The Institute for Middle East Understanding

Fact Sheets
Israel's Siege of Gaza and Attacks on the Humanitarian Aid Flotilla - Legal Background
IMEU, Jun 26, 2011

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Some of the participants of the humanitarian flotilla. (Maan Images)
Israel exercises "effective control" over Gaza and as such remains an occupying power. Under international law Israel's blockade of Gaza is illegal. Its attack on the humanitarian aid flotilla - meant to enforce an illegal blockade - is illegal as well.

1. Why is Israel's siege of Gaza illegal under international law?

2. Why does the international community continue to consider Israel an occupying power in Gaza?

3. If Israeli claims to have ended its occupation of Gaza were true would the blockade still be illegal?

4. Does Israel have the legal right to prevent the passage of the humanitarian aid flotilla?

5. Does Israel have the right to board the flotilla ships in international waters?

6. Can maritime blockades be imposed in international waters?

7. Would Israel's threatened actions constitute self-defense?


1. Why is Israel's siege of Gaza illegal under international law?

As an occupying power that exercises effective control over Gaza, Israel has legal obligations to the residents of the occupied territory under the
Fourth Geneva Convention, including the general duty to protect civilians under its control, and the specific duty to allow adequate access to food and medical supplies. Israel's siege of Gaza, including its land and sea blockade, violates these duties of protection by denying Gazan Palestinian civilians access to adequate amounts of the most basic food and medical supplies, not to mention a host of other supplies necessary for rebuilding after the destruction wrought by Israel's overwhelming destruction of Gaza's infrastructure in its 2009 attacks. Israel's violation of its duties, extensively documented by international organizations, ultimately amounts to the collective punishment of 1.5 million civilians, in violation of Article 33 of the Fourth Geneva Convention. The International Committee of the Red Cross, a UN fact-finding mission into Israel's attack on the 2010 Gaza flotilla, and a UN panel of five independent Special Rapporteurs have all found the siege to be in violation of international law.

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2. Why does the international community continue to consider Israel an occupying power in Gaza?

Israel's claim that its occupation of Gaza ended with its 2005 withdrawal of troops and settlers from the Strip is an attempt to absolve itself of responsibility for Gazan civilians. Israel's continued control of Gaza's territorial waters, its airspace, the flow of people and goods through its land borders, and its continued ground and air incursions into the territory, verify that it exercises the "effective control" necessary to qualify as a foreign occupying power under the Fourth Geneva Convention. This has been acknowledged by the
United Nations, the United States, Amnesty International, Human Rights Watch, and others.

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3. If Israeli claims to have ended its occupation of Gaza were true would the blockade still be illegal?

Yes. Even if the Gaza Strip were not occupied, Israel would still be constrained by the
principle of proportionality in imposing the blockade. This means that the military advantage gained must outweigh the harm caused the civilian population. This also means that the blockade may be no more restrictive than is necessary for military purposes. Yet the blockade is far broader, and its explicit aims are political, not military. It is therefore illegal, and actions taken to enforce it are similarly illegal.

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4. Does Israel have the legal right to prevent the passage of the humanitarian aid flotilla?

No. As an occupying power, Israel is required under the Fourth Geneva Convention to ensure free, unimpeded passage of humanitarian relief to the occupied population. And again, even if Israel's claims to have ended its occupation were true, according to the
laws that regulate armed conflict, "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," including medical supplies, provided the blockading party is allowed to make technical arrangements for the passage.

Israel's denial of passage to the 2010 humanitarian flotilla, which was carrying solely humanitarian supplies and was searched by Turkish authorities prior to departure, was thus illegal. The effect of the blockade on the Gazan civilian population is well documented, causing alarming levels of malnutrition and near starvation. Moreover, Israel's stated objective in imposing the blockade is also largely not military, but political in nature, namely, to weaken Gaza's economy and decrease support for Hamas. The damage that the blockade has caused to the civilian population is therefore clearly disproportionate to any military advantage Israel could obtain from the blockade. Preventing humanitarian goods from reaching Gaza has no relation to any threat posed by Hamas. The UN Security Council's Resolution 1860 of January 2009, which calls for a lifting of the blockade to allow humanitarian assistance, confirms that Israel's blockade of Gaza is illegitimate.

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5. Does Israel have the right to board the flotilla ships in international waters?

No. The principle of freedom of navigation is enshrined in international law, including in the
Convention on the High Seas, the UN Convention on the Law of the Sea, and has attained the status of customary international law by which all states are bound. Under this principle, all states have the freedom to sail ships flying their flags on the high seas. Sovereignty over a ship is exclusive to the state whose flag the ship is flying. Any attempt to board the ship of another flag-state is therefore considered a breach of that state's sovereignty. Israel's boarding in international waters of previous humanitarian vessels to Gaza, or a boarding of the upcoming flotilla, are therefore violations of international law and would violate the sovereignty of the states to which the ships are flagged.

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6. Can maritime blockades be imposed in international waters?

No. Contrary to Israel's assertions, maritime blockades must be restricted to ports or coastal areas under the enemy's control, and may not be imposed in international waters. Israel's attempt to impose and enforce its blockade in international waters is therefore illegal. Israel's claim that it has a right to pursue a ship intending to breach its blockade from the time it begins its voyage, based on the so-called doctrine of continuous voyage, is a minority position in international law. Israel's reliance on this questionable doctrine does not justify its attack on previous or upcoming humanitarian flotillas.

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7. Would Israel's threatened actions constitute self-defense?

No. Given that an Israeli attack or boarding of a flag-state ship in international waters is itself illegal, any claim of acting in self-defense is unfounded. The principle of self-defense applies only when a state is repelling an attack against it. Certainly, the flotilla ships have not and will not be attacking Israeli naval forces. Moreover, even if Israel did have a right to board the ships, the use of force in doing so is unnecessary and disproportionate to any threat the unarmed civilians aboard the ships may pose.

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This page was printed out from the website of the Institute for Middle East Understanding (IMEU) found at www.imeu.net. The IMEU provides journalists with quick access to information about Palestine and the Palestinians, as well as expert sources, both in the U.S. and the Middle East.