The Israeli flotilla massacre has put the United States and its leaders in a tough position, for a variety of reasons. The entire world has united in condemnation of the incident in international waters, and in the larger view, the blockade of Gaza, an unacceptable, poorly crafted, and possibly illegal action taken by the Israelis to basically starve out 1.5 million people. American pols don’t want to talk about the blockade, but it sits at the crux of the entire matter.
Instead of the blockade succeeding in delivering collective punishment and turn the population against Hamas, the ruling entity in Gaza, the blockade has strengthened Hamas’ hand and caused needless suffering and international outrage.
There’s also the matter of the blockade having little basis in the law:
If the conflict between Israel and Hamas is an international armed conflict (IAC), there is no question that Israel has the right to blockade Gaza. (Which is not to say that the manner in which Israel is blockading Gaza is legal. That’s a different question.) The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), the first international instrument to acknowledge the legality of blockades, specifically recognized the right of belligerents to blockade their enemy during time of war. Article 97 of the San Remo Manual does likewise. And there is certainly no shortage of state practice supporting the legitimacy of blockades during IAC (the US blockade of Cuba, for example).
But what justifies a blockade in non-international armed conflict (NIAC)? The London Declaration does not justify such a blockade, because it only applies to “war”– war being understood at the time as armed conflict between two states. Does the San Remo Manual justify it? The Manual is not a picture of clarity concerning when its rules apply, but it does not seem to contemplate non-international sea conflicts. Article 1 speaks of “the parties to an armed conflict at sea,” which does not seem to include NIAC, unless perhaps a rebel group has a navy […]
There also appears to be little, if any, state practice to support the idea that a blockade is legally permissible in NIAC. According to the Jerusalem Post, the Israeli government is defending the blockade by citing Yoram Dinstein’s statement that “there are several instances of contemporary (post-UN Charter of the Law of the Seas) practices of blockades, e.g. in the Vietnam and in the Gulf War.” But those were all blockades in IAC. I can’t think of any blockades in NIAC other than Israel’s blockade of Gaza — though readers should feel free, of course, to correct me.
The seeming absence of support for blockades in NIAC is obviously important, because it is difficult to argue that Israel is involved in an IAC with Hamas. First, it is obviously not in a traditional IAC, because Gaza is not a state. Second, not even Israel claims that the conflict has been internationalized by the involvement of another state. And third, although the Israeli Supreme Court held — controversially — in the Targeted Killings case that armed conflict between an occupying power and a rebel group is international, Israel’s official position is that it not currently occupying Gaza.
There’s an obvious irony to the idea that Israel would have to declare Gaza a separate state to legally justify the blockade. Essentially they want to have it both ways.
The Israeli Prime Minister claims that the blockade prevents missile attacks, and yet some of the items banned via blockade for international entry into Gaza include fruits and spices. Unless the “nutmeg bomb” is a big worry, we actually have a case of economic apartheid, and again it only helps Hamas, rather than hurts them. Netanyahu gives up the game here:
He said the flotilla was seeking to flout the blockade, not to bring aid to Gaza.
“If the blockade had been broken, it would have been followed buy dozens, hundreds of boats,” he added. “Each boat could carry dozens of missiles.”
That’s a tacit admission that the flotilla had no armaments on it.
Meanwhile, another humanitarian ship, the MV Rachel Corrie, is headed for Gaza as we speak. The United States has publicly stated that they don’t want to see the same response to the Corrie from the IDF. The President told the Prime Minister of Turkey that he would prefer “better ways to provide humanitarian assistance to the people of Gaza without undermining Israel’s security.”
International support for the blockade has collapsed. It does nothing for Israeli security, it does nothing to weaken Hamas, it does nothing but put a target on Israel’s back. Israel and Egypt have eased the blockade in reaction to the incident, but it needs to stop completely. Other nations which present the possibility of arms smuggling are not dealt with in this manner. There are other options. The blockade is untenable and cannot continue.