Interception of the Gaza flotilla-Legal aspects
IDF Military Advocate General
I. Introduction
For several years, the State of Israel has been engaged in an ongoing armed
conflict with terrorist organizations operating in the Gaza strip. This
armed conflict has intensified after Hamas violently took over Gaza, in June
2007, and turned the territory under its de-facto control into a launching
pad of mortar and rocket attacks against Israeli towns and villages in
southern Israel.
The State or Israel took different measures to defend its citizens from the
terrorist attacks originating from the Gaza strip. Initially, all feasible
steps were taken in order to avoid using extensive military force, including
diplomatic and economic military measures, as well as relatively limited
military operations. When these measures proved ineffective, and the barrage
of rockets against the Israeli civilian population continued, and even
intensified, the State of Israel had no choice but to take an extensive
military action - Operation "Cast Lead".
The entire activities of Israel in this armed conflict are governed by the
Law of Armed Conflict (also known as: International Humanitarian Law).
II. The Naval blockade on Gaza
According to the Laws of Armed Conflict, a state party to an armed conflict
has the right to establish a naval blockade on its enemy's coast for
security reasons. A naval blockade means preventing the passage (entry or
exit) of all vessles to or from the ports and coastal areas of the enemy,
irrespective of the kind of cargo carried by these vessels.
The power to impose a naval blockade is well established under customary
international law. It is a common practice, and even the Charter of the
United Nations, when enumerating the differnt actions which can be taken by
the Security Council in order to maintain or restore international peace and
security, explicitly mentions the naval blockade among these measures
(Article 42 of the Charter).
Similarly, Article 7.7.1 of the "Commander's Handbook on the Law of Naval
Operations", published by the U.S Navy on July 2007 (hereinafter: The US
Navy Handbook), explains that:
"Blockade is a belligerent operation to prevent vessels and/or aircraft of
all nations, enemy as well as neutral, from entering or exiting specified
ports, airfields, or coastal areas belonging to, occupied by, or under the
control of enemy nation. While the belligerent right of visit and search is
designed to interdict the flow of contraband goods, the belligernt right of
blockade is intended to prevent vessels and aircraft, regardless of their
cargo, from crossing an established and published and publicized cordon
seperationg the enemy from international waters and/or airspace"
International law sets several conditions for a legal naval blockade (these
conditions are reflected, for example, in the "San Remo Manual on
International Law applicable to Armed Conflict at Sea" from 1994:
hereinafter The San Remo Manual):
Public declaration - a blockade shall be publicly declared and notified to
all States that might be affected by its establishmentm, in particular those
states whose vessels are sailing or suppose to be sailing near the relevant
area. The declaration shall specify, among other things, the commencement,
duration (as far as it is known when the blockade is established) and
geographical boundries of the blockade.
Effectiveness - no fictitious blockade shall be established. A State that
declares a naval blockade must enforce it in practice. An ineffective
blockade whould expire.
Impatiality - a blockade must be applied impartially to vessels of all
States (including of those crrying the flag of the State which imposed it).
Access to neutral States - a naval blockade must not bar access to the ports
and coasts of neutral States.
Passage of humanitarian assistance - a naval blockade is imposed for
security reasons. Thus, the blockading party must provide for passage of
humanitarian assistance for the civilian population of the blockaded area.
This obligation is subject to the right of the blockading party to prescribe
the technical arrangements, including search, under which the passage is
permitted, in order to make sure that no means are transferred to the
benefit of the enemy, rather than to the civilian population, and that the
humanitarian assistance is distributed under the supervision of a neutral
party which prevents the abuse of humanitarian assistance by the enemy.
III. The legality of the blockade imposed on the Gaza strip
The naval blockade imposed by the State of Israel on the Gaza strip, which
was violated by the vessels participating in the current flotilla, is in
conformity with the aforementioned rules of international law:
Public declaraion - on 03.01.2009, during operation "Cast Lead", the State
of Israel declared a naval blockade on the Gaza strip, in the distance of 20
miled from the coast. The naval blockade was established for a clear
military necessity - to prevent the military strengthening of Hamas by
stopping the entry of terrorist elements and the smuggling of weapons into
the Gaza strip, an aim supported also by the Security Council Resolution
1860. The establishment of the Naval blockade was published by the ordinary
international channels. These publications detailed the geographical
boundries of the blockaded area (by coordinates) and emphasized that the
naval blockade shall be in force until a further notice. Before the current
flotilla had begun, the State of Israel approached the States involved, by
diplomatic channels, and the organizers of the flotilla were well aware of
the blockade.
Effectiveness - the naval blockade on the Gaza strip has been effectively
enforced by the State of Israel since its commencement. Indeed, before it
was established, Israel allowed the entry of a vessel carrying humanitarian
assistance into Gaza, but since the naval blockade was declared, no vessel
was allowed in.
Impartiality - the naval blockade has been enforced on the vessels of all
states, with no discrimination.
Access to neutral States - the naval blockade on Gaza has not affected, in
any manner, the access of vessels to the ports or coasts of neutral States.
Passage or humanitarian assistance - the State or Israel allowed the passage
of humanitarian assistance into the Gaza strip long before the naval
blockade had been imposed. This assistance has entered Gaza through the
crossing points between Israel and Gaza, subject to security check and in
coordination with international organizations working in Gaza. The State of
Israel openly declared that it will allow the enty of the humanitarian goods
carried by the current flotilla into Gaza, after it is unloaded in Israel,
in the port of Ashdod.
In conclusion, the naval blockade imposed by the State of israel on the Gaza
strip is in accordance with international law.
IV. Breach or Attempt of Breach of a naval blockade
Passage of a vessel through a blockaded area or entrance into it without
special entry or exit authorization from the State imposing the blockade is
considered a breach of the blockade. According to the Law of Armed Conflict
at Sea, if there are reasonable grounds to believe it has breached a naval
blockade, the State imposing the blockade is authorized to capture the
vessel, and if it resists capture and refuses to stop, after prior warning,
it may be attacked.
For instance, rule 1710.4 of the ICRC Model Manual of the Law of Armed
Conflict for Armed Forces, published in 1999, indicates that:
"Merchant vessels believed on reasonable ground to be breaching a blockade
may be captured and those which, after prior warning, clearly resist capture
may be attacked".
Moreover, the State imposing the blockade may capture a vessel even prior to
its entering to the blockaded area, if it is attempting to breach the Naval
Blockade, i.e. is on its way to the blockaded area and there are reasonable
grounds to believe it intendes to breach the Naval Blockade. Capture of a
vessel attempting to breach a Naval Blockade can be done in international
waters, before entrance to the blockaded area, but not in the territorial
waters of neutral States.
In other words, the legal authority to capture a vessel is independent of
whether at the time of capture the vessel had already entered the blockaded
area or was in international waters on its way to breach the blockade.
For instance, article 7.7.4 of the U.S Navy "Commander's Handbook on the Law
of Naval Operations" notes that:
"Breach of blockade is the passage of a vessel or aircraft through a
blockade without special entry or exit authorization from the blockading
belligerent. Attempted breach of blockade occures from the time a vessel or
aircraft leaves a port or airfield with the intention of avading the
blockade....It is immaterial that the vessel or aircraft is at the time of
interception bound for neutral territory, if its ultimate destination is the
blockaded area".
Regarding the recent incidents, all vessels taking part in the flotilla were
explicitly warned by the IDF that they were approaching an area under a
Naval Blockade closed to all martime traffic, and were ordered to change
their cource of navigation and refraing from further attempting to breach
the Naval Blockade. These vessels were also offered to dock in Ashdod port
and deliver humanitarian supplies to the Gaza strip through the formal land
crossings. Nevetheless, the vessels explicitly declared theirs intent to
breach the Naval Blockade on the martime zoned adjacent to the Gaza strip
and their course of navigation unequivocally indicated its intent to breach
the Naval Blockade.
Therefore, according to International Law, Israel had the authority to
capture the vessels, from the moment they left the territorial waters of
neutral States. Under the circumstances, i.e. the vessel's refusal to stop
or obey warnings to refrain from breaching the blockade, use of force was
permissible in order to enable capture.
The IDF did not attack the vessels with cannons, machine guns or rockets and
did not attempt to harm them. It took the neccssary steps in order to
capture the vessels in an operation that clearly indicates vigilance and
proportionality. Capture of most vessels was completed with no casualties.
IDF soldiers taking part in the capture made significant efforts to refrain
from using force and did so only when facing clear and immediate threat to
life.
V. The Treatment of Personnel on Board a Vessel captured in breack of a
blockade
Generally speaking, according to International Law, people on board a vessel
captured in breach of a Naval Blockade should be repatriated as soon as
possible.
On this matter, Article 7.10.2 of the U.S Navy "Commander's Handbook on the
Law of Naval Operations" notes that:
"The officers and the crews of captured neutral merchants vessels and civil
aircrafts who are nationals of a neutral nation do not become prisoners of
war and must be repatriated as soon as circumstances reasonably permit".
In practice, since the vessel itself is caught on the high seas, people on
board should be brought to a safe place (i.e. a harbor of the capturing
State) and repatriated as soon as possible. In this context, dure regard
needs to be given to theirs safety and basic needs (including food and
water, medical treatment if needed and reasonably sanitary conditions)/
The State of Israel has fully implementde the above obligations regarding
the people on board the ships which have been captured. Foreigh nationals
are being treated by the Ministry of Internal Affairs in order to provide
for their repatriation, and the wounded were evacuated to hospitals in
Israel, some of then by helicopter. Nevertheless, activists suspected of
attacking IDF soldiers will be investigated and the necessary legal measures
will be taken against them.
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