June 14 (Bloomberg) -- Israel has responded to criticism of its deadly raid on a Gaza-bound aid flotilla by saying it acted to enforce a legal blockade that prevents the Hamas-controlled enclave “from becoming a giant arsenal.”
Israel has a “duty to maintain the safety of citizens who have been under attack for many years by the terrorist organizations,” the Ministry of Justice said June 1. Thwarting these groups “is sanctioned by international customary law,” the ministry said in a filing to the country’s High Court of Justice.
The legality of Israel’s blockade turns on two issues, said Robin Churchill, a professor of international law at the University of Dundee in Scotland: Whether Israel’s conflict with Hamas is a full-fledged war and whether the military benefit is proportionate to the suffering it imposes on the civilian population.
Israel, while opposing an international investigation of the May 31 raid on a Gaza aid flotilla that left nine pro-Palestinian activists dead, announced yesterday it was setting up a commission to conduct an inquiry. The probe will include an examination of “the conformity of the naval blockade with the rules of international law” as well as “the security circumstances surrounding the imposition” of the blockade, the government said in a statement.
The panel, which was approved today by the Cabinet, will be headed by former Israeli supreme court judge Jacob Turkel. It will have two foreign observers: Nobel Peace Prize winner and Northern Ireland politician David Trimble, and Ken Watkin, former judge advocate general of Canada’s armed forces. Trimble and Watkin will sit in on discussions and won’t have the right to vote, Minister without Portfolio Benny Begin said on Israel Army Radio.
The Obama administration welcomed the announcement as “an important step forward.” Turkish Foreign Minister Ahmet Davutoglu said an Israeli probe wouldn’t be impartial and that an international inquiry was needed to establish what happened.
Israel won’t allow Gaza to become an “Iranian port,” Prime Minister Benjamin Netanyahu said June 5. Israel and the U.S. accuse Iran of arming and funding Hamas, which they and the European Union consider a terrorist organization.
The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, a 1994 code of conduct accepted globally, allows naval blockades, provided there is a state of war between the parties, according to Churchill.
Not A War
“The Israeli view is that they have an almost permanent right of self-defense against Gaza,” Churchill said in a telephone interview.
The legal situation is different from the time of Israel’s 22-day conflict with Hamas in Gaza that began in December 2008, Said Mahmoudi, a professor of international law at Stockholm University, said in a telephone interview.
“If you are in state of war, you can have a blockade, you can stop ships on open sea as part of the blockade, you can visit ships, you can interrogate people, even civilians, and you can take the ship by force,” Mahmoudi said.
Unlike in 2008-2009, “the conflict at the border now and the occasional shootings there do not turn the situation into a war,” he said.
Israel says the three-week military offensive in Gaza in 2008 was meant to stop rocket and mortar attacks by Hamas and other Palestinian militants. About 3,200 were fired from the territory that year, according to the Israeli army. More than 1,100 Palestinians and 13 Israelis were killed in the conflict.
The number of projectiles fired from Gaza totaled 708 last year and about 160 so far this year, the Israeli army said June 8. One foreign worker was killed last March. The declining number of attacks undermines Israel’s argument that it is in a virtual state of war with Hamas, Churchill said.
The blockade may still be covered by international law because Israel can make a case of self-defense, even though it appears to have used “excessive” force in the May 31 raid, Anthony Aust, a former legal adviser to the U.K. Foreign Office, said in a phone interview from London.
“Gaza is a threat to Israel and therefore one way of preventing arms reaching Gaza is by enforcing a blockade,” he said.
Leslie Gelb, president emeritus of the New York-based Council on Foreign Relations and a former U.S. assistant secretary of state, agreed that Israel was acting legally even though its forces “badly mishandled” the raid on the aid ship.
“Theirs was a mistake in pursuit of a legal goal, not a war crime,” Gelb wrote in the Daily Beast on May 31.
The U.S. and Britain “were at war with Germany and Japan and blockaded them,” Gelb wrote. “I can’t remember international lawyers saying those blockades were illegal, even though they took place on the high seas in international waters.”
To accept this view, one must also accept that Hamas’s firing rockets into Israel from Gaza is equivalent to Japan’s attack on Pearl Harbor and Germany’s invasion of Poland and air raids on the U.K., Churchill said.
International law “has changed quite substantially since 1945, but even if you applied contemporary law to the situation in World War II, the allied forces against Germany were acting in collective self-defense,” he said.
On the issue of proportionality, “even though a blockade can be used in a state of war, there is one situation where a blockade cannot be used, and that is where it blocks essential food and medicine from going in,” Churchill said. As a result, Israel’s action “seems illegal right now,” he said.
Palestinians, backed by the United Nations and human-rights groups, say restrictions on food imports and construction materials have created a humanitarian crisis. The flotilla was carrying material for rebuilding homes destroyed by war in Gaza, medical equipment and school supplies.
Israel denies that such a crisis exists, saying it restricts imports of building materials to Gaza because they can be used to build rockets, bunkers or bombs. Officials said they also were concerned about weapons being hidden in food packaging.
Israel’s Deputy Foreign Minister Danny Ayalon said in an interview yesterday on CNN’s “Fareed Zakaria GPS” television program that the government is easing its import restrictions on Gaza to allow in more types of foods. Tony Blair, the former British prime minister who is now a UN envoy for the Middle East, told the British Broadcasting Corp. yesterday that a partial lifting by Israel of its blockade could be imminent.
Egypt has also kept its northern border with Gaza largely closed since Hamas took over. Egyptian President Hosni Mubarak ordered the indefinite opening of his country’s Rafah border crossing after the ship attack. Egyptian officials have said the crossing can’t be permanently opened because they don’t recognize the Hamas administration.
Measuring the component parts of the proportionality argument is difficult because the parameters are often vague, Moshe Hirsch, a professor in the Faculty of Law’s Department of International Relations at the Hebrew University of Jerusalem, said in a telephone interview.
“But if these components are not proportional, then the blockade is not proportional, and the seizure of the ships may also not be proportional,” Hirsch said.
Russia, the European Union and Turkey have called on Israel to lift the cordon that began in 2007 when Hamas seized full control of the Gaza Strip.
French President Nicolas Sarkozy criticized Israel’s “disproportionate use of force” during the raid. Turkish Prime Minister Recep Tayyip Erdogan accused Israel of carrying out a “massacre” of unarmed humanitarian volunteers.
The U.S. backs Israel’s prerogative to restrict access to Gaza because it is “at war with Hamas,” and “has a right to know whether or not arms are being smuggled in,” Vice-President Joe Biden said June 2 on the “Charlie Rose” television show.
Hamas’s charter calls for the destruction of the Jewish state. Hamas leaders have said they will renounce violence when Israel withdraws from territory it occupied in 1967 and allows Palestinians to return to areas in Israel from which they fled in 1948.
President Barack Obama’s administration has avoided censuring Israel directly on the flotilla incident, supporting a June 1 statement by the UN Security Council that condemned “acts which resulted” in the deaths without singling out Israel for blame.
“The situation in Gaza is “unsustainable,” Obama said June 9. The key “is making sure that Israel’s security needs are met but that the needs of the people in Gaza are also met.”
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