MEMO's clarification of legal issues surrounding the attacks on the humanitarian aid flotilla

1. Israel’s siege of the Gaza Strip is illegal under international law

Israel exercises “effective control” over the Gaza Strip since it imposed a siege of the territory, including a land and sea blockade, and is therefore still a de facto Occupying Power, despite claims of leaving Gaza in 2005. Israel’s siege of Gaza denies its civilians of adequate amounts of the most basic food and medical supplies, not to mention cement and other construction material necessary for rebuilding the infrastructure destroyed by Israel’s 2009 attacks.

Israel is effectively punishing the 1.5 million Palestinians in Gaza for exercising their democratic rights and electing Hamas as their representative government. The siege imposed in Gaza therefore potentially amounts to “collective punishment” and violates Article 33 of the Fourth Geneva Convention, according to which “no protected person may be punished for an offence he or she has not personally committed”.

An emergency Security Council meeting held on Monday 31st May condemned the Israeli attack and called for an inquiry into the Israeli operation. It further stated that the bloodshed could have been avoided if Israel had lifted the “unacceptable and counterproductive” blockade. This confirms that Israel’s blockade of Gaza is illegitimate.

2. Israel had no legal right to prevent the passage of the humanitarian aid flotilla

According to Article 55 of the Fourth Geneva Convention, Israel is required to ensure free, unimpeded passage of humanitarian relief to the occupied population. Israel’s denial of passage to the humanitarian flotilla by unlawfully seizing aid and impeding the access of food, medical supplies and construction material therefore breaches this provision.

3. Israel did not have the right to board the flotilla ships in international waters

As a rule, international law does not allow one country to carry out a military operation on a neutral merchant vessel located in international waters (Mavi Marmara was located 80 miles out to sea). One of the exceptions to this rule is when a neutral merchant vessel is suspected of breaching a blockade.  However, the blockade in question was unilaterally imposed by Israel, and not by the Security Council under Article 42. In fact, as mentioned above, the Security Council has condemned the blockade on numerous occasions. Hence Mark Regev’s claim that the Israeli navy was acting in self-defence when attacking the flotilla members falls well short of any international legal standards. Furthermore, maritime blockades cannot be imposed in international waters and have to be restricted to ports or coastal areas

4. Did the attack on the flotilla amount to an act of piracy?

Media outlets and journalists rushed into using the term “piracy”. Piracy is defined by the UN Convention on the Law of the Sea as and “illegal act of violence or detention on the high seas outside the jurisdiction of any State.”

However, this is probably not the right term to describe what has happened, because piracy is carried out by private actors, not state armies. Regardless of the terminology, what is clear is that the Israeli government acted with impunity, and its actions amount to a form of illegal warfare.

5. Consequences and accountability

When an incident takes place on the high seas, the applicable law is that of the flag of the state ship in which the incident occurred. So even though the Mavi Marmara was on the high seas, legally it was in Turkish territory and Turkish criminal law is therefore applicable. Turkey has a right to prosecute the Israeli naval officials who perpetrated this attack and according to the European Convention on Mutual Assistance in Criminal Matters, if the prosecution takes place, Israel is obliged to cooperate in matters of evidence and hand its nationals to the Turkish state for trial.