with an eye toward objective application of the law(s).
Ben Saul is Co-Director of the Sydney Centre for International Law at The University of Sydney, a barrister, and a leading international authority on terrorism in international law. Dr Saul teaches the law of armed conflict and has been involved in such cases in The Hague, the Israeli Supreme Court, and in the Balibo coronial inquest.
Israel's response to the Gaza flotilla is another unfortunate example of Israel clothing its conduct in the language of international law while flouting it in practice. If you believe Israeli government spokesmen, Israel is metabolically incapable of violating international law, placing it alongside Saddam Hussein's Information Minister in self-awareness.
Israel claims that paragraph 67(a) of the San Remo Manual on Armed Conflicts at Sea justified the Israeli operation against the flotilla. (The San Remo Manual is an authoritative statement of international law applicable to armed conflicts at sea.)
Paragraph 67(a) only permits attacks on the merchant vessels of neutral countries where they "are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture".
Israel argues that it gave due warnings, which were not heeded.
What Israel conveniently omits to mention is that the San Remo Manual also contains rules governing the lawfulness of the blockade itself, and there can be no authority under international law to enforce a blockade which is unlawful. Paragraph 102 of the Manual 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".
The background to that 'proportionality' rule is the experience of past world wars where naval blockades had devastating effects on civilian populations.
There is little question that Israel's blockade of Gaza is disproportionate in legal terms. The proportionality rule requires an assessment of the military advantage against the harmful effects on civilians. Israel claims that the blockade is necessary to prevent Hamas from mounting indiscriminate rocket attacks on Israeli civilians.
Such attacks were well documented by the UN's Goldstone Report and are a serious security threat to Israel. Israel has every right to protect its civilians from indiscriminate terrorist attacks by Hamas.
The proportionality principle requires, however, that Israel's security cannot come at any price. A balancing of interests is necessary to ensure that civilians should not pay too dearly for the security needs of others.
Safeguarding the precious lives of innocents and respecting their dignity as fellow humans is the necessary burden that international law imposes on war. That is why Israel reveals its contempt for international law when, for example in the past, its leaders have pledged to "destroy 100 homes for every rocket fired".
The harmful effects of the blockade on Gazan civilians have included the denial of the basics of life, such as food, fuel and medicine, as well widespread economic collapse.
The UN agency on the ground, the UN Relief and Works Agency for Palestine Refugees (UNRWA), has described a "severe humanitarian crisis" in Gaza in relation to human development, health, education, "the psychological stress" on the population, high unemployment (at 45 per cent) and poverty (with 300,000 people living beneath the poverty line), and the collapse of commerce, industry and agriculture.
Such effects are manifestly excessive in relation to Israel's security objectives and cannot possibly satisfy the conditions of a lawful blockade. Disrupting wildly inaccurate rockets from being fired at relatively underpopulated areas of southern Israel cannot possibly justify the acute disruption of the daily lives and livelihoods of more than one million Gazans. Nor is it lawful to seek to pressure Hamas by instrumentally impoverishing its civilian supporters.
It seems that Israel is the only entity incapable of recognising the effects of its blockade. The United States, European Union and numerous independent sources have deeply criticised the disproportionate harm to Gazan civilians.
The UN Secretary General has condemned the "unacceptable suffering" caused by the blockade. The UN High Commissioner for Human Rights has criticised it for violating the law of armed conflict. The UN Human Rights Council, UN Humanitarian Affairs Coordinator, Oxfam and Amnesty International have all strongly condemned it.
The UN's Goldstone Report found that blockade may even amount to international crimes: "Israeli acts that deprive Palestinians in the Gaza Strip of their means of subsistence, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country… could lead a competent court to find that the crime of persecution, a crime against humanity, has been committed."
More:
http://www.abc.net.au/unleashed/stories/s2915343.htm