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June 7, 2010

Edited by John and Douglas Carey

In this issue: when is a blockade legal?

Curiously, the UN web site has apparently no record of Security Council action (or inaction) regarding the May 31st encounter between Israeli armed forces and a civilian-owned Turkish merchant ship in international waters off Gaza. This morning’s New York Times reports at A4 that, “In a statement adopted unanimously last week, the United Nations Security Council called for a prompt, credible and impartial investigation into the raid.” At an emergency Security Council session on the 31st, US Ambassador Alejandro Wolff spoke the following words as quoted on the US Mission web site:

“The United States is deeply disturbed by the recent violence and regrets the tragic loss of life and injuries suffered among those involved in the incident last night aboard the Gaza-bound ships. We are working to ascertain the facts. We expect a credible and transparent investigation and strongly urge the Israeli government to investigate the incident fully.

“As I stated in the Chamber in December 2008, when we were confronted by a similar situation, mechanisms exist for the transfer of humanitarian assistance to Gaza by member states and groups that want to do so. These non-provocative and non-confrontational mechanisms should be the ones used for the benefit of all those in Gaza. Direct delivery by sea is neither appropriate nor responsible, and certainly not effective, under the circumstances.

“The United States remains deeply concerned by the suffering of civilians in Gaza, and the deterioration of the situation there, including the humanitarian and human rights situation. We continue to believe the situation is unsustainable and is not in the interests of any of those concerned. We will continue to engage the Israelis on a daily basis to expand the scope and type of goods allowed into Gaza to address the full range of the population’s humanitarian and recovery needs. Hamas’ interference with international assistance shipments and the work of nongovernmental organizations complicates efforts in Gaza. Its continued arms smuggling and commitment to terrorism undermines security and prosperity for Palestinians and Israelis alike.

“We will continue to work closely with the Government of Israel and the Palestinian Authority, along with international NGOs and the UN, to provide adequate access for humanitarian goods, including reconstruction materials, through the border crossings, while bearing in mind the Govern-ment of Israel’s legitimate security concerns.

“Ultimately, this incident underscores the need to move ahead quickly with negotiations that can lead to a comprehensive peace in the region. The only viable solution to the Israeli-Palestinian conflict is an agreement, negotiated between the parties, that ends the occupation that began in 1967 and fulfills the aspirations of both parties for independent homelands through two states for two peoples, Israel and an independent, contiguous, and viable state of Palestine, living side by side in peace and security. We call again on our international partners – both inside and outside this Council – to promote an atmosphere of cooperation between the parties and throughout the entire region.”

There has been little published legal analysis of what happened on May 31st. That would involve looking both at the customary international law on blockades and at the 1982 UN Convention on the Law of the Sea, which the US has never ratified. Several provisions of the Convention may apply: Article 87 deals with freedom of the high seas, Article 110 with the right to visit ships at sea, and Article 226 with investigation of foreign vessels. Whether or not the parties involved adhere to the Convention, it should be examined as reflecting the views of the many countries that do.

Going further back into the history of international maritime law, we can look in volume 10 ofWhiteman’s Digest of International Law, Department of State Publication 8367, released in 1968. At page 869 we read that US Ambassador Warren Austin told the Security Council on May 22, 1948, that: “It is elementary that a proclamation of a blockade constitutes a claim of belligerent rights. The exercise of belligerent rights depends upon the existence of war, whether it be international war of civil war. The claim to exercise belligerent rights must rest upon a recognition of the belligerency of the opposing party.”

Is Israel technically at war with Gaza? Gaza is not a recognized state but an unusual species of entity. It is governed by Hamas, which Israel would like to see removed. Some refer to Hamas as having seized power in Gaza. But the New York Times on June 5th concluded an article on page A7 with this: “Ms.[Greta] Berlin of Free Gaza said, ‘Hamas was democratically elected, whether we like it or not,’ referring to the Palestinian legislative elections of 2006, in which Hamas defeated its main rival, Fatah.”

Has Israel, in recognizing Hamas’s belligerency by imposing the blockade, conceded anything respecting its right to govern Gaza? That is one of many questions best left to international law professors. “A blockade is an act of war intended to bring your adversary to your way of thinking or to his knees,” said President Eisenhower at a news conference on December 2, 1954, according to Whiteman at page 869.

Whiteman recalls at page 874 that, “In October 1962 President Kennedy inaugurated a quarantine of Cuba by issuing a proclamation ordering American forces ‘to iderdict . . . the delivery of offensive weapons and associated material to Cuba’.” But the State Department Deputy Legal Advisor later explained that: “To the extent that traditional ‘blockade’ implies and requires a state of belligerency or war, the United States did not seek to justify the quarantine as a blockade. There was no assertion of a state of war or belligerency.”

What about resistance by persons on board the Turkish ship? In Whiteman’s volume 11 at page 30 the following is quoted from Colombos, International Law of the Sea (5th rev. ed. 1962): “Since the order to stop and visit are the first stages in the capture of enemy ships, it has for centuries been admitted that an enemy merchant ship has the right to resist capture, and this includes the right to resist visit, search and approach. A belligerent merchant ship may not only defend itself; but may, if strong enough, over-power her assailant and sink or capture her.”

Since helicopters rather than ships were involved in the Israeli capture of the large Turkish ship, sinking was not possible although shooting down might have been. Capture of a helicopter was apparently attempted when a person on the ship tied to the ship a rope used by Israeli soldiers to lower themselves to the deck from the plane. Not caring to be thus tethered, the pilot cut loose the rope.

It is clear that the May 31st incident will provide material for many debates among lawyers and others with differing amounts of international law knowledge and experience. One thing that does seem clear is that use of live ammunition in close quarters is lethal and should be excluded from orders issued in advance of any such encounter.

That’s all for this June 7th issue of United Nations Week: News and Views. We’ll be back with the next issue. Meantime, your own views on UN questions are welcome at

Good-bye for now, and thanks for watching.

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