More from the UN report into the Israeli attack on the Gaza Freedom Flotilla. Notice that the report also makes clear that the entire Israeli blockade of Gaza is illegal as a form of collective punishment. The following appears on pages 14 and 15 of the UN report:
Under the laws of armed conflict, a blockade is the prohibition of all commerce with a defined enemy coastline. A belligerent who has established a lawful blockade is entitled to enforce that blockade on the high seas. A blockade must satisfy a number of legal requirements, including: notification, effective and impartial enforcement and proportionality. In particular a blockade is illegal 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.
A blockade may not continue to be enforced where it inflicts disproportionate
damage on the civilian population. The usual meaning of “damage to the civilian
population” in LOAC refers to deaths, injuries and property damage. Here the damage may be thought of as the destruction of the civilian economy and prevention of reconstruction of past damage. One might also note, insofar as many in Gaza face a shortage of food or the means to buy it, that the ordinary meaning of “starvation” under LOAC is simply to cause hunger.
In evaluating the evidence submitted to the Mission, including by the Office for the
Coordination of Humanitarian Affairs in the occupied Palestinian territory, confirming the severe humanitarian situation in Gaza, the destruction of the economy and the prevention of reconstruction (as detailed above), the Mission is satisfied that the blockade was inflicting disproportionate damage upon the civilian population in the Gaza strip and as such the interception could not be justified and therefore has to be considered illegal.
Moreover, the Mission emphasizes that according to article 33 of the Fourth Geneva
Convention, collective punishment of civilians under occupation is prohibited. “No
protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism, are prohibited.” The Mission considers that one of the principal motives behind the imposition of the blockade was a desire to punish the people of the Gaza Strip for having elected Hamas. The combination of this motive and the effect of the restrictions on the Gaza Strip leave no doubt that Israel’s actions and policies amount to collective punishment as defined by international law. In this connection, the Mission supports the findings of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, the report of the United Nations Fact-Finding Mission on the Gaza Conflict and most recently the ICRC that the blockade amounts to collective punishment in violation of Israel’s obligations under international humanitarian law.
It might be suggested that a belligerent in an armed conflict has a right to visit,
inspect and control the destinations of neutral vessels on the high seas, irrespective of any declared blockade. Whilst there is some controversy on this issue, the San Remo Manual and a number of military manuals take the view that the right may only be exercised upon reasonable suspicion that a vessel is engaged in activities which support the enemy. The Mission takes the view that a right of interference with third States’ freedom of navigation should not lightly be presumed.
Thus, if there is no lawful blockade, the only lawful basis for intercepting the vessel
would be a reasonable suspicion that it:
• was making an effective contribution to the opposing forces’ war effort, such as by carrying weaponry or was otherwise closely integrated into the enemy war effort (belligerent right of capture); or
• posed an imminent and overwhelming threat to Israel and there was no alternative but to use force to prevent it (self-defence under Article 51 of the United Nations Charter).
In view of the information available, the Mission is satisfied that the interception of the flotilla and related preparatory planning by Israel was not purely motivated by concerns as to the vessels’ contribution to the war effort. Evidence attributed to the Chief of General Staff, Gabi Ashkenazi who testified that he did not believe that the IHH, one of the coalition members organizing the Flotilla, was a “terrorist organization”. The evidence of Prime Minister Netanyahu to the Turkel Committee indicates that the decision to stop the flotilla was not taken because the vessels in themselves posed any immediate security threat. In any event, no such right of belligerent interdiction or wider claim of self-defence against the Flotilla has been asserted by Israel.
Therefore the Mission is satisfied not only that the flotilla presented no imminent
threat but that the interception was motivated by concerns about the possible propaganda victory that might be claimed by the organizers of the flotilla.
Given the evidence at the Turkel Committee, it is clear that there was no reasonable
suspicion that the Flotilla posed any military risk of itself. As a result, no case could be made to intercept the vessels in the exercise of belligerent rights or Article 51 self-defence. Thus, no case can be made for the legality of the interception and the Mission therefore finds that the interception was illegal.
