Reactions to the Israeli seizure of the Gaza-bound flotilla have shared two traits: They have virtually all invoked international law, and they have virtually all been marked more by their rhetorical excess than their knowledge of international law.
Israel's critics have levelled the phrases "war crimes" and "piracy," while its supporters have invoked the spectre of "terrorism" and "weapons of mass destruction." But when it comes to the Law of the Sea, they may all be out to sea. While much of the international law that gets tossed around at the United Nations is up for ideological grabs, the rules of engagement at sea are among the few islands of stability. It therefore behooves us to have a look at the accepted law before going overboard on politicized interpretation.
Israel and Hamas are in a state of armed conflict. That much is clear to everyone who has looked at the situation, from the General Assembly to the Human Rights Council in its Goldstone Report, which has stressed the need to conform to the laws of war. Accordingly, the accusation of piracy is inapt, since under both customary law and Article 101 of the UN Convention on the Law of the Sea that applies only to acts done for private gain. Israel's acts must be analyzed in terms of the law of naval warfare.
A blockade of an enemy's coast is an established military tactic. It is recognized as a means at the Security Council's disposal under Article 42 of the UN Charter where collective action is authorized. Likewise, as made clear in Article 539 of the Canadian Forces manual Counter-Insurgency Operations, it is an action that one belligerent can potentially impose on another, provided that the accepted conditions for the blockade are met.
The law regulating force at sea is found in several sources updating the eight conventions on the law of naval warfare adopted at the Second International Peace Conference at The Hague in 1907. These include the U.S. Naval Handbook, an equivalent U.K. publication, and Germany's 1992 manual, Humanitarian Law in Armed Conflicts. A consolidated set of rules was issued in 1994 by the San Remo Institute of International Law in co-operation with the International Committee of the Red Cross and several national humanitarian law societies, including Canada's.
A naval blockade is defined in Article 7.71 of the U.S. Naval Handbook as "a belligerent operation to prevent vessels and/or aircraft of all nations, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy nation." It is designed to stop ships from crossing a cordon separating the enemy's coast from the high seas. It is therefore often enforced in what would otherwise be international waters approaching, but not necessarily inside, the territorial sea of the blockaded party.
The San Remo conference set the specific rules for implementing a blockade. It must be publicly declared and notification sent to all states whose vessels are likely to be nearby. Further, the blockade must be effective. International law permits no fictitious blockade designed to frighten away third-party ships.
The San Remo rules also specify that a blockade be applied with impartiality to all states whose flagged ships enter the blockaded area. It must be conducted in a way that does not block access to neighbouring states and their ports.
A maritime blockade is for security purposes only, and must allow humanitarian assistance to the civilian population. Since the ships sailing for Gaza were on a declared humanitarian mission, those on board had the right to expect that any humanitarian goods would ultimately find their way to their intended recipients. On the other hand, having announced its blockade, Israel had no obligation to take the ships' crew at their word as to the nature of the cargo. The blockading party has the right to fashion the arrangements, including search at a nearby port, under which passage of humanitarian goods is permitted. San Remo specifies that this inspection should include supervision by a neutral party to prevent the unwarranted seizure of humanitarian supplies and the abuse of humanitarian assistance by the blockaded party.
Finally, the rule of proportionate force, applicable to all armed conflict, applies equally to a naval blockade. Blockading navies are obliged to arrest a ship rather than simply fire on it, and once its soldiers are on board an arrested ship their actions must be proportionate to the threat that they meet. While Israel appears to have met the other criteria eliminating a macro offence, here the facts will have to be gathered from witnesses and videos to determine what level of force was truly needed at the spot where the paintballs met the hammers.
We may still have to swim through an ocean of polemics, but once the legal background is set out, the Law of the Sea becomes far more cut and dry.
Ed Morgan is a professor of international law at the University of Toronto.