Richard Falk the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. In 2001 Falk served on a United Nations High Commissioner for Human Rights (OHCHR) Inquiry Commission for the Palestinian territories with John Dugard. He is also an American Professor Emeritus of International Law at Princeton University with a long and distinguished career in academics, politics and law. He recently gave this exclusive and revealing interview to Intifada Palestine's Elias F. Harb .
Navi Pillay, the UN Human Rights Chief described the Israeli blockade on Gaza as "illegal and must be lifted" and accused Israel of Violating International Humanitarian Law. Also the head of UNRWA operation in Gaza, John Ging, had called upon the UN itself to begin defying the blockade and deliver humanitarian assistance since the blockade is a flagrant direct violation of Article 33 of the Fourth Geneva Convention that prohibits collective punishment. The state of Israel has stated that the blockade of Gaza is for security purposes; although it is imposing Collective Punishment on 1.5 million, which is a breach of international law and a war crime Editor Elias Harb
EH: Professor Falk, what is the legality of the Israeli blockade in Gaza in accordance with the San Remo Manual on International Law applicable to armed conflicts at Sea?
RF: The San Remo Manual was drafted by a series of experts and former diplomats over a period between 1987 and 1994 to provide guidance as to the use of force on the oceans and other international waters. The Manual is not a legal document, but represents an informed opinion of specialists as to the agreed content of customary international law applicable to combat situations. The announced intention of the Manual was to be partly declaratory of existing international law and to a degree expressive of desirable developments to deal reasonably with belligerent activities on the seas not addressed in law by past international practice. Because there is no treaty law on the subject the San Remo Manual has been quite influential in filling the gap, a kind of soft law that if accepted by states becomes customary international law over time.
Although it is always possible for partisan legal experts to provide an opinion favouring one side or the other, an impartial reading of the Manual makes it clear in this instance that the Israeli naval attack on the Freedom Flotilla was unlawful beyond a reasonable doubt. For instance, Article 47 (c)(3)(ii) of the Manual exempts vessels from attack if "engaged in humanitarian missions, including vessels carrying supplies indispensable for the survival of the civilian population." In more general terms, the San Remo Manual, Articles 36-42 underscores the obligation of any attack at sea to be aimed solely at strictly military targets, and to take precautions to ensure that civilians are not harmed. In the instance of the May 31st naval attack it was widely known that these ships were on a humanitarian mission, that the civilian population of Gaza had long been deprived of food, medicine, and building materials necessary for their normal life.
The Manual somewhat controversially does authorize the establishment of a blockade under certain wartime conditions. It is controversial as the UN Charter prohibits all uses of force that cannot be justified as self-defence against a prior armed attack (Article 2(4), 51), and a blockade of Gaza is obviously unlawful for this reason alone. Even if the Charter is not considered, given Articles 93-101 of the Manual, this blockade would be unlawful under Article 102(b), which prohibits a blockade if "the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade." This blockade, established as of June 2007, has been designed mainly to keep food, medical supplies, and fuel from the civilian Gazan population, with severe adverse health consequences. The alleged military objective of preventing the importation of weaponry was adequately addressed by Israel border control. It was widely acknowledged by Israeli leaders over the period that the purpose of the blockade was punitive, either to punish the population for giving support to Hamas in the 2006 elections or to cause the collapse of Hamas because the civilian population would rather have the blockade ended than suffer the hardships imposed as a result of and retaliation for Hamas governance. Neither justification provides a valid legal basis for establishing the blockade.
There are also a series of technical problems that confirm this conclusion of illegality. Gaza according to the international community is occupied territory subjecting Israel to the duty to uphold the protection of the civilian population. Israel claims that it is engaged in an armed conflict with Gaza so long as it is controlled by Hamas, but this contention assumes that the Israeli disengagement of 2005 ended the occupation and its duties under international humanitarian law, a claim that is generally rejected. Even if the Israeli position on occupation is accepted, the blockade is still unlawful. A blockade can only be validly declared, if at all, only in relation to an enemy state, and Gaza is not a state. This means that Gaza cannot be lawfully blockaded in relation to the navigational activities of other states or of the United Nations.
Finally, even if the blockade were to be considered lawful from the perspective of armed conflict, it would be unlawful, even a crime against humanity, under Article 33 of the Fourth Geneva Convention, which unconditionally prohibits collective punishment. In short, Israel has no legal basis for claiming a right to establish a blockade of the Gaza Strip, and thus any attempt on its part to enforce compliance is itself an act of aggression against the state whose flag is properly flying on the ship attacked. Here the criminality of the Israeli behavior was intensified by the use of excessive and disproportionate force, by the coldblooded execution of several peace activists who were captured, by the terroristic nature of the boarding at night, by firing live ammunition at peace activists when other methods of apprehension were available, and by coercively and abusively removing activists from the ships and holding them in detention, and confiscating their personal goods including especially video and audio records of the attacks.
EH: Do passengers have the legal right to sue the State of Israel for the Attack on the Flotilla?
RF: A civil suit by the passengers against the perpetrators or the responsible Israeli political and military officials associated with the attack or its authorization could certainly be initiated in several sovereign states, which establish such an option. The United States has an old law that has been recently relied upon, the Tort Claims Act. This legislation allows victims to sue for damages; it has been used to hold accountable a security officer alleged to have engaged in torture carried out in Paraguay in the famous Filartiga case of 1980. Other countries have similar laws, and it is necessary to examine what is possible in each place.
EH: Israel says that the blockade is for Security reasons, how do you respond to that?
RF: Israel as the occupying power can act to uphold it security in Gaza, but this must be done in a manner that protects the occupied population. Israel was exercising effective control over activities bearing on its security. The contention that these boats in the Flotilla were carrying weaponry was clearly known by the Israeli government to be false as the ships had been credibly inspected before departing from their various ports of embarkation. As indicated above, Israel cannot establish a blockade in circumstances where there is no proper international conflict and where civilian population is enduring hardships on a catastrophic scale. Also, there were virtually no lethal incidents of violence emanating from Gaza in the months preceding the attack rendering alleged Israeli anxieties about security of no legal relevance.
EH: In terms of the people on board the Flotilla, Israel is saying that those on board the ships were violent activists not humanitarians and that they were armed with weapons and was not peaceful people? How would you respond to that?
RF: Israel's narration of the facts seems flawed, an exercise in disinformation. Furthermore, an attack at night launched from the air is bound to give rise to terrorized passengers, including impulses among some passengers to do whatever was possible to protect themselves. If, as I believe, the attack was unlawful, then the passengers had a right of self-defense, and certainly not Israel. The claim that the peace activists broke their own pledge to one another not to resist in the event of an Israeli attack is of no legal relevance.
EH: In accordance with International Law could the Israeli attack on the Gaza Aid Flotilla be considered an act of War?
RF: It is certainly an act of aggression under the UN Charter, and an act of war by reference to customary international law. Whenever force is used in situations other than in situation where a proper claim of self-defense is made, the undertaking is unlawful, and if as here, it is an instance of flagrant non-defensive force, the attacker is engaged in criminal conduct and both the offending state and the perpetrators acting on behalf of the should be held responsible, and to the extent international crimes took place, held accountable.
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