The Legality of Israel's Naval Blockade and Seizure of Foreign Vessels
Israel has been implementing both a naval and land blockade on the Gaza Strip for a number of years. The naval blockade first began in 2009 whereas the land blockade has been in effect for much longer. After Hamas came to power in 2007, the land blockade imposed upon Gaza became much more stringent.
The Israeli naval blockade of Gaza reached its highest point of notoriety in June of 2010 after the infamous ‘freedom flotilla’ incident. The freedom flotilla involved six ships that set sail from Turkey with the goal to break the Israeli blockade and enter Gaza via the Mediterranean Sea. During the voyage, an elite group of Israeli soldiers attempted to intercept the flotilla during the night. Violence broke out on the main ship, the Mavi Marmara, resulting in the death of 9 ship members. Due to this incident, a great amount of negative publicity was given to the Israeli blockade of Gaza and enormous pressure from the international community was put on Israel to either end or greatly ease the blockade. Israel eventually adhered to this international pressure by easing some of the restricted goods that had been prohibited from entering Gaza due to the land blockade.
The Mavi Marmara incident gave great attention to the naval blockade and seizure of vessels tactic that Israel had been using. Both Israel and Turkey conducted their own fact-finding reports on the incident. In Israel’s report, the naval blockade, including Israel’s tactic of seizing the various ships that try to break it, was found to be legal while also complying with all relevant rules of international law. Israel also argued that the seizure of ships is necessary to maintain Israeli national security due to the threat that Hamas poses towards Israeli citizens. On the other hand, in Turkey’s report, they came to the conclusion that the naval blockade is in fact illegal and therefore the Israeli interception of ships on the high seas breaches the international legal principle of the freedom of navigation. After both of these reports were submitted to the United Nations (UN), the UN released the Palmer Commission report, which also reviewed the legality of the Israeli naval blockade under international law.
The commission first wanted to distinguish the land blockade from the naval blockade and seizures of ships. According to the report, the main distinctions between the two types of blockades were time of implementation, varying policies, and the reactionary nature to certain conduct. With these distinctions in mind, the Palmer Commission looked at each type of blockade separately. Only the findings concerning the naval blockade are relevant to the purpose of this article.
Article 2(4) of the United Nations Charter does not allow for the use of force generally. Article 51, however, allows for the exception of self-defense as a way a country to circumvent the restrictions that Article 2(4) places on the use of force. The Palmer Commission reasoned that because Israel has faced, and is continuing to face, a real threat to
its national security, specifically from militant groups in Gaza, the stopping of these violent acts, via seizures of vessels, is indeed a necessary step for Israel to take to protect its own citizens. The report reasons that the naval blockade is used by Israel as a tactic for self-defense and is therefore legal under international law. In addition, the Palmer Commission states that it considers the conflict between Hamas and Israel as an international armed conflict and therefore the blockade is lawful under international law standards as well. Furthermore, it was found that the naval blockade was declared and notified properly by Israeli authorities.
It seems that the interpretation of whether the Israeli naval blockade is lawful or not hinges on how one classifies the Israeli-Hamas struggle. The world has many different views on whether or not Israel is an occupying power, whether Gaza is an entity of its own, etc and this article takes no stance on this issue. However, it seems that the Palmer Commission was correct when it found that the conflict at issue is in fact an international one. Additionally, I believe that by looking at the nature of the conflict first, Israel’s adherence to the Article 51 exception becomes more convincing. The Palestinian bid for statehood in the UN demonstrates just how international this conflict is. In addition, Hamas does not consider itself to be a part of Israel, nor do they consider themselves a rebel group fighting against an oppressive Israeli regime. Rather, Hamas is an entity with the mindset to remove the Israeli government from all areas of Israel proper; they do not recognize a legitimate Israeli state and wish to put all the disputed land under Palestinian control. Furthermore, nations from all over the world are heavily invested and involved with the on goings of the Israeli-Palestinian peace process as is evidenced by its place at forefront of every American presidential candidate’s foreign policy agenda.
After determining that indeed this is an international armed conflict, one can see how Israel is acting in self-defense against an entity trying to cause harm to its citizens. The over 5000 rockets and mortars fired into Israel from Gaza before the naval blockade was put in effect is a great illustration of why a self-defense tactic, such as a naval blockade and hence seizure of various ships potentially carrying more rockets and mortars to Gaza, is a needed remedy in this particular circumstance. It may be argued that indeed Israel has caused more fatalities to the Palestinians than Hamas or any other Gaza militant group have caused to Israelis. Although the statistics to such an argument may be valid, it has no place in this legal assessment of Israel’s right to seize vessels in order to protect its own citizens.
From a strictly legal standpoint, the Palmer Commission’s reasoning that Israel’s use of its naval blockade and subsequent seizure of vessels for national security reasons is legitimate under international law is correct.