G. BISHARAT-Israel's Impunity From International Law

June 9, 2010

Both the Attack on the Flotilla and the Siege of Gaza are Illegal

Israel's Impunity From International Law

By GEORGE BISHARAT

Israel's deadly attack on the Gaza "Freedom Flotilla" was flagrantly illegal. The flotilla, carefully searched for arms before disembarkation, enjoyed the right of free navigation in international waters, and Israel had no legal justification to interrupt its peaceful mission.

Flotilla passengers were entitled to defend themselves against Israel's forcible boarding of the Mavi Marmara, whether or not Israeli commandos fired immediately on landing on the ship's deck, as the passengers maintain. Dropping 100 armed soldiers on a ship from the sky is not a peaceful maneuver. Nor can Israeli armed commandos claim self-defense, any more than a purse snatcher facing a victim who elects to fight back. Hence, Israel is culpable for the killings that followed.

Israel has claimed that it is in "armed conflict" with the Hamas government in the Gaza Strip and that its actions on the high seas to enforce the blockade of the Gaza Strip are therefore permissible. That claim is wrong.

In fact, under customary international law that Israel accepts as binding, Israel continues to occupy the Gaza Strip, despite the withdrawal of its ground troops and settlers from that region in 2005. A territory is "occupied" when foreign forces exercise "effective control" over it, whether accomplished through the continuous presence of ground troops or not.

Israel patrols the territorial waters and airspace of the Gaza Strip, regulates Gaza's land borders, restricts internal movements by excluding Gazans from a "buffer zone" that includes 46 percent of the strip's agricultural land, and controls the Gaza Strip's supplies of electricity, heating oil, and petrol. Together these factors amount to remote but "effective control." Thus, the Gaza Strip remains occupied, as the United Nations, the U.S. government and the International Committee of the Red Cross have all recognized.

Israel has authority to halt arms imports into the Gaza Strip. But it also owes a general duty of protection to civilians under its control, and has specific duties to allow them access to adequate food and medical supplies, and to maintain public health standards - duties it has deliberately violated in imposing the siege on Gaza. Currently 77.2 percent of Gaza Palestinians either face or are vulnerable to hunger; of these, 65 percent are children younger than 18. According to UNICEF, 10 percent of Gaza children show signs of stunting, while the World Health Organization maintains that another 10 percent face chronic malnutrition.

Moreover, collective punishment is specifically barred under Article 33 of the Fourth Geneva Convention. Israeli officials have repeatedly stated that the objective of the blockade is to weaken the Gaza economy and undermine support for Hamas. That is a political, not a military, objective, and it is impermissible under international law to target innocent civilians to achieve nonmilitary goals.

Actions taken to enforce an illegal siege cannot themselves be legal. Israel's blockade violates the human rights of Gaza Palestinians and must be brought to an end.

Israel's attack on the "Freedom Flotilla" is the logical consequence of years of Israeli impunity from international law - abetted by the diplomatic cover provided it by our government. At some point, genuine friends of both Israeli Jews and Palestinian Arabs must impress on Israel that its serial lawlessness is good for no one, multiplying resentment and pain, and pushing the prospects of regional peace into a more distant future.

George Bisharat is a professor at Hastings College of the Law and writes frequently about law and politics in the Middle East.