A. Introduction
On 3 January 2009 Israel deployed a naval blockade against Gaza in order to prevent materials entering or leaving Gaza that could be used by Hamas in its ongoing armed conflict with Israel.Footnote 1 With the humanitarian crisis in Gaza worsening, on 31 May 2010 a flotilla of vessels carrying humanitarian aid expressed its intention to violate the naval blockade and deliver the aid to Gaza. Before violating the blockade and whilst still on the high seas, Israel sought to enforce its blockade and capture the vessels. This occurred largely without incident except in relation to the Mavi Marmara (a vessel sailing under the flag of the Comoros), which resisted capture by the Israeli special forces and continued to sail in the direction of Gaza. As Israel special forces boarded the Mavi violence ensued, with nine crew members of the Mavi being killed and dozens of others injured (principally Turkish nationals). Several members of Israel's special forces were also injured. Israel eventually assumed control of the ship and the crew members were detained and the vessel and its cargo confiscated.
Israel justified its interception of the flotilla on the basis of international humanitarian law; during times of armed conflict international humanitarian law permits a State to impose and enforce a naval blockade against vessels on the high seas that have expressed an intention to run the blockade. Whether or not Israel's interdiction of the Mavi was permissible under international law has caused considerable controversy. Indeed, three high profile reports have been published examining the legality of the incident.Footnote 2 Most recently, in September 2011 the Palmer Report was published (named after the Chair of the four member Panel, Sir Geoffrey Palmer).Footnote 3 Established at the behest of the United Nations (UN) Secretary-General, the Panel responsible for compiling this report was required to ‘(a) examine and identify the facts, circumstances and context of the incident; and (b) consider and recommend ways of avoiding similar incidents in the future’.Footnote 4 Importantly, the Panel notes that it ‘is not a court’ and ‘was not asked to make determinations of the legal issues or to adjudicate on liability’.Footnote 5 This being said, however, the Panel explains that it reached its conclusions in relation to the facts, circumstances and context of the incident ‘against the backdrop of the exposition of the principles of public international law’Footnote 6 that were set out by the Chair and Vice-Chair of the Panel in Appendix I to the Report.Footnote 7 Thus, the Panel inevitably sought to apply principles of international law to the facts as the Panel determined them to be. All in all, the Panel finds that Israel's blockade of Gaza was lawful. However, the Panel also concludes that the enforcement of the blockade against the Mavi on 31 May 2010 was unlawful and that Israel's treatment of the crew members whilst they were detained was in violation of international human rights law.Footnote 8
Arguably the most important feature of the Palmer Report is its determination that Israel's blockade of Gaza was lawful. Seemingly, the legacy of the Report is to give the green light to Israel to continue to deploy its blockade against Gaza whilst its armed conflict with Hamas persists. Interestingly, the Panel explains that it ‘hopes that its report may resolve the issues surrounding the incident and bring the matter to an end’.Footnote 9 However, this seems extremely unlikely given the considerable backlash there has been in relation to the Report. Significantly, Turkey has publically declared its intention to lobby the UN General Assembly to request the International Court of Justice to provide an advisory opinion on the legality of Israel's naval blockade of Gaza.Footnote 10 The Panel's determination that Israel's naval blockade is lawful is therefore unlikely to be the end of the matter.
In the light of this, the legality of the naval blockade requires close reconsideration. In particular, in this commentary I will assess the accuracy of the Panel's interpretation and application of the international law of naval blockade to Israel's blockade of Gaza. Thus, this article will not assess the Panel's conclusions in relation to the legality of Israel's enforcement of the blockade against the Mavi Marmara or the treatment of crew members whilst detained by Israeli forces.Footnote 11
B. Blockade
The right to impose a naval blockade during times of armed conflict is well established in customary international humanitarian law.Footnote 12 Although not formally a legally binding document, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994) seeks to codify existing principles of customary international law relating to armed conflicts at sea.Footnote 13 In this sense, the Manual can be regarded as providing a ‘reliable restatement of the law [of naval warfare]’.Footnote 14 In relation to naval blockades, Part IV section II of the San Remo Manual stipulates six requirements that need to be adhered to in order for a naval blockade to be lawfully deployed:Footnote 15
1 The details relating to the naval blockade need to be publicly announced;
2 The line on which the blockade is established needs to be enforced and effective;
3 The blockade must be applied impartially to all vessels;
4 The blockade must not prevent access to ports and coasts of neutral states;
5 The blockade must be in response to an international armed conflict; and
6 The blockade must be in accordance with the principle of humanity.
The Panel concludes that all six requirements are satisfied and that Israel's blockade of Gaza is therefore lawful. I agree with the Panel's determination that Israel's blockade complies with the first four of these requirements. It is in relation to the final two requirements that I disagree with the conclusions of the Panel. It is to these two points that my attention now turns.
1. International Armed Conflict
As a product of international humanitarian law, a naval blockade can only be deployed in times of armed conflict. This is a factual question. The Panel determines that it is ‘uncontested that there has been protracted violence taking the form of an armed conflict between Israel and armed groups in Hamas-controlled Gaza’.Footnote 16 Although the term ‘uncontested’ is perhaps a little strong,Footnote 17 I would agree that Israel and Hamas are engaged in an armed conflict on the basis that a) the parties to the dispute exhibit a sufficient degree of organization and that b) the violence is of sufficient intensity to justify the application of international (as opposed to national) law.Footnote 18
Assuming that an armed conflict is occurring between Israel and Hamas, it is then necessary to determine whether this conflict is of international or non-international character. An international armed conflict emerges where there is ‘recourse to force between States’.Footnote 19 Non-international armed conflicts are defined as conflicts that give rise to ‘protected armed violence between government authorities and organized groups or between such groups’.Footnote 20 Distinguishing between these different types of armed conflict is important because, as a body of law that was initially designed to apply to warring States, international humanitarian law imposes a far more comprehensive legal framework in relation to international armed conflicts than it does non-international armed conflicts.Footnote 21
Incontrovertibly, customary international humanitarian law permits the use of naval blockades in times of international armed conflict.Footnote 22 Whether there is sufficient State practice and opinio juris to substantiate the claim that naval blockades are permitted in times of non-international armed conflict, however, is far more contested.
Significantly, in Appendix I to the Palmer Report, the Chair and Vice Chair claim that customary international humanitarian law does permit the deployment of naval blockades in times of non-international armed conflict.Footnote 23 Although the Chair and Vice Chair note that there are ‘[a] few examples’Footnote 24 of naval blockades being deployed in times of non-international armed conflict, they only identify one example. The example they provide is the decision of the US Supreme Court in the Prize case, which relates to the deployment of a naval blockade against Southern ports during the American Civil War. However, as the Chair and Vice Chair appreciate, in this case the Union had expressly recognized the Confederate States of America as a belligerent power. Crucially, where a State is engaged in an armed conflict with a belligerent, customary international humanitarian law escalates an otherwise non-international armed conflict into an international armed conflict.Footnote 25 To this end, the Chair and Vice Chair's claim in Appendix I that ‘[t]he Prize Case decision therefore suggests that in addition to an international armed conflict, the law of blockade would also be applicable in non-international armed conflicts in which the parties and/or neutral countries recognise each other as belligerents’ is very confusing and, with all due respect, legally incorrect.Footnote 26
In addition, in order to support the claim that naval blockades are permitted in times of non-international armed conflict the Chair and Vice Chair rely upon the San Remo Manual, which as I have stated is generally regarded as reflective of customary international law; ‘Beyond such situations [ie belligerency], it should be noted that the San Remo Manual—which has a number of provisions on the law of blockade—does not expressly limit its scope to international armed conflicts’.Footnote 27 To support this interpretation of the San Remo Manual the Chair and Vice Chair cite the Explanation to the Manual, which states that
although the provisions of [the San Remo] Manual are primarily meant to apply to international armed conflicts at sea, this has intentionally not been expressly stated in paragraph 1 in order not to dissuade the implementation of these rules in non-international armed conflicts involving naval operations.Footnote 28
However, this quotation does not in fact indicate that the San Remo Manual applies to non-international armed conflicts. The opposite is in fact true. Rather, this quotation clearly indicates that the Manual applies only to international armed conflicts. Failure to include ‘international’ within the substantive provisions of the Manual was to encourage as a matter of good practice (rather than law) the application of this Manual to non-international armed conflicts and thus to allow for the progressive development of customary international law.
In conclusion, therefore, the Report's claim that naval blockades are permitted in times of non-international armed conflict does not rest upon an accurate interpretation of customary international humanitarian law.
In light of this, we must determine whether Israel and Hamas are engaged in an international armed conflict. Ostensibly, the answer to this question is in the negative because, as Hamas is not the government of a State,Footnote 29 Israel and Hamas are not engaged in a State on State armed conflict. Instead, as an armed conflict between a State and an organized group, this would appear to be a non-international armed conflict. This would certainly seem to be the case in light of the Hamdan ruling, where the US Supreme Court held that the US (a State) was engaged in a non-international armed conflict with Al Qaeda (an organized armed group) located outside of the US.Footnote 30 If this is correct, Israel's deployment of a naval blockade against Gaza would be unlawful on the basis that naval blockades are not permitted in non-international armed conflicts.
This being said, the Panel actually determines that Israel and Hamas are engaged in an international armed conflict. The Panel states:
the characterization of this armed conflict is disputed. The conclusion of this Panel in this regard rests upon the facts as they exist on the ground. The specific circumstances of Gaza are unique and not replicated anywhere in the world. Nor are they likely to be. Gaza and Israel are both distinct territorial and political areas. Hamas is the de facto political and administrative authority in Gaza and to a large extent has control over events on the ground there. It is Hamas that is firing the projectiles into Israel or is permitting others to do so. The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel's right to self-defence against armed attacks from outside its territory. In this context, the debate on Gaza's status should not obscure the realities. The law does not operate in a political vacuum, and it is implausible to deny that the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict.Footnote 31
Given that this is such a controversial conclusion, it is unfortunate that the Panel does not expressly identify the legal basis for why it determines that this armed conflict can be regarded as international in character. Instead, the implication of this text is that the Panel regards Hamas to be a belligerent power under international law. This is also Milanovic's interpretation of this aspect of the Report, arguing that ‘the Palmer Report now seems to have implicitly taken the belligerency route’.Footnote 32 As I have already stated, if this approach is correct Israel and Hamas must be necessarily regarded as being engaged in an international armed conflict. To reiterate, under international humanitarian law an armed conflict between a State and a legally recognized belligerent is classified as an international armed conflict. However, whether Hamas is a belligerent is highly contentious and needs to be carefully considered.
The generally accepted test for belligerency under customary international law is
first, there must exist within the State an armed conflict of a general (as distinguished from purely local) character; secondly, the insurgents must occupy and administer a substantial portion of national territory; thirdly, they must conduct the hostilities in accordance with the rules of war and through organized forces acting under a reasonable authority; fourthly, there must exist circumstances which make it necessary for outside states to define their attitude by means of recognition of belligerency.Footnote 33
I submit that Hamas is unlikely to meet this criterion. Two main reasons are apparent.
First, it seems clear that under customary international law belligerency can only be accorded to those organized, armed groups that are engaged in armed conflict with the government of the State within which they are located. Historically, therefore, belligerency has been accorded to those insurgents that are engaged in a civil war with the government of the State.Footnote 34 Obviously, Hamas is not located within Israel. Israel and Hamas are not engaged in a civil war. Although there may be good normative reasons for extending this doctrine to insurgent groups such as Hamas that are located within other territories or States, in its contemporary formulation customary international law does not seem to cover such a scenario.
Secondly, in order to qualify as a belligerent the insurgents must comply with the customs and laws of war. Hamas is widely regarded as a terrorist organization that is responsible for the indiscriminate firing of rockets and mortars into Israel.Footnote 35 Such attacks, which do not distinguish between civilians and combatants, are in clear violation of the laws of war.Footnote 36
All in all, contrary to the suggestions of the Panel, I would argue that the armed conflict between Israel and Hamas cannot be regarded as an international armed conflict. Certainly, this armed conflict cannot be regarded as international in character on the basis of the doctrine of belligerency, as the Panel implies. Instead, I would argue that Israel and Hamas are engaged in a non-international armed conflict. If this is correct, Israel's naval blockade of Gaza is unlawful.
2. The Principle of Humanity
In concluding that Israel's naval blockade of Gaza is lawful, the Panel also determines that Israel's naval blockade complies with the principle of humanity. This principle provides that a blockade will be unlawful where ‘a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade’.Footnote 37
Before addressing whether the naval blockade is in violation of this principle, we must first take a step back and establish whether it is the naval blockade alone that needs to be subjected to this test of humanity or whether it is Israel's closure policy generally (comprising the naval blockade and the land crossings). The Panel clearly concludes that the naval blockade and the land crossings imposed against Gaza must be treated separately; ‘[t]he naval blockade is often discussed in tandem with the Israeli restrictions on the land crossings to Gaza. However, in the Panel's view, these are in fact two distinct concepts which require different treatment and analysis'.Footnote 38 The reasons given in support of this view are threefold; 1) the naval blockade and land crossings were deployed at different times (the land crossings were deployed in June 2007 and the naval blockade in January 2009); 2) the land crossings have fluctuated in intensity since their deployment but the naval blockade has remained constant; and 3) the naval blockade was deployed in order to provide Israel with a sound legal basis to prevent war material from reaching Gaza by sea.Footnote 39 In essence, at the heart of the Panel's reasoning is that the naval blockade and land crossings are in pursuit of different objectives.Footnote 40 The naval blockade was deployed for security purposes; ‘[t]o prevent weapons, ammunition, military supplies and people from entering Gaza and to stop Hamas operatives sailing away from Gaza with vessels filled with explosives’.Footnote 41 However, surprisingly, the Panel does not identify what objectives the land crossings pursue. The Panel merely states that the naval blockade was imposed ‘regardless of what considerations might have motivated Israel in restricting the entry of goods to Gaza via the land crossing’.Footnote 42 In light of this, the Panel subjects the naval blockade itself to the test of humanity. As a measure designed to protect and enhance the security of Israel, the Panel concludes that the ‘sole purpose’ of the blockade is not to deny the civilian population objects essential to its survival and thus cannot be regarded as a collective punishment.Footnote 43
However, as the Panel rightly recognizes, the naval blockade can still be unlawful if the damage to the civilian population is excessive in relation to the direct and concrete military advantage anticipated from the blockade. The gist of this principle is that the greater the military advantage anticipated from the naval blockade, the greater the damage to the civilian population that can be justified. Application of this principle therefore requires the identification of both the military advantage anticipated from the blockade and the extent of the damage to the civilian population. The Panel notes that the military objective being pursued by the naval blockade is an important one: ‘stopping the importation of rockets and other weapons to Gaza by sea helps alleviate Israel's situation as it finds itself the target of countless attacks, which at the time of writing have once again become extensive and intensive.’Footnote 44 However, although the Panel determines that a humanitarian crisis is occurring in Gaza,Footnote 45 the Panel explains that this crisis is the product of and attributable to the land crossings, not to the naval blockade. The explanation provided by the Panel is that Gaza does not possess a commercial port. In the absence of a commercial port, the Panel therefore finds that it is very difficult to get ‘bulky food and other goods’ into Gaza from the sea.Footnote 46 The Panel thus concludes that ‘[s]uch facts militate against a finding that the naval blockade itself has a significant humanitarian impact’.Footnote 47 In essence, if the blockade does not have a significant impact upon the humanitarian situation in Gaza, any damage that the blockade does cause cannot be considered excessive. This being said, however, the Panel determines that because the land crossings are causing a humanitarian crisis in Gaza they can be considered excessive and therefore unlawful.Footnote 48
In relation to this analysis, several important points need to be noted. First, I find the Panel's conclusion that that the naval blockade and the land crossings pursue different objectives unpersuasive. As I have noted, the Panel omits to identify the objectives being pursued by the land crossings. However, on numerous occasions Israel has repeatedly stated that the land crossings serve a security objective; preventing war materials from entering or leaving Gaza.Footnote 49 Sure, there are those that argue that Israel has deployed the land crossings with the political objective of delegitimizing Hamas in the eyes of the Gazan population whilst simultaneously strengthening the role of the Palestinian Authority in Gaza.Footnote 50 However, even if this is the case, the land crossings still serve an overt security objective; in short, to prevent material entering Gaza that could be used by Hamas in its ongoing armed conflict with Israel. When cast in this light it is difficult to argue that the naval blockade and the land crossings can be separated. The effective working of one is dependent upon the effective working of the other. Indeed, this is evidenced by the fact that the naval blockade was deployed after the establishment of the land crossings; insurgents had sought to bypass the land crossings by ferrying goods to Gaza (and to Hamas fighters) via the sea. Consequently, the naval blockade was needed in order to buttress the land crossings and ensure that they effectively served their purpose: preventing war material from entering or leaving Gaza. Thus, on a tactical level the naval blockade and the land crossings are intimately linked. To this end, I would disagree with the Palmer Report and argue that the naval blockade and the land crossings should be regarded as one single unified closure policy.Footnote 51 Consequently, it is this general closure policy that must be subjected to the test of humanity, not just the naval blockade.
Turning to this test, it is well known that the International Committee of the Red Cross (ICRC), Human Rights Watch and the UN Human Rights Council have all determined that the closure regime constitutes a collective punishment intended to deny the Gazan population objects essential for its survival.Footnote 52 The punishment, the argument runs, is because the Gazan population elected Hamas (which Israel considers to be a terrorist organization) to power in 2007. However, I argue that this approach is difficult to sustain on the basis that, as I have explained previously, the primary (even if not exclusive) justification for Israel's deployment of the closure regime is that it is necessary to prevent war material from reaching Hamas fighters. Consequently, it is difficult to accept the claim that the ‘sole purpose’ of the closure policy is to deny the civilian population objects essential to its survival.
However, the closure policy can be still unlawful if the damage to the civilian population is excessive in relation to the military advantage anticipated from the closure policy. As I have already explained, the Panel correctly notes that Israel's objective of protecting its population from mortar and rocket attacks represents an important military objective. Indeed, protecting the civilian population from attacks by the enemy is perhaps one of the most important objectives of a State during times of armed conflict.
This being said, in pursuit of this military advantage the damage caused by the closure policy to the civilian population of Gaza is severe. It is well reported by credible sources that a ‘devastating’ humanitarian crisis is being experienced in Gaza.Footnote 53 This was stated very clearly by the UN Human Rights Council in its Report into Israel's interception of the Mavi, which came to the conclusion that a humanitarian crisis exists in Gaza and that ‘[t]he preponderance of evidence from impeccable sources is too overwhelming to come to a contrary opinion. Any denial of this cannot be supported on reasonable grounds'.Footnote 54 Sure, on 17 June 2010 Israel did relax the restrictions on which items could be taken into Gaza and explained that no humanitarian crisis was occurring.Footnote 55 However, various aid agencies have stated that Israel's relaxing of the restrictions are ‘inadequate’ and have not alleviated the humanitarian crisis in Gaza.Footnote 56 Thus, even though the military advantage anticipated from the closure regime is considerable (protection of the civilian population of Israel), the fact that the closure regime is causing a devastating humanitarian crisis in Gaza would indicate that the damage to the civilian population is excessive. If this is the case, the closure regime is unlawful.
Secondly, even if we accept the Panel's determination that the naval blockade must be analysed separately from the land crossings, it is difficult to accept the conclusion that because of the absence of a commercial port in Gaza the naval blockade does not have a significant impact upon the humanitarian situation in Gaza. Crucially, what the Panel fails to recognize is that humanitarian aid can actually be delivered to Gaza from the sea. Sure, the absence of a port makes this more difficult and troublesome. However, it does not make it impossible. As the flotilla sailing for Gaza on 31 May 2010 itself illustrates, the absence of a port can be overcome. The nine boats that comprised the flotilla were carrying 10,000 tonnes of humanitarian aid and had made arrangements for smaller boats to come out to sea and collect the cargo and ferry it back to shore. As a result, I would argue that the naval blockade can be regarded as having a significant impact upon the humanitarian crisis in Gaza. Indeed, as I explained previously, I would contend that this humanitarian crisis constitutes damage to the civilian population of Gaza that is excessive in relation to the military advantage anticipated from the naval blockade. To this end, even if one approaches the naval blockade as a distinct measure from the land crossings, the naval blockade can still be regarded as excessive and therefore unlawful.
