'Mavi Marmara' Freedom Flotilla carrying 630 activists and 10 thousand tones of supplies for Gaza people.
This study will focus on the Gaza blockade imposed by Israel since 2007. In the early hours of 31st May 2010, Israel intercepted six vessels on the high seas carrying humanitarian aids to Gaza (collectively called the ‘Gaza Freedom Flotilla’), which resulted in the death of nine civilians and the injury of many more. This brutal and inhumane act by Israel had alerted the world on the issues of the legality and rights of humanitarian assistance.
Questions that arised are, can Israel invoke a prima facie right to blockade Gaza? What is the legal basis for this? Was it legal for humanitarian aid vessels to enter Gaza? Had the Israeli blockade policy helped reduce the humanitarian crisis in Gaza and generally the Palestine-Israel conflict? Or had it instead prolonged the sufferings and long term violence to the Palestinians?
This study will argue that the interception on the Flotilla humanitarian aid vessels justified by Israel for security concerns, political leverage and ‘legitimate’ economic warfare is illegal and an internationally wrongful act from the international humanitarian laws perspectives. Instead, Israel should efficiently facilitate the humanitarian assistance efforts to Gaza. This would be inline with the international humanitarian assistance principles of humanity, neutrality, impartiality and independence.
On 19th September 2007, Israel Ministerial Committee on National Security Issues adopted a decision which stated in part; the Hamas organization is a terrorist organization which has taken over the Gaza Strip and turned it into a hostile territory. This organization carries out acts of hostility against the State of “Israel” and its “citizens”, and the responsibility for such acts lies with it. Israel resolved to adopt the continuation of military and preventive activities and put additional restrictive measures upon Hamas regime in a way that can limit the passage of goods to Gaza Strip, reduce the supply of fuel and electricity and the movement of persons from and to the strip. Israel argues that these restrictive measures are necessary to limit rocket attacks from Gaza on Southern Israel and to prevent Hamas obtaining additional weapons. Those cumulative measures in restricting imports into Gaza by land and sea, not only impact the maritime blockade itself but had also caused the deterioration of the living conditions in Gaza. Besides security concerns, the ‘collective punishment’ of Gazan population as characterised by John Holmes of UN (Myers 2009: 117) was further justified by Israel for political leverage and economic warfare (Sanger 2010: 402).
As a response to the Israeli blockade policy, the international community formulated steps to lift the Gaza blockade based on the humanitarian assistance principle. On 31st May 2010, Freedom Flotilla headed towards the Gaza Strip comprising six vessels carrying around 630 solidarity activists from 40 countries. The 10 thousand tons of relief supplies and humanitarian aid included cement, generators, wheelchairs, medicine, clothes, blankets and toys (The Humanitarian Monitor 2010).
In response to that, the Israeli authorities threatened Freedom Flotilla and vowed to block its access to the Gaza Strip by military force (Manna 2010).. Undeterred by the Israeli threats, the solidarity activists insisted on heading to Gaza, however the Israeli forces overtook the flotilla and intercepted them in international waters; they further abseiled onto the deck and stormed Mavi Marmara, the flotilla’s largest passenger ship, using live ammunition, thus killing nine Turkish activists in cold blood while ten Israeli soldiers were injured in the confrontation.
The argument arose whether Israel’s interception of the humanitarian aid vessels was legitimate. In dealing with the the Israeli-Palestinian conflict, the debate may involve intense scrutiny of the facts, the rules of international law and the applicability of these rules to what has undoubtedly become sui generis situation (Sanger 2010: 398), unparalleled in its duration, complexity and equivocation. Using the legal framework and considering the universal humanitarian assistance principle as the parameter, the debate looks into a more objective approach rather than allowing sentiment to override.
Issues raised by the blockade and interception of vessels are complex (Scobbie 2010) as some relevant law is drawn from different periods of international law. In its justification of the blockade and interception of vessels, Israel has relied, inter alia, on the San Remo Manual on International Law applicable to Armed Conflicts at Sea, a non-official document prepared by a private body, named the International Institute of Humanitarian Law. Accordingly, the Manual is not comprehensive and earlier instruments retain utility in filling gaps in it or work as an aid to the interpretation of its provision, although these must be read in subsequent developments such as the UN Charter, the 1949 Geneva Conventions and the 2005 restatement of customary international humanitarian law undertaken by the International Committee of Red Cross.
Naval blockade refers to an operation aimed at preventing ingress or egress of all vessels or aircraft, regardless of the nationality of the state, to and from the coast or port of an enemy state. It was the oldest methods of naval warfare designed to ‘block supplies to an enemy coast without directly meaning to conquer this coast’ (Heintschel 2008: 551). This method can also be established by a party to an armed conflict or the Security Council in response to the threat or breach of international peace or an act of aggression (UN Charter Article 42).
Israel was actively exercising the naval blockade to cut off the external supply of humanitarian aid into Gaza and to pressure Hamas authorities and justified it as legal by hiding behind Article 42 of UN Charter. However many have argued that this is a breach of international humanitarian law as the supply are humanitarian aids meant to lift the humanitarian conditions faced by the civilians behind the blockade.
Blockade may necessarily affect both neutral states and the civilian population behind the blockade. While traditional international law was primarily concerned with the interest of states inter se, contemporary international law also concerns itself with the interest and protection of individuals. Consequently, international humanitarian law has modified the traditional law of blockade to include the rights and interests of blockaded civilians. Historically, areas under blockade were regarded as a single military objective, but today civilians behind a blockade must be distinguished from legitimate military targets.
To this end, contemporary international law stipulates that a blockade must not have the effect of starving a civilian population. A legal blockade that has this effect will be rendered illegal and cannot be lawfully enforced. The question of whether the blockade is causing a civilian population to starve is one of fact. In addition, if a blockade is causes a civilian population to be deprived of adequate food and other objects necessary for its survival, the blockading state is under an obligation to allow humanitarian supplies to pass through the blockade.
Starvation may occur as a consequence of the destruction of food and sources of food within a state and/or by imposing blockades or sieges that cut off external food supplies (Rosenblad 1973: 252). It has been used throughout history as a method of warfare. As British Foreign Secretary Michael Stewart remarked during the Nigerian-Biafran War in 1967. ‘we must accept that, in the whole history of warfare, any nation which has been in a position to starve its enemy out has done so’. Nevertheless, in seeking to balance military necessity with the protection of civilians, modern international law prohibits the use of starvation as a means of warfare against a civilian population. The legal basis for this can be found in two fundamental rules of international humanitarian law: firstly, civilians must not be directly targeted; and secondly, any civilian harmed resulting from a lawful attack on a military object must be proportionate to the anticipated military advantage.
These rules were codified in Additional Protocol I Article 54(1), which reflects customary law, unambiguously affirms that ‘starvation of civilians as a method of warfare is prohibited’ and is applicable in both occupied and non-occupied territories. Additional Protocol II, which applies in non-international armed conflicts, contains a corresponding provision. While there was some doubt in the past about the application of this prohibition to naval blockades, there is no doubt today that Article 49(3) explicitly provides that Article 54 applies to naval blockades if they ‘affect the civilian population, individual civilians or civilian objects on land’. Article 54 also includes a provision that elaborates on the basic rule:
“It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population as such foodstuffs, agricultural areas for the production of foodstuffs, crops livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, wether in order to starve out civilians, to cause them to move away or for any other motive.”
The provision is intended not only to ‘ensure the survival of the civilian population as such, but also to prevent population displacements which expose civilians to especially high risk’ (Macalister-Smith 1991: 10). Furthermore, the legal and factual protection of fixed civilian objects and installations is especially important, ‘simply because they cannot be moved out of the zone of conflict, as such the only available protection is to prohibit attacks against them’.
The rule in Article 54 is reflected in paragraph 102 of the San Remo Manual, which soughts to restate customary international law on the use of starvation as a means of warfare. Thus, the declaration or establishment of a blockade is prohibited if: first, it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or second, the damage to the civil population is or may be expected to be excessive in relation to the concrete and direct military advantage anticipated from the blockade. Thus, whenever a blockade has ‘starvation as one of its effects, the starvation effectively triggers the obligation, subject to certain limitations, to allow relief shipments to gain access to the coasts of the blockade belligerent.
Evidence of state practice in relation to this prohibition can be found in numerous military manuals. For instance, the UK Manual of the Law of Armed Conflicts, the Australian Defence Force Manual, and Canada’s Law of Armed Conflict Manual, and the US Commander’s Handbook of the Law of Naval Operations.
The deliberate starvation of civilians also constitutes a war crime under customary international law for instance, 1919 Commission on the Responsibility of the Authors of the War stipulated that the starvation as a violation of the laws and customs of war that should be prosecuted. Today, under Article 8(2)(b)(XXV) of the Rome Statute also stipulated that it was an international war crime of intentionally to deprive the civilians of objects indispensible to their survival including wilfully impeding relief supplies as provided for under Geneva Conventions.
The obligation to allow relief shipments and humanitarian assistance is reflected in paragraph 103 of San Remo Manual which stipulated that a blockading power must allow free passage of food and other essential supplies necessary for the survival of the civilian population. Article 23 of the Fourth Geneva Convention imposes a duty on all blockading power to allow the free passage of all consignments of medical and hospital stores including pharmaceutical products and medicine; and objects necessary for religious worship.
The humanitarian crisis in Gaza which has left a majority of civilians facing starvation (Feldman 2009), has resulted from the frequent military operations on internal destruction since the ‘Operation Cast Lead’ and by the blockade and siege on Gaza that prevent humanitarian supplies from reaching the civilian population (external restrictions). The crisis has been exacerbated by movement restriction from and to Gaza for supplies. It was also reported that the suffering went to the extent of the civilians having to eat grass to survive (Noor 2008: 143). In April 2010, the United Nation Office for the Coordination of Humaniarian Affairs (UNOCHA) reported that the number of Palestinians refugees completely unable to secure access to food and lacking the means to purchase even the most basic items like soap, safe drinking water since the imposition of blockade (The Humanitarian Monitor 2010).
Shirazi argues that between 2007 and 2009 the caloric intake per capita in Gaza and West bank decreased by 18 percent (Shirazi 2011). Although Israel has not declared the sole purpose of the siege to be starvation of the civilian population of Gaza, it has stated that its policy to ‘put the Palestinians on a diet (Guardian 2006), ‘to keep the Gazan economy on the brink of collapse’ and ‘to pressure Gazan into compelling Hamas to change its policy towards Israel’.
These objectives directly target civilians and are thus prohibited by the law of armed conflict. In addition, if the blockade has the effect of starving the civilian population, it is illegal regardless whether the sole purpose of the blockade is starvation of that population (Heintschel 2008: 554). Using these as an argument, on the believe that the Gaza blockade is unlawful, the interception of the Gaza Freedom Flotilla vessels and any other neutral state vessels, so long as they do not satisfy a law enforcement exception, is an unlawful exercise of jurisdiction over neutral vessels on the high seas and constituted an internationally wrongful act. The interception violated the sovereignty of flag-states concerned and it may also amount to an unlawful use of force, prohibited by Article 2(4) of the UN Charter. The interception could only be justified by relying on the right of self–defence but Israel knew the merchant vessels did not have the means to launch an attack. Faced with the unlawful armed attack, the crew and passengers of the intercepted vessels had the right of personal self-defence, the modalities of which are determined by the domestic law of the flag state, by virtue of its exclusive jurisdiction over the vessel.
Israel has a legal obligation to ease the blockade efficiently and allow vessels carrying humanitarian aid to reach the civilian population. Humanitarian assistance, as codified in Geneva Conventions and their Additional protocol, as well as customary international law, require that states consent to and facilitate humanitarian assistance which is impartial, neutral and independent in character, where failure to do so may lead to starvation or otherwise threaten the survival of civilian population (Barber 2009: 371). However if the governments are unable to meet this responsibility, they are required to allow the delivery of humanitarian aid by third parties to civilians in need (MacLean 2001).
As the international humanitarian law has constantly evolved to meet the needs and changes in regulating the conduct of parties of the right to humanitarian assistance, International Institute of Humanitarian Law has regulated a document entitled ‘Guiding Principles on the Right to Humanitarian Assistance’ in San Remo, Italy (International Institute of Humanitarian Law: 1993). Among the main principle is to respect the right to humanitarian assistance in order to ensure human rights to life, health, protection against cruel and degrading treatment, which is essential to survival in public emergencies. It is a fact that the blockade policy had deprived the basic human rights of the Gazan populations and left them in on-going suffering and miserable situation. As a result, Palestinians have the right to humanitarian assistance from any international organization.
The Geneva Conventions also outline that neutral humanitarian organisations, such as International committee of the Red Cross (ICRC), can deliver humanitarian assistance with the approval of warring parties. The framework for International humanitarian assistance is governed by four main principles; humanity, impartiality, neutrality and independence (World Economic Forum). Humanity means human suffering must be addressed wherever it is found, with particular attention to the most vulnerable populations such as children, women, and the elderly. The dignity and rights of all victims must be respected and protected. Impartiality refers to aid provision based solely upon the needs of the host populations. Neutrality requires an organisation to refrain from taking sides in a conflict. Independence ensures that NGOs can make decision and act without the influence of governments. Under these principles, Israel has an obligation to allow humanitarian assistance which is genuinely humanitarian in character to reach the civilian population.
On 20 June 2010, in response to international condemnation of the blockade and the interception, Israel’s security cabinet announced measures designed to ease the blockade (Sanger 2010: 443). However, as of January 2011, this measure to ease restriction on the export of certain products remains unimplemented.
So, what is the future for Gaza? This debate, intentionally, avoid to argue on the legitimacy of the State of Israel over the Gazans which is complicated and difficult debates. Such an objective was framed to understand that non-military intervention by humanitarian assistance is clearly legal and moral approach in order to relief the sufferings and humanitarian catastrophe. The studies were based on international humanitarian law and customary international law, sought to meet the crux underpinned the humanitarian assistance theories. The lesson from this debate is the recognition that Palestinians have legitimate political demands and not just humanitarian needs should not be lost in the face of yet another emergency. The Israel-Palestinians conflict needs to be carefully diagnosed and right mechanism be put in place or otherwise the world must be prepared for the worst humanitarian catastrophe in the future.
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