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.
The influential rights advocacy group Human Rights Watch says that Israel is within its right to "control the content and delivery of humanitarian aid, such as to ensure that consignments do not include weapons." But the group said "Israel's continuing blockade of the Gaza Strip, a measure that is depriving its population of food, fuel, and basic services, constitutes a form of collective punishment in violation of article 33 of the Fourth Geneva Convention."
Pro-Palestinian advocates have portrayed Israel's activities as illegal, comparing them to President George W. Bush's preemption doctrine. "Israel is now claiming a new international law, invented just for this purpose: the preventive 'right' to capture any naval vessel in international waters if the ship was about to violate a blockade," Phyllis Bennis, a fellow at the Institute for Policy Studies. "That one just about matches George Bush's claim of a preventive 'right' to attack Iraq in 2003 because Baghdad might someday create weapons the U.S. might not like and might use them to threaten some country the U.S. does like."
Turkish Foreign Minister Ahmet Davutoglu said that Israel remains in defiance of U.N. resolutions requiring it to end the blockage. He cited Security Council Resolution 1860, which "calls for the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment."
But the resolution also "welcomes the initiatives aimed at creating and opening humanitarian corridors and other mechanism for the sustained delivery of humanitarian aid." And Israel maintains that it has been faithfully implementing the resolution by establishing border crossing routes for the delivery of humanitarian assistance.
To resolve the crisis, Davutoglu said Israel must make a "clear and formal apology," accept an independent investigation, release all passengers immediately, return the bodies of all dead passengers and lift what he called the "siege of Gaza." If these demands are not quickly met, he said that Turkey will demand further action from the U.N. Security Council.
He added that Turkey will also bring the matter before NATO. "Citizens of member states were attacked by a country that was not a member of NATO," he said. "We think that should be discussed in NATO."
Staff writer Janine Zacharia in Jerusalem contributed to this report.