Blockade is no licence to kill, experts say

LONDON // The Israeli foreign ministry has produced a legal defence of its actions in boarding the "Freedom Flotilla" and the killings that followed. Experts in international law, however, question whether the Israeli defence stands up to forensic scrutiny. Basically, Israel's case is that a maritime blockade, a recognised instrument in international law during armed conflict, was in effect off the coast of Gaza, and that the sailors and the passengers in the flotilla were fully aware of this.

"A blockade may be imposed at sea, including in international waters, so long as it does not bar access to the ports and coasts of neutral states," the foreign ministry adds. "Any vessel that violates or attempts to violate a maritime blockade may be captured or even attacked under international law." As far as the killings were concerned, Israel claims that its commandos "attempting to enforce the blockade were met with violence by the protesters and acted in self-defence to fend off such attacks".

But Douglas Guilfoyle, an expert in international law and lecturer at University College London, said there were legal constraints on enforcing a blockade. For example, he said, one should not be "implemented or continued if the civilian population is going to suffer excessive damage in relation to the military advantage". He added: "Where we see controversy is that the situation in Gaza is such that insufficient aid is getting through and that would lead to a serious questioning of whether the blockade was legal in the first place."

Mr Guilfoyle said boarding a vessel on the high seas was legal under the precedent established in a 1994 agreement called the San Remo Manual on Naval Warfare, and that would normally include "putting soldiers on a boat to try and turn it round". He added: "The question is the degree of force used - whether this was a deliberate use of force to stop the vessel, which some have claimed, or whether it was a case of actual, or mistaken, self defence, which the Israelis seem to be saying.

"Going on to a vessel and killing 10 people would clearly seem to be excessive in terms of enforcing a blockade." But that is not Israel's version of events, he said. "Their version is that they went on as peaceably as possible to try and turn it around and were confronted with some kind of situation that got out of hand and that their people responded in self-defence - possibly excessively and possibly illegally, but that's not about the law of blockade, that's about the law of self defence."

Greg Barns, an Australian barrister and commentator on international affairs, believes that those in Israel who ordered and took part in the boarding should be investigated for possible commission of crimes against humanity "even allowing for the Israeli version of events to be accepted as truth". He said that even if the blockade was legal, that the Free Gaza Movement had a history of smuggling arms and the Israeli commandos acted in self-defence, nothing could make it legitimate to kill and wound so many non-military individuals.

Mr Barns said the international law that applied was the UN's 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which states that "in carrying out their duty, [officials] shall, as far as possible, apply non-violent means before resorting to the use of force and firearms". It adds that "they may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result" and that if the use of force and firearms is unavoidable, those officials "will exercise restraint in such use and act in proportion to the seriousness of the offence".

Mr Barns said: "It is hard to see how in circumstances where, on Israel's own admission, it had military and weapons superiority over the passengers and crew of the flotilla, that opening fire and killing 10 or more individuals and wounding several others was anything other than inflicting unnecessary suffering. "Israel has a poor history of investigating its own for crimes against humanity, and it repeatedly snubs attempts for the international community to have such a power by refusing to sign on to the jurisdiction of the International Criminal Court.

"But there is no way that it can stop the world making a moral judgment in this case, because on its own version of events it has presented a prima facie case of serious breaches of international human rights law." @Email:dsapsted@thenational.ae