UN Report Finds Israeli Blockade Legal (But Raid on Flotilla Excessive)

by Julian Ku

From the NYT:

UNITED NATIONS — A United Nations review has found that Israel’s naval blockade of Gaza is legal and appropriate but that the way its forces boarded a Turkish-based flotilla trying to break that blockade 15 months ago, killing nine passengers, was excessive and unreasonable.

Take it away, Kevin!

http://opiniojuris.org/2011/09/01/un-report-finds-israeli-blockade-legal-but-raid-on-flotilla-excessive/

15 Responses

  1. Kevin,
    Haven’t you been an outspoken and unswerving proponent of the apparently erroneous view that the blockade was illegal?. Seems like the Israeli blockade is in fact legal under international law.

  2. hi Rob

    what do you mean it seems like the blockade was legal?

    its not like the UN report was sent from God.
    they had a few experts who decided it was legal, and you have Kevin here (who is also an expert) who says otherwise. who is right?- i dont really know. i have to read the report and await Kevins response.

  3. The report is quite positive from the Israeli government perspective, which explains why Turkey was trying to delay its publication.

    The report does something that even the Turkel commission did not do, which is to generally separate for analytical purposes the naval from the land blockade.
    The report’s determination of the naval blockade’s legality, based in part on the (quite contentious) assertion that there is an (ongoing) IAC between Hamas and Israel, is further enhanced by a determination that, even combined with the land blockade it cannot be considered disproportionate. Now, if you consider the fact that the Flotila events occurred *before* the easing of restrictions (which may have actually led to that Israeli government decision in June 2010) and long before the Egyptians partially opened Rafah, this conclusion seems rather shaky.
    In any event, suffice it is to read the respective closing statements of the Israeli and Turkish observers to note where the report was leaning.

  4. i) It is disappointing that we already know what Kevin will ‘find’.

    ii) Actually, Israel was also trying to delay the publication.

    iii) In 100 years it will be noted, perhaps with some regret, that somewhere along the line more people died than avoidable because we were all looking in the same direction.
    - Google Search: israel war crime = 30,500,000 hits
    - Google search: rwanda war crime = 8,310,000 hits
    - Google search: yugoslavia war crime = 7,270,000 hits
    - Google search: israel genocide = 16,000,000 hits
    - Google search: rwanda genocide = 2,780,000 hits
    - Google search: bosnian genocide = 4,120,000 hits

    As the old saying goes … fiat justitia, et pereat mundus.

  5. Rob is wrong and George is anything but curious.  Both have obviously not bothered to read the report.  As I will note in a post later, the report specifically based its conclusion that the blockade is legal on the ground that Israel is involved in an international armed conflict with Hamas.  I disagree with that characterization, but the fundamental point of my blogging and writing on the subject has been that blockade is not legal in non-international armed conflict, which is what most people consider the conflict to be.  So on that point, the report and I completely agree.

  6. Kevin a careful reading of the report shows that there is nothing comparable between your views on naval blockades and those of the commission. The panel members attempted a broader interpretation of the law of blockade than the one you envision. In their words “the law does not operate in a political vacuum“. They stress that “the specific circumstances of Gaza are unique and are not replicated anywhere in the world“. Finally they argue that “the debate on Gaza’s status, in particular its relationship to Israel, should not obscure the realties“.

    We can debate law all we want. Claim for an IAC or a NIAC, argue for the possibility of a naval blockade against a NSA or against it. These are all legal jabbering that the majority of the non-legal world does not even understand or care about. At the end of the day what drove the panel members to decide the way they did was one basic and crucial rationale: “This takes foremost into account Israel’s right to self-defense against armed attacks from outside its territory“. That is it. That is the sole justification of the blockade. Israel’s right to defend itself. The fact that a very notable manual was written or that tradition has it that naval blockades were only imposed in IACs does not change this truth. The truth is that we should not force states to fight terror with one hand tied behind their backs. The fact that the panel decided to side with israel and characterize the conflict as IAC, is peripheral. Those are just legal words that help make this truth sound more convincing and easier to swallow for formal, traditional and technical international lawyers.

  7. The Palmer report addressed Kevin’s argument in a single line:

    The Panel notes in this regard that the uncertain legal status of Gaza under international law cannot mean that Israel has no right to self-defence against armed attacks directed toward its territory.

    this is just a common sense approach – ignoring legal arguments in favor of a realistic worldview.

     

  8. 2 Gidon Shaviv:
    Common sense now says that members of HAMAS should be accorded combatant rights and POW status. Is that also a realistic worldview, or something parallel to Israel’s reality?

  9. It isn’t an all or nothing question. Common sense simply states that not being a state doesn’t improve your rights in humanitarian law. Is it really logical to argue that just because Gaza isn’t a state, the right of self defense is LOWER then when facing a state?

  10. Shorter Lubin: Israel is the good guy, Hamas is the bad guy, so international law doesn’t matter.  How sad.

  11. In the post Julian linked to, Kevin wrote, “Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas.”  Even if Kevin still insists in hte face of this that it’s wrong to claim that Israel is involved in an IAC, the Reports rather undermines the implausibility claim.  So Kevin either has an odd definition of “plausibly”, or he should admit that he was incorrect.

  12. I wonder , how the report concluded that Israel is involved in IAC with Hamas , and the celebrate Advisory Opinion of the ICJ in 2004 concerning  the illegitimacy of the Israeli wall  in  west bank ,stated that Israel can not claim either raise self-defense provisioned in the UN charter , because Israel failed to  prove that the launched missiles by the Palestinians groups are fired by non-state actors and the UN drafters ment that for UN member states to resort to self-defense , there must be an aggression committed by a state or a  group  of states against the respeted state .
     
    Bearing  in  mind the Isaeli official stance regarding the legal base of its naval blockade against gaza , is just the San Remo  Manual  of the Naval Armed Conflict which is not a binding instrument

  13. Annexed to my previous comment , I would like to mention  that I meant  that Israel failed to prove to the ICJ  that the Palestinian . missiles targeted the unarmed Israeli civilians , were fired by State-actors .Consequently , Israel  has no right to claim  the UN  self-defense  ( UN Charter Art 51 )

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