Although the wisdom of Israel’s actions in stopping the Gaza flotilla is
open to question, the legality of its actions is not. What Israel did was
entirely consistent with both international and domestic law. In order to
understand why, the complex events at sea must be deconstructed.
First, there is the Israeli blockade of Gaza. Recall that when Israel ended
its occupation of Gaza, it did not impose a blockade. Indeed, it left behind
agricultural facilities in the hope that the newly liberated Gaza Strip
would become a peaceful and productive area.
Instead, Hamas seized control over Gaza and engaged in acts of warfare
against Israel. These acts of warfare featured anti-personnel rockets,
nearly 10,000 of them, directed at Israeli civilians. This was not only an
act of warfare, it was a war crime. Israel responded to the rockets by
declaring a blockade, the purpose of which was to assure that no rockets or
other material that could be used for making war against Israeli civilians
were permitted into Gaza.
Israel allowed humanitarian aid through its checkpoints. Egypt as well
participated in the blockade. There was never a humanitarian crisis in Gaza,
merely a shortage of certain goods that would end if the rocket attacks
ended.
The legality of blockades as a response to acts of war is not subject to
serious doubt. When the United States blockaded Cuba during the missile
crisis, the State Department issued an opinion declaring the blockade to be
lawful. This despite the fact that Cuba had not engaged in any act of
belligerence against the United States. Other nations have similarly
enforced naval blockades to assure their own security.
The second issue is whether it is lawful to enforce a legal blockade in
international waters. Again, law and practice are clear. If there is no
doubt that the offending ships have made a firm determination to break the
blockade, then the blockade may be enforced before the offending ships cross
the line into domestic waters. Again the United States and other Western
countries have frequently boarded ships at high sea in order to assure their
security.
Third, were those onboard the ship simply innocent noncombatants? The act of
breaking a military siege is itself a military act. And let there be no
mistake about the purpose of this flotilla; it was decidedly not to provide
humanitarian aid to the residents of Gaza, but rather to break the entirely
lawful Israeli military blockade. The proof lies in the fact that both
Israel and Egypt offered to have all the food, medicine and other
humanitarian goods sent to Gaza, if the boats agreed to land in an Israeli
or Egyptian port. That humanitarian offer was soundly rejected by the
leaders of the flotilla, who publicly announced: “This mission is not about
delivering humanitarian supplies, it’s about breaking Israel’s siege on 1.5
million Palestinians.”
It is a close question whether “civilians” who agree to participate in the
breaking of a military blockade have become combatants. They are certainly
something different from pure innocents, and perhaps they are also somewhat
different from pure armed combatants.
Finally, we come to the issue of the right of self-defense engaged in by
Israeli soldiers who were attacked by activists on the boat. There can be
little doubt that the moment any person on the boat picked up a weapon and
began to attack Israeli soldiers, they lost their status as innocent
civilians.
Even if that were not the case, under ordinary civilian rules of
self-defense, every Israeli soldier had the right to protect himself and his
colleagues from attack by knife- and pipe-wielding assailants. Lest there be
any doubt that Israeli soldiers were under attack, simply view the online
video and watch the so-called peaceful activists pummel Israeli soldiers
with metal rods.
Every individual has the right to repel such attacks by the use of lethal
force. That was especially true in this case, when the soldiers were so
outnumbered on the deck of the ship. Recall that Israel’s rules of
engagement required its soldiers to fire only paintballs unless their lives
were in danger.
Would any country in the world deny its soldiers the right of self-defense
under comparable circumstances?
Israel’s critics fail to pinpoint precisely what Israel did that allegedly
violates international law. Some have wrongly focused on the blockade
itself. Others have erroneously pointed to the location of the boarding in
international waters. Most have simply pointed to the deaths of so-called
peace activists, though these deaths appear to be the result of lawful acts
of self-defense.
There can be little doubt that the mission was a failure, as judged by its
results. It is important, however, to distinguish between faulty policies
and alleged violations of international law. Only the latter would warrant
international intervention, and the case has simply not been made that
Israel violated international law.
