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For several years, the State of Israel has been engaged in an ongoing armed conflict with terrorist organizations operating in the Gaza strip. This armed conflict has intensified after Hamas violently took over Gaza, in June 2007, and turned the territory under its de-facto control into a launching pad of mortar and rocket attacks against Israeli towns and villages in southern Israel.
The State of Israel took different measures to defend its citizens from the terrorist attacks originating from the Gaza strip. Initially, all feasible steps were taken in order to avoid using extensive military force, including diplomatic and economic military measures, as well as relatively limited military operations. When these measures proved ineffective, and the barrage of rockets against the Israeli civilian population continued, and even intensified, the State of Israel had no choice but to take an extensive military action - Operation "Cast Lead".
The entire activities of Israel in this armed conflict are governed by the Law of Armed Conflict (also known as: International Humanitarian Law)
According to the Laws of Armed Conflict, a state party to an armed conflict has the right to establish a naval blockade on its enemy's coast for security reasons. A naval blockade means preventing the passage (entry or exit) of all vessels to or from the ports and coastal areas of the enemy, irrespective of the kind of cargo carried by these vessels.
The power to impose a naval blockade is well established under customary international law. It is a common practice, and even the Charter of the United Nations, when enumerating the different actions which can be taken by the Security Council in order to maintain or restore international peace and security, explicitly mentions the naval blockade among these measures (Article 42 of the Charter).
Similarly, Article 7.7.1 of the "Commander's Handbook on the Law of Naval Operations", published by the U.S Navy on July 2007 (hereinafter: The US Navy Handbook), explains that:
"Blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of enemy nation. While the belligerent right of visit and search is designed to interdict the flow of contraband goods, the belligernt right of blockade is intended to prevent vessels and aircraft, regardless of their cargo, from crossing an established and published and publicized cordon seperationg the enemy from international waters and/or airspace"
International law sets several conditions for a legal naval blockade (these conditions are reflected, for example, in the "San Remo Manual on International Law applicable to Armed Conflict at Sea" from 1994: hereinafter The San Remo Manual):
The naval blockade imposed by the State of Israel on the Gaza strip, which was violated by the vessels participating in the current flotilla, is in conformity with the aforementioned rules of international law:
In conclusion, the naval blockade imposed by the State of Israel on the Gaza strip is in accordance with international law.
Passage of a vessel through a blockaded area or entrance into it without special entry or exit authorization from the State imposing the blockade is considered a breach of the blockade. According to the Law of Armed Conflict at Sea, if there are reasonable grounds to believe it has breached a naval blockade, the State imposing the blockade is authorized to capture the vessel, and if it resists capture and refuses to stop, after prior warning, it may be attacked.
For instance, rule 1710.4 of the ICRC Model Manual of the Law of Armed Conflict for Armed Forces, published in 1999, indicates that:
"Merchant vessels believed on reasonable ground to be breaching a blockade may be captured and those which, after prior warning, clearly resist capture may be attacked".
Moreover, the State imposing the blockade may capture a vessel even prior to its entering to the blockaded area, if it is attempting to breach the Naval Blockade, i.e. is on its way to the blockaded area and there are reasonable grounds to believe it intendes to breach the Naval Blockade. Capture of a vessel attempting to breach a Naval Blockade can be done in international waters, before entrance to the blockaded area, but not in the territorial waters of neutral States.
In other words, the legal authority to capture a vessel is independent of whether at the time of capture the vessel had already entered the blockaded area or was in international waters on its way to breach the blockade.
For instance, article 7.7.4 of the U.S Navy "Commander's Handbook on the Law of Naval Operations" notes that:
"Breach of blockade is the passage of a vessel or aircraft through a blockade without special entry or exit authorization from the blockading belligerent. Attempted breach of blockade occures from the time a vessel or aircraft leaves a port or airfield with the intention of avading the blockade....It is immaterial that the vessel or aircraft is at the time of interception bound for neutral territory, if its ultimate destination is the blockaded area".
Regarding the recent incidents, all vessels taking part in the flotilla were explicitly warned by the IDF that they were approaching an area under a Naval Blockade closed to all martime traffic, and were ordered to change their cource of navigation and refraing from further attempting to breach the Naval Blockade. These vessels were also offered to dock in Ashdod port and deliver humanitarian supplies to the Gaza strip through the formal land crossings. Nevetheless, the vessels explicitly declared theirs intent to breach the Naval Blockade on the martime zoned adjacent to the Gaza strip and their course of navigation unequivocally indicated its intent to breach the Naval Blockade.
Therefore, according to International Law, Israel had the authority to capture the vessels, from the moment they left the territorial waters of neutral States. Under the circumstances, i.e. the vessel's refusal to stop or obey warnings to refrain from breaching the blockade, use of force was permissible in order to enable capture.
The IDF did not attack the vessels with cannons, machine guns or rockets and did not attempt to harm them. It took the neccessary steps in order to capture the vessels in an operation that clearly indicates vigilance and proportionality. Capture of most vessels was completed with no casualties. IDF soldiers taking part in the capture made significant efforts to refrain from using force and did so only when facing clear and immediate threat to life
Generally speaking, according to International Law, people on board a vessel captured in breach of a Naval Blockade should be repatriated as soon as possible.
On this matter, Article 7.10.2 of the U.S Navy "Commander's Handbook on the Law of Naval Operations" notes that:
"The officers and the crews of captured neutral merchants vessels and civil aircrafts who are nationals of a neutral nation do not become prisoners of war and must be repatriated as soon as circumstances reasonably permit".
In practice, since the vessel itself is caught on the high seas, people on board should be brought to a safe place (i.e. a harbor of the capturing State) and repatriated as soon as possible. In this context, due regard needs to be given to their safety and basic needs (including food and water, medical treatment if needed and reasonably sanitary conditions)/
The State of Israel has fully implemented the above obligations regarding the people on board the ships which have been captured. Foreign nationals are being treated by the Ministry of Internal Affairs in order to provide for their repatriation, and the wounded were evacuated to hospitals in Israel, some of them by helicopter. Nevertheless, activists suspected of attacking IDF soldiers will be investigated and the necessary legal measures will be taken against them.
Original piece is http://www.mag.idf.il/592-4071-en/Patzar.aspx