A friend of mine (who I respect) called to tell me that he is done with Israel. He said the IDF violated international law by attempting to board the boat in international waters and the IHH terrorists were justified because they were defending themselves in international waters. Which to be honest, was something I did think of so I did a bit of research. I found a source that indicates that Israel was indeed, within legal bounds when it boarded the boat last night.
According to the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994:
SECTION V : NEUTRAL MERCHANT VESSELS AND CIVIL AIRCRAFT
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.
NOTE: the San Remo Manual is not a treaty, but considered by the ICRC to be reflective of customary law.
Also, on piracy: the definition of piracy under the UN Convention on the Law of the Sea, section 101, is clear that piracy can only occur where there are “illegal acts of violence or detention” that are “committed for private ends.” Israeli actions were legal under the law of armed conflict (as evidenced by the San Remo Manual) and in any event, were not committed for private ends. Anyone using the term piracy to describe the Israeli action is clearly not aware of international law on the subject.
Here’s the bottom Line:
- 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.
- Maritime blockades are a legitimate and recognized measure under international law that may be implemented as part of an armed conflict at sea.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Israeli personnel attempting to enforce the blockade were met with violence by the “protesters” and acted in self defense to fend off such attacks.
My friend’s objection was a thoughtful one, made out of a respect for the law, however, the laws of the sea indicate that Israel was in her bounds when she boarded the terrorist boat last night.