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The interception of the humanitarian aid flotilla by Israeli Defense Forces (IDF) on 31 May 2010, during which nine Turkish citizens (one of whom was also a US citizen) died and many others injured, shocked both Turkey and international community. Israel, which has been well known for its repeated unlawful acts in the international scene but claiming irresponsibility by utilizing the gap resulted from the lack of a clear stance by international community up to day, has faced with an unexpected reaction. It has been denounced by many countries, including the leading members of the European Union and has been subjected to various inquiry/investigation processes conducted by international and national authorities. Moreover, the incident which was named after the Turkish vessel, Mavi Marmara, where the tragedy unfolded, constituted one of the main breaking points for Turkish-Israeli relations.

The attacks taking place on the high seas and targeting civilians have once more led to an arduous debate on the responsibility of Israel within the framework of international law and on the legality of the naval blockade imposed by Israel on the Gaza Strip, especially between January 2009-July 2010[1].  In this context, firstly the UN Human Rights Council decided to establish an independent international fact-finding mission to investigate violations of international law, including international humanitarian law and human rights law, resulting from the Israeli attacks[2].  The Mission reported its findings to the UN Human Rights Council on 22 September 2010 and the resolution was adopted by a vote of 30 in favour, 1 against (the US) and 15 abstentions on 29 September 2010.

Shortly prior thereto, on 2 August 2010, the UN Secretary-General Ban Ki-Moon announced the setting-up of another Panel of Inquiry on the flotilla incident. However, the mandate of the latter was quite different from that of the Mission as it would receive and review the reports of the national investigations with the view to recommend ways of avoiding similar incidents in the future. As it is clearly understood from the stated mandate, the ultimate goal of the Panel which is composed of representatives of both parties and the head of the mission, is to repair strained relations between Turkey and Israel and accordingly the nature of its inquiry is complementary. Finally, the Panel is expected to release its final report in March, 2011. 

In this analysis, I will try to shed light on the alleged violations of international law committed by Israel in terms of imposing blockade on the Gaza Strip and attacking the flotilla of ships carrying humanitarian assistance.

1)    The Question of Legality of the Blockade

At the outset, it should be noted that the question of lawfulness of the flotilla interception is closely interrelated with the legality of the naval blockade imposed by Israel on the Gaza Strip. From the very beginning of the flotilla debate, senior Israeli Officials have preferred to rely on the provisions of San Remo Manual which is accepted as the main legal document articulating the norms of customary international law with regard to maritime issues. In paragraph 146 of the Manual, conditions for the capture of neutral merchant vessels are listed and to breach or attempt to breach a blockade is counted as one of the justifications for interception. Thus, first of all we have to answer to the following question: Is the blockade imposed by Israel on the Gaza Strip since January 2009 legal or not? If the illegality of the naval blockade can be proven, then one of the self-justifying arguments of Israel will be automatically refuted.  
 
The blockade can be defined as a belligerent operation to prevent vessels and/or aircraft of all nations, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy nation[3].  Hence it can be inferred from the definition that a state cannot blockade the borders it occupies and exercises control. And here comes another question as whether Israel is an occupier in Gaza or not. On the assumption that Israel remains the occupying power in Gaza, then its blockade should be declared unlawful or legal nullity.

A)    Occupational Status of Israel in the Gaza Strip

According to article 42 of the 1907 Regulations Respecting the Laws and Customs of War on Land, a territory is considered occupied when it is actually placed under the authority of the hostile army. In fact, in its recent judgement in 2008, the Israeli Supreme Court stated that, the State of Israel has no permanent physical presence in the Gaza Strip and no real ability to control what happens in the Gaza Strip in an effective manner[4].  However there are many arguments, report remarks that Israel continues to occupy the Gaza Strip.

Firstly, Israel is still an occupier in the West Bank which is officially viewed as a single territorial unit with Gaza, despite being geographically distinct [5].  Secondly, Israel continues to regulate the daily life of the Gazans by controlling borders, taxes, customs duties and by supplying goods, foods and electricity. As it is noted in the Goldstone Report, Israel regulates the local monetary market based on the Israeli currency (the new sheqel)[6].  In addition, Israel uniletarally restricted the fishing zone to 3 nautical miles offshore which had been set in Oslo Accords as 20 nautical miles[7].  This substantial confinement has heavily affected the fishermen. When we look at the strict control over the supply of goods, the situation is more tragic. According to the recent report of the International Committee of the Red Cross, while it was 4,000 types of goods that were being permitted entry into Gaza before the blockade, it is now just 80 types of goods[8]. 

Taking into account the above-mentioned records, it is quite difficult to argue that Israel has fully implemented the disengagement plan. Although Israels control over some areas in Gaza has diminished, this cannot change its long-standing status of occupier[9].  As a result, since Israel remains to be an occupier in Gaza and states are not allowed to impose a blockade on the territories they occupy, we can come to a conclusion that interception based on illegal blockade is also unlawful in itself. 

B)    Effects of the Blockade

The second legal argument questioning the legality of the blockade regards the purpose and destructive effects of the blockade. According to paragraph 102 of the San Remo Manual, the declaration or establishment of a blockade is prohibited if:
a.    it has the sole purpose of starving the civilian population or denying it other objects essential for its survival or;
b.    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.  

Although it is hard to claim that the sole purpose of Israels blockade is the starvation of the Gazan people, paragraph 102(b) is rather applicable in terms of violation of the proportionality principle. As stated by the Israeli Officials many times before, one of the main goals of the blockade is to prevent the supply of arms to Hamas which is believed to target the Israeli people in the future. However, even if this sounds a legitimate concern, another aim of the blockade, underlined in the report of the UN Human Rights Council is much more striking. According to the Mission, the principal motive behind the imposition of the blockade is a desire to punish the people of the Gaza Strip for having elected Hamas, which paves the way for collective punishment[10].  Under article 33 of the Fourth Geneva Convention, collective punishment of civilians during occupation is prohibited. In this regard, the report concludes that since the blockade inflicts disproportianete damage upon civilians, it is apparently illegal and can not be relied on for justification of the flotilla raid.

2)    Violations of International Law Resulting from the Interception

After having addressed the illegality of the blockade under international law, now it is time to determine the violations of international humanitarian law and international human rights law resulting from the the interception of the Israeli forces of the humanitarian aid flotilla, particularly the Mavi Marmara.

A)    Violations Committed under the International Law of the Sea

At the outset, it should be noted that according to the applicable international law, as a general rule, a vessel on the high seas is subject to the exclusive jurisdiction of its flag state. However, under article 110 of the UN Convention on the Law of the Sea (UNCLOS), some exceptions to this rule is enumerated[11].  The article which regulates the right of visit, states that a warship which encounters a foreign ship on the high seas, is not justified in boarding it unless there is reasonable ground for suspecting that:

a.    the ship is engaged in piracy;
b.    the ship is engaged in the slave trade;
c.    the ship is engaged in unauthorized broadcasting and the flag state of the warship has jurisdiction under article 109;
d.    the ship is without nationality or;
e.    though flying a foreign flag or refusing to show its flag, the ship, is in reality of the same nationality as the warship.

As is clearly seen from the exhaustive list of exceptions, states are not entitled to the right of visit to vessels that are engaged in supply of humanitarian aid. On the other hand, in paragraph 67(a) of the San Remo Manual, it is stated that merchant vessels flying the flag of neutral states may be attacked if they are believed to carrying contraband for effective contribution to the opposing forces war efforts. With regard to this rule and its application in the incident, the Mission makes a point and claims that the interception plans made by Israel were not basicly motivated by concerns relating to the vessels contribution to the opposing forces, but to prevent a probable propaganda that might be made by the organizers of the flotilla[12].  In other words, the Mission was satisfied that the raid was mainly motivated by political concerns.

Even if we can refer to self-defence arguments under article 51 of the UN Charter, at this point two important preconditions come to the fore: the ship must pose an imminent and overwhelming threat to the security of Israel and also there must be no alternative of using force to prevent it. However, as confirmed in the evidence at Turkel Committee, there was no ground for suspicion that the flotilla posed any military risk. Furthermore, there were also other options to prevent the flotilla breaching the alleged blockade. For instance, Israeli warship could try to force the flotilla to change its rotation by blocking its path.   

B)    Violations Occured Under the International Humanitarian Law and International Human Rights Law

Despite the legal nullity of the blockade and invalid justifications for interception such as self-defense or prevention of supply of arms to Hamas, Israeli forces attacked the Mavi Marmara carrying an estimated 500 passengers on board, at the dawn of 31st of May, 2010. During the incident, 9 Turkish citizens, one of whom was also a US citizen, lost their lives and many other injured. As emphasized in the report of the UN Human Rights Council, Israel committed various violations of international law including international human rights law and international humanitarian law both during and after the incident.

First of all, if there was no other choice but to use force, Israel had to respect the basic rules listed under paragraphs 38-46 of the San Remo Manual, which require the attacking state to take all feasible precautions in the choice of methods and means in order to avoid or minimize collateral casualities or damage. According to the paragraph 46(d):

an attack shall not be launched if it may be expected to cause collateral casualties or damage which would be excessive in relation to the concrete and direct military advantage anticipated from the attack as a whole; an attack shall be cancelled or suspended as soon as it becomes apparent that the collateral casualties or damage would be excessive.

In this context, suspension of the operation and search for a more feasible plan would be the best strategy for Israeli forces after they had recognized the risk of serious civilian casualties.

Secondly, the passengers of the Mavi Marmara were civilians and they were legally defined as protected persons under article 4 of of the Fourth Geneva Convention of 1949. According to this article, protected persons are those who, at a given moment and in any manner whatsoever, find themselves in the hands of a part to the conflict of occupying power of which they are not nationals. Under international humanitarian law, in order to be able to use force against civilians, their direct and active participation in combat activities has to be proven, which is definetly not the case for the civilians on the Mavi Marmara. Wilful killings also constitutes violation of article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR). 

Finally, as noted by the Mission in its report, violations are not confined to the interception, but also can be extended to the detention of flotilla passengers in Israel and their deportation. These violations of international human rights law are [13]:

a.    torture and other cruel, inhuman or degrading treatment or punishment (article 7 of the ICCPR),
b.    right to liberty and security of the person and freedom from arbitrary arrest or detention (article 9 of the ICCPR),
c.    rights of detainees to be treated with humanity and respect for the inherent dignity of the human (article 10 of the ICCPR),
d.    freedom of expression (article 19 of the ICCPR).

3)    Entitlement to Compensation

It is one of the basic principles of international law that a State is responsible for the conducts of its officials, including its armed forces, whether they act in their official capacity, use means put at their disposal by the State or exceed their authority[14].  In the same vein, acting in an official capacity does not relieve a State official of individual criminal responsibility. Hence, as noted in the report of the UN Mission, Israeli national authorities are expected to initiate transparent, effective and impartial investigations and prosecute the culpable for the listed serious crimes.   
  
Furthermore, a State shall be liable to make reparations for violations it committed. In article 36 of the International Law Commission in its Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Compensation is regulated as follows:

1.    The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.
2.    The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.

In view of the above article, Israel, in accordance with its responsibilities under international law, should be required to pay compensation for those killed and wounded during IDFs military operation against the Mavi Marmara. In this sense, allegations recently published in Haaretz Newspaper are noteworthy[15].  According to these claims, in the framework of the ongoing talks aiming to bring the crisis to an end between parties, Israel is planning to offer hundreds of thousands of dollars to the families of the victims, killed or injured in the military operation. However, the striking point is that, in the Israeli officials views, the compensation is meant to be a humanitarian gesture, rather than Israeli admission of legal responsibility for the incident.

In reply to the above-mentioned allegations, it should be noted that States which are liable for their apparent violations of international law, cannot have an option to provide compensation for the victims under the name of humanitarian gesture. As explained in the previous paragraphs, Compensation is one of the legally recognized means to wipe out all consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed [16].    
   
4)    Conclusion

Israeli Defense Forces military opeation on the humanitarian aid flotilla which led to very dramatic consequences, was recorded as one of the prominent crisis of 2010. Although the incident can be viewed prima facie as the result of the ongoing deep-rooted problems between Israel and Palestine, this fact does not relieve the Israeli government of international legal responsibility for its wrongful acts.

In the international platform, Israel seeks to justify its naval blockade and its interception of the flotilla with national security concerns. Of course, Israel, like any other sovereign state, is entitled to peace and safety on its territory and in this context, Hamas using of unjust methods to cause moral or material damage in Israeli territory also constitutes violation of international law. However, it should be emphasized that the breach of proportionality principle can not be justified in any grounds.

It is widely recognized that Israel did not only violate the principle of proportionality with regard to its naval blockade but also with regard to the attacks on the flotilla by using disproportionate force. During and after the incident, several violations and offences were committed. In this sense, Turkey rightfully continues to demand formal apology and compensation from Israel.

In sum, Turkey and Israel constitute two important actors in the region and it should not be forgotten that any kind of conflict between parties inevitably affects negatively the sustainability of peace, security and stability in the Middle East. So, if both parties are sincere to maintain the good dialogue for the sake of peace and stability in the region, first of all they have to overcome the Mavi Marmara crisis, which has given rise to mistrust in relations. And the best way to achieve this, is to show maturity to bear responsibility for their internationally wronful acts. 

Footnotes

[1] Although Israel has allegedly imposed blockade on the Gaza Strip since the electoral victory of Hamas in 2007, the blockade during the raid was declared on 3 January 2009, during the Operation Cast Lead.
[2] A/HRC/RES/14/1. 
[3] The US Commanders Handbook on the Law of Naval Operations, (NWP 1-14M) of October 1995, http://www.fichl.org/uploads/media/US_Navy_Commander_s_Handbook_1995.pdf
[4] A and B v State of Israel, Crim A 6659/06, Crim A 1757/07, Crim A 8228/07, Crim A 3261/08, 11 June 2008.
[5] Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Washington, D.C., September 28, 1995, Article XI, http://www.knesset.gov.il/process/docs/heskemb_eng.htm
[6] Human Rights in Palestine and Other Occupied Arab Countries: Report of the United Nations Fact-Finding Mission on the Gaza Conflict, United Nations Doc A/HRC/12/48 (25 September 2009), para 278.
[7] Ibid, para 321.
[8] International Committee of the Red Cross , Gaza Closure: not another year!, 14 June 2010, http://www.icrc.org/eng/resources/documents/update/palestine-update-140610.htm
[9] Mustafa Mari, The Israeli Disengagement from the Gaza Strip: An End of the Occupation?, 8 Yearbook of International Humanitarian Law, 2005, pp. 356, 366-367.
[10] A/HRC/15/21, Report of the International Fact-Finding Mission to Investigate Violations of International Law, Including International Humanitarian and Human Rights Law, Resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, 22 September 2010, para. 54. 
[11] While Israel is not party to the 1982 UN Convention on the Law of the Sea, it has signed and ratified the 1958 Geneva Convention on the High Seas. Article 22 of this Convention and article 110 of the UNCLOS are almost identical.
[12] Ibid, para 57.
[13] Ibid, para 265.
[14] Article 7 of International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts [2001].
[15] Barak Ravid, Israel to Offer Heavy Humanitarian, Haaretz Newspaper, 9 December 2010, http://www.haaretz.com/news/diplomacy-defense/israel-to-offer-heavy-humanitarian-compensation-over-turkey-flotilla-deaths-1.329698
[16]Factory at Chorzow, (Germany v. Poland), 1928, The Permanent Court of International Justice, Series A, No. 17.