Why International Law Can’t Resolve the Legality of the Gaza Blockade

I want to take a moment to salute Kevin for his post on the legality of the Gaza blockade, which has drawn a record 94 comments and thousands of page views. Talk about fostering discussion and debate!

Kevin has put his finger on the key legal issue: the legality of the blockade.  While the question of whether excessive force was used is also central, the facts are too murky to figure this question out, and we may never figure this out.  But the facts on the blockade are fairly settled.  And, as Eric Posner points out in today’s WSJ, it is the law here is a bit murky but could certainly be read to support Israel’s position.  Most importantly, I think he is right to argue that there is no clear international law rule here for either side.

Longstanding customary international law permits states to enforce publicly announced blockades on the high seas. The Gaza blockade was known to all, and certainly to those who launched the ships for the very purpose of breaking it. The real question is whether the Israeli blockade is lawful. Blockades certainly are during times of war or armed conflict. The U.S.-led coalition imposed a blockade on Iraq during the first Gulf War.

The catch here is the meaning of “armed conflict.” Traditionally, armed conflict can take place only between sovereign states. If Gaza were clearly a sovereign state, then Israel would be at war with Gaza and the blockade would be lawful. If, however, Gaza were just a part of Israel, Israel would have the right to control its borders— but not by intercepting foreign ships outside its 12-mile territorial sea or contiguous zone.

Gaza is not a sovereign state (although it has its own government, controlled by Hamas) and is not a part of Israel or of any other state. Its status is ambiguous, and so too is the nature of the armed conflict between Israel and Hamas. Thus there is no clear answer to the question whether the blockade is lawful.

However, the traditional idea of armed conflict involving only sovereign states has long given way to a looser definition that includes some conflicts between states and nonstate actors. The international rules governing blockades attempt to balance belligerents’ interest in security and other countries’ economic interests in shipping. During war, security interests prevail.