Israel's flotilla raid revives questions of international law

Israeli naval commandos seized an aid flotilla bound for the Gaza Strip on May 31, killing at least nine and wounding dozens, and sparking protests and condemnations around the world.
By Colum Lynch
Washington Post Staff Writer
Tuesday, June 1, 2010; 5:57 PM

UNITED NATIONS -- In the two days following its commando raid on an aid flotilla to the Gaza Strip, Israel has been accused by Turkey and several other governments of behaving like an outlaw state, and engaging in acts of piracy and banditry on the high seas.

But has Israel broken any laws?

International law experts differ over the legality of the Israel action, with some asserting that the raid constituted a clear cut violation of the Law of the Sea, while others maintain that Israel can board foreign vessels in international waters as part of a naval blockade in a time of armed conflict. But scholars on both sides of the debate agree that Israel is required by law to respond with the proportional use of force in the face of violent resistance.

The debate has drawn attention to a three-year-long blockade of Gaza by Israel and Egypt, which has sharply restricted the import of construction materials and other necessities into Gaza. Israel has come under intensive international pressure, including from the United States, to ease the blockade to allow greater flow of goods into Gaza.

Anthony D'Amato, a professor of international law at Northwestern University School of Law is among those who believes the raid was illegal. "That's what freedom of the seas are all about. This is very clear, for a change. I know a lot of prominent Israeli attorneys and I'd be flabbergasted if any of them disagreed with me on this," he said.

But others see the incident differently.

"The Israeli blockade itself against Gaza itself is not illegal, and it's okay for Israeli ships to operate in international waters to enforce it," said Allen Weiner, former State Department lawyer and legal counselor at the American Embassy in the Hague, and now a professor at Stanford Law School. Beyond that, he said, Israel has a legal obligation to allow humanitarian goods into Gaza and to exercise proportionality in the use of force.

Israel maintains that it was clearly within its rights to stop the aid flotilla, saying any state has the right to blockade another state in the midst of an armed conflict.

"We were acting totally within our legal rights. The international law is very clear on this issue," said Mark Regev, spokesman for Israeli Prime Minister Binyamin Netanyahu. "If you have a declared blockade, publicly declared, legally declared, publicized as international law requires, and someone is trying to break that blockade and though you have warned them . . . you are entitled to intercept even on the high seas, even in international waters."

Regev cited a provision in the San Remo Manual on International Law Applicable to Armed Conflict at Sea, which states that merchant vessels flying the flag of neutral states outside neutral waters can be intercepted if they "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."

But D'Amato said the document applies to a situation in which the laws of war between states are in force. He said the laws of war do not apply in the conflict between Israel and Hamas, which isn't even a state. He said the law of the Geneva Conventions would apply.

Human rights organizations, governments and U.N. officials have criticized Israel's enforcement of the blockade as cruel, if not necessarily illegal.

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