The events on the Freedom Flotilla a few days ago shook the world. A lot was said by all sides involved in the incident. Many of the claims were based on different notions of international law and international humanitarian law in particular. That is why I decided to make an attempt to outline the questions that need to be answered in order to provide a legal, qualitative analysis of the events that led to the incident. In doing so I consulted a number of experts in international maritime law. Many refused to comment, and only a few commented off the record. Their comments are used in the text without attribution. I also sent lists of questions to both the Israeli Ministry of Foreign Affairs and the organizers of the Freedom Flotilla. Neither responded. That is why this analysis remains preliminary and incomplete.
The Legal Status of the Freedom Flotilla
The Freedom Flotilla was organized by a variety of NGOs, led by the Free Gaza movement and the Turkish charity İnsani Yardım Vakfı (IHH). According to the organizers the flotilla was supposed to deliver things like medical aid, food, clothing items, prefabricated homes, children’s playgrounds, stationery items, iron bars, cement.
The details about legal arrangements for the organization and internal management of the Freedom Flotilla are, however, scant. It is clear that there was coordination among the ships, and that probably the distribution of cargo among the ships was also coordinated. It is not clear, however, whether the numbers and composition of passenger lists was negotiated, agreed on or indeed communicated among the organizing NGOs. We don’t know how was the itinerary of the flotilla determined or planned. According to the organizers they have negotiated with the government of the Republic of Cyprus (EU Member State) to board the ships from Cypriot ports, bit it later declined to allow the boarding to happen. That is why at least two of the ships were boarded from ports in Northern Cyprus (the territory that is not controlled by the government of the Republic of Cyprus).
The Turkish authorities say that the ships that were boarded from Turkey did undergo customs checks and passport control checks. I am not so sure whether that was also the case for the ships boarded in Northern Cyprus. At least one source (a Czech journalist) claims that at least on his ship there were no formal customs or passport checks performed. It should be established, therefore, whether such checks were performed on all or only a few of the ships involved. That is very important, since the customs declarations of the ships and the lists of passengers will be a valuable resource in the future independent investigation of the incident.
There is no information whether the passengers or the cargo on the ships of the flotilla were insured. There is also no information whether or how participants were informed about the possible risks of confrontation with the Israeli armed forces or on how to perform civil resistance to the Israeli military.
There is no information available to me on the possible legal agreement between the organizers of the Freedom Flotilla and the Hamas government of the Gaza strip. We don’t know how the organizers assessed the needs of the population in Gaza. This would be an important element in the assessment of the legality of the actions of the Freedom Flotilla.
There were claims that one of the main organizers – the Turkish IHH was linked to Islamist groups, and indeed to some terrorist organizations. Details of these allegations can be found in the report by Evan Kohlmann, claiming that members of IHH were in the past intending to fight in Afghanistan, Bosnia, and Chechnya. IHH denies these claims.
These lacking details prevent me from reaching a conclusion whether the Freedom Flotilla was a legitimate attempt to deliver humanitarian aid in the first place. While there are no universally binding rules for delivering humanitarian aid, it appears that there were sufficient gaps in the organization of this particular operation. More importantly, Common Article 3 of the Four Geneva Conventions of 1949 stipulates that “an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict”. This rule imposes an obligation on States which are unable or unwilling to provide humanitarian aid to promptly permit external assistance from neutral relief organizations. The obligation is not unconditional even outside of the question about the actual legality of the naval blockade which is reviewed below. The Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief says that humanitarian aid is not a partisan or political act and should not be viewed as such. The neutrality of the organization providing relief is a conditio sine qua non, and Israel may have had a valid argument in contesting the neutrality of at least one co-organizer of the Freedom Flotilla – IHH.
Legality of the Actions of the Israeli Army
The legality of the actions of the Israeli army during the incident must be reviewed in a larger perspective, taking into account the legal status of the Gaza territory, its form of government, and the relations of the Gaza government with Israel.
A short history of the Gaza territory in recent years can be read in Wikipedia. The Hamas government of Gaza is currently controlling this territory, but is not recognized by the European Union and its Member States, the US and many other members of the UN. This means that currently Gaza has no internationally recognized government. Israel has claimed that Hamas is a terrorist organization that has taken control of the Gaza Strip and turned it into hostile territory. Israel further claims that the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Article XIV) stipulated that foreign vessels should not approach closer than 12 nautical miles from the coast unless specifically authorized pursuant to jointly agreed regulations and that in the absence of such conditions all foreign vessels would be required to dock at Israeli approved ports.
Israel further claims that it has imposed a naval blockade on the Gaza territory on 06 January 2009. This naval blockade was imposed under the rules of international armed conflicts law. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea stipulates that a blockade must be effective. It stipulates further that:
“If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:
(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.”
This means that if Israel has had the right to impose a naval blockade, it also had the right to demand a search of the vessels participating in the Freedom Flotilla, as well as guarantees of impartiality. The question of the legality of the naval blockade is in this sense essential for determining the legality of the actions of the Israeli army. This is a complicated question; there are many arguments for and against. I am not able to say today which side is right on this. It must be said though that claims for Israel to lift the blockade by various organizations, including the European Union, do not necessarily reflect the illegality of that blockade.
But did Israel have the right to engage the Freedom Flotilla in international waters? At least one source says that the attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or air take-off point with the intent of evading the blockade. In this sense the liability of a blockade runner to capture begins and terminates with the voyage or flight of the vessel/airplane.
There is one very important question in order to assess the legality of the actions of the Israeli army, and that is whether its use of force was proportional. This is also a very difficult question. We do know that the people on board of “Mavi Marmara” engaged in what they call “civil resistance”. We also know that some passengers say that the Israeli military started shooting from the very beginning. We don’t know what version of the rules of engagement was used by the Israeli military during the attack. That is why I am unable to assess the proportionality of the use of force by the Israeli military, especially given the fact that there were a number of deaths as a result of the attack. One thing is clear – the resistance by people on board of “Mavi Marmara” does infringe the requirement for impartiality as defined by Common Article 3 of the Four Geneva Conventions of 1949.
There are too many questions that remain unanswered in order to assess the legality of the actions of the Israeli military during the attack on the Freedom Flotilla. I cannot find at this time enough information in order to provide a full and relatively objective assessment. But the arguments related to the exercise of the so-called “civil resistance” remain particularly weak. On the other hand any number of fatalities demands a thorough, objective investigation of all events leading to it. That is why this preliminary analysis can be used as a critical text that only attempts to raise the questions that need to be answered.