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The Gaza flotilla and the maritime blockade of Gaza. Documentation

A maritime blockade is in effect off the coast of Gaza. It has been imposed, as Israel is currently in a state of armed conflict with the Hamas regime that controls Gaza. (1)

  • 1. 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.
  • 2. Maritime blockades are a legitimate and recognized measure under international law that may be implemented as part of an armed conflict at sea.
  • 3. 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.
  • 4. 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.
  • 5. 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.
  • 6. 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.
  • 7. 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.
  • 8. 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.
  • 9. Here we should 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.
  • 10. 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.
  • 11. 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.
  • 12. Israeli personnel attempting to enforce the blockade were met with violence by the protesters and acted in self defense to fend off such attacks.

Helsinki Principles on the Law of Maritime Neutrality

3. Hostilities on the High Seas (2)

3.1 The Conduct of Hostilities
In conducting hostilities on the high seas, the parties to the conflict must have due regard to the exercise of the freedoms of the high seas by neutral States. In particular, neutral shipping and fishing activities may be limited pursuant to these Principles, but in no case completely excluded.

3.2 Areas of naval hostilities
Neutral ships should be aware of the risk and peril of operating in areas where active naval hostilities take place. Belligerents engaged in naval hostilities must, however, take reasonable precautions including appropriate warnings, if circumstances permit, to avoid damage to neutral ships.

3.3 Special Zones
Subject to Principle 5.2.9 and without prejudice to the rights of commanders in the zone of immediate naval operations, the establishment by a belligerent of special zones does not confer upon that belligerent rights in relation to neutral shipping which it would not otherwise possess. In particular, the establishment of a special zone cannot confer upon a belligerent the right to attack neutral shipping merely on account of its presence in the zone. However, a belligerent may, as an exceptional measure, declare zones where neutral shipping would be particularly exposed to risks caused by the hostilities. The extent, location and duration must be made public and may not go beyond what is required by military necessity, regard being paid to the principle of proportionality. Due regard shall also be given to the rights of all States to legitimate uses of the seas. Where such a zone significantly impedes free and safe access to the ports of a neutral State and the use of normal navigation routes, measures to facilitate safe passage shall be taken. ...

5.2 Belligerent control over neutral shipping

5.2.1 Visit and search
As an exception to Principle 5.1.2. paragraph 1 and in accordance with Principle 1.3 (2nd sentence), belligerent warships have a right to visit and search vis-à-vis neutral commercial ships in order to ascertain the character and destination of their cargo. If a ship tries to evade this control or offers resistance, measures of coercion necessary to exercise this right are permissible. This includes the right to divert a ship where visit and search at the place where the ship is encountered are not practical.

5.2.2 Seizure and condemnation
Cargo constituting contraband and a ship carrying such cargo may be seized by a belligerent, brought before a prize court and condemned. Confiscation without a prize court decision is prohibited.

5.2.3 Contraband
Contraband are goods ultimately destined to the enemy of a belligerent which are designed for the use of war fighting and other goods useful for the war effort of the enemy. ...

5.2.10 Blockade
Blockade, i.e. the interdiction of all or certain maritime traffic coming from or going to a port or coast of a belligerent, is a legitimate method of naval warfare. In order to be valid, the blockade must be declared, notified to belligerent and neutral States, effective and applied impartially to ships of all States. A blockade may not bar access to neutral ports or coasts. Neutral vessels believed on reasonable and probable grounds to be breaching a blockade may be stopped and captured. If they, after prior warning, clearly resist capture, they may be attacked.

Is Israel´s Blockade of Gaza Legal?

Pro-Israel front group Reuters (ahem) asks the timely question: Q&A: Is Israel´s naval blockade of Gaza legal? (3)

The short answers:

Yes, Israel´s blockade is legal under international law.
Yes, Israel has the legal right to stop ships in international waters.
Yes, Israel has the legal right to use force when stopping ships.
And no, this was not "piracy" by any legal definition.
The applicable legally recognized document is titled: San Remo Manual on International Law Applicable to Armed Conflicts at Sea

10. Konvention von Havanna ├╝ber maritime Neutralit├Ąt vom 20.02.1928

SECTION I. FREEDOM OF COMMERCE IN TIME OF WAR (4)

Article 1. The following rules shall govern commerce of war:

[1] Warships of the belligerents have the right to stop and visit on the high seas and in territorial waters that are not neutral any merchant ship with the object of ascertaining its character and nationality and of verifying whether it conveys cargo prohibited by international law or has committed any violation of blockade. If the merchant ship does not heed the signal to stop, it may be pursued by the warship and stopped by force; outside of such a case the ship cannot be attacked unless, after being hailed, it fails to observe the instructions given it. The ship shall not be rendered incapable of navigation before the crew and passengers have been placed in safety. ..

Art. 2. Both the detention of the vessel and its crew for violation of neutrality shall be made in accordance with the procedure which best suits the state effecting it and at the expense of the transgressing ship. Said state, except in the case of grave fault on its Part, is not responsible for damages which the vessel may suffer.

June 1 / June 8, 2010

Notes

(1) The Gaza flotilla and the maritime blockade of Gaza. Israel Ministry of Foreign Affairs, May 31, 2010
http://tinyurl.com/33tofyd

(2) Helsinki Principles on the Law of Maritime Neutrality. Viadrina International Law Project. Ein Projekt des Lehrstuhls f├╝r ├ľffentliches Recht insb. V├Âlkerrecht, Europarecht sowie ausl├Ąndisches Verfassungsrecht. Europa-Universit├Ąt Viadrina, Frankfurt (Oder), 2002
http://www.vilp.de/Enpdf/e025.pdf

Europa-Universit├Ąt Viadrina, Frankfurt (Oder)
http://www.vilp.de/

(3) San Remo Manual on International Law Applicable to Armed Conflicts at Sea,
International Humanitarian Law - Treaties & Documents, ICRC, 12 June 1994
http://tinyurl.com/2v6jxty

Is Israel´s Blockade of Gaza Legal? Little Green Footballs, June 8, 2010
http://tinyurl.com/36gktsu

(4) Konvention von Havanna ├╝ber maritime Neutralit├Ąt vom 20.02.1928. Convention on Maritime Neutrality. Havana, 20 February 1928. Archiv des humanit├Ąren V├Âlkerrechts in bewaffneten Konflikten. Hrsg. Dr. Norbert B. Wagner,
2. Auflage Br├╝hl/Wesseling, S. 66 ff.
http://www.humanitaeres-voelkerrecht.de/HVR.II.1.pdf


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