Guilfoyle on the Mavi Marmara (Updated!)
I want to call readers’ attention to Douglas Guilfoyle’s article “The Mavi Marmara Incident and Blockade in Armed Conflict,” which is forthcoming in the British Year Book of International Law. (Subscription required.) It’s absolutely superb — comprehensive, analytic, and above all fair. Indeed, its conclusions differ in important ways from those of the UN HRC report, the Turkel Commission inquiry and the Turkish government’s internal report. Here is the abstract:
This article examines Israel’s enforcement of a maritime blockade against the Gaza Strip implemented in the course of an ‘armed conflict’ with Hamas. The first question is the legal characterisation of this conflict and whether it is one to which the laws of naval warfare apply. The conclusion of this article is that, irrespective of the status of the Gaza Strip as an occupied territory, at the relevant time Israel was at best involved in a non-international armed conflict (NIAC) with Hamas. There is only limited support for the proposition that blockade is available in NIACs, and then only in conflicts reaching a high level of intensity. On this basis, Israel had no applicable right of blockade.
In the alternative, the article considers the requirements of lawful blockade and concludes they were not met in the present case. The central issue is proportionality. The maritime blockade was part of a comprehensive closure regime that had disproportionate effects on the civilian population of Gaza. A maritime blockade in support of other measures causing disproportionate damage must itself be disproportionate. In the further alternative, the article assesses whether Israel could have justified its actions on the basis of other belligerent rights.
Finally, the article considers the law governing the use of force during maritime interdiction operations under the laws of naval warfare. It concludes that a ‘policing’ paradigm of force is applicable. The law of individual self-defence and war crimes is also considered.
It is also worth noting that Doug’s is the first article in BYBIL — which is now in its ninth decade of life — to which Oxford University Press has ever offered advance on-line access. That’s a great development.
Now if someone would just change “Year Book” to the more modern “Yearbook”…
VERY COOL UPDATE: OUP’s Rhrodri Jackson informs me that, as of last April, the press has officially changed the name to the British Yearbook of International Law. Even though this post appeared in July, I credit my efforts as being responsible for the change. Now if only the various on-line databases will accept the new spelling — I type “British Yearbook” into the Melbourne library e-journal system and nothing comes up…