Interview with Richard Falk: Legal dimensions of Israel aid attack
UN Expert on Palestine and TNI Fellow Richard Falk talks about the legal aspects of Israel's violent attack on the Humanitarian Aid Flotilla in international waters and the blockade of Gaza.
EH: Professor Falk, what is the legality of the Israeli blockade in Gaza in accordance with the San Remo Manual on International Law applicable to armed conflicts at Sea?
RF: The San Remo Manual was drafted by a series of experts and former diplomats over a period between 1987 and 1994 to provide guidance as to the use of force on the oceans and other international waters. The Manual is not a legal document, but represents an informed opinion of specialists as to the agreed content of customary international law applicable to combat situations. The announced intention of the Manual was to be partly declaratory of existing international law and to a degree expressive of desirable developments to deal reasonably with belligerent activities on the seas not addressed in law by past international practice. Because there is no treaty law on the subject the San Remo Manual has been quite influential in filling the gap, a kind of soft law that if accepted by states becomes customary international law over time.
Although it is always possible for partisan legal experts to provide an opinion favouring one side or the other, an impartial reading of the Manual makes it clear in this instance that the Israeli naval attack on the Freedom Flotilla was unlawful beyond a reasonable doubt. For instance, Article 47 (c)(3)(ii) of the Manual exempts vessels from attack if “engaged in humanitarian missions, including vessels carrying supplies indispensable for the survival of the civilian population.” In more general terms, the San Remo Manual, Articles 36-42 underscores the obligation of any attack at sea to be aimed solely at strictly military targets, and to take precautions to ensure that civilians are not harmed. In the instance of the May 31st naval attack it was widely known that these ships were on a humanitarian mission, that the civilian population of Gaza had long been deprived of food, medicine, and building materials necessary for their normal life.
The Manual somewhat controversially does authorize the establishment of a blockade under certain wartime conditions. It is controversial as the UN Charter prohibits all uses of force that cannot be justified as self-defence against a prior armed attack (Article 2(4), 51), and a blockade of Gaza is obviously unlawful for this reason alone. Even if the Charter is not considered, given Articles 93-101 of the Manual, this blockade would be unlawful under Article 102(b), which prohibits a blockade if “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.” This blockade, established as of June 2007, has been designed mainly to keep food, medical supplies, and fuel from the civilian Gazan population, with severe adverse health consequences. The alleged military objective of preventing the importation of weaponry was adequately addressed by Israel border control. It was widely acknowledged by Israeli leaders over the period that the purpose of the blockade was punitive, either to punish the population for giving support to Hamas in the 2006 elections or to cause the collapse of Hamas because the civilian population would rather have the blockade ended than suffer the hardships imposed as a result of and retaliation for Hamas governance. Neither justification provides a valid legal basis for establishing the blockade.
There are also a series of technical problems that confirm this conclusion of illegality. Gaza according to the international community is occupied territory subjecting Israel to the duty to uphold the protection of the civilian population. Israel claims that it is engaged in an armed conflict with Gaza so long as it is controlled by Hamas, but this contention assumes that the Israeli disengagement of 2005 ended the occupation and its duties under international humanitarian law, a claim that is generally rejected. Even if the Israeli position on occupation is accepted, the blockade is still unlawful. A blockade can only be validly declared, if at all, only in relation to an enemy state, and Gaza is not a state. This means that Gaza cannot be lawfully blockaded in relation to the navigational activities of other states or of the United Nations.
Finally, even if the blockade were to be considered lawful from the perspective of armed conflict, it would be unlawful, even a crime against humanity, under Article 33 of the Fourth Geneva Convention, which unconditionally prohibits collective punishment. In short, Israel has no legal basis for claiming a right to establish a blockade of the Gaza Strip, and thus any attempt on its part to enforce compliance is itself an act of aggression against the state whose flag is properly flying on the ship attacked. Here the criminality of the Israeli behavior was intensified by the use of excessive and disproportionate force, by the coldblooded execution of several peace activists who were captured, by the terroristic nature of the boarding at night, by firing live ammunition at peace activists when other methods of apprehension were available, and by coercively and abusively removing activists from the ships and holding them in detention, and confiscating their personal goods including especially video and audio records of the attacks.
EH: Do passengers have the legal right to sue the State of Israel for the Attack on the Flotilla?
RF: A civil suit by the passengers against the perpetrators or the responsible Israeli political and military officials associated with the attack or its authorization could certainly be initiated in several sovereign states, which establish such an option. The United States has an old law that has been recently relied upon, the Tort Claims Act. This legislation allows victims to sue for damages; it has been used to hold accountable a security officer alleged to have engaged in torture carried out in Paraguay in the famous Filartiga case of 1980. Other countries have similar laws, and it is necessary to examine what is possible in each place.
EH: Israel says that the blockade is for Security reasons, how do you respond to that?
RF: Israel as the occupying power can act to uphold it security in Gaza, but this must be done in a manner that protects the occupied population. Israel was exercising effective control over activities bearing on its security. The contention that these boats in the Flotilla were carrying weaponry was clearly known by the Israeli government to be false as the ships had been credibly inspected before departing from their various ports of embarkation. As indicated above, Israel cannot establish a blockade in circumstances where there is no proper international conflict and where civilian population is enduring hardships on a catastrophic scale. Also, there were virtually no lethal incidents of violence emanating from Gaza in the months preceding the attack rendering alleged Israeli anxieties about security of no legal relevance.
EH: In terms of the people on board the Flotilla, Israel is saying that those on board the ships were violent activists not humanitarians and that they were armed with weapons and was not peaceful people? How would you respond to that?
RF: Israel’s narration of the facts seems flawed, an exercise in disinformation. Furthermore, an attack at night launched from the air is bound to give rise to terrorized passengers, including impulses among some passengers to do whatever was possible to protect themselves. If, as I believe, the attack was unlawful, then the passengers had a right of self-defence, and certainly not Israel. The claim that the peace activists broke their own pledge to one another not to resist in the event of an Israeli attack is of no legal relevance.
EH: In accordance with International Law could the Israeli attack on the Gaza Aid Flotilla be considered an act of War?
RF: It is certainly an act of aggression under the UN Charter, and an act of war by reference to customary international law. Whenever force is used in situations other than in situation where a proper claim of self-defence is made, the undertaking is unlawful, and if as here, it is an instance of flagrant non-defensive force, the attacker is engaged in criminal conduct and both the offending state and the perpetrators acting on behalf of the should be held responsible, and to the extent international crimes took place, held accountable.
EH: Why hasn’t the UN moved using the framework of International law and Geneva?
RF: International law has the mechanisms to enforce international law against Israel, the law is on its side in this situation, but the UN lacks the political will to implement international law in accordance with its institutional framework. The United States, has long protected Israel and its leadership from accountability in relation to international law, and continues to do so. It manages to do this effectively despite mounting pressures from governments and public opinion to end this regime of Israeli impunity. The UN can do no more or less than what its most powerful member states are prepared to do. The main challenge to Israeli unlawful behavior associated with the occupation of Palestinian Territories now comes from civil society. Israel has itself disclosed its worries about ‘the delegitimation project,’ which is taking various forms, perhaps most prominently, in the BDS(Boycott, Divestment and Sanctions) Campaign. Such pressures from below resulting from the May 31st attacks have led even governments friendly to Israel and many political leaders around the world to complain bitterly, and sometimes for the first time, about the Israeli blockade of Gaza, leading Israel to relent in response, partially lifting restrictions on humanitarian goods being sent to Gaza. Whether Israel is merely mollifying world public opinion in the angry aftermath of the attacks of the Freedom Flotilla, or is prepared to recast its policy to comply with international humanitarian law, only the future will tell. Based on past experience, vigilance is urged as Israel is quite capable of appearing to give in to international demands, while merely suspending its harsh policies for implementation until the pressures weaken.
EH: It seems that the U.N. Security Council remains politically impotent and refuses to penalize Israel for the killings of nine pro-Palestinian civilians on a ship carrying humanitarian aid to Gaza, what is the next course of action? How do you respond to that?
RF: The initial response is the same as to the prior question. Turkey has already made public its grievances, including to the UNSC of which it is a term member. It would be desirable, in the event that the UN cannot take action, that citizens around the world organize their own tribunal, document the facts on the basis of evidence, interpret the law in an impartial spirit, and urge governments, the UN, and all sectors of civil society to act in compliance with the guidelines of the BDS (Boycott, Divestment and Sanctions) campaign, as well as offer emergency protection to the peoples of Gaza. If international norms were applied without double standards the ‘responsibility to protect’ doctrine should lead the international community to protect the Palestinians against severe abuse under prolonged occupation, not only in Gaza, but also with respect to the West Bank and East Jerusalem.
EH: Has Israel Violated Article 3 of the Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988?
RF: It depends on whether SUA (Suppression of Unlawful Acts) is interpreted to extend to ‘state terrorism’ of the sort illustrated by the May 31st attacks. This treaty was negotiated and widely ratified as a response to the Achille Lauro incident a Palestinian violent attack on an Italian merchant ship in 1985. The language of Article 3 certainly would seem to describe the unlawful conduct of the Israeli attackers except for the technical difficulty arising from their status as agents of the state of Israel. Article 3(1)(b) seems substantively relevant to establish criminality as it declares that “any person commits an offense if that person unlawfully and intentionally performs an act of violence against a person on board a ship is that act is likely to endanger the safe navigation of that ship.” Also Article 3(1)(g) and Article 3(2) reinforce this impression of unlawful conduct by the May 31st attackers. There is no good reason of law or policy as to why the SUA Convention, to which Israel is a party, should not also apply to state terrorism, and if it does, it reinforces the judgment that the Israeli naval attack on the Freedom Flotilla was unlawful.
EH: Israel states that Maritime blockades are a legitimate and recognized measure under International law and may be implemented as part of an armed conflict at Sea, what are your thoughts?
RF: For reasons given above, this blockade is neither legitimate nor legal. Its principal overriding purpose was to harm a civilian population living under difficult conditions in any event. Whatever security concerns were present did not require a blockade to address, and the blockade is not an acceptable means, in any event, of achieving security, especially under conditions of occupation.
EH: According to Israeli sources, Israel will conduct an investigation on the Gaza flotilla incident and it is not necessary for an International Inquiry. How do you respond to that?
RF: Such an investigation lacks credibility for several reasons. Past Israeli investigations, for instance, of criminal allegations arising from the Israeli attacks of Dec 27 2008 to Jan 18 2009 produced an official investigation that was a complete whitewash, and failed to address analysis and conclusions of the international inspection as contained in the Goldstone Report. Here the prospects of impartiality and credibility are no better. The Israeli leadership has already pronounced its insistence on the legality of the attacks, and has tasked the inquiry commission appointed by the Israeli government to validate those claims; furthermore, according to the Israeli mandate, the commission is not allowed to obtain by questioning the soldiers involved in the attacks, making it impossible to develop a convincing account of the events. Finally, the vicious personal attacks launched against Richard Goldstone, a lifelong Zionist, after his report in 2009 confirmed condemnation of Israeli practices during the Gaza War would certainly intimidate anyone living in Israel who in this Flotilla instance reached conclusions critical of Israel on legal, moral, and political grounds. An Israeli would be under even greater pressure than Richard Goldstone, a citizen of South Africa, to reach conclusions supportive of the Israeli government’s position.
EH: Do you believe in a global civil society campaign to de-legitimize Israel?
RF: Yes, I think the global shock resulting from the May 31st attacks have strengthened the campaign to de-legitimize Israel. The aftermath of these attacks demonstrates the effectiveness of the tactics of delivery of humanitarian goods by sea of the Freedom Flotilla, and before it of the Free Gaza Movement. All along the organizers declared their main intention was to breach the blockade symbolically, and by so doing call world attention to the criminality of the blockade and the suffering it was causing the people of Gaza. Since May 31st as a result of the outpouring of censure and grassroots anger, pressures are leading Israel to take steps to abandon the blockade, or at least to modify it so that humanitarian goods can enter Gaza unimpeded, although we must await the future to assess whether Israel really does live up to this commitment. In effect, by challenging the blockade civil society achieved what governments and the UN was unable or unwilling to do. The global Palestine solidarity movement is now seriously threatening Israel’s legitimacy, especially in relation to the occupation, in a manner that has not existed ever since the occupation started in 1967.
EH: Many believe that the US has lost its influence as an honest broker in the Middle East Peace process. How do you respond to that?
RF: It was always a sign of Palestinian weakness to accept the US as the intermediary. It could never serve as ‘an honest broker,’ as it was openly aligned with Israel. The USG has never made a secret of its unconditional support for Israel, and Israel, even without the backing of Washington, has in any event the bargaining advantages that derive from their policies of ‘creeping annexation’ (settlements, residence requirements, house demolitions, ethnic cleansing) that has allowed it in past negotiations to exclude completely issues of Palestinian rights under international law from the diplomatic interactions encompassed by ‘the peace process’ (better understood as an ‘annexation process.’). Such an exclusion is crucial as international law is on the Palestinian side for all contested issues (boundaries, settlements, Jerusalem, refugees, water). This continuing reliance on the US should be treated as unacceptable in relation to seeking a just and sustainable peace. Allowing the United States to mediate is comparable to a husband insisting that his law partner and closest friend determine the terms of a divorce settlement with his estranged and impoverished wife.
EH: Lastly, It has been one year since President Obama’s Speech to the Muslim World, what are your reflections on the aftermath of that speech as far as accomplishments in narrowing the gap between the U.S. and the Muslim World?
RF: I think the speech, with its lofty rhetoric, has by now caused widespread disillusionment, and has failed to improve the situation. As always, ‘actions speak louder than words.’ Here Obama showed an absence of backbone evident, his promises of balance and concern for Palestinian self-determination abandoned as soon as challenged by Tel Aviv and the Netanyahu government. Actually, Obama never offered much of a tangible nature to the Palestinians, but even the modest move he made (an Israeli freeze on all settlement construction, which as unlawful should have been permanently stopped and the settlements dismantled) was challenged by Tel Aviv, and soon dropped by Washington. If Obama had called for this implementation of international law as a preconditions for peace negotiations then it would be possible to conclude that the USG was moving toward balance and that it meant to take international law seriously in addressing the conflict. As of now, unfortunately, the correct impression is to note the essential continuity between the Obama administration and the Bush presidency. In fact with expanded ‘special operations’ US forces operating unlawfully throughout the Islamic world, an increasing danger of military action against Iran, and a gruesome escalation of warfare in Afghanistan bringing much suffering the new American foreign policy seems even more dangerous and destructive than previously. The USG during the Obama presidency has clearly not abandoned its imperial ambitions or approach with respect to the Middle East, and its present behavior offers no support for the Palestinian people in their ongoing struggle for self-determination. Only the de-legitimation movement creates some hope that the Palestinian struggle is beginning to resemble the anti-apartheid struggle during its last stages. Whether this civil society success can produce a political outcome supportive of the long Palestinian struggle to achieve peace with justice remains to be seen.