Israel’s boarding and seizure of the Mavi Marmara, a Turkish ship in the Gaza Freedom Flotilla, has sparked debate and outrage world wide. Media, pundits, and politicians, despite a real lack of facts and hard information, have lept to alternately defend and condemn Israel, Turkey has withdrawn its ambassador, and Israel has urged sympathizers to its defense on internet forums. As usual, when it comes to the always-contentious Jewish State, the entire world is just itching for a fight.
To quote a pragmatic, if fictitious, Scottish king: “Let’s not bicker and argue over who killed who.”
While shocking and certainly bad for public relations, the level of violence that Israel used to interdict the Freedom Flotilla is the least significant aspect of the story. Far more important, particularly from an international standpoint, is the fact that Israel stopped the ships at all, thereby signaling a willingness to defend its blockade of the Gaza strip. While the world is conflicted over the raid, the most concerning aspect of the story is what Israel’s blockade and its preservation could mean in the months to come.
While the Turkish and Israeli accounts of the attack differ in many aspects, one central point is common to both: the Israeli military boarded the convoy in international waters.
International Waters and Military Commissions
The United Nations Convention on the Law of the Sea defines two zones in which a state can legitimately interdict traffic: territorial waters and the contiguous zone. Together, these regions represent a swath of ocean extending 24 nautical miles from a given country’s coastline. Within that 24 mile perimeter, states may, according to the UN convention, stop and search vessels for a number of reasons; within 12 miles – within territorial waters – they have almost complete autonomy.
Outside 24 miles, however, international law mandates freedom of the seas and save for the regulation of very specific economic activities, sea traffic beyond 24 miles from the coast must be allowed to proceed unmolested. Israel stopped and boarded the flotilla 40 miles from her coastline, well outside the 24 mile contiguous zone.
Generally, the boarding and seizing of of a ship under a foreign flag on the high seas is an act of piracy or war. Since the IDF operates under the authority of a military commission from the state of Israel, its seizure of a Turkish ship would, ordinarily, constitute an act of war against Turkey. Israel maintains otherwise, however, citing the San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Mark Regev, a spokesperson for the Israeli Prime Minister, points out that “if you have a boat that is charging a blockaded area you are allowed to intercept even prior to it reaching the blockaded area if you’ve warned them in advance, and that we did a number of times and they had a stated goal which they openly expressed, of breaking the blockade. That blockade is in place to protect our people.”
In other words, Israel maintains that it has the right to board ships – even ships delivering humanitarian aid – because it maintains a blockade against Gaza and international law gives Israel the right to enforce that blockade. Indeed, international law gives Israel more than the right to enforce it; it compels enforcement. Per the 1865 treaty of Paris, a blockade is only legal if it is effective; if the blockading nation does not enforce interdiction the blockade fails and other nations are not bound to respect it.
A blockade thus stands on four pillars:the relative weakness of the opposing force, the geography of the blockade, the value of the thing blockaded, and the willpower to maintain it. Israel holds the advantage in the first two categories. Her own military might in conjunction with her strong alliance with the United States tip the scales of power strongly in her favor. Moreover, Gaza’s geography and Egypt’s willingness to cooperate with the blockade mean that most of Israel’s work is already done for her; with Gaza hemmed in on three sides, Israel must merely patrol a tiny sliver of coastline immediately adjacent to her own.
Israel is disadvantaged on the latter two pillars. Though Israel seeks to prevent weapons – particularly supplies for the construction of rockets – from entering Gaza, losses from Hamas rockets have never constituted a serious threat to Israel’s security. Consequently the value of the thing being blockaded – rocketry supplies – is fairly small when weighed against the potential cost of blockading it. This undermines the political legitimacy of Israel’s blockade and makes the enforcement of the blockade a potential liability for Israel on the world stage, particularly when the blockade is challenged.
Therein lies the fundamental problem with the Israeli blockade. It is, ultimately, an act of brinksmanship and one that can and is being turned against Israel. Turkey has announced that more aid ships will follow and that they will be escorted by the Turkish Navy. Israel thus finds itself in the unenviable position of having to fire the warships of a NATO ally or allow the blockade to fail, neither of which are particularly desirable options. Firing on a NATO warship would constitute a clear and unequivocal attack upon a NATO signatory, thereby triggering Article 5 of the NATO charter and forcing the United States and most of Europe to choose between the Cold War alliance and their loyalty to Israel. Allowing the blockade to fail would flood Gaza with supplies, including weapons and bomb making materials. Neither outcome is one Israel will like.
In failing to allow the peaceful passage of humanitarian aid, Israel has set itself up for catastrophe. Hamas knows this, which is likely why Israel’s offer to turn over supplies from the seized ships was so rapidly rebuffed. Turkey also knows this; it called an emergency NATO meeting after Israel interdicted the flotilla and while NATO can turn a blind eye to the hostile boarding of a humanitarian vessel, an attack on a warship is another matter.