International Law and the Flotilla II

In the coming days, a major flotilla of pro-Palestinian activists is set to break Israel's naval blockade of the Gaza Strip in what many see as a publicity stunt wrapped in a humanitarian veneer. Whatever the motives of the flotilla, international law permits Israel to respond rather robustly, just as the Israel Defense Forces ended up having to do when it confronted the chaos of the Mavi Marmara flotilla in May 2010.

From an international law perspective, Israel is in an armed conflict with Hamas, the de facto governing authority of Gaza. Hamas has fired thousands of rockets into southern Israel in recent years as part of its concerted plan, to quote from its 1988 covenant, “to raise the banner of Allah over every inch of Palestine.” The fact that Israel is in armed conflict with Hamas means that any attempt by Israel to enforce its naval blockade must be assessed according to the law of armed conflict.

According to this body of law, premeditated lethal force can only be used against combatants and civilians who directly participate in hostilities (and only against such civilians for such time as they directly participate in hostilities). Force, in particular lethal force, cannot be used against civilians except as a last resort. Obviously, the key is to distinguish between these two types of civilians, a not always straightforward task.

When engaging with the planned flotilla, the IDF needs to proactively gather intelligence and assess it as a reasonable state would.

Its response, undoubtedly, will be colored by its experience of May 2010. This is neither surprising nor unreasonable, since the law in this area evolves in response to past “lessons learned.”

In May 2010, the IDF initially used radio warnings to prevent the Mavi Marmara flotilla from breaking the naval blockade. The flotilla, however, refused to change course or accept an Israeli offer to transfer any of its humanitarian cargo to Gaza by land. IDF attempts to disable the flotilla by boarding the Mavi Marmara were met with water hoses and blinding lights, slingshots, iron bars, axes and knives. As the almost 300-page Turkel Commission Report, released in January, put it, “the level of violent resistance on the part of the flotilla participants that was anticipated by the IDF prior to the operation was clearly underestimated.” Deaths and injuries resulted.

If the upcoming flotilla attempts to break the naval blockade and ignores radio warnings and refuses to stop its journey, the IDF should be careful not to assume that all of the passengers are civilians participating in hostilities. In regards to them, the IDF will need to exercise maximum restraint.

At the same time, however, Israel should be careful not to make the same naive assumptions about the flotilla's passengers that it made in 2010, namely that all of the passengers aboard the Mavi Marmara were committed practitioners of nonviolent civil disobedience along the lines of Gandhi or Martin Luther King Jr. This would be both folly and a dereliction of its rights under international law.

Israel should engage the planned flotilla accordingly.

Robert P. Barnidge Jr. is a lecturer at the School of Law at the University of Reading in England.