Israel’s actions: legal and necessary

The below document from the Israel Ministry of Foreign Affairs, explaining the legal background of the flotilla event, was sent to an e-mail list and then forwarded to me:

The Gaza flotilla and the maritime blockade of Gaza—Legal background
31 May 2010

1. A maritime blockade is in effect off the coast of Gaza. Such blockade has been imposed, as Israel is currently in a state of armed conflict with the Hamas regime that controls Gaza, which has repeatedly bombed civilian targets in Israel with weapons that have been smuggled into Gaza via the sea.

2. Maritime blockades are a legitimate and recognized measure under international law that may be implemented as part of an armed conflict at sea.

3. A blockade may be imposed at sea, including in international waters, so long as it does not bar access to the ports and coasts of neutral states.

4. The naval manuals of several western countries, including the US and England recognize the maritime blockade as an effective naval measure and set forth the various criteria that make a blockade valid, including the requirement of give due notice of the existence of the blockade.

5. In this vein, it should be noted that Israel publicized the existence of the blockade and the precise coordinates of such by means of the accepted international professional maritime channels. Israel also provided appropriate notification to the affected governments and to the organizers of the Gaza protest flotilla. Moreover, in real time, the ships participating in the protest flotilla were warned repeatedly that a maritime blockade is in effect.

6. Here, it should be noted that under customary law, knowledge of the blockade may be presumed once a blockade has been declared and appropriate notification has been granted, as above.

7. Under international maritime law, when a maritime blockade is in effect, no boats can enter the blockaded area. That includes both civilian and enemy vessels.

8. A state may take action to enforce a blockade. Any vessel that violates or attempts to violate a maritime blockade may be captured or even attacked under international law. The US Commander’s Handbook on the Law of Naval Operations sets forth that a vessel is considered to be in attempt to breach a blockade from the time the vessel leaves its port with the intention of evading the blockade.

9. Here we should note that the protesters indicated their clear intention to violate the blockade by means of written and oral statements. Moreover, the route of these vessels indicated their clear intention to violate the blockade in violation of international law.

10. Given the protesters explicit intention to violate the naval blockade, Israel exercised its right under international law to enforce the blockade. It should be noted that prior to undertaking enforcement measures, explicit warnings were relayed directly to the captains of the vessels, expressing Israel’s intent to exercise its right to enforce the blockade.

11. Israel had attempted to take control of the vessels participating in the flotilla by peaceful means and in an orderly fashion in order to enforce the blockade. Given the large number of vessels participating in the flotilla, an operational decision was made to undertake measures to enforce the blockade a certain distance from the area of the blockade.

12. Israeli personnel attempting to enforce the blockade were met with violence by the protesters and acted in self defense to fend off such attacks.

- end of initial entry -

James P. writes:

Here is a good analysis.

Richard (I believe it is Richard Landes from the Augean Stables blog) points out more parts of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea that seem relevant, and that show that Israel has complied with international law to the letter.

Paragraph 47 lists ships that are exempt from attack. Presumably, the flotilla organizers consider themselves to fit under sub-paragraph (c)(ii):

(c) vessels granted safe conduct by agreement between the belligerent parties including:

(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;

The flotilla does not meet the minimum requirement because it was not granted permission by the other party of the blockade, Israel.

Even if it had been, the next paragraph mentions a major exception:

48. Vessels listed in paragraph 47 are exempt from attack only if they: (a) are innocently employed in their normal role; (b) submit to identification and inspection when required; and (c) do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.

In addition, such actions in international waters are legal:

96. “The force maintaining the blockade may be stationed at a distance determined by military requirements.”

More relevant sections:

98. “Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.”

103. “If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to: (a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and (b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.”

Israel does all of these things. Last week, Israel delivered more cement to Gaza than the flotilla wanted to provide—but Israel gave the cement to UNRWA under strict conditions and ensuring that they are used only for the purposes they are earmarked for.

Also, see Julian Ku, about the absurd claims of “piracy”:

Let’s go to the U.N. Convention on the Law of the Sea, Article 101:

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(emphasis added). I don’t think even the Gaza flotilla defenders claim that the IDF raid was “committed for private ends.” (Just the opposite, actually). And, in general, piracy cannot be committed by a national ship, only by private ships or by national ships that have been taken over by their crews.

So can we drop the stupid piracy meme? There are some very hard legal issues here: Is Israel’s naval blockade legal? (Probably). If so, was the boarding in international waters legal? (Maybe). And even if so, did the IDF use disproportionate force? (I have no idea). This last question is really the key issue here, and it is also the one that is never going to be resolved with any certainty given that it is dependent on neutral factual determinations that will never happen here.

Ken Hechtman writes:

Here’s the thing: When a third-party state (like Turkey) runs a blockade, that’s not an act of war. But boarding or otherwise attacking a blockade-running ship IS an act of war. Think of the Lusitania incident in World War I. When the U.S. ran munitions through the German blockade (in a civilian ship, no less) that was a provocation, but it wasn’t an act of war. When the Germans attacked the Lusitania—that was the act of war.

So sure, Israel is entitled to enforce its blockade—IF it wants to be at war with Turkey and by extension all of NATO. Think about this: instead of going to the UN and asking for another meaningless report that’ll sit on the shelf in between the Goldstone Report and the Report-on-whatever-Israel-does-next-after-this, Turkey could have gone to NATO and invoked Article Five. Then our Shabbes-Goy-in-chief would have a hard decision to make—either carpet-bomb Tel-Aviv or explain why America’s word is no good where Israel is involved.

Anyway, Israel should think carefully about invoking the laws of war. Not all of them work in Israel’s favor.

James N. writes:

I think we’ve corresponded about this issue before.

It seems unfortunate to me that the State of Israel continues to recognize, and to plead its case in terms of, so-called “international law.” First of all, law is an attribute of sovereignty. A sovereign gives the law, judges the law, and punishes lawbreakers. There is no sovereign who gave any law that pertains to this situation.

More importantly, by constantly bleating about “Resolution 242, Resolution 181” Israel gives the impression that its existence is contingent on pretended acts of legislation by a nonexistent World Legislature.

If this were the case, then what will Israel’s position be on UN Resolution XXX, ordering all the Jews to leave?

Israel’s “right to exist” (in a worldly sense) is the same right that the United States has to the Dakotas. They wanted it, they took it, and (so far) they can defend it.

Belief in some sort of transnational State with power over the nations is popular on the left. Certainly many American Jews believe in such a thing. But fusion of this aspirational fantasy with defense of the actually existing State of Israel is very dangerous. If the so-called “international community” can create the State of Israel, then that same “community” can outlaw the State of Israel—and someday they will.

June 3

James P. writes:

Ken Hechtman writes:

Here’s the thing: When a third-party state (like Turkey) runs a blockade, that’s not an act of war. But boarding or otherwise attacking a blockade-running ship IS an act of war. Think of the Lusitania incident in World War I. When the U.S. ran munitions through the German blockade (in a civilian ship, no less) that was a provocation, but it wasn’t an act of war. When the Germans attacked the Lusitania—that was the act of war.

This is totally incorrect! The San Remo Manual states:

Neutral merchant vessels

67. Merchant vessels flying the flag of neutral States may not be attacked unless they:

(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture; (b) engage in belligerent acts on behalf of the enemy; (c) act as auxiliaries to the enemy’s armed forces; (d) are incorporated into or assist the enemy s intelligence system; (e) sail under convoy of enemy warships or military aircraft; or (f) otherwise make an effective contribution to the enemy’s military action, e.g., by carrying military materials, and it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.

Therefore, in general, when a third-party state runs a blockade, the belligerent states are unquestionably within their rights to attack them (i.e., this is an “act of war,” as it should be). In the specific case of the flotilla incident, the Turkish ship met all the criteria of (a)—they were breaching a blockade, they refused to stop, and they resisted visit, search, and capture.

When US civilian vessels carried military contraband to Britain in WW1 and WW2, that too was an act of war against Germany, and Germany was well within her rights to sink them.

Mick G. writes:

I would like to return to Mr. Ken Hechtman’s blooper that was later taken apart by James P.:

When a third-party state (like Turkey) runs a blockade, that’s not an act of war.

Usually Mr. Hechtman is logical and factual, that despite being out there in far-left space. What happened? Is the topic so hot that Mr. Hechtman is unable to be rational and factual?

It is known to happen to Israel-haters (and Jew-haters) when when the topic is Israel. Observe how Steve Sailer, a brilliant man, embarrasses himself writing about Israel/Iran upcoming war while, oops!, totally (conveniently) forgetting Iran’s upcoming nukes.

LA replies:

First, the Sailer item you reference is from August 2006. Second, he does mention Iran’s upcoming nukes. However, he does so only as an afterthought, and the only Iranian motive he adduces for developing nukes is to deter an attack. He does not mention Iran’s repeated promises to destroy Israel. This is nothing less than pathological denial of that which he doesn’t want to know about because it doesn’t fit his anti-Israel program.

Third, I have written about this Steve Sailer article before and utterly condemned him for it:

Sailer compares Iranian nuclear attack on Israel to baseball, or, The enemy of my enemy doesn’t exist

Also from the summer of 2006, see More on Sailer and Israel, in which I wrote:

At the very moment when Haifa was being attacked by rockets from southern Lebanon, an area Israel had voluntarily withdrawn from several years ago, that was the moment that Sailer portrayed Israel as an “intriguing” foreign power who must be resisted by “real patriots.”

Mick G. continues:
James P. writes:

did the IDF use disproportionate force? (I have no idea)

Talking about a concept invented to bash Israel over the head. Where it came from? It seems to be a new trick created by the left and Mohammedans. It directly contradicts the Powell doctrine of overwhelming force, which, as far as I know, is an operational doctrine in the U.S.

Who decides what is and is not proportional? Clearly a political question and the answer depends on the policies of the decider. We know what an answer the UN has for Israel:

  • Peaceniks/Hamasniks get to deliver arms to Gaza, get 100 hours of free propaganda time on BBC/ABC/etc. and two months Mediterranean vacation at Israel at U.S. expense.

  • Israelis will get to collect their dead and pay reparations to Hamas and Turkey for mental stress caused by having Jews too close.

I wish that thinking people will stop using that “proportional force” canard.

LA replies:

It’s not used by thinking people. It’s used by liberals.

Posted by Lawrence Auster at June 01, 2010 11:06 PM | Send

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