!!!!!!!