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II. THE PALMER REPORT AND THE LEGALITY OF ISRAEL'S NAVAL BLOCKADE OF GAZA

  • Russell Buchan (a1)
Extract

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.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.

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1 Number 1/2009 Blockade of the Gaza Strip 3 January 2009, publicized by the Israeli government at <http://en.mot.gov.il/index.php?option=com_content&view=article&id=124:no12009&catid=17:noticetomariners&Itemid=12>.

2 UN Human Rights Council, Report of the International Fact-Finding Mission to Investigate Violations of International Law, Including International Humanitarian Law and Human Rights Law, Resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, A/HRC/15/21, 27 September 2010; The Public Commission to Examine the Maritime Incident of 31 May 2010, 23 January 2011, available at <http://www.turkel-committee.gov.il/files/wordocs/8808report-eng.pdf> (Israeli Report); Report of Turkish National Commission of Inquiry, 11 February 2011, available at <http://www.mfa.gov.tr/data/Turkish%20Report%20Final%20-%20UN%20Copy.pdf> (Turkish Report).

3 Report of the Secretary-General's Panel of Inquiry on the 31 May 2010 Flotilla Incident, July 2011, available at http://graphics8.nytimes.com/packages/pdf/world/Palmer-Committee-Final-report.pdf (Palmer Report). Sir Geoffrey Palmer was the Prime Minister of New Zealand from 1989–1990.

4 ibid 7.

6 ibid 37.

7 It is important to stress that Appendix I expresses the views of the Chair and Vice Chair only. This is in contrast to the substantive Report, which is to be regarded as a product of the Panel as a whole; ibid 7. This being said, however, Appendix II of the Report contains statements by the Turkish and Israeli representatives on the Panel expressly noting their reservations to particular aspects of the Report.

8 For a summary of the Panel's findings see ibid 3–6.

9 ibid 3.

10 Press Meeting of H E Mr Ahmet Davutoglu, Minister of Foreign Affairs of the Republic of Turkey, on Turkish-Israeli Relations, 2 September 2011.

11 I have discussed this elsewhere; see R Buchan, ‘The International Law of Naval Blockade and Israel's Interception of the Mavi Marmara’ (2011) 58 Netherlands IntlLRev 209.

12 Green, L, The Contemporary Law of Armed Conflict (3rd edn, MUP 2008) 204.

13 L Doswald-Beck, ‘Commentary on the San Remo Manual on International Law Applicable to Armed Conflicts at Sea’ (1995) International Review of the Red Cross No 309.

14 Kalshoven, F and Zegveld, L, Constraints on the Waging of War: An Introduction to International Humanitarian Law (International Committee of the Red Cross 2001) 181.

15 These criteria are reflected in various military manuals and can be therefore regarded as part and parcel of customary international law. See for example the UK Manual of the Law of Armed Conflict (2004) para 13.65 (UK Manual); Commander's Handbook on the Law of Naval Operations (2007) para 7.7 (US Manual); M Bothe, ‘The Law of Neutrality’ in D Fleck (eds), Handbook on International Humanitarian Law (2nd edn, OUP 2008) para 1051 (de facto ‘German Manual on the Law of Armed Conflict’).

16 Palmer Report (n 3) 41.

17 Guilfoyle for one contests whether the violence between Israel and Hamas is of sufficient intensity to regard it as an armed conflict for the purposes of international humanitarian law; D Guilfoyle, ‘The Mavi Marmara Incident and Blockade in Armed Conflict’ (2011) 81 British YBIntlL 1, 18.

18 International Law Association, The Hague Conference: Use of Force – Final Report on the Meaning of Armed Conflict in International Law (2010) 12.

19 Judgment of 15 July 1999 in Case No IT-94-I-I Prosecutor v Tadic, para 70.

20 ibid.

21 Bugnion, F, ‘Jus ad Bellum, Jus in Bello and Non-International Armed Conflicts’ (2003) 6 Yearbook of International Humanitarian Law 167. Although as the ICTY noted in Tadic, as time passes customary international law is increasingly recognizing many of the rules applicable during international armed conflicts to be applicable to non-international armed conflicts; Tadic (n 19) para 96 et seq.

22 See generally Lauterpacht, H, Recognition in International Law (CUP 1947) ch 8.

23 Palmer Report (n 3) 84. Although as I explain below, the Panel determines that Israel and Hamas are actually engaged in an international armed conflict.

24 ibid 83.

25 Zorgbibe, C, ‘Sources of the Recognition of Belligerent Status’ (1977) 17 International Review of the Red Cross 111. As Vattel notes, ‘[w]henever a large organized group believes it has the right to resist the sovereign power and considers itself capable of resorting to arms, war between the two parties should take place in the same manner as between nations … ’; Vattel, quoted in Zorgbibe, 111.

26 Palmer Report (n 3) 84. The Israeli Report cites two further examples of state practice to support the claim that customary international law recognises the right to impose a naval blockade during times of non-international armed conflict (see Israeli Report (n 2) fn 131). First, the Nationalist Chinese government's imposition of a blockade against ports under the control of communist forces. Significantly, however, correspondence between the US and the Nationalist Chinese government reveals that the Chinese government was not actually imposing a naval blockade; see Woosley, LH, ‘Closure of Ports by the Chinese National Government’ (1950) 44 AJIL 350. Secondly, the Israeli Report cites Israel's naval blockade against Hezbollah in 2006. However, what the Israeli Report fails to recognise is that Israel expressly stated before the UN that its blockade was deployed against Lebanon, not Hezbollah; see the identical letters sent to the Secretary-General of the UN and to the President of the Security Council by the Permanent Representative of Israel to the UN; UN Doc A/60/937, S/2006/515, 12 July 2006. Thus, this is an example of a blockade being deployed in times of international armed conflict. All in all, there seems to be little evidence to support the claim that customary international law permits the use of naval blockades in times of non-international armed conflict.

27 ibid.

28 ibid.

29 Although the question of Palestinian statehood is back on the political (and legal) agenda since Palestine formally submitted a request to join the UN as a full member state on 23 September 2011.

30 Hamdan v. Rumsfield, 584 US 557 (2006).

31 Palmer Report (n 3) 41 (fns omitted).

32 M Milanovic, Palmer Committee Report on the Mavi Marmara Incident, EJIL: Talk! (2 September 2011) available at <http://www.ejiltalk.org/>.

33 Lauterpacht (n 22) 176.

34 See generally Zorgbibe (n 25).

35 See for example EU Council Common Position 2011/931/CFDSP, 27 December 2001.

36 Henckaerts, J-M and Doswald-Beck, L, Customary International Humanitarian Law (CUP 2005) 3740.

37 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994) para 102.

38 Palmer Report (n 3) 39.

39 ibid.

40 ibid.

41 ibid 42.

42 ibid.

43 ibid 42–43.

44 ibid 43.

45 ibid.

46 ibid.

47 ibid.

48 ibid 67–70.

49 See generally the Israeli Report (n 2) para 63. See also <http://news.bbc.co.uk/1/hi/world/middle_east/8654337.stm>.

50 Turkish Report (n 2) 67. Note that in November 2011 Hamas and the Palestinian Authority agreed to hold parliamentary and presidential elections in May 2012.

51 In fact, all three previous reports into Israel's interception of the Mavi (the UN Human Rights Council Report, the Israeli Report and the Turkish Report) concluded that the naval blockade and land crossings should be considered as one single policy.

52 ICRC News Release No 10/103, 14 June 2010; Human Rights Watch, ‘Letter to Olmert: Stop the Blockade of Gaza’, 20 November 2008; UN Human Rights Council, Report of the UN Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 23 September 2009, 24.

53 ICRC, ibid. See also UN Office for the Coordination of Humanitarian Affairs, ‘Farming Without Land, Fishing Without Water: Gaza Agriculture Struggles to Survive’, Factsheet, 25 May 2010.

54 UN Human Rights Council (n 2) para 261.

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International & Comparative Law Quarterly
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