(1) Factual Outline
On 29 May 2010 the Gaza Freedom Flotilla, consisting of six civilian ships and 700 human rights activists and journalist from over 40 countries, set sail for the Gaza Strip carrying over 10,000 tonnes of aid and supplies1 for Gazan civilians. The purpose of the Flotilla was twofold: (1) to bring much needed supplies for the reconstruction of Gaza, a territory and population that remains largely in ruins after Israel bombing during Operation Cast Lead in 2008-09 and (2) to protest – a non-violent and peaceful protest – against Israel’s illegal military blockade2 against the Gaza Strip,3 which has, amongst other things, prevented any rebuilding since the Israeli bombing and engendered a humanitarian crisis.
At 04:00 on Monday 31 May 2010, Israeli naval commandoes rappelled from helicopters onto a Gaza Freedom Flotilla ship (the Mavi Marmara) while it was travelling through international waters (approximately 90 miles or 150k/m from the coast of Gaza). The ship was flying a Turkish flag. During an operation designed to gain control of the ship, the Israeli commandos opened fire on the civilians, killing at least ten (at the time of writing - this estimate is not yet confirmed: the figure could be higher) and injuring many more.
(2) Questions and Answers
(i) Why did Israel prevent the Flotilla from reaching the Gaza Strip?
Israel has imposed, as part of its general blockade against Gaza, a blockade of the coastline around Gaza (20 nautical miles), preventing ships from entering, leaving and in many cases, operating within Gazan waters. Israel argues that it acted in order to prevent the Flotilla from breaching the blockade.
(ii) Does international law permit a coastal blockade?
Imposing a blockade over a coastline is not legal under international law save in specific circumstances involving armed conflict: war must be declared (imposing a unilateral blockade is, in and of itself, an act of war) or Israel must be acting as a belligerent occupier (something which it strongly denies). Israel has declared a unilateral blockade around Gaza, arguing that it is in a state of war with Hamas. However, it is generally agreed that certain items – such as food, water, and medical supplies for the sick and wounded – are to be permitted through the blockade and that banning these items is not permitted under international law. Furthermore, with the exception of a binding decision by the United Nations Security Council,4 it is unlawful for a State to enforce a blockade against ships flying the flag of another State in the high seas.
(iii) Was the interdiction of the ship in international waters permitted under international law?
Since the ship was sailing in the high seas, the underlying basic international law principle that applies is exclusive flag jurisdiction, which was identified as part of customary international law by the Permanent Court of International Justice in 1927:
“It is certainly true that – apart from certain special cases which are defined by international law – vessels on the high seas are subject to no authority except that of the State whose flag they fly”.5
The Court went to explain that,
“[F]ailing the existence of a permissive rule to the contrary, [a State] may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention... ...[V]essels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them. Thus, if a war vessel, happening to be at the spot where a collision occurs between a vessel flying its flag and a foreign vessel, were to send on board the latter an officer to make investigations or to take evidence, such an act would undoubtedly be contrary to international law. ...A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State of the flag of which it flies, for, just as in its own territory, that State exercises its authority upon it, and no other State may do so.”6
Since the ship was flying a Turkish flag it was only subject to Turkish jurisdiction.
International law does provide that warships may interfere with the passage on the high seas of ships flying the flag of another State in limited circumstances. Article 22(1) of the 1958 Geneva High Seas Convention (which sets out customary international law, and to which Israel is a party):
“Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is a reasonable ground for suspecting:
a. that the ship is engaged in piracy; or
b. that the ship is engaged in the slave trade; or
c. that, though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.”
This Article is repeated in Article 110(1) of the 1982 United Nations Convention on the Law of the Sea, to which Israel is not a party.
These exceptions were not relevant in this incident in that none of these grounds existed and there was no reasonable basis on which any of these grounds could be suspected.
In addition, the 1988 IMO Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (to which Israel is a party) likely makes the actions of the Israeli navy unlawful. Article 3 provides:
1. Any person commits an offence if that person unlawfully and intentionally:
a. seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or
b. performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship;
...
g. injures or kills any person, in connection with the commission or attempted commission of any of the offences set forth in subparagraphs (a) to (f).
Article 13 further provides:
1. States Parties shall co-operate in the prevention of the offences set forth in Article 3, particularly by:
a. Taking all practicable measures to prevent preparations in their respective territories for the commission of those offences within or outside their territories;...
