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.