Gaza Strip has become one
of the most discussed topics among the progressive crowd. There have been many aspects of
Palestinian people situation, which stirred the public opinion in the recent
years.
To name a few:
Israeli occupation of
Gaza Strip and West Bank and its legality;
Oslo 1993 and the shift
of security responsibilities to the Palestinians;
Yasser Arafat, and the
PLO;
Road-map to the Two-State-Solution;
Hamas and Fatah in the
context of security threat;
Intifadas and the right
of Palestinian people to oppose the occupation;
Israeli “deterrence
policy” and issue of “disproportional force”;
Naval Blockade of Gaza
and a land siege of Gaza…
The Gaza Blockade and its
legality has been a subject argued by scholars, legal experts, and many other
non-professionals. It has been
discussed as long as it lasts, already more than 4 years.
While the discussions
continue, the inhabitants of the Gaza Strip are deprived of the fundamental,
human rights. They do not have the
running water for many hours daily, along with the rolling blackouts. They do not have enough supplies. They do not have the right to build or
repair their dwellings when the houses are destroyed by gunships during the
frequent raids of IDF (with a “crown achievement” at the turn of 2007 and 2008 –
Operation Cast Lead – during which 1460 Palestinian civilians were killed, and
the whole infrastructure of the country ruined).
The Gaza Blockade was
originally imposed by Israel on Gaza to prevent the weapon smuggling into
Gaza.
At least it was it’s
official explanation fed to the World’s media. The true meaning of the Blockade however, and its effect on
the people who are subjected to it, was conveniently belittled and/or omitted
from the main stream of World’s news feeds.
And then, in May 2010,
the international “Gaza Freedom Flotilla” consisting of 6 ships departing from
the Turkish ports attempted to break the Blockade. The ships carried international supplies, tones of
humanitarian aid, and hundreds of the Pro-Palestinian activists who were
determined to educate the public opinion about the issue, break the Blockade,
or…
…on May 31, many died
trying. After unsuccessful trials
to intimidate the Flotilla crews, and stop the advancement, under the cover of
night, the IDF boarded the biggest of the six ships MV Mavi Marmara, descending
the commandos from the helicopters.
In the result of this raid, 9 of the activists have lost their
lives. All ships were hauled to
the Israeli ports and the activists were interned for weeks.
Gene was out of the
bottle. The public opinion in the
whole world (including Israel) responded firmly condemning the typical for all
recent IDF actions – disproportional use of force.
A year later, in June 2011,
the new “Freedom Flotilla 2 – Stay Human” was formed, with the same
humanitarian goal in mind, attempting to deliver the much needed supplies and
medicines. Initially the new
Flotilla consisted of 10 ships with a 1000 activists on board, but due to the
constant intimidation, and sabotage, the number of participant’s shrunk to
fewer than 300, with a few dozen journalists. All acts of sabotage were alleged to the IDF operatives,
since in many cases, trained divers damaged the ships propellers, and in other
cases the hauls got compromised.
For a long time before
the organizing the flotilla, Israel unleashed the PR campaign warning the World
about the “collective responsibility” if any of the activists taking part in
the attempt gets hurt. They announced
also intention of stopping the Flotilla by the non-military means.
Several complains about
the technical state of the ships were filed, alleging the non-sea-worthiness of
the ships participating in the action.
Rigorous inspection proved it to be just an attempt to prevent them from
the departure.
The Flotilla was supposed
to set sail from the Greek ports.
Unfortunately the Greek authorities succumbed to the Israeli warnings
and took action against the docked ships, forbidding them to exit. The “Audacity of Hope” – the American
flagship carrying a few dozen of American activists have been stopped by the
Greek Coast Guard shortly before reaching the International waters, and it’s
captain has been arrested (*1). A
French ship whose voyage originated in Corsica was stopped and interned while
refueling in Crete.
To add the insult to the
injury, several Western governments, also joined Israelis in piling the
obstacles in front of the participants.
While the Great Britain, Netherlands, France, Canada, limited themselves
to officially discouraging the activists from taking part in the Flotilla, the
U.S. State Department warned Americans taking part in the flotilla that they
may violate U.S. civil and criminal statue against delivering material support
to terrorist organizations, and may face prosecution (*2). In a travel warning, the State
Department further advised U.S. citizens that they could face arrest,
prosecution, and deportation by Israel if they join the flotilla (*3).
Is the Freedom Flotilla 2
going to get to Gaza eventually? I
doubt it. But, did it achieve any
of it’s goals? The answer to this
question is certainly positive. It
raised the World’s awareness of this severe and prolonged problem, again.
________________________
As I mentioned at the
beginning, the legality of the Blockade itself has been debated vigorously,
since it’s inception. So, is it
legal or not legal in the light of the international law? Like in the criminal cases tried in the
court of law, the judges (the public) have been influenced by the media and the
spokespersons of the involved parties, for years.
We know the reason, why
originally the Gaza Blockade has been imposed – to prevent arms trafficking to
the Hamas, who is recognized as a terrorist organization by the Israel (and
America, but recognized as a legitimate Palestinian authority, democratically
elected, by many other countries).
We all heard about a few
Israeli soldiers who were kidnapped, tortured, and killed by the Hamas (or
sometimes other extreme militant group), one of them is still in captivity
today. At the same time there are
tens of thousand guerrilla fighters and civilians imprisoned for many years
already in the Israeli prisons – without the hope for the timely release.
We all heard about a
number of crude rockets fired from Gaza inside the territory of Israel, and the
resulting from that deaths… a very small number of deaths, since the rockets
are crude, imprecise, and do not go too far, and the Israelis can hide to the
already built concrete bunkers when the attack starts (whereas when the
Palestinian territory is attacked in retaliation, no one can hide anywhere – no
one can build a bunker, since there is a ban on the concrete and other
building materials, imposed by Israel).
The Goldstone report,
which findings shook the World’s opinion, brought up the accusation of the
human rights violations and the war crimes allegations – all committed by the
Israeli IDF troops during the Cast Lead campaign. Israeli troops used the helicopter gunships and high
precision bombs, and the civilian casualties just kept piling up – some say:
purposely targeted. But even the
Goldstone report found that Hamas racket barrages (resulting in killing
civilians), by their rudimentary design, and inability of the precision
targeting, targeted civilians (since they could not discriminate between
targets), and qualified as war crimes.
We all see, that both
sides are guilty in this conflict.
Who is more guilty: to me the answer is simple – the side which uses
disproportional force as a deterrence tool. The Israeli Government officials have stated very often, that “they want to use enough force, so the
future generations of the Palestinians will think twice before attacking any
single Israeli target”.
This is the strategy, which has been efficiently appropriated from… the
Nazis. This is the strategy, which
was used during the Second World War by the army of Adolf Hitler in
Poland, Russia, and then in the Western countries as well. For every attack on the Nazi property
or a soldier, a group (might have been 50-100) of civilians was rounded up and
stood up against a wall, and shot dead.
This is the same
deterrence strategy. Did it work
for Germans during the WWII?... Is
it so appealing, that any sane politician can have a desire to implement it?
For people who are
familiar with the WWII, there are some other analogies, quite obvious, between
what is happening to Gaza with it’s inhabitants, and the Jewish Ghetto in
Warsaw (*4), where about 400,000 Jews were placed, without the right to travel,
nor getting out of Ghetto. Nazis
also blocked any supplies to the Ghetto; there was a scarcity of food, no
running water, and rolling blackouts.
There were countless raids of the soldiers, and systematic destruction
of the infrastructure and the inhabitants… It truly resembles the Blockade we observe now in case of
Gaza. Time has changed. Roles have changed. Now the Oppressed are the Oppressors.
_________________________
But what about the
original question – is the Gaza Blockade, imposed in 2007 by Israel on the Gaza
legal, or not?
Unfortunately, even
before considering the Blockade itself the question about the legitimacy of the
occupation of the Gaza and the West Bank arises. We struggled with this issue already (I talked about it on
May 22, 2011, in the article: “Does Palestine have a future? USA – Israel
relationship – addendum”).
I will just quote again a
fragment from the paper “Israel’s Borders Under International Law” (01.2007) by
Anthony D’Amato, who is the Leighton Professor of Law at Northeastern
University School of Law:
Point
9: “(…) undeniable fact that the Kellogg-Briand Peace Pact of
1928, as definitively interpreted by the International Tribunal at Nuremberg in
1948 has abolished forever the idea of acquisition of territory by military
conquest. No matter who was the
aggressor, international borders cannot change by the process of war. Resort to war is itself illegal, and
while self-defense is of course legal, a successful campaign of self-defense
cannot extend so far as to constitute a new war of aggression all its own. And if it does, the land taken may at
best be temporarily occupied, but cannot be annexed. (…) The legal boundaries of Israel and
Palestine remain today exactly as they were delimited in Resolution 181.”(*5)
For argument’s sake,
let’s disregard the conclusion of this paper, and numerous other studies.
Putting the illegality of
the Gaza occupation aside, let’s look at the other aspects related to the
Blockade itself.
Gaza Strip is a tiny
piece of land, 28 miles long, with the area of roughly of 139 sq miles and
inhabited by circa 1.66 Million people.
It borders with Israel on 2 sides (North and East), with Egypt on 1 side
(South),
and on the fourth side
(West) is the shore of Mediterranean See.
In 2007, after the Hamas (democratically elected) became the Gaza’s
Government, Israel established a complete naval blockade, as well closed all
the borders with Israel (to stop and prevent the arms traffic to Gaza, as
official statement read). Egypt,
participating in this siege closed its border with Gaza (Egyptian Vice
President Omar Suleiman also cooperated with Israel on destroying numerous
tunnels breaching the Egypt-Gaza border).
Israel claims that it
imposed the blockade on Gaza in accordance with the international law - the law
of blockade, which was derived from customary international law and codified in
the 1909 Declaration of London. It
was updated in 1994 in a legally recognized document called the “San Remo
Manual on International Law Applicable to Armed Conflicts at Sea”.
Shortly after the “boarding
of MV Mavi Marmara by IDF commando” incident, the Reuters published one of the
probably most cited articles on the issue (although very conveniently forgetful
of facts): “Q&A: Is Israel’s naval
blockade of Gaza legal?”, by Jonathan Saul (*6). The article based its conclusions on loose interpretation of
the “San Remo Manual on International Law Applicable to Armed Conflicts at Sea”.
General public never
heard, nor read the document referred to, in this article. Using it as a legal ground for the
explanation, omitting the certain aspects of this, concise and not complicated paper,
is just manipulative and misleading (*7).
And again, before we look
at the particular points of this “Manual” and their application, we should ask
if this Manual applies to the situation of the Gaza Blockade. The San Remo Manual governs the
behavior of the
hostile parties in the
situation in which the LAWS OF WAR are in force. It requires the actual proclamation of the war between
states.
According to mentioned
already Anthony D'Amato, a professor of international law at Northwestern
University School of Law, this is not a case. Israel is in conflict with Hamas, and Hamas is not even a
state. D’Amato (quoted after The
Washington Post - *8) stated that
instead, the law of the Geneva Conventions would apply (*9).
Putting this technicality
aside (although it, by itself resets the view on the Blockade) we may examine
the application of the particular points of the San Remo Manual.
A violation of any of the
sections of this Manual would be a Violation of the International Law by the
party imposing such a blockade (Israel) – deeming the Blockade itself
illegal. One cannot ‘chose and
pick’ some regulation, while disregarding other, less convenient rules (*7).
PART I :
GENERAL PROVISIONS
SECTION I
: SCOPE OF APPLICATION OF THE LAW
1. The parties to an armed conflict at sea are bound by the principles and rules of international humanitarian law from the moment armed force is used.
2. In cases not covered by this document or by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience.
1. The parties to an armed conflict at sea are bound by the principles and rules of international humanitarian law from the moment armed force is used.
2. In cases not covered by this document or by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience.
***** The application of
this section already shows shortcomings.
The article stipulates the necessity to adhere to the Humanitarian laws
– like the Fourth
Geneva Convention, which specifies that the belligerents cannot restrict
food supplies, medicines and other aid; cannot obstruct medical evacuations;
cannot prevent civilians from leaving the war zone; and cannot prevent
civilians from pursuing their livelihoods. The Israeli blockade violates all of these precepts. In addition, neutral organizations
including the International Committee of the Red Cross and Amnesty
International have declared the blockade to be a form of “collective
punishment” and a clear and flagrant violation of Israel’s obligations under
the Geneva Convention.
PART IV :
METHODS AND MEANS OF WARFARE AT SEA
SECTION II
: METHODS OF WARFARE
Blockade
Blockade
102. The
declaration or establishment of a blockade is prohibited if:
(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.
103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:
(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.
104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.
(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.
103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:
(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.
104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.
***** 102a
– The Gaza population HAS BEEN DENIED objects essential for its survival.
Dov
Wiesglass, the Israeli official and aid to Former Israeli Prime Minister Ehud
Olmert stated the intention of the blockade was "to put the Palestinians
on a diet, but not to make them die of hunger." (*10) – violation
of the Fourth Geneva Convention – Part III, Article 55 (*11).
102b
– the damage to the population IS EXCESSIVE in relation to the concrete and
military advantage.
103
– the blocking party HASN’T PROVIDED FREE PASSAGE of the foodstuffs and other
essential supplies – the ships are not allowed in and on land transports are
denied entry.
104
– Israel CONTINUOUSLY BLOCKS the medical supplies - violation
of the Fourth Geneva Convention – Part III, Article 56 (*12).
_____________________________
Even if it may be argued
that the implementation of the Blockade on Gaza wasn’t in violation of the
International Law, and even if it may be argued that attack on MV Mavi Marmara
on international waters wasn’t in violation of the International Law (according
to the San Remo manual – the ships clearly manifested the desire to breach the
blockade) – the abuses of the Humanitarian Law in all aspects of the Blockade
are in clear violation of that International Law.
Gene is out of the
bottle.
The Public awareness
grows with every highly publicized, new detail of the conflict.
The World’s Public
Opinion (including Israeli) recognizes that the most basic rights of the
Palestinians have been affected, revoked, by the occupier, and the secure and
peaceful lives of the Palestinians, subjected to the Blockade and other
atrocities, have been disturbed.
The Public pressure on the governments grows day by day.
Although discouraged by
the stiff statements of the US and British Government officials, the
Palestinians will seek the political recognition for the State of Palestine
during the September Session of the UN.
The World’s Public opinion is already on their side. How is it going to influence the UN
decision?
The UN Secretary General,
serving his second term at this point, sided with Israel on the issue of the
Freedom Flotilla. Is he going to
be more open on the issue of the recognition of the State of Palestine – before
the “Two State Solution” is successfully implemented (if ever)?
Time will tell.
However, when dealing
with ‘unwilling’ party (like the Israeli government of PM Netanyahu), even the
simple and logical solutions become impossible.
It’s time for the Public
Opinion to be heard stronger and louder.
It’s the only hope of THE
SUPPRESSED.
_____________________________
*1 - http://edition.cnn.com/2011/WORLD/meast/07/02/israel.gaza.flotilla/index.html?hpt=hp_t2
*2 - http://www.bloomberg.com/news/2011-06-28/u-s-lawmakers-say-americans-in-gaza-flotilla-may-be-prosecuted.html
*3 - http://www.voanews.com/english/news/middle-east/US-Warns-Americans-Against-Joining-Gaza-Aid-Flotilla-124393009.html
*4 - http://en.wikipedia.org/wiki/Warsaw_Ghetto
*5 - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=%20956143
*6
- http://www.reuters.com/article/2010/06/02/us-israel-flotilla-gaza-idUSTRE65133D20100602
*7 - http://www.icrc.org/ihl.nsf/FULL/560?OpenDocument
*8 - http://www.washingtonpost.com/wp-dyn/content/article/2010/06/01/AR2010060102934.html?sid=ST2010053101699
*9 - http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=380&t=art
*10 - http://sabbah.biz/mt/archives/2010/06/08/gaza-blockade-legal-hardly/
*11 - http://www.icrc.org/ihl.nsf/WebART/380-600062?OpenDocument
*12 - http://www.icrc.org/ihl.nsf/WebART/380-600063?OpenDocument