By Joshua Holland
Israeli officials claimed that the IDF commandos who killed and wounded dozens of activists on a humanitarian aid convoy bound for Gaza this week faced a potentially lethal attack, and opened fire in self-defense. Eyewitnesses on board tell a different story, saying the special forces troops fired on the ships before boarding, weren't in fact attacked and were unrestrained in their hostility. The question of who attacked whom is irrelevant, however, according to experts in international law. The blockade itself is illegal, and therefore Israel had no right to board those ships in the first place. It renders the argument over culpability moot. Israel committed an illegal act of war attacking the convoy, regardless of who tried to draw "first blood."
Israeli officials claim that the Jewish state is at war with Hamas, which controls the Gaza strip. On that basis, officials say Israel has a right to intercept shipping in and out of Gaza under the law of war. In an opinion piece AIPAC has been pushing to reporters this week, Leslie Gelb, a former president of the Council on Foreign Relations, wrote that "blockades are quite legal," and compared the Gaza siege to the Anglo-U.S. blockades of Germany and Japan during World War Two. "Only knee-jerk left-wingers and the usual legion of poseurs around the world would dispute this," wrote Gelb sneeringly. Michael Oren, Israel's ambassador to the U.S., echoed the World War Two comparison.
The parallel is entirely false. Gaza is not an independent state at war with Israel. Gaza is occupied by Israel, and, as such, an entirely different set of international laws apply. As UC Hastings legal scholar George Bisharat explained this week, the 2005 withdrawal of Israeli troops and settlers from the ground in Gaza is immaterial, as the area remains under Israel's "effective control" -- it's a remote occupation but an occupation nonetheless.
Under customary international law that Israel accepts as binding ... a territory is "occupied" when foreign forces exercise "effective control" over it, whether accomplished through the continuous presence of ground troops or not.
Israel patrols the territorial waters and airspace of the Gaza Strip, regulates Gaza's land borders, restricts internal movements by excluding Gazans from a "buffer zone" that includes 46 percent of the strip's agricultural land, and controls the Gaza Strip's supplies of electricity, heating oil, and petrol. Together these factors amount to remote but "effective control."
According to Bisharat, this is not a matter of dispute. "The Gaza Strip remains occupied," he wrote, "as the United Nations, the U.S. government and the International Committee of the Red Cross have all recognized." Hamas controls the ground within Gaza, but Israel controls Gaza.
There are two important ramifications to this. First, a blockade that restricts the local population's access to vital goods violates the Fourth Geneva Convention, which specifies that an occupying force has a legally binding duty to protect an occupied population. Bisharat explained it like this:
Israel has authority to halt arms imports into the Gaza Strip. But it also owes a general duty of protection to civilians under its control, and has specific duties to allow them access to adequate food and medical supplies, and to maintain public health standards - duties it has deliberately violated in imposing the siege on Gaza. Currently 77.2 percent of Gaza Palestinians either face or are vulnerable to hunger ...
Moreover, collective punishment is specifically barred under Article 33 of the Fourth Geneva Convention. Israeli officials have repeatedly stated that the objective of the blockade is to weaken the Gaza economy and undermine support for Hamas. That is a political, not a military, objective, and it is impermissible under international law to target innocent civilians to achieve nonmilitary goals.
The second point pertains to the attack on the Freedom Flotilla. As Bisharat notes, "Actions taken to enforce an illegal siege cannot themselves be legal." The Israel commandos were transported 70 miles offshore, into international waters. There, they attacked a civilian vessel flagged to an allied state -- a NATO member -- and killed and wounded some yet unclarified number of activists whose journey was motivated by their opposition to the blockade.
It was not an act of "piracy," because the Israeli troops were operating under the flag of a nation-state. Because the blockade violates international law, and Israel had no military justification for boarding her with special forces troops, it rather constituted an "illegal act of war." Craig Murray, a former British Ambassador to Uzbekistan, called the legal situation "very plain":
Because the incident took place on the high seas does not mean ... that international law is the only applicable law. The Law of the Sea is quite plain that, when an incident takes place on a ship on the high seas (outside anybody's territorial waters) the applicable law is that of the flag state of the ship on which the incident occurred. In legal terms, the Turkish ship was Turkish territory.
There are therefore two clear legal possibilities.
Possibility one is that the Israeli commandos were acting on behalf of the government of Israel in killing the activists on the ships. In that case Israel is in a position of war with Turkey, and the act falls under international jurisdiction as a war crime.
Possibility two is that, if the killings were not authorised Israeli military action, they were acts of murder under Turkish jurisdiction. If Israel does not consider itself in a position of war with Turkey, then it must hand over the commandos involved for trial in Turkey under Turkish law.
After perpetrating an act of war on Turkey, Israeli Foreign Minister Avigdor Lieberman, among the most extreme figures to serve in any Israeli government, said of the attack: "We didn't start this provocation, we did not send bullies with knives and metal rods to Turkey... In this case, the entire blame, all of it, from beginning to end, is that of Turkey."
They didn't in fact send "bullies" to Turkey armed with "knives and metal rods"; according to Craig Murray, they sent a heavily armed special forces team to Turkey -- the deck of that ship represented Turkish "soil."
A final point. Israeli leaders say they have no animosity towards the people of Gaza. Some of Israel's defenders have suggested that it's relatively easy to get goods in and out of the territory; that Israel simply wants to "inspect shipments for arms." So it's important to note just how deeply damaging the blockade has been for the people of Gaza.
Foreign Policy Magazine compiled a large volume of information from reports issued by the United Nations and various NGOs working in Gaza. Just a few highlights:
- Electricity: In 2006, Israel carried out an attack on Gaza's only power plant and never permitted the rebuilding to its pre-attack capacity.... The majority of houses have power cuts at least eight hours per day. Some have no electricity for long as 12 hours a day. The lack of electricity has led to reliance on generators, many of which have exploded from overwork, killing and maiming civilians.
- Water: Israel has not permitted supplies into the Gaza Strip to rebuild the sewage system. Amnesty International reports that 90-95 percent of the drinking water in Gaza is contaminated and unfit for consumption.
- Health: According to UN OCHA, infrastructure for 15 of 27 of Gaza's hospitals, 43 of 110 of its primary care facilities, and 29 of its 148 ambulances were damaged or destroyed during the war. Without rebuilding materials like cement and glass due to Israeli restrictions, the vast majority of the destroyed health infrastructure has not been rebuilt.
- Food: A 2010 World Health Organization report stated that "chronic malnutrition in the Gaza Strip has risen over the past few years and has now reached 10.2%. ... According to UN OCHA: "Over 60 percent of households are now food insecure ...
- Industry: A World Health Organization report from this year states: "In the Gaza Strip, private enterprise is practically at a standstill as a consequence of the blockade. Almost all (98%) industrial operations have been shut down.
Israeli officials are correct that the state has a right to defend itself. Every nation does. But it has no right to commit war crimes in mounting that defense. The European Union has condemned the blockade of Gaza as a form of "collective punishment," a serious violation of international law. Here's an excerpt from Wikipedia's summary of the Fourth Geneva Convention:
By collective punishment, the drafters of the Geneva Conventions had in mind the reprisal killings of World Wars I and World War II... In World War II, Nazis carried out a form of collective punishment to suppress resistance... The conventions, to counter this, reiterated the principle of individual responsibility.
Israeli officials often invoke the image of rockets reining down on Israel from Gaza as justification for their aggressive policies. While they represent a modest threat -- fewer people died in rocket and mortar attacks from Gaza in all of 2008 than perished in a few hours during the Israeli attack on the Freedom Flotilla -- they are terrifying and constitute a war crime. Yet punishing the population rather than the militants who fired those rockets is a war crime as well. Approximately half of the population of Gaza are under 18 years of age.
Matt Yglesias noted that Israel's defenders have described the blockade "as some kind of narrow effort to prevent arms smuggling," but adds: "this simply isn’t what’s going on." "The objective," he wrote, "is to make life in Gaza miserable."
Yglesias linked to Peter Beinart arguing that, as far as Israel's government is concerned, "the embargo must be tight enough to keep the people of Gaza miserable, but not so tight that they starve."
This explains why Israel prevents Gazans from importing, among other things, cilantro, sage, jam, chocolate, French fries, dried fruit, fabrics, notebooks, empty flowerpots and toys, none of which are particularly useful in building Kassam rockets. It’s why Israel bans virtually all exports from Gaza, a policy that has helped to destroy the Strip’s agriculture, contributed to the closing of some 95 percent of its factories, and left more 80 percent of its population dependent on food aid. It’s why Gaza’s fishermen are not allowed to travel more than three miles from the coast, which dramatically reduces their catch.
Beinart concluded that the deaths on the Freedom Flotilla were not the fault of the Israeli commandos who boarded those ships in the dead of night (a position I'm not necessarily endorsing), but of "the Israeli leaders who oversee the Gaza embargo, and with Israel’s American supporters, who have averted their eyes."