Gaza Aid Flotilla Raid By Israeli Forces – Illegal act of war or not?

There is a great deal of sound and fury regarding the Israeli boarding operation of the Gaza aid flotilla, largely because of the violence involved and death of around a dozen of the activists on board. Two of the key points of criticism prevalent on the internet thus far that the boarding operation was illegal because it was in international waters and possibly even an act of war against a Turkish flag-carrier, and that the action was both unjustified and disproportionate, as usual it isn’t that simple.

It never is.

The accusation follows that the boarding raid occurred in international waters and was therefore unjustified, and thus represents either an act of war against a foreign flag carrier if the action was sanctioned by the military, or simple murder if it was not. However, while the action occurred outside Israel’s territorial sea it appears to have happened inside Israel’s exclusive economic zone (EEZ)and according to the United Nations Convention on the Law of the Sea:

Article58

3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.

Gaza is officially blockaded by Israel, a sovereign nation state, and the flotilla had been informed that they were not permitted to transit Israeli territory to reach Gaza in defiance of the blockade. Apparently the same statement also included a clear offer that the flotilla’s aid be inspected at the Israeli port of Ashdod whereupon it would be sent on to Gaza (important if not to contravene San Remo stipulations on not hindering aid). Israel was acting to enforce it position against a blockade-runner within territory that permitted such an action. It may yet prove to be that a States obligation to observe the laws and regulations of the coastal State in the Law of the Sea do not cover such eventualities as this incident, but even then it may act as an enabler for other more directly applicable treaties.

The fact that Israel waited until the flotilla entered its EEZ may not imply that the Law of the Seas is the treaty that Israel wishes to justify its actions, merely that its jurisdiction acts as a legal mechanism which allows Israel to invoke a separate treaty such as the San Remo Memorandum on unlawful use of the sea; specifically blockade running:

Section V : Neutral merchant vessels and civil aircraft

Neutral merchant vessels

67. Merchant vessels flying the flag of neutral States may not be attacked unless they:

(a) 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;

Until that is proved one way or another (along with other possible legal mechanisms), this blog is going to keep an open mind on the question of legality.

The matter of whether disproportionate force was used hinges upon the same question of legality, which if upheld, then at least one vessel within the flotilla offered violent armed resistance against a Israeli military boarding party acting to enforce its regulations against a blockade runner that had been informed before-hand that its intended actions were not permitted. The fact that the situation escalated to tragic loss of lives may be in part due to poor Israeli boarding technique would not change the fact that Israeli forces were legitimately enforcing law and regulation.

There is without doubt much more to the story that as yet remains untold, and it may prove to be that Israel’s EEZ is not a significant factor in the equation, but the sound and fury currently drowning out rational discussion is unhelpful to say the least.

Update – 02/06/10

Israel is indeed using Article 67a of the San Remo memorandum as justification for stopping the flotilla, but rather than using  Article 58 of the Law of the Sea to enact such a measure outside its territorial waters Israel is instead using Gaza-Jericho agreement which it claims justifies the exclusion zone extending beyond its territorial waters, and thus the territory under blockade. This is of course a matter under dispute, but there we are.

The BBC has a good tactical breakdown of how the incident on deck unfolded here.

Update – 23/08/10

Panorama documentary on the true motives for Gaza flotilla, focussing on Israeli tactical mistakes, the grim ambitions of the militants onboard, and the utter lack of aid that was actually being transported.

4 responses to “Gaza Aid Flotilla Raid By Israeli Forces – Illegal act of war or not?

  1. At least one man has been able to remain objective on the question of legality and actually done his research before jumping to conclude Israel broke international law. In a sea of hysteria, mass condemnation of Israel without facts, and a growing trend to automatically assume Israel is always in the end. Good on ya!

  2. Well, I only got it half right, but thanks.

    The tragedy is that an Israeli desire to act in a non-threatening manner, by using paint-ball guns, one-by-one insertion, and no use of their sidearm except under mortal threat, was used as an advantage by those who were spoiling for a fight.

    The effort to decrease tension in a volatile situation resulted in the consequences being far worse than they otherwise might have been.

  3. I would just like to say that Article 58 of the COTLS is not able to be forwarded as a defence of Israel’s actions.

    A 58 speaks of numerous ‘rights and duties’ of the coastal State in regards to its EEZ. However, Article 56 above outlines these rights and duties:

    Rights, jurisdiction and duties of the coastal State in the
    exclusive economic zone

    ‘1. In the exclusive economic zone, the coastal State has:

    sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

    jurisdiction as provided for in the relevant provisions of this Convention with regard to:
    -the establishment and use of artificial islands, installations and structures;
    -marine scientific research;
    -the protection and preservation of the marine environment;
    -other rights and duties provided for in this Convention.’

    None of these rights and duties relate in any way to Israel’s conduct.

    Basically, Article 58 only applies with reference to Article 56.

  4. Many thanks, I had realised that Israel was not using the EEZ as justification, as per the update, but not understood the reason why.

    The Israeli ability to invoke San Remo does appear to hang on the contentious issue of a exclusion zone allowed for the Gaza-Jericho agreement.

    Regards

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