The Israeli Operation against the Gaza-bound Flotilla – The Legal Framework

On 31 May 2010, the Israel Defense Forces intercepted six boats seeking to violate Israel’s naval blockade on the Gaza Strip. Five of the ships were boarded and diverted to the Israeli port of Ashdod without resistance, while the attempt to take over the sixth boat, the Mavi Marmara, resulted in violent clashes, leading to the death of nine civilian passengers and injuries to both Israeli soldiers and additional flotilla passengers.

In this article, IDI's Terrorism and Democracy Newsletter provides an overview of the legal framework of the Israeli operation. Although the operation itself was not executed as a counter-terrorism operation, it is closely linked to Israel’s sanctions against the Hamas government in Gaza (which Israel regards as a terrorist organization).

Following the assumption of control over the Gaza Strip by Hamas in June 2007, the Israeli Security Cabinet declared the Gaza Strip as a "hostile area" and decided to impose a naval blockade on that area in order to restrict, inter alia, the transfer of goods and people in and out of the Gaza Strip. [1]  Since 3 January 2009, the blockade has completely prohibited the entry of vessels into the territorial waters of Gaza, and humanitarian shipments into Gaza are allowed only via the Israel-Gaza border-crossing, at which point they are subjected to a security inspection. Israel itself has arranged the entry of a limited number of supply trucks into the Gaza Strip. [2]

In May 2010, six ships set course toward the Gaza Strip with the declared purpose of violating the Israeli naval blockade and transferring the humanitarian goods on board directly to the people of Gaza. The Israel Defense Forces intercepted the ships in international waters before they entered the territorial waters of the Gaza Strip, and ordered them to divert their course to the Israeli port of Ashdod, where the humanitarian cargo would be inspected and transferred to Gaza.  IDF soldiers successfully boarded five of the ships without incident, but on the sixth ship – the Mavi Marmara, violent clashes between the IDF soldiers and a group of Turkish activists erupted, ending in the shooting deaths of nine civilians and several injuries on both sides. [3]

The IDF later claimed that upon boarding the Mavi Marmara, its soldiers were violently attacked by civilians using metal tubes, sticks, knives and even stun grenades. Despite their efforts to use minimal force (such as paint guns), in the face of imminent threat to their lives, the IDF soldiers had no alternative but to use their personal handguns against their attackers in self-defense. [4]  Some individuals on board the Mavi Marmara have rejected the IDF’s version of the events and have alleged excessive use of force by the IDF soldiers, who they claim executed a “shoot to kill” policy. [5] 

A key question that must be examined within the legal framework of the IDF operation against the flotilla is the legality of the naval blockade imposed on the Gaza Strip, which underlies Israel’s refusal to allow humanitarian convoys to enter the territorial waters of the Gaza Strip. This question may be analyzed under two alternative legal constructs: (1) If the Gaza Strip is still occupied territory (despite Israel's position that the occupation of the Gaza Strip ended, following the completion of the Disengagement Plan in September 2005), then for security reasons, Israel surely has the right to control the passage of goods and to inspect the goods delivered by sea. [6]  At the same time, Israel is obligated to facilitate the delivery of relief to the area and to ensure that the basic needs of the occupied population are met. [7]  (2) If the Gaza Strip is no longer subject to Israeli occupation, Israel may impose a naval blockade on the area only if there is an armed conflict between Israel and Hamas (which has de facto control over the Gaza Strip). The official position of the State of Israel on the matter is that the situation between Israel and Hamas, the de facto governor of the Gaza Strip, has been one of ongoing armed conflict in recent years (which came to a peak during "Operation Cast Lead"). [8]  This armed conflict situation arguably justifies the imposition of a blockade under international law. [9]  However, the legality of the Israeli imposed blockade under the laws of war – particularly, whether it proportionally balances humanitarian interests and military necessity – has been challenged by some international lawyers.[10] 

The question of the legality of Israel’s decision to operate in international waters also appears to hinge on the validity of the naval blockade. According to Israel, it is quite clear that under the laws of armed conflict, a state does not have to wait until a naval blockade is actually violated before intercepting ships. [11]    Moreover, the blockade itself may be imposed in international waters.[12]  In the present case, the flotilla's declared purpose was to violate the blockade; hence, if the blockade is lawful, Israel appears to have the right to intercept ships in international waters (and vice versa).

The third legal question raised by the flotilla incident involves the IDF's use of guns against unarmed civilians during the operation. As with any military operation involving civilians, the operation must be conducted according to the IHL principles of necessity and proportionality. Furthermore, although Israel may have had legitimate authority to use military force in order to stop the breaking of its naval blockade, recourse to such force could not be justified in the case of a humanitarian flotilla, unless there is reason to believe that the interception would be met with violence.  Thus, it appears that despite military justification, the takeover itself should be analyzed in accordance with the principles that govern law enforcement activities. Indeed, according to the IDF spokesperson and to released footage of the incident, the IDF soldiers did not carry assault rifles and boarded the ships armed with paint guns in their hands (and personal handguns on their backs). Moreover, according to the IDF spokesperson, soldiers opened fire only after they found themselves in a life-threatening situation. While the precise chain of events must be investigated, it seems plausible that the IDF operated in accordance with Article 57 of Additional Protocol I to the Geneva Conventions, [13]  which requires militaries to take appropriate precautions in order to avoid civilian casualties, and Section 9 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990. [14]  Still, it is necessary to address the question of whether the choice of an elite commando unit with little or no experience in crowd control was appropriate under the circumstances of the case. [15]   

The legality of the raid on the Gaza-bound flotilla hinges on the legality of the naval blockade imposed by Israel on Gaza. If one accepts that Israel and Hamas are in a state of armed conflict, which is governed by rules similar to those applicable in interstate conflicts, then Israel appears to have acted within its right when it imposed and enforced the blockade, even if the interception occurred in international waters. However, the ultimate judgment on this matter may depend on an assessment of the proportionality of the blockade.

At a more tactical level, the raid on the flotilla raises some difficult questions concerning the intersection of military force and law enforcement. Hopefully, further investigation will shine more light on the initial decision to send military commandos to board the ship, and on the exact circumstances that led to the injuries and the loss of lives on the Mavi Marmara.

At a more general level, the flotilla incident illustrates the intensive interaction between  counter-terrorism and humanitarian concerns and actions: Israel’s counter-terrorism policy, which has humanitarian implications for the population of Gaza, has been perceived by many outside of Israel to be disproportionate, prompting international humanitarian protest, which in turn seriously complicates the military component of Israel’s  counter-terrorism effort (in this case, the prevention of weapon smuggling into the Gaza Strip from the sea). Hence, purportedly humanitarian demonstrations, such as the Gaza Flotilla, seriously challenge the legitimacy of Israel’s counter-terrorism policies. Furthermore, the difficulty of reconciling counter-terrorism and humanitarian concerns under these circumstances is particularly challenging since the very identification of the nature of persons and acts as “terrorist” or “humanitarian” is disputed by the various parties.  

1. http://www.cnn.com/2007/WORLD/meast/09/19/israel.gaza/index.html  
   
   
2. www.mfa.gov.il/MFA/About+the+Ministry/Behind+the+Headlines/Israeli_humanitarian_lifeline_Gaza_25-May-2010.htm
   
   
3. www.alertnet.org/thenews/newsdesk/LDE64U0P3.htm
   
   
4. www.mfa.gov.il/MFA/Government/Communiques/2010/Israel_Navy_warns_flotilla_31-May-2010.htm
   
   
5. See e.g., Robert Booth, “Gaza Flotilla Activists Were Shot in Head at Close Range”, http://www.guardian.co.uk/world/2010/jun/04/gaza-flotilla-activists-autopsy-results, Friday, 4 June 2010.
   
   
6. Cf. Fourth Geneva Convention, Art. 59(5) “A Power granting free passage to consignments on their way to territory occupied by an adverse Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.” Arguably, similar powers are afforded to the occupying power itself.
   
   
7. Fourth Geneva Convention, art. 59(1); First Additional Protocol, art 69.
   
   
8. www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Gaza_flotilla_maritime_blockade_Gaza-Legal_background_31-May-2010.htm 
   
   
9. For a list of conditions governing the lawfulness of naval blockades, see San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 1994, para. 93-104
   
   
10. See e.g., Ben Saul, “Israel's Security Cannot Come at Any Price,” 21 June 2010, www.nlginternational.org/news/article.php?nid=313.
    
    
11. www.mag.idf.il/592-4071-en/patzar.aspx#paragraph_3
    
    
12. San Remo Manual, para. 96
    
    
13. Art 57(1) – "In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects."
    
    
14. "Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life."
    
    
15. Cf. McCann v UK, ECHR judgment of 17 Sept. 1995, Eur. Ct. H.R. (Ser. A) No, 324, at para. 212
    “Although detailed investigation at the inquest into the training received by the soldiers was prevented by the public interest certificates…  it is not clear whether they had been trained or instructed to assess whether the use of firearms to wound their targets may have been warranted by the specific circumstances that confronted them at the moment of arrest. Their reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects, and stands in marked contrast to the standard of care reflected in the instructions in the use of firearms by the police, which had been drawn to their attention and which emphasized the legal responsibilities of the individual officer in the light of conditions prevailing at the moment of engagement… This failure by the authorities also suggests a lack of appropriate care in the control and organisation of the arrest operation.”