Much of the rhetoric around the alleged attacks by Israeli forces on an ”aid flotilla” today is strident and generally focussing on whether Israel was excessive or wrong to do so. Some are concentrating on the body that organised the flotilla and its links to Hamas and other organisations considered to be terrorists. To step back and look at it from a military perspective it appears that whilst Israel could reasonably justify interdiction of the convoy they have undermined their position by applying excessive force and engaging in that interdiction far too early.
I understand from media reporting that the interdiction took place in international waters, some 40 miles from the coast. Israel have imposed a long standing embargo on humanitarian aid into Gaza, handling the transfer of aid themselves. Various bodies recognise that some aid is getting through but assert that it is insufficient to meet the needs of the people of Gaza. The embargo is also counter to a UN Security Council resolution, but in the case of Israel and Palestine this resolution isn’t worth the paper it’s written on. Israel is very aware that it can act with impunity in this domain.
The aid supplies included items that Israel have banned in Gaza, although it’s not clear what validity this ban has. The reported items are cement and building materials, it’s reasonable to assume that Israel also suspect munitions and materiel with military application.
Israel claim that the flotilla was offered a docking opportunity in Israel with an obligation to transfer aid to Gaza thereafter. There is a clear implication that some of the aid would not be transferred as it does not meet the Israeli definition of what would be acceptable.
Despite what some are suggesting the actions of the Israeli military are not piracy. The UN Convention on the Law of the Sea states that Piracy is ”conducted for private gain”, clearly not an imperative for a state sanctioned military operation.
So, considering from the Israeli perspective, the flotilla have refused to head towards a port nominated by the Israeli security forces and there is known to be some embargoed materiel on board. There may be further evidence to suggest the nature of embargoed materiel that’s not available in the public domain. So Israeli forces can reasonably justify an interdiction, the question now becomes ”where and when”?
UNCLOS allows foreign civilian vessels to be boarded on the high seas in three circumstances; the vessel is thought to be engaged in piracy, the slave trade or identifying itself as foreign but actually holding the same nationality as the warship. I don’t see that any of these three criteria are met, so Israel did not have justification for interdiction on the high seas. There are clauses that apply to ”hot pursuit” but these wouldn’t apply with the flotilla heading towards Gaza, rather than leaving territorial waters.
UNCLOS does apply different rules for operations inside territorial waters and the contiguous zone, these essentially become constabulary actions and subject to the legal framework of the nation involved, in this case Israel. Within territorial waters, up to 12 miles from the coastal baseline, the sovereign state applies their own laws, in the contiguous zone four areas remain available to enforce, in this case customs and immigration can be enforced out a further 12 miles, so to 24 miles from the baseline. Within the contiguous zone or territorial waters Israel could reasonably interdict the flotilla based on their knowledge and assumptions about the ”aid” being imported.
So Israel could reasonably have acted once the flotilla had crossed a line 24 miles from the coast. Instead they conducted the interdiction in international waters where they do not have appropriate jurisdiction. Israel appear to be taking the position that the interdiction was reasonable based on later interpretations of UNCLOS related to blockade running, but the arguments appear circular to me.
Notwithstanding all of that Israel have not ratified the UNCLOS agreement so the applicability is debatable.
The other issue is proportionality of the interdiction operation.There are reports of 10-15 dead, with the likelihood of more over the next couple of days as I’m sure there will have been critical injuries as well. So was the force applied proportionate?
It doesn’t appear so, however from experience it’s difficult to account for the decisions made on the ground. It’s easy to say from the comfort of my study that the actions of the interdiction force were unreasonable, and I’m very surprised that the embarkation force weren’t better equipped with non-lethal capabilities. Baton rounds, extending batons and pepper spray can still prove lethal, but they minimise the risk of collateral damage. The reports of the ”weapons” used by some of the civilians are far from lethal threats, and in the face of knives, catapults and slingshots it does strike me that there was either an intentional lethal response or a breakdown in leadership and control of the embarkation force. Any adequately trained ship protection number can defend against these without recourse to lethal response. There are reports of pistols being used, but these also appear to have been appropriated from the embarkation force, rather than having been on board already.
I would take the view that Israel were in a reasonable position to interdict the flotilla, however they should have waited until the ships were within the contiguous zone. I would, however, take the view that the force applied was disproportionate, these deaths should not have happened and non-lethal measures should have been preferred. The excessive force compounds the interdiction on the high seas and leaves Israel very vulnerable to sanction. Notwithstanding that any sanction has to come from the UN Security Council and with two influential friends on the UNSC Israel won’t suffer any real penalty for her actions.