Symposium on the Global Sumud Flotilla: The Gaza Blockade as an Instrument of Genocide – International Law, Global Sumud Flotilla, and Normalization of Illegality

[Ali Osman Karaoglu holds a Ph.D. in Public Law at Istanbul Şehir University. He is currently a faculty member in the Department of International Law at Yalova University Faculty of Law, Türkiye]

International law constitutes one avenue of the Palestinian struggle. It is not, however, the only one. Nevertheless, even when other forms of resistance are employed, international law invariably remains implicated. The Palestinian dispute, which has persisted for more than a century, entered a new phase on 7 October 2023. Israel, which since its establishment has committed nearly every category of crime recognized under international law against the Palestinian people, has, as of 7 October, also been perpetrating the crime of genocide in the territory of Gaza. At the present juncture, a ceasefire has been declared and a structure known as the Board of Peace—arguably resembling a second Mandate administration—has been established, with the future of Gaza effectively entrusted to its discretion. 

Yet, a crucial question remains conspicuously absent from public debate: despite the establishment of the Board of Peace and the declaration of a ceasefire in Gaza, why has the Gaza blockade not been terminated? Given that United Nations reports have repeatedly determined both the unlawfulness of the blockade and its role in exacerbating the humanitarian crisis in Gaza, why has its removal not become a priority for states? This question admits two answers. The first, from Israel’s perspective, is straightforward: the blockade remains in place because it constitutes one of the principal instruments through which genocidal conditions are created. The second, from the perspective of third parties—including the United Nations Security Council and other states—is that the blockade persists because such actors have failed to discharge their obligations under international law. 

In order to further substantiate this dual proposition, it is necessary to examine the history of the blockade and the manner in which it has generated unlivable conditions in Gaza. From this perspective, I shall characterize the blockade as a legal instrument that laid the groundwork for genocide, while describing the conditions produced through the blockade as constituting an “attempt to commit genocide.” I shall subsequently assess the attack directed against the Global Sumud Flotilla, which sought to challenge and break the blockade. Before doing so, however, it is necessary to briefly examine the blockade itself and the conditions it has engendered. 

Sowing the Seeds of Genocide

Following the conclusion of the Second Intifada in 2005, elections were held in Palestine, and Hamas emerged as the leading political party in the 2006 parliamentary elections. In response to the fact that the formation of a Hamas-led government conflicted with Israeli interests, Israel began imposing a blockade on Gaza in 2007 and, by 2009, had effectively transformed the territory into an open-air prison through a comprehensive land, air, and sea encirclement. 

Both the United Nations Human Rights Council and the International Committee of the Red Cross have concluded that Israel’s blockade of Gaza amounts to “collective punishment” and inflicts disproportionate harm upon the civilian population. Indeed, the Fourth Geneva Convention of 1949 and Additional Protocol I of 1977 prohibit collective punishment and collective penalties, while also requiring that humanitarian assistance not be obstructed. However, Israel’s persistent failure to comply with international legal norms has meant that the unlawful blockade imposed since 2007 has generated a profound humanitarian crisis and accelerated the chain of events leading to 7th of October. 

According to UNRWA, between 2007 and 2022, Gaza has suffered severe economic and social decline due to the blockade and recurring violence. Poverty has risen dramatically, with over 80% of residents living below the poverty line and 80% dependent on humanitarian aid. Unemployment, especially among youth, remains stratospheric, while economic output is far below that of neighbouring areas. Essential infrastructure has also deteriorated, with hundreds of water wells damaged or destroyed and most available water failing to meet international quality standards. Beyond the economic devastation, the prolonged crisis has deeply affected Palestinian society, weakening social cohesion and causing a significant deterioration in mental health, particularly among children and young people. 

Blockading the Sea, Too

Since 2007, Israel has maintained the blockade by unlawfully occupying the maritime zones belonging to Palestine (the Gaza Strip). Palestine acceded to the 1982 United Nations Convention on the Law of the Sea in 2015 and subsequently notified the United Nations in 2019 of its claims to a 12-nautical-mile territorial sea, a 24-nautical-mile contiguous zone, and a 200-nautical-mile exclusive economic zone. Israel, however, did not retreat from its position and instead progressively intensified the conditions of the blockade. 

This situation should have been assessed under the Genocide Convention from the outset. Through the Gaza blockade, Israel confined an entire people within the open-air prison it established in Gaza, subjecting them to hunger and deprivation of water and thereby engaging in conduct that falls squarely within Article II(c) of the Genocide Convention, namely “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” It may, of course, be argued that the group in question was not physically destroyed. Yet, this same people survived even the direct genocidal campaign that followed 2023 and I shall not dwell on this aspect of the matter. The critical point is that the complete or partial destruction of the group need not actually occur for the Convention to be implicated. The deliberate creation of unliveable conditions for that purpose is itself sufficient to constitute a violation of the Genocide Convention. 

When one asks how Israel may be held responsible for the manner in which the blockade has been implemented and for the conditions it has created, Article III of the Genocide Convention becomes particularly relevant. Article III does not merely criminalize genocide itself; it also enumerates a number of other punishable acts. Specifically, the Convention identifies the following as punishable conduct:

“(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.”

Viewed through this lens, the manner in which the blockade has been enforced and the living conditions it has produced should be characterized as an “attempt to commit genocide” within the meaning of Article III(d), insofar as they constitute conduct contrary to Article II(c) of the Convention. In my opinion, the International Court of Justice (ICJ) should hold Israel internationally responsible for violating Article III(d) of the Genocide Convention with respect to the period extending from 2007 until 7 October 2023.

The events that have unfolded since 7 October 2023, by contrast, should be assessed by ICJ under Article III(a) of the Genocide Convention, namely as “Genocide.” Both the conduct in question and the accompanying rhetoric are manifest. If the events that have occurred since 7 October are not characterized as genocide, it is difficult to understand how one could disregard the extensive catalogue of criminal acts documented in United Nations reports, together with the statements made by senior state officials. For instance, on 16 October 2023, Israeli PM Netanyahu characterized the situation as “a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.” President Herzog, in a statement to the foreign press on 12 October 2023, declared:

“The entire nation is responsible. The claim that civilians were unaware or uninvolved is untrue. It is absolutely false. We will fight until we break their backbone.”

Similarly, on 9 October 2023, Defence Minister Gallant stated:

“No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals, and we are acting accordingly.”

Litigating an End to the Blockade?

Following 7 October, the International Court of Justice issued a series of binding provisional measures concerning Gaza. South Africa instituted proceedings against Israel alleging violations of the Genocide Convention, and the Court subsequently indicated provisional measures in three separate decisions. In each of these orders, the Court required Israel to permit and facilitate humanitarian assistance. According to the Court: 

“Israel shall, in conformity with its obligations under the Genocide Convention, and in view of the worsening conditions of life faced by Palestinians in Gaza, in particular the spread of famine and starvation, take all necessary and effective measures without delay, in full cooperation with the United Nations, to ensure the unhindered provision at scale of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care, to Palestinians throughout Gaza.” 

Israel, however, not only failed to comply with the Court’s orders but also obstructed the passage of vessels belonging to the Global Sumud Flotilla carrying baby supplies, food, and medicine. Moreover, the attack was carried out at a distance far beyond what might reasonably have been anticipated. Indeed, even had the interception occurred within the geographical limits of Israel’s unlawful blockade, it would nevertheless have remained contrary to international law. Under customary international law, a blockade must be applied impartially to all vessels and may not prevent the delivery of humanitarian assistance to civilians. Yet Israel has failed to permit adequate humanitarian relief, whether by land or by sea. Furthermore, international humanitarian law prohibits the use of starvation as a method of warfare. In every relevant respect, Israel’s conduct is incompatible with international law. 

Israel’s practice of attacking freedom flotillas at ever greater distances is best understood as part of a broader strategy of “testing the limits.” Israel has carried out numerous operations both on the high seas and within the maritime zones of various states in the region, including their exclusive economic zones. Notably, none of these actions has resulted in meaningful sanctions. Consequently, Israel has repeatedly expanded the boundaries of what it can do without incurring consequences. Having faced no serious sanctions from third states even in the face of allegations of genocide, Israel now appears to be pursuing a strategy of “norm-violation testing,” seeking to determine how much illegality the international community is prepared to tolerate and normalize. Particularly troubling is the extent to which responsibilities that properly belong to states have been shifted onto civil society initiatives such as the Global Sumud Flotilla. This transfer of responsibility further emboldens Israel and enables it to continue extending the boundaries of its unlawful conduct. 

If this danger is to be contained, it is imperative that states begin seriously considering the adoption of collective sanctions. Equally important is the need for states to ensure the effectiveness and protection of freedom flotillas seeking to deliver humanitarian assistance. After all, Israel is now openly violating one of the highest norms of international law—the prohibition of genocide—which enjoys the status of jus cogens. The consequences of this pattern of aggression are no longer confined to the region, they are increasingly extending beyond it and altering the world as we know it.