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Home > Vol 19, No 1 (2013) > Spelman

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Abstract

On 31 May 2010, Israeli naval forces boarded and seized the “Mavi Marmara”, the largest ship in an international aid flotilla which had sought to breach the Israeli naval blockade of the Gaza Strip. The incident sparked an international outcry and prompted debate regarding the legality of the Israeli naval blockade. The details concerning the subsequent investigations and findings were published in the Israeli Turkel Report dated 23 January 2011, the Turkish report dated 11 February 2011, and the UN Palmer Report which was provided to the UN Secretary General on 2 September 2011. The findings of the Turkel, Turkish, and UN Palmer Reports are not binding, and so it remains that to date the relevant legal issues have not been authoritatively determined.

This paper provides a detailed examination of the legality of the Israeli naval blockade of the Gaza Strip. Section 1 examines what a naval blockade is and identifies the applicable legal framework. Section 2 considers the development of the law concerning the naval blockade and establishes what it is today. Section 3 examines Israel’s compliance with the law of the blockade as stipulated by the San Remo Manual, for the most part. The findings of the Turkel, Turkish, and the UN Palmer Reports are also considered in detail. Finally, Section 3 briefly considers whether the naval blockade may be deemed illegal under other humanitarian law provisions.

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Contents

A. Introduction

(i) The Scope of this Paper

(ii) The Outline of this Paper

Section 1:

1.1 The Blockade
1.2 The History of the Conflict and the Present Situation
1.3 The Legal Framework: Occupied Territory
1.4 The Legal Framework: Armed Conflict
1.5 The Legal Framework: IAC and NIAC

Section 2:

2.1 The Law of Naval Warfare
2.2 The 1856 Paris Declaration
2.3 The 1909 London Declaration
2.4 The Oxford Manual 1913
2.5 Developments between 1913 and 1988
2.6 The San Remo Manual

Section 3:

3.1: The Requirements for a Legal Naval Blockade
3.2 Israel’s Compliance with the Law Governing the Imposition of the Naval Blockade
3.3 The Findings of the Turkish Report
3.4 The Findings of the Palmer Report
3.5 The Effect of the Naval Blockade In Addition to the Closure Policy under IHL

B. Conclusion

Bibliography:

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A. Introduction

On 6 January 2009 the Israeli naval blockade of the Gaza Strip was announced under the Notice to Mariners No. 1/2009 (hereinafter Naval Blockade Notice). (1)

According to Israel, it was imposed in order to prevent the entry of terrorists and weapons into the Gaza Strip, (2) and to weaken Hamas both economically and politically. (3) The naval blockade was soon subjected to international scrutiny when on 31 May 2010, Israeli naval forces boarded and seized the “Mavi Marmara”, a Turkish ship and the largest ship, in an international aid flotilla which had sought to breach the naval blockade. (4) During the incident, nine passengers were shot dead, and fifty-five passengers and nine Israeli soldiers were injured. (5) The incident sparked an international outcry and prompted debate concerning the naval blockade. The Secretary General of the United Nations (hereinafter UN) called for a full investigation into the incident, (6) which was reiterated by the President of the UN Security Council. (7)

The subsequent investigations necessitated an analysis of the legality of the Israeli naval blockade. Israel established a Public Commission which published its report (hereinafter Turkel Report) on 23 January 2011. (8) Turkey set up a National Commission of Inquiry which published its report (hereinafter Turkish Report) on 11 February 2011. (9) Whilst a UN Human Rights Council (hereinafter UNHRC) Report was published on 27 September 2010, it mostly considered the attack on the flotilla alone. (10) However, a UN Panel of Inquiry was set up to make “findings about the facts, circumstances and context of the 31 May incident”, (11) and the resultant Palmer Report (hereinafter Palmer Report) was provided to the UN Secretary General on 2 September 2011. (12) It is important to note that the findings of the Turkel, Turkish, and Palmer Reports are not binding, and so it remains that to date, the relevant legal issues have not been authoritatively determined.

This paper examines the relevant legal issues applicable to and surrounding the Israeli naval blockade of the Gaza Strip and also considers the findings of the Turkel, Turkish and Palmer Reports.

(i) The Scope of this Paper

This paper examines the circumstances surrounding the imposition of the naval blockade and how this impacts on the applicable law. It accepts, for the reasons set out below that Article 51 of the United Nations Charter, (13) (hereinafter UN Charter) concerning self-defence is not relevant for the purposes of this paper. It also accepts that the naval blockade again for the reasons set out below, is governed by the law of naval warfare that applies during an armed conflict at sea. The development of this law is considered in detail and this culminates in an examination of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1994 (hereinafter San Remo Manual), (14) which provides the most up to date restatement of the law concerning the naval blockade. For the most part, International Humanitarian Law (hereinafter IHL) is considered by this paper insofar as it has been incorporated into the San Remo Manual. This paper accepts that human rights law applies during armed conflict and during occupation, except when relevant derogations are properly invoked. (15) However, the legality of the Israeli naval blockade under human rights law will not be considered. This paper accepts that the naval blockade was imposed on the Gaza Strip alongside, but separate to, the land and air closures imposed on the Gaza Strip (hereinafter Closure Policy), (16) which commenced in September 2007. (17) This is an important distinction, and as discussed below, has a significant impact on the findings of this paper. Whilst some reference will be made to the Closure Policy as well as to other Israeli restrictions that are in place on the Gaza Strip, their legality will not be considered. Finally, this paper will not consider any legal breaches by Hamas.

(ii)The Outline of this Paper

This paper is comprised of three Sections. Section 1 examines what a naval blockade is and identifies the legal framework that applies to the Israeli naval blockade of the Gaza Strip. This requires a brief consideration of the history of the conflict, and an examination of the nature of the conflict between Israel and Hamas. Issues and definitions such as occupation, recognition, armed conflict, International Armed Conflict (hereinafter IAC) and Non-International Armed Conflict (hereinafter NIAC) are briefly examined and applied where possible.

Section 2 considers the law of naval warfare to which the Israeli naval blockade of the Gaza Strip is subject. There is no complete treaty which governs naval warfare, (18) and so the development of the law concerning the naval blockade and the reasons behind the same are examined in order to firmly establish what it is today.

Section 3 examines Israel’s compliance with the law of the blockade as stipulated by the San Remo Manual, for the most part. Israel’s position which is set out largely in the Turkel Report and to a much lesser extent on the Israeli Defence Force (hereinafter IDF) and the Israeli Ministry of Foreign Affairs websites is considered in detail. The findings of the Turkish Report as well as the Palmer Report are also considered in detail. Finally, Section 3 briefly considers the position that the Israeli naval blockade may be considered illegal in itself, if its effect in addition to the Closure Policy, is considered to be disproportionate under IHL, and / or in furtherance of unlawful methods of warfare.

Section 1

1.1 The Blockade

A blockade is a method of warfare, (19) imposed “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 an enemy nation”. (20) The blockade was originally regarded as a naval measure, similar to a siege in land warfare. (21) It has developed beyond naval measures to encompass land, technological, (22) and air blockades. (23) A blockade is often fundamental to a military conflict, (24) and requires the blockading state or entity to exercise dominance over the blockaded state or entity. (25) It does not usually directly achieve an immediate military result, (26) but instead isolates, (27) and exerts pressure on the blockaded state or entity, (28) by obstructing its trade and damaging its economy, (29) which inevitably affects its military resistance. (30) Under Article 42 of the 1945 UN Charter, the UN Security Council is permitted to impose pacific blockades, (31) to “maintain or restore international peace and security”. (32) Examples of relatively recent naval blockades include the 1966 United Kingdom’s (hereinafter UK) naval blockade of Beira which was authorised by UN Security Council Resolution 221; (33) the 1971 Indian naval blockade of Pakistan; (34) and the 2006 Israeli naval blockade of the Lebanon. (35)

Naval blockades should not be confused with exclusionary or war zones, (36) which serve to inform others that a war is taking place, and that caution should be exercised by those who enter a particular sea area. (37) Whilst all shipping is excluded from the sea area, it is not prevented from enemy ports. (38) Blockades should not be confused with trade barriers such as embargoes, which are less restrictive and do not constitute warfare. A relatively recent example is the arms embargo imposed on Libya by UN Security Council Resolution 1973 (2011), under which the inspection of reasonably suspected vessels and aircraft bound to or from the Libyan Arab Jamahiriya is required. (39)

This paper accepts that the Israeli naval blockade of the Gaza Strip is part of an Israeli military “dual strategy” against Hamas, (40) imposed alongside, but separate to, the Closure Policy. This finding appears to be evident from a brief examination of the history of the conflict.

1.2 The History of the Conflict and the Present Situation

The present situation in the Gaza Strip has its basis in the 1948 Arab-Israeli War. (41) Israeli occupation began in 1967, (42) and according to Israel ended in 2005 when its soldiers were withdrawn. (43) It is unsettled as to when exactly the conflict with Hamas began. (44) Hamas, the largest Palestinian militant Islamic movement, (45) became a party to the conflict since it was formed in 1987. (46)

Following the success of the Hamas-affiliated party in the Palestinian Legislative Council elections in January 2006, (47) Israel began to impose economic and political constraints on the Gaza Strip. (48) On 19 September 2007 Israel announced that the Gaza Strip was a “hostile territory”, (49) and invoked a Closure Policy involving inter alia restrictions on the movement of goods in and out of the Gaza Strip. (50) There was an ongoing reduction in sea access. Under the Notice to Mariners No. 6/2008 dated 13 August 2008, (51) Israel declared a maritime zone off the coast of the Gaza Strip and stated that all shipping was prohibited and that humanitarian aid could be transported through the land crossings. (52) Sea access for Gazan fishermen was reduced to 15 per cent of what had been agreed under the Oslo Accords. (53) As an alleged act of self-defence in response to rocket attacks, (54) Israel commenced the Operation Cast Lead military attack on the Gaza Strip which lasted from 27 December 2008 to 18 January 2009. (55) Under the Notice to Mariners No. 1/2009 dated 6 January 2009, (56) the naval blockade of the Gaza Strip was announced. (57)

In June 2010, Israel eased the Closure Policy to only prohibit goods with a military purpose, and in December 2010 it announced that a plan would be introduced regarding the export of goods from the Gaza Strip. (58)Despite this since February 2011 there are only two operative crossings between the Gaza Strip and Israel: Kerem Shalom, the fuel and cargo crossing, (59) and Erez, the pedestrian crossing. (60) The crossing into Egypt at Rafah remains largely closed. (61) Israel also controls the airspace over the Gaza Strip through the use of aircraft surveillance and unmanned aviation vehicles or drones. (62) In contrast to the changes implemented as regards the Closure Policy, the naval blockade has remained constant and effective since its imposition. According to Israel, and as discussed further below, no ship has been permitted through the blockade since its imposition. The Naval Blockade Notice states that the naval blockade remains in place until further notice.

In order to establish which law applies to the naval blockade, the legal framework which applies to the Gaza Strip must first be established.

1.3 The Legal Framework: Occupied Territory

Article 42 of the 1907 Hague Regulations states that: "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”. (63) This has led to the development of the “effective control” test to identify occupation. (64)

Israel maintains that the Gaza Strip is neither occupied nor part of a sovereign state. (65) Instead, it describes the Gaza Strip as “administered” or “disputed”. (66) Israel has indicated that it will abide by the “humanitarian provisions” set out in the Fourth Geneva Convention (hereinafter GC IV), (67) but that the treaty itself does not apply. (68) As Israel is not a signatory to Additional Protocol I (hereinafter AP I), (69) or Additional Protocol II (hereinafter AP II), (70) it maintains that they also do not apply. (71) Some argue that air and sea authority of itself does not amount to effective control, (72) and that Israel is merely exercising its rights concerning border control. (73) Moreover, they point to the fact that the Palestinians have exercised their right to self-determination, (74) and that Israel does not have a permanent military presence in Gaza, as evidence that Hamas has “effective control” over the Gaza Strip (75) The issue has been considered a number of times by the Israeli Supreme Court. (76) The current position of the Israeli Supreme Court which is that the Gaza Strip has not been occupied since 2005, was reiterated by the Israeli Supreme Court in Anbar et al v GOC Southern Command et al HCJ 5268/08; joined with Adalah et al v the Defense Minister et al, HCJ 5399/08. (77)

However, despite the aforementioned views and Israeli caselaw, the more commonly held view, and the view accepted by this paper, is that despite Israel’s disengagement, the Gaza Strip remains occupied by Israel. The “effective control” is evident from Israel’s control over Gazan airspace and waters, the Gazan border and crossings; the provision of electricity, fuel, water, sewage removal and telecommunication services; administration; and the Israeli reservation to re-enter Gaza and exercise power. (78) Dinstein noted that it is also difficult to accept the Israeli Supreme Court decision in the case of Gaber Al-Bassiouni v The Prime Minister HCJ 9132/07, which stated that even though the Gaza Strip is not occupied, Israel still has duties towards it. (79) Moreover, in the International Court of Justice (hereinafter ICJ) Opinion dated 9 July 2004 concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (hereinafter Wall Opinion), the ICJ found that Israel is the occupying power in the Gaza Strip and the West Bank. (80) Various organs of the UN have also stated unequivocally that the Gaza Strip is an occupied territory. (81)

As the Gaza Strip is occupied, Israel has IHL duties towards it under the Hague Regulations of 1907 and Part III of the GC IV, (82) as well as under human rights law. (83) However, Israel’s right to use force is also restricted and military action on the basis of self-defence is not permitted. (84) This view is supported by the Wall Opinion where the ICJ held that Article 51 could not be invoked against the West Bank, and so some argue, and this paper agrees, that the same conclusion can be applied to the Gaza Strip. (85) As a result, this paper will not consider the application of Article 51 of the UN Charter concerning self-defence in relation to the legality of the Israeli naval blockade of the Gaza Strip.

1.4 The Legal Framework: Armed Conflict

The widely accepted criteria for an armed conflict, (86) is set out at paragraph 70 of Prosecutor v Dusko Tadić, Case No. IT-94-1, which provides:

“an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups ... International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.” (87)

Some argue that the hostilities between Israel and Hamas may not be of sufficient magnitude to constitute an armed conflict. (88) Israel accepts that it is in a state of armed conflict with Hamas. (89) This paper accepts that as there is protracted armed violence between Israel and Hamas amounting to an armed conflict, IHL applies until peace is concluded.

1.5 The Legal Framework: IAC and NIAC

IHL recognises two types of armed conflicts: IACs and NIACs. (90) IACs encompass conflicts which involve “two or more High Contracting Parties”, (91) and conflicts in which “people are fighting against colonial domination and alien occupation and against racial regimes in the exercise of their right of self-determination”, (92) and are governed by AP I. NIACs are those remaining conflicts which take place “between a [High Contracting Party’s] armed forces and dissident armed forces or other organized armed groups ... over a part of its territory ...”, (93) and are governed by AP II.

Israel maintains that the conflict with Hamas meets the criteria for an armed conflict, (94) however, Israel does not recognise Palestine as a state, (95) and has not identified the conflict with Hamas as an IAC or a NIAC. (96) In the Public Committee Against Torture in Israel v The Government of Israel HCJ 769/02, (commonly referred to as the “Targeted Killings” case), the Israeli Supreme Court deemed the conflict to be international in nature, (97) and held that customary rules of international law form part of Israeli law. (98) Israel maintains that it applies the rules concerning both IACs and NIACs to the armed conflict. (99) Some argue that the conflict between Israel and Hamas is an NIAC. (100) Even if it is accepted that the conflict is an NIAC, this paper maintains that it does not preclude the imposition of a naval blockade. It is noted that the right to implement naval blockades during NIACs remains uncertain as they were implemented during the NIACs of the US Civil War, and (arguably) the Israeli conflict against Hezbollah in the Lebanon in 2006. (101)

Moreover, there have been attempts to extend the law that applies during IACs to also apply during NIACs, and to ensure that IHL treaties cover both IACs and NIACs. (102) The Goldstone Report noted that features of NIACs and IACs can manifest in the same armed conflict and concedes that the classification of a conflict as an NIAC or IAC is not essential. (103) Dinstein argues that it is irrelevant whether a belligerent recognises its opponent, as, so long as both belligerents satisfy objective criteria of statehood under international law, any war between them should be classified as an IAC. (104) Guilfoyle argues that it is possible for the laws of IAC and NIAC to apply simultaneously in certain circumstance. (105)

This paper will not seek to classify the conflict between Israel and Hamas as an IAC or an NIAC definitively. If it is accepted that Israel applies the rules concerning both IACs and NIACs to the armed conflict, a classification is not required for the purposes of this paper. In any event, the issue of whether the conflict is an IAC or NIAC is only relevant if the law applied in each situation is different, (106)which is not the case here. As will be discussed in Section 2, the law concerning the naval blockade is governed by the San Remo Manual which applies to both IACs and NIACs. The development of the relevant law and in particular the applicable provisions of the San Remo Manual will now be considered.

Section 2

2.1 The Law of Naval Warfare

There is no complete treaty which governs naval warfare, (107) which initially developed by way of customary international law. (108) In view of this, it is worthwhile examining the development of the law concerning the blockade, and the reasons behind the same, so as to establish what it is today. As outlined below, there has been some codification in the form of the 1856 Paris Declaration Respecting Maritime Law, the 1909 London Declaration concerning the Laws of Naval War, the Oxford Manual on the Laws of Naval War Governing the Relations Between Belligerents, and the San Remo Manual. These codifications have sought to take into account, inter alia, the Hague Conventions, the Geneva Conventions, AP I and AP II, and relevant state practice. (109)

2.2 The 1856 Paris Declaration

The 1856 Paris Declaration Respecting Maritime Law (hereinafter Paris Declaration) merely indicated that in order for a blockade to be binding, it “must be effective-that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.”(110)

2.3 The 1909 London Declaration

The London Declaration concerning the Laws of Naval War (hereinafter London Declaration) was drawn up by ten leading naval powers in 1909. (111) The UK regarded the London Declaration as a means to record a set of generally recognised principles of general international law. (112) It was also intended to be a tool for the International Prize Court and national prize courts. (113) The London Declaration was more progressive than anticipated by the UK and contained a mixture of old and new rules to govern naval warfare. (114)

Chapter 1 of the London Declaration concerning a “Blockade in Time of War” runs from Article 1 through to Article 21 inclusive. (115) It considers the blockade an operation of war imposed by warships. (116) The imposition of a blockade is subject to four main conditions, (117) which stipulate that the blockade: (1) must be declared and notified;(118) (2) must be effective, which is deemed a question of fact; (119) (3) must be applied impartially to all ships; (120) and (4) cannot prevent access to the ports and coasts of neutral states. (121) The London Declaration stipulates form and content specifications for the declaration of the blockade, which if not adhered to, render the blockade void. (122) Finally, the London Declaration indicates that any ship in breach of the blockade is liable to capture and condemnation. (123)

The London Declaration could not be ratified because of a number of unresolvable concerns. (124) One concern related to the requirement of a close blockade, (125) which entailed placing warships within sight of the blockaded coast or port. (126) The UK’s House of Lords correctly anticipated that the development of long-range weapons and means of transport would make the imposition of such a blockade impossible. (127) Another concern lay with the law of contraband which appeared to be undermined. (128) Under the London Declaration, the blockading state or entity could control traffic to enemy ports on the basis of the enemy destination, irrespective of the cargo, but under the law of contraband, the nature of the cargo was essential. (129) When the UK did not ratify the London Declaration, it was not ratified by any state. (130) Despite this, states did proceed to implement the provisions of the London Declaration, including the new rules. (131) The text of the London Declaration was provided in the instructions to UK naval officers when World War 1 (hereinafter WWI) broke out. (132) Shortly thereafter, the US government requested that the London Declaration be implemented by all states. (133)

2.4 The Oxford Manual 1913

The Second International Peace Conference at the Hague in 1907 made a request "that the preparation of regulations relative to the laws and customs of naval war should figure in the programme of the next Conference". (134) This led to the formation of a special committee in 1910, which prepared a draft manual similar to the Oxford Manual on Land Warfare of 1880. (135) In 1913, the Institute of International Law adopted the Oxford Manual on the Laws of Naval War Governing the Relations Between Belligerents (hereinafter Oxford Manual). (136) It was hoped that the Oxford Manual, which contains 117 articles, would constitute a complete naval warfare rulebook. (137) However, the Oxford Manual only refers to the blockade at Article 30 where it indicates that a blockade may be imposed according to the rules of international law. (138) The real value of the Oxford Manual lies in the attempt to contribute to the development of the law of naval warfare. (139) However it omits many issues, (140) and does not clarify issues which prevented the ratification of the London Declaration.

2.5 Developments between 1913 and 1988

The development of long-range weapons and defences, as well transport and trade progress rendered close blockades futile, (141) and this was evident from the naval warfare tactics implemented during WWI and World War II (hereinafter WWII). (142) Legal developments also required that the law of the blockade be reviewed. The conclusion of WWII resulted in an examination of the treatment of all persons involved in armed conflict. (143) This led to the formulation of the 1949 Geneva Conventions and AP I and AP II. (144) Territorial seas were extended to twelve miles under the 1982 UN Convention on the Law of the Sea (hereinafter UNCLOS), (145) and this impacted on the practicality of the close blockade. (146) Finally, the 1958 and 1982 UNCLOS, the UN Charter, and developments in environmental law and air law all had to be taken into account by the law of naval warfare. (147)

2.6 The San Remo Manual

The San Remo is a non-binding document. (148) It was drafted between 1988 and 1994 by legal and naval experts (hereinafter Participants) taking part in Round Table discussions, under the auspices of the International Institute of Humanitarian Law. (149) The Participants considered treaties, state behaviour during conflicts, recently drafted national military manuals, judicial decisions and writings. (150) They found that the principle IHL provisions usually associated with land warfare applied to naval warfare. (151) The resultant San Remo Manual restates customary law and suggests a new legal regime which is compatible with state practice and related areas of law concerning certain issues. (152) It differs from previous naval warfare documents in that it considers the UN Charter and IHL developments, the concept of the military objective, new military methods, the environment and aircraft. (153) However, the issues of state responsibility and the means of implementation and enforcement of the San Remo Manual were not covered, as it was believed that the general rules of IHL and general international law applied. (154) The Explanation to the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (hereinafter Explanation to the San Remo Manual) provides detail concerning the reasoning for its provisions. (155)

Part I of the San Remo Manual is entitled “General Provisions”. (156) Paragraph 1 of the San Remo Manual, states that the “parties to an armed conflict at sea are bound by the principles and rules of international humanitarian law from the moment armed force is used”. (157) Therefore any engagement between the naval forces of two or more states may fall within the scope of this definition. (158) According to Doswald-Beck, a rapporteur for the Round Table discussions, the Participants decided against expressly excluding NIACs so as to encourage the application of the humanitarian rules in such conflicts. (159) Despite this clarification, some argue that the San Remo Manual applies exclusively to IACs as Paragraph 1 does not correctly reflect customary international law. (160) Paragraph 2 of the San Remo Manual is a “modern version of ... the Martens Clause”, (161) and provides that any matter which is not addressed by the San Remo Manual remains subject to customary law and the dictates of humanity and public conscience. (162) Paragraph 3 of the San Remo Manual indicates that the rights of belligerents are subject to the law of self-defence as set out under Article 51 of the UN Charter. (163) The Participants maintained that the requirements of self-defence, i.e. necessity and proportionality, would impact upon the methods of naval warfare employed by belligerents. (164) Paragraph 4 states that the principles of necessity and proportionality apply to armed conflicts at sea and should not be excessive for the purposes of repelling an attack and restoring security. (165)

Part III of the San Remo Manual entitled “Basic Rules and Target Discrimination” sets out the principles of distinction and military objective which are enshrined in AP I, (166) at Paragraphs 39 to 41 inclusive. (167) Under Paragraph 39, civilians or other protected persons must be distinguished from combatants and military objectives. (168) Under Paragraph 40, legitimate military objectives are defined similarly to Article 52(2) of AP I, (169) as “objects which by their nature, location, purpose or use make an effective contribution to military action and whole total or partial destruction ... offers a definite military advantage”. (170) Under Paragraph 41, attacks are limited to military objectives, (171) however, there is a carve-out for “Merchant vessels and civil aircraft ... [which are] ... military objectives in accordance with the principles and rules set forth in this document.” (172) Finally, under Paragraph 42, methods of warfare which cause unnecessary suffering or are indiscriminate and cannot be limited as set out in the San Remo Manual are unlawful. (173) From this, it can be concluded that the blockade, which can affect an entire population, cannot be deemed unlawful per se, so long as it complies with the relevant provisions at Paragraphs 93 – 104 inclusive.

Section II of Part IV of the San Remo Manual entitled “Methods of Warfare” sets out the provisions concerning the blockade at Paragraphs 93 -104 inclusive. It retains the four main conditions established by customary international law, (174) which stipulate that the blockade: (1) must be declared and notified;(175) (2) must be effective, which is deemed a question of fact; (176) (3) must be applied impartially to all vessels; (177) and (4) cannot prevent access to the ports and coasts of neutral states. (178) The San Remo Manual also indicates that any ship in breach of the blockade is liable to capture and if a ship resists capture after a prior warning, it may be attacked. (179) The San Remo Manual differs from the London Declaration in a number of ways concerning the provisions regarding blockades. There is less detail concerning the form and content specifications for the declaration and notification of the blockade, and there is more flexibility regarding the enforcement and maintenance of the blockade which may be carried out by a “combination of legitimate methods and means of warfare”. (180) According to the Explanation to the San Remo Manual, this prohibits the enforcement of a blockade solely by weapon systems unless they are used to avoid endangering legitimate maritime trade. (181) It was also recognised that a blockade of air space above sea areas could be required and so it was agreed that in such instances the general principles of blockade as set out in the San Remo Manual apply. (182) The blockading state or entity is also obliged to permit ships to breach the blockade in certain circumstances, for example when a ship is in distress. (183) The enforcement of a blockade is no longer limited to close blockades, (184) and the San Remo Manual accepts that distant blockades are legal if effective. (185)

Finally, the San Remo Manual also considers the effect of the blockade on the civilian population of the blockaded state or entity and in this regard implements to a large extent, Articles 54(1), 51(5)(b) and 70 of AP I. (186) This is the greatest difference to previous codifications as far as the law of the blockade is concerned and can be considered the fifth condition to be fulfilled for the blockade to be deemed legal. (187) Civilian populations are at risk when a lengthy blockade is imposed. (188) At the very least, there may be difficulties in obtaining nutritious foodstuffs and resisting disease. (189) The San Remo Manual recognises this, and so Paragraph 102 of the San Remo Manual indicates that a blockade is prohibited if (a) its sole purpose is to starve the civilian population, or if (b) the damage to the civilian population as a result of the blockade is excessive in relation to the military advantage. (190) Paragraph 102(a) is similar to the provisions under Article 54(1) of AP I, whilst Paragraph 102(b) is similar to the principle of proportionality set out under Article 51(5)(b) of AP I. (191) Some Participants criticised Paragraph 102(a) on the basis that it rendered a blockade inherently illegal, however, the majority decided that as the words “sole purpose” were used, this was not the case. (192) Other Participants were concerned that the legality of the blockade relied on the blockading state’s or entity’s purpose. (193) Indeed, it appears that the blockade will remain legal even if starvation is a side-effect, so long as foodstuffs and other essential supplies are provided to the civilian population as per the subsequent provisions. (194) As discussed later, it is difficult to apply the principle of proportionality under Paragraph 102(b) to a blockade as it is too speculative to evaluate. (195) Under Paragraph 103, if the population of the blockaded state or entity requires “food and other objects essential for its survival”, the blockading state or entity must provide the same, subject to any technical arrangements it prescribes and this must take place under the local supervision of a “Protecting Power or a humanitarian organization”. (196) The passage of medical supplies, again subject to the blockading state’s or entity’s technical arrangements, must be permitted under Paragraph 104. (197) Some argue that the paragraphs of the San Remo Manual go beyond Article 70 of AP I, (198) in that the blockading state or entity is obliged to allow passage of relief shipments through the blockade in the circumstances set out under Paragraph 103. (199)

The Palmer Report notes that the San Remo Manual is regarded as an authoritative restatement of the law of naval warfare. Indeed many states have adopted the San Remo Manual provisions in the instructions for their naval armed forces. (200) For example, it has influenced some sections of the new German Manual, (201) as well as the UK’s Manual of The Law of Armed Conflict, and the US Commander’s Handbook on the Law of Naval Operations. (202) This suggests that it is achieving the status of customary international law. (203) Moreover, the International Law Association adopted the Helsinki Principles on the Law of Maritime Neutrality in 1998, which are compatible with the San Remo Manual. (204) Despite this, there are critics who maintain that parts of the San Remo Manual are outdated and hinder successful naval operations. (205) For example, some point to the absence of a definition of a blockade in the San Remo Manual, and the lack of detail concerning the use of military aircraft. (206) Others note with concern that the San Remo Manual’s checks are balanced against a state’s military advantage, which is a matter of interpretation for the state implementing the San Remo Manual and more particularly for the relevant military commanders whose views may not accord with the views of the international community. (207)

Despite the abovementioned reservations, the progress that the San Remo Manual has made concerning the furtherance of IHL principles in naval warfare cannot be understated. Whilst this paper agrees that it is a drawback that some of the provisions of the San Remo Manual are open to the interpretation of the blockading state or entity, it must also be kept in mind that if the San Remo Manual had been too prescriptive, it may not have been as widely implemented. Israel has sought to justify the legality of the naval blockade of the Gaza Strip by way of reference to its compliance with the San Remo Manual. However, the Turkish Report maintains that the San Remo Manual does not apply at all or insofar as it is found to apply, Israel has not complied with various provisions. This paper will now consider those arguments in more detail.

Section 3

3.1: The Requirements for a Legal Naval Blockade

Provided that it is accepted that the San Remo Manual applies to the Israeli naval blockade of the Gaza Strip, there are five main conditions concerning the imposition of a legal naval blockade during the course of an armed conflict which Israel must fulfil. The San Remo Manual stipulates that the naval blockade: (1) must be declared and notified; (208) (2) must be effective, which is deemed a question of fact; (209) (3) must be applied impartially to all vessels; (210) (4) cannot prevent access to the ports and coasts of neutral states;(211) and (5) must comply with certain humanitarian law obligations. (212) Israel maintains that it has fulfilled these conditions and its evidence is set out largely in the Turkel Report and to a much lesser extent on the IDF and the Israeli Ministry of Foreign Affairs websites. Israel’s compliance with each condition is considered in turn below. The arguments which were set out in the Turkish Report as to why it finds the Israeli naval blockade illegal are then examined. The findings of the Palmer Report, which were largely in support of Israel’s arguments, are then also considered. Finally, as it was considered by the Turkel, Turkish, and Palmer Reports, this Section briefly considers whether the naval blockade can be considered illegal in itself, if its effect in addition to the Closure Policy, is considered to be disproportionate under IHL and / or in furtherance of unlawful methods of warfare.

3.2 Israel’s Compliance with the Law Governing the Imposition of the Naval Blockade

Israel maintains that the naval blockade was properly declared and notified. (213) The naval blockade of the Gaza Strip began on 3 January 2009 and was announced on 6 January 2009. (214) The Naval Blockade Notice stated: “All mariners are advised that as of 03 January 2009, 1700 UTC, Gaza maritime area is closed to all maritime trafic (sic) and is under blockade imposed by Israeli Navy until further notice”(215) and also provided the geographical boundaries of the naval blockade by way of coordinates. (216) It was published on international channels, (217) and on the IDF, Shipping Authority and Ministry of Transport websites. (218) Israel informed all vessels in the Mediterranean Sea about the naval blockade, transmitted the announcement twice daily to vessels located within 300 kilometres of the Israeli coast, and notified states which Israel knew had planned to send ships to the Gaza Strip. (219) Israel asserts that the naval blockade has always been effective as no vessels have been permitted through, (220) and that it has been enforced impartially and without discrimination against the vessels of all states. (221) Israel also maintains that the naval blockade of the Gaza Strip has not prevented access to the ports and coasts of neutral states. (222)

As regards Israel’s humanitarian obligations under the San Remo Manual, the Turkel Report concedes that it is possible that the naval blockade, combined with the Closure Policy, affects the civilian population of the Gaza Strip. (223) However, it finds that there is no evidence that Israel is trying to starve the population of the Gaza Strip. (224) It also accepts Israel’s position that “food insecurity” is not the same as “starvation”. (225) It finds that the civilian population has not been denied objects for its survival and notes that Israel has permitted the passage of required items as well as humanitarian aid. (226) The Turkel Report therefore concludes that there is no breach of Paragraph 102(a) of the San Remo Manual. (227) As regards Paragraph 102(b) of the San Remo Manual and whether the damage to the civilian population is excessive in relation to the military advantage anticipated from the naval blockade, the Turkel Report accepts that it is difficult to assess the humanitarian repercussions of the naval blockade when it is examined separately to the Closure Policy that has been enforced since September 2007. (228) It notes that as there was no Gazan port, there had been limited maritime trade via the Gaza Strip, and there are no records to refer to. (229) It also notes that when humanitarian aid arrives by vessel, it is diverted to the Israeli port at Ashdod whereupon it is subjected to the Closure Policy. (230) The Turkel Report also notes that Israeli caselaw supports the finding that Israel has complied with its obligations under Paragraphs 102(a) and 103 of the San Remo Manual. (231) Finally, the Turkel Report refers to an International Committee of the Red Cross (hereinafter ICRC) report which suggests that medical supply stocks are low because of disagreement between Palestinian authorities, and not because of Israel’s non-compliance with Paragraph 104 of the San Remo Manual. (232)

Whilst the naval blockade does appear to have been properly declared and notified, this paper finds that there was a three day delay between its imposition and declaration, and so the first three days were not properly declared and notified. Under Paragraph 94 of the San Remo Manual, “the declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral states may leave the blockaded coastline”. (233) This paper notes that the Naval Blockade Notice does not specify the duration of the naval blockade or the period within which vessels of neutral states may leave the blockaded coastline. The Turkel Report indicates that there was a lack of clarity in international law as to whether it was necessary to specify the duration as this was not a requirement under the London Declaration or under the US Commander’s Handbook on the Law of Naval Operations. (234) It also finds that it was not possible to provide a duration specification due to the “open ended nature of the conflict with Hamas”. (235) However, this paper argues that this is not a convincing submission. Israel is acting inconsistently by seeking to rely on the San Remo Manual and declaring that it wishes to comply with international law, while also claiming that there is a lack of clarity in the law when a requirement is not met.

The Naval Blockade Notice also did not provide details concerning the “extent” of the naval blockade as per Paragraph 94 of the San Remo Manual. Unfortunately, the Explanation to the San Remo Manual does not provide any details regarding this provision save that it is “self-explanatory”. (236) Between 2007 and 2010, Gazans received less than one quarter of the volume of imported supplies that they had received in December 2005. (237) It appears that a specific list of what was not allowed into the Gaza Strip was never published, and it was reported that items which were allowed in, changed over time. (238) In June 2010 a list of prohibited items was published, and from December 2010, it was agreed that a gradual policy would be implemented whereby goods could be sold outside of Israel and to the West Bank. (239) Whilst “extent” is not defined by the San Remo Manual, this paper finds that in failing to provide sufficient detail until June 2010, Israel did not meet this requirement.

The Turkel Report notes that human rights and humanitarian organisations have found that there is a real humanitarian crisis in the Gaza Strip whereas Israel does not accept that there is one. (240) Despite Israel’s position, the overwhelming tenor of the information that has been considered by this paper is both largely consistent and critical of Israel. The UNHRC Report on the Flotilla Incident notes that the naval blockade and Closure Policy worsened existing difficulties in the Gaza Strip. (241) It finds that refugee “abject poverty” has tripled, 80 per cent of the population receive humanitarian aid, 61 per cent of households are food insecure and the unemployment rate is over 40 per cent. (242) It concludes that the naval blockade combined with the Closure Policy causes disproportionate damage to the civilian population. (243) In early 2011 the UNOCHA examined the impact of the easing of the land crossings policy in June 2010. (244) It found that the relaxed measures resulted in little relief as far as the humanitarian situation in the Gaza Strip is concerned. (245) The ICRC has also noted the harmful consequences of sea access restrictions on the Gazan fishing community. (246) It stated in a news release dated 14 June 2010 that almost 90 per cent of Gazan's 4000 fishermen are recognised as “poor” or “very poor”, which is an increase in poverty of 40 per cent since 2008. (247) Moreover, Israel’s view of what constitutes “starvation” may be incorrect as Guilfoyle notes that “starvation” may have the ordinary definition of “to cause hunger”. (248) Nevertheless, there is no firm evidence to suggest that starvation is the sole purpose of the naval blockade for the purposes of Paragraph 102(a) of the San Remo Manual. It is even more difficult to assess Israel’s compliance with Paragraph 102(b) of the San Remo Manual concerning proportionality. The proportionality principle is concerned with whether damage to the civilian population is disproportionate to the military gain. (249) This is difficult to apply to the naval blockade as not only does it require hypothetical estimates of the damage caused, (250) but this paper accepts that it requires the effect of the naval blockade to be examined separately to the Closure Policy. Paragraph 102(b) of the San Remo Manual specifically refers to the damage anticipated from the blockade and not the damage anticipated from the blockade and other measures in place. To consider the naval blockade combined with the Closure Policy would require a wider interpretation of the San Remo Manual than the Participants had perhaps intended. Whilst this paper accepts that the civilian population of the Gaza Strip is clearly suffering as a result of the naval blockade and the Closure Policy, it cannot make a finding as to what exact damage, or, that disproportionate damage has been brought about by the naval blockade alone. Therefore this paper cannot reach a final conclusion regarding Israel’s compliance with the fifth condition regarding the humanitarian law provisions.

3.3 The Findings of the Turkish Report

The Turkish Report maintains that as Israel occupies the Gaza Strip, it is precluded from imposing a lawful naval blockade. (251) Moreover, it indicates that the San Remo Manual applies to IACs only and so cannot be relied upon by Israel as it does not recognise Palestine or classify the conflict with Hamas as an IAC. (252) Section 1.3 of the Explanation to the San Remo Manual is referred to in support of its argument that the law concerning the blockade at Paragraphs 93 – 104 inclusive of the San Remo Manual is not “automatically applicable to any conflict” as the law then affects neutral states. (253) However, this paper notes that the final vital sentence of that section is omitted which indicates “However, it is clear that once measures of economic warfare against neutral shipping or aircraft are carried out by a belligerent, the rules indicated in this document must be respected.” (254) In view of this, and for the reasons already outlined in Section 2 above, this paper accepts that the San Remo Manual applies to both IACs and NIACs.

The Turkish Report argues, without conceding its position that the San Remo Manual does not apply, that Israel has failed to comply with conditions set out in the San Remo Manual. (255) It criticises Israel for not providing a duration specification in the Naval Blockade Notice, (256) and for not providing details of the extent of the naval blockade, (257) as discussed above.

The Turkish Report maintains that as the blockade restricts the importation of all items including ordinary consumer items, it has a punitive impact. (258) It argues that as Israel allowed a greater number of goods into the Gaza Strip from July 2010, it recognised that it had previously acted unlawfully. (259) For the reasons already outlined above, many of the earlier findings of the Turkish Report are accepted by this paper, however it is too far-reaching to suggest that by later permitting more goods into the Gaza Strip, Israel recognized the unlawfulness of its earlier actions. The Turkish Report maintains that a naval blockade of sorts has been imposed on the Gaza Strip since 1995, when a 20 nautical-mile zone was established. (260) This was followed by Israel declaring the Gaza Strip and the 20 nautical-mile zone a “hostile zone” in 2007, a “combat zone” in 2008 and a “military enclosure” in 2009. (261) The Turkish Report maintains that the naval blockade has been imposed arbitrarily as six voyages took place to the Gaza Strip during 2008. (262) For the reasons outlined in Section 1 above, it is accepted by this paper that there has been an ongoing reduction in sea access for Gazans since 2007. However, a reduction in sea access is not tantamount to a naval blockade, and as the naval blockade was not declared until 6 January 2009, and appears to have been implemented consistently and effectively since that date, the Turkish Report has not provided any evidence as to the alleged arbitrariness of the naval blockade.

As regards Israel’s humanitarian obligations, the Turkish Report states that the naval blockade is a measure with effects far in excess of Israeli security needs. (263) It maintains that in practice, the naval blockade cannot be examined separately from the Closure Policy. (264) As far as Paragraph 102(a) of the San Remo Manual is concerned, the Turkish Report asserts that the majority of the civilian population in the Gaza Strip has to endure a food shortage and to indicate that they are on a “diet” (as allegedly stated by an Israeli advisor) is commensurate with an intention to starve. (265) However, even if this argument is accepted, the Turkish Report has not shown that starvation was the sole purpose of the naval blockade. The Turkish Report refers to the principle of proportionality at Paragraph 102(b) of the San Remo Manual and finds that the naval blockade is disproportionate as it has worsened an existing humanitarian crisis. (266) It maintains that in order to comply with the principle of proportionality, only items that can be used against Israel can be prohibited. 267) However, this is not a requirement of the San Remo Manual. Moreover, the Turkish Report does not appear to provide any evidence as to why the naval blockade alone has violated the principle of proportionality. Instead it considers the effect of the naval blockade and the Closure Policy together. The Turkish Report argues that Israel is obliged to allow humanitarian aid to be delivered and vessels carrying the same cannot be attacked. (268) However, this is a misreading of the San Remo Manual which under Paragraph 103 allows the “free passage of such foodstuffs and other essential supplies, subject to the right to prescribe the technical arrangements, including search ...” and then under Paragraph 98 states “Merchant vessels which, after prior warning, clearly resist capture may be attacked.”

Finally, the Turkish Report indicates that the law concerning naval blockades is based on the principles of proportionality, necessity, and reasonableness, (269) and states that the principle of reasonableness “could replace traditional principles of establishment, effectiveness and respect for neutral rights” and that under the principle of reasonableness, states can adapt their blockade policy so as to meet their requirements. (270) Again, these findings are not supported by the San Remo Manual and it is unclear from where the Turkish Report has drawn these conclusions.

3.4 The Findings of the Palmer Report

The Palmer Report finds that the circumstances of the Gaza Strip are unique and that both it and Israel are “distinct territorial and political areas”. (271) It maintains that the conflict should be treated as an international conflict for the purposes of the law of the blockade and finds that the naval blockade was imposed as a legitimate security measure, (272) exercised by Israel pursuant to its right to self-defence. (273) The Palmer Report provides little detail to support its conclusion concerning the nature of the conflict and simply indicates that its findings “rest upon the facts as they exist on the ground” which it deemed sufficient for its mandate. (274) It is interesting that in reaching this relatively unsubstantiated conclusion, the Palmer Report appears to disregard the findings of the ICJ and various organs of the UN which have stated unequivocally that the Gaza Strip is an occupied territory and as such, Article 51 of the UN Charter does not apply. However, in Appendix 1 to the Palmer Report it is noted, similar to the findings of this paper, that the application of the San Remo Manual is not limited to IACs. (275)

The Palmer Report finds that the naval blockade was properly declared and notified and that as the blockade was imposed “until further notice”, a sufficient duration against a backdrop of a continuing conflict has been specified. As regards the extent of the blockade, the Palmer Report finds that the nature of a blockade is to affect all maritime traffic and argues that it is therefore not necessary to limit the prohibited goods – a measure which it argues could blur the distinction between blockade and contraband. (276) However, this paper submits that these findings regarding duration and extent appear to contravene the spirit of the San Remo Manual.

The Palmer Report finds there was no evidence to demonstrate that the intention of the blockade was to starve or collectively punish the population of the Gaza Strip. (277) It finds that the naval blockade is separate to the Closure Policy as the Closure Policy was in place sometime before the naval blockade; Israel has kept its Closure Policy restrictions separate to the naval blockade; and the naval blockade had the legally sound basis of preventing weapons from reaching the Gaza Strip. (278) The Palmer Report also notes that Israel permits essential humanitarian aid to enter the Gaza Strip via the Israeli port of Ashdod. (279) The Palmer Report recommends that the naval blockade be kept under regular review, (280) and as it is a measure of self-defence, recommends that it should be reported to the Security Council under Article 51 of the UN Charter. (281)

3.5 The Effect of the Naval Blockade In Addition to the Closure Policy under IHL

This paper accepts that there is firm evidence that the civilian population of the Gaza Strip is suffering as a result of the naval blockade and the Closure Policy. The Turkel, Turkish and Palmer Reports examine Israel’s compliance with the principle of proportionality under IHL, and the charges that Israel is implementing unlawful methods of warfare in the form of starvation, and collective punishment. Guilfoyle considers that if the naval blockade is found together with the Closure Policy to be disproportionate under IHL and / or in furtherance of unlawful methods of warfare, then the naval blockade must itself be illegal. (282) However as this proposition is potentially the basis for another paper, it will only be considered briefly here, in the interest of completeness.

Proportionality is a tenet of IHL. (283) Guilfoyle finds that the naval blockade is in breach of the principle of proportionality as, inter alia, it was integral to a military strategy which did not meet humanitarian needs. (284) The Turkel Report argues that “considerable” damage does not equate to “excessive” damage, (285) and finds that Israel has limited the suffering of the Gazan civilian population by monitoring and adjusting its policy as regards goods that are allowed through the crossings, (286) which is subject to the review of the Israeli judicial system. (287) It concludes that Israel has complied with the principle of proportionality. (288) However the Turkish Report finds that the naval blockade is disproportionate as it has worsened an existing humanitarian crisis. (289) The Palmer Report finds it difficult to assess the impact of the naval blockade on the population of the Gaza Strip in isolation from the Closure Policy. It notes, inter alia, that the amount of goods which were entering the Gaza Strip by sea, prior to the imposition of the naval blockade, was low. In view of this, it finds that either of itself, or, in combination with the Closure Policy restrictions, the effect on the humanitarian situation is low. Therefore it finds that the naval blockade did not have a significant humanitarian impact and so of itself, is not disproportionate. (290) The Palmer Report could not make a finding as to whether the combined effect of the Closure Policy and the naval blockade rendered the naval blockade disproportionate but noted that the Closure Policy needs to be alleviated. (291)

Under Article 54(1) of AP I, “Starvation of civilians as a method of warfare is prohibited”. (292) Insofar as the naval blockade combined with the Closure Policy have caused hunger, (293)they could be considered to be in breach of Article 54(1) of AP I. Collective punishment is prohibited by Article 33 of GC IV which provides that “No protected person may be punished for an offence he or she has not personally committed”. (294) It is also prohibited by Article 75(2)(d) of AP I, (295) and Article 50 of the Hague Regulations. (296) The Turkel Report maintains that any unintended effect of the naval blockade and the Closure Policy on the civilian population of the Gaza Strip is mitigated by Israel’s monitoring and coordinating of humanitarian aid, (297) whereas the Turkish Report finds that the naval blockade and Closure Policy amount to collective punishment of the Gazan population. (298) The overwhelming view of the UN (prior to publication of the Palmer Report) was that the naval blockade, combined with the Closure Policy amounts to collective punishment of Gazans. The UNHRC Report on the Flotilla Incident finds that the naval blockade combined with the Closure Policy causes disproportionate damage to the civilian population and amounts to collective punishment. (299) In early 2011 the UNOCHA found that the naval blockade and Closure Policy may amount to collective punishment. (300) The ICRC states that the naval blockade and Closure Policy constitute collective punishment. (301) The Palmer Report notes that the findings of the Turkish Report and the UNHRC Report on the Flotilla Incident in this regard, rest on the premise that the naval blockade was indivisible from the Closure Policy. The Palmer Report finds that, for the reasons already outlined, the naval blockade is divisible from the Closure Policy and so finds that there was no evidence that the naval blockade of itself was intended to starve or collectively punish. (302)

B. Conclusion

This paper examined the legality of the Israeli naval blockade of the Gaza Strip. Section 1 examined what a naval blockade is and identified the legal framework that applies to the Israeli naval blockade of the Gaza Strip. It argued that the Gaza Strip is an occupied territory to which Israel has IHL and human rights law duties and against which it cannot invoke Article 51 of the UN Charter regarding self-defence. It also found that Israel and Hamas are engaged in an armed conflict to which IHL applies. Finally, Section 1 concluded that it is unnecessary to classify the conflict between Israel and Hamas as an IAC or a NIAC, not least because the San Remo Manual which governs the imposition of a naval blockade, applies to both.

Section 2 considered the law of naval warfare to which the Israeli naval blockade of the Gaza Strip is subject. The development of the law concerning the naval blockade and the reasons behind the same, were examined in order to establish what it is today. Section 2 established that the most recent restatement of the law in the form of the San Remo Manual takes into account inter alia the Hague Conventions, the Geneva Conventions and AP I and AP II, as well as relevant state practice. (303) The provisions of the San Remo Manual concerning the blockade were considered in detail.

Section 3 examined Israel’s compliance with the law of the blockade pursuant to the San Remo Manual. Whilst Israel maintains that it has complied with the San Remo Manual, the Turkish Report disagrees. Their findings and arguments which are set out, for the most part, in the Turkel and Turkish Report respectively, were examined. The Palmer Report, which ultimately finds that the naval blockade is a legitimate security measure that has been implemented in accordance with international law, was also considered.

In conclusion it appears that Israel did comply for the most part with four of the five main conditions under the San Remo Manual, except as regards the first three days of the naval blockade. As regards Israel’s failings in relation to these four conditions, it was noted that Israel failed to fulfill certain requirements by not specifying a duration for the naval blockade, or the period within which vessels of neutral states may leave the blockaded coastline. Israel also failed to provide details concerning the extent of the naval blockade. As regards the fifth main condition under the San Remo Manual concerning the humanitarian law provisions, this paper accepts that the civilian population of the Gaza Strip is clearly suffering as a result of the naval blockade and the Closure Policy. However, this paper cannot conclude definitively what exact damage, or, that disproportionate damage has been brought about by the naval blockade alone, as stipulated by Paragraph 102(b) the San Remo Manual. In view of these findings, it has not been possible to reach a final conclusion as to whether the naval blockade complies with the requirements of the San Remo Manual.

Finally it is noted in Section 3 that it is arguable that if the naval blockade is found together with the Closure Policy to be disproportionate under IHL and / or in furtherance of unlawful methods of warfare, then the naval blockade may of itself be deemed illegal. (304) However, this is a matter which requires more detailed examination.

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United Nations Security Council Presidential Statement, dated 1 June 2010, S/PRST/2010/9.

International Committee of the Red Cross, ‘Introduction to the Manual of the Laws of Naval War. Oxford, 9 August 1913’ <http://www.icrc.org/ihl.nsf/INTRO/265?OpenDocument> (accessed on 28 August 2011).

International Committee of the Red Cross, ‘Introduction to San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994’, < http://www.icrc.org/ihl.nsf/INTRO/560?OpenDocument> (accessed on 28 August 2011).

Notice to Mariners No. 1/2009, dated 6 January 2009, <http://en.mot.gov.il/index.php?option=com_content&view=article&id=124:no12009&catid=17:noticetomariners&Itemid=12> (accessed 28 August 2011).

Notice to Mariners No. 6/2008, dated 13 August 2008, available at: <http://en.mot.gov.il/index.php?option=com_content&view=article&id=74:no62008&catid=17:noticetomariners&Itemid=12> (accessed 28 August 2011).

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