Israel’s Legal Rights in the Recent Gaza Confrontation

The “Freedom Flotilla” was on its way to the Gaza Strip with several boats.  The vessels, flying the flags of the United States, Turkey, Greece, Comoros, Sweden, and Kiribati, set sail toward the Gaza Strip despite warnings by the Israeli military.  An Irish ship and second American ship were unable to sail due to mechanical issues.

The ships held 663 people from 37 countries.  They claimed that their goal was to bring humanitarian aid to the Gaza Strip.  However, even leaders and participants admit that their primary goal was to bring media coverage to their attempts to break Israel’s naval blockade on Gaza.  Gaza, which is controlled by Hamas terrorists, is a hotbed for attacks against Israel. As the lead ship, the Mava Marmara, moved closer to the Gaza Strip, the Israeli Defense Forces ordered the ship to stop at 11:00pm local time on May 30th.  The six ships were told to divert to the Israeli port of Ashdod, where the supplies on the ships would be inspected and delivered into Gaza.  The Mava Marmara, a Turkish ship, continued forward anyway. The Israeli Navy gave the following message to the captain of the Mava Marmara, a civilian cruise ship, not a supply ship:

“Mavi Marmara, you are approaching an area of hostilities which is under a naval blockade. The Gaza area coastal region and Gaza harbor are closed to all maritime traffic. The Israeli government supports delivery of humanitarian supplies to the civilian population in the Gaza Strip, and invites you to enter the Ashdod port. Delivery of the supplies in accordance with the authorities’ regulations will be through the formal land crossings and under your observation, after which you can return to your home ports aboard the vessels on which you arrived.”

The Mava Marmara replied negatively and continued on its course.  At 4:00am local time on May 31st, members of Shayetet 13, an elite naval commando brigade, boarded the ship.  They repelled from a helicopter armed with paintball guns as a primary weapon.  Each also held a handgun.

Flotilla

As the Israelis boarded the ship, they were violently attacked.  The attack was not physically provoked.  Several videos have been released showing the brutal attacks against the Israeli soldiers.

This video, thanks to Elder of Zyion, shows the activists lining up to beat a soldier as he lands on the deck of the ship.

This video, also thanks to the Elder, shows the “peaceful activists” stabbing the soldiers. This video is the most descriptive of the bunch.  My friend Aylee shared this on Facebook.

Separating fact from fiction

I’m glad I resisted the temptation to weigh in yesterday on the Gaza Flotilla raid because most of what was being reported turned out to be either wrong or grossly incomplete.

1.  Let’s start in a place where few if any of the media outlets care to go; the blockade of Gaza.

a)  Is it legal?

Simply put; yes.  Actually, in technical/legal terms, it is not a blockade per se since although Israel handed over all of Gaza to the Palestinian Authority in 2005, we retained control of the airspace and borders (including both land and sea borders).  [Note: This, not incidentally, is one of the reasons that our claims of no longer occupying Gaza are relatively weak.]  But if we never relinquished control of the borders and airspace, is it legally a blockade?  Not really. The result is the same (at least as far as Hamas is concerned), but blockading our own coast is not the same as if we were blockading another sovereign state.

While there are many countries around the world who do not support the so-called blockade of Gaza, few except NGOs and ‘interested parties’ use the term ‘illegal’ to describe it.

b)  Is Israel alone in the ‘blockade’ of Gaza?

No.  While Israel controls the borders of Gaza, Egypt also controls its borders with Gaza and is a full participant in controlling the movement of goods and people in and out of Gaza.  It doesn’t get much press, but Egypt is actually much more violent in the control of its borders with Gaza; shooting dozens of refugees from Africa trying to enter Israel and Gaza… and using lethal force against Palestinians trying to enter Sinai.

Egypt’s interest in maintaining the blockade is different from Israel’s.    They maintain “that they cannot open Rafah crossing [and any other border crossing] unless the Palestinian Authority headed by Mahmoud Abbas controls the crossing and international monitors are present. Egypt Foreign Minister Ahmed Aboul Gheit said Hamas wants the border opened because it would represent Egyptian recognition of the group’s control of Gaza. “Of course this is something we cannot do,” he said, “because it would undermine the legitimacy of the Palestinian Authority and consecrate the split between Gaza and the West Bank.” [Source]. Update:  Egypt has just opened (albeit temporarily) their border with Gaza in order to “alleviate the suffering of our Palestinian brothers”.  They’re not complete idiots.  When the sh*t starts to stick to Israel over the blockade, they don’t want to be seen standing guard along any of the borders.

It is worth mentioning that the U.S.government supports the blockading of Gaza and the isolation of the Hamas terror organization.

c)  Is there a humanitarian crisis in Gaza as a result of the blockade as Palestinian supporters claim?

No.  As much as the Palestinians and their supporters have tried to portray the blockade of Gaza as causing a humanitarian crisis, the truth is that Israel supplies all of their electricity, and allows entry of humanitarian aid from recognized organizations via the border crossings it controls.  Whether Hamas allows all of that aid to reach the people is quite another question.    The sponsors of the flotilla were informed in advance that they could save themselves a trip and allow Israel to transfer all of their aid via official land crossings into Gaza.  needless to say, they refused.

There is also a flourishing smuggling economy that operates via a network of tunnels between Gaza and Egyptian Sinai.

While the idea of being virtual prisoners in Gaza must not be very palatable to the population or the Hamas leadership that runs the strip, the stores there are full of food and consumer products and the standard of living in Gaza is higher than most of the third/developing world.  Additionally, Israel has allowed Gazans access to its own medical facilities for more serious/emergent cases; something that has been exploited cynically many times by individuals and by Hamas.

2.  Next, let’s talk about the issue of ‘international waters’ and what this actually means in the the context of the current situation.

a)  Claims vs. actual practice:

The news media and the players in this latest drama have been throwing around the term ‘International Waters’, but few people really understand the idea of maritime territorial claims.  The following illustration should help provide much of the vocabulary you’ll need to discuss this topic:

I’ve posted this, not because there is some magic loophole that Israel has exploited (quite the opposite, actually)… but because it bothers me to hear people using terminology that they don’t fully understand.

Simply put, every country on earth has a legal claim to 12 nautical miles of coastal waters (from the mean low water mark), assuming they have a coastline, that is.  Some countries (Israel, interestingly, is not among them) claim an additional 12 nautical mile ‘contiguous zone’.  Whether 12 or 24 nautical miles, this area claimed by all countries is still open to ‘innocent passage’ (a concept under Admiralty Law) and anchoring.   But a country really has the final say over what it considered ‘innocent’.

b)  EEZ:

It is worth noting that many countries claim and enforce a much larger maritime claim… some out to as far as 200 nautical miles.  While this is considered an Economic Exclusion Zone and is mainly relevant for protecting natural resources (i.e. drilling and fishing rights, etc.), quite a few countries patrol their EEZ with the same vigor as they do their legal territorial claims of 12 or 24 nautical miles.  Don’t think so?  Try approaching North Korea’s coast.  Or for that matter, try sailing from Cuba to Florida and let me know how that works out for you.  You won’t get anywhere near 12 miles before the Coast Guard boards you.

c)  Current law vs. current practice regarding interdiction

Thanks to Somali pirates, and less recently to the ongoing drug trafficking between Caribbean islands and the U.S., the rules regarding when and how boats can be approached and boarded in international waters has been constantly evolving.

While most of the Navies currently operating in the Gulf of Aden and Arabian Sea to protect commercial shipping from the Somali pirates rely on a legal concept called “Hostis humani generis” (Latin for “enemy of mankind”) a legal term originating from the admiralty law that basically allows nearly unrestricted engagement on the high seas of pirates, slave traders, torturers and a few other select populations that the entire world has an interest in fighting, sadly, smugglers are a more difficult group to legally engage… and terrorists are not yet officially defined as Hostis humani generis.

For context let’s look at the U.S. Coast Guard.  On a daily basis the USCG boards and inspects hundreds of boats and ships on the high seas (meaning in international waters) far from their own territorial claims.  In addition, they approach and challenge hundreds more each day but opt for any number of reasons not to board.  How can they do this so far outside their recognized national claims?

The reason is simple.  On a significant number (but certainly not all) of the vessels that the USCG challenges/boards, illegal drugs and weapons are found.   The U.S. has enacted Federal Laws that allow the Coast Guard to operate and interdict suspected smugglers…  even on the high seas far from its legal territorial claims.  Certainly part of the reason this is allowed is that many of the Island nations in the Caribbean do not have the means to adequately control their own maritime claims (and are sometimes directly or indirectly involved in the smuggling), so the U.S. has unilaterally – and sometimes through agreements with neighbors – taken it upon themselves to act as the cops for that part of the world’s oceans. Israel, for its part, is in a similar situation.  It’s neighbors are unable or unwilling to control maritime smuggling that both directly and indirectly affects Israel’s economic and physical security.  So when ample intelligence indicates that a ship or boat is engaged in smuggling or terror, Israel often acts in this gray area of international law.

Simply put, when Israel engaged the Gaza Flotilla in international waters, they were not on as solid ground (figuratively, of course) as our supporters claim, nor as legally wrong as our many detractors claim.

The flotilla had declared its intention to smuggle goods and people into an area that Israel controls (and has declared a closed military zone), and when contacted via radio and offered the chance to alter course to an Israeli port for the purposes of transferring the cargo to Gaza (after inspection, of course), or even turning around and returning to their port of origin, the flotilla again clearly stated their intention to violate Israel’s sovereignty.

Under international law, you don’t necessarily have to wait for someone to breach your sovereignty before engaging them.  It is often enough that they say they are going to do it; that they demonstrate that they have the means to do it; and that they actually set in motion a physical act that makes it clear they intend to make good on their threats.

c)  How far from Israel’s coast did the interdiction take place: Approximately 40 nautical miles (although I have not seen confirmation of this from Israel sources).  Close enough to infer intent even without the flotilla’s declaration of intent to violate Israel’s territorial sovereignty.

3.  Now that we have some of the necessary background to discuss the flotilla raid responsibly, what happened… and more importantly, what went wrong?

a)  The ‘boats’:

There were five craft used in the so-called Freedom Flotilla.  There were originally at least two more – flying Swedish and Irish flags, respectively – but they did not participate due to mechanical problems.

There were two U.S. flagged craft; Challenger I and Challenger II, two Greek flagged craft; the Eleftheri Mesogeios and the Sfendoni, and a Turkish flagged craft called the MV Mavi Marmara.  This latter ship is where all the problems took place.

It wasn’t until yesterday that the actual dimensions of the participating ships, and most specifically the ship where all the trouble occurred, began to come to light.  The MV Mavi Marmara, far from being a small fishing or pleasure vessel is actually a small-medium sized cruise ship which is over 300 feet in length.  This is significant because the early reports of the mighty Israel military boarding and shooting up some tiny vessels with helpless crew seem silly when placed alongside the image of a cruise ship with hundreds of people aboard.