The Palmer Commission, appointed by the UN secretary-general to investigate the events surrounding the Gaza flotilla in 2010, is supposed to publish its report tomorrow (we’re not holding our breath or putting much weight on it, since it’s been delayed several times already to give Israel and Turkey a chance to come to “an agreement on language”). According to media reports, the commission is likely to find that Israel was within its rights to stop the vessels on their approach to Gaza, but will criticize the excessive use of force during the operation. Below, Gisha offers responses to several questions regarding legal status of the flotilla, the closure, and the connection between the two.
1. According to international law, is Israel permitted to block sea access and stop vessels heading for the Gaza Strip?
Yes, but at the same time it must allow the free passage of goods by alternative channels. Israel has prevented maritime access to the Gaza Strip since 1967 by virtue of its authority as an occupying power and in accordance with the laws of occupation as defined by international law. These laws continue to apply to the Gaza Strip following the implementation of Israel’s Disengagement Plan in 2005, since Israel still controls key aspects of life in the area. The laws of occupation permit Israel to decide through which channels goods and people will enter and leave the Gaza Strip. Although Israel has invited vessels to unload their cargo at Ashdod Port, it does not allow all the civilian goods on board to enter the Gaza Strip by land after security inspection.
2. Does that imply that Israel’s maritime closure of the Gaza Strip is lawful?
No. In our opinion, the legality of the maritime closure must be considered in the context of the overall closure of the Gaza Strip, which is also enforced by air and land. In this context, Israel has failed to meet its legal obligations. It is a fundamental principle of international law that with control comes responsibility; this in order to avoid a situation where no side takes responsibility for the protection of civilians during wartime or in situations of occupation. Accordingly, the substantial control Israel exercises over the crossings into the Gaza Strip imposes an equally substantial responsibility to permit the movement of people and goods at the level required in order to maintain the proper functioning of the economy, the health and education systems, and other aspects of civilian life. Israel is permitted to prevent the passage of merchandise or people only if there is a concrete security reason for doing so, and even then it must strike a balance between its security needs and its obligation to maintain normal life in the occupied territory. By preventing the passage of civilians and goods of a civilian nature to and from the Gaza Strip, Israel has paralyzed the economy of the area and caused substantial damage to key aspects of civilian life. In so doing, it has violated its obligations under international law, rendering its policy of closure – including the maritime closure – unlawful.
3. So according to this principle, during a violent conflict it is not permissible to use sanctions and other economic tools that hamper the enemy’s war effort but which also injure the population?
Not exactly. The case of the Gaza Strip differs substantially from sanctions imposed by one state on another. The closure of the Gaza Strip does not merely restrict the commercial relations of the area with Israel, but with the entire world. Accordingly, the closure cannot be considered to be the realization of Israel’s sovereign right not to maintain commercial relations with the area. The imposition of sanctions on commerce between the Gaza Strip and third countries is permissible only with the agreement of these countries, or in accordance with a binding resolution of the United Nations. Such action certainly deviates from Israel’s authority. Moreover, the closure does not meet the legal definition of a siege, which may be imposed in accordance with international law for a fixed period and in order to secure a defined military objective. To the best of our knowledge, the protracted closure has no defined military objective; additionally, it does not permit the free passage of civilians from the besieged area as required by law.
4. But after the flotilla, the restrictions were relaxed. Doesn’t that mean that the closure is lawful now?
No. Following the 2010 flotilla, the State of Israel introduced certain relaxations in the closure policy. The prohibition against the transfer of consumer products and raw materials was abolished; Israel permitted approximately 1,000 exits per month by merchants from the Gaza Strip to Israel and the West Bank; and certain localized gestures were announced, including allowing entrance of building materials for international organizations and the export of negligible quantities of merchandise produced in the Gaza Strip. The sweeping prohibitions on the passage of people between the Gaza Strip and the West Bank apart from “humanitarian exceptions”, on the entrance of building materials for the private sector and export or sale of goods outside the Strip remained in force. The relaxations which were implemented are important, but fall far short of what is needed in order to permit economic and social recovery in the Gaza Strip, and fail to meet Israel’s legal obligations, as we have explained. In order to render its policy toward the Gaza Strip lawful, Israel must lift the sweeping restrictions that remain and allow transfer of construction materials, export of goods and travel of people between Gaza and the West Bank, subject to individual security inspections.