Thursday, June 23, 2011

German Expert On What International Law REALLY Says About The Gaza #Flotilla

Here are some excerpts from an interview from Zeit online, translated into English

 Interview with Wolff Heintschel von Heinegg--international and maritime law expert. He was an adviser to Israel's Turkel Commission on last years flotilla, which determine how and why violence erupted.

ZEIT ONLINE: The deployment of Israeli forces in May of last year against a humanitarian convoy headed for Gaza unleashed cries of protest worldwide. Now a second and far larger international convoy is on its way to Gaza – a convoy that aims to break Israeli’s sea blockade of Gaza. Is this blockade even allowable from a legal standpoint?

Wolff Heintschel von Heinegg: Well that depends on how you characterize the conflict between Israel and the Palestinians. When jurists come together, they often disagree on this matter. But there’s definitely a consensus on one thing – namely that what you have here is an armed conflict. Which means that the laws governing such conflicts apply; and under these laws, sea blockades are allowed.

...ZEIT ONLINE: You yourself have characterized Israel’s action against the convoy in 2010 as being perfectly legitimate. Why is that?

Heintschel von Heinegg: If a blockade is allowable in this conflict, then it’s also allowable to take measures to set up such a blockade. There’s only one principle that characterizes a blockade: the principle of effectiveness. In other words, the blockade has to prevent ships from entering or leaving the blockade zone. If the blockade fails to do this even once, it is ineffective and thus immediately becomes legally ineffective as well.

ZEIT ONLINE: So this means that when it comes to this blockade, Israel is in a catch-22 situation, right?

Heintschel von Heinegg: Right. The Israelis simply can’t afford to let any ship through, if they want to prevent another ship from passing through the blockade zone a few hours later.

...ZEIT ONLINE: People are suffering in Gaza, even though they have access to the goods they need in order to survive. Isn’t it legitimate for people to want to help the citizens of Gaza?

Heintschel von Heinegg: The motivation of the blockade breakers – regardless of whether they’re acting for virtuous or reprehensible reasons – is completely irrelevant from a legal standpoint. I, of course, have great respect for human rights activists who give of their time to pursue their goals, but you can’t get around the fact that there are certain legal boundaries. Also, I presume that these humanitarian actions are also publicity stunts aimed at mobilizing public opinion. No one would argue the fact that the citizens of Gaza have it really tough, compared to our own standards. But I don’t really see any pressing humanitarian need here.

...ZEIT ONLINE: The border crossing between Gaza and Egypt was recently reopened. Do you think this will have a counterproductive effect on the naval blockade?

Heintschel von HeineggIsrael has traditionally been able to rely on Egypt, and the border between Gaza and Egypt hasn’t been particularly permeable in the past. But this has changed. The strategic importance of the blockade in terms of protecting Israeli securityhas definitely declined. But nonetheless, the reliability of Israel’s maritime measures will not be affected in any way by the change in the status of the Gaza-Egypt border.
Read the whole thing.

Addendum: Today, The Israel Project had a conference call with Wolff Heintschel von Heinegg. Challah Hu Akbar attended the call and took notes. von Heinegg made some introductory comments before questions were asked. Here is some of what he said:
...The organizers of the upcoming flotilla have stated that their intent is to break the blockade of Gaza, thus the IDF is not required to wait for the flotilla to reach the blockade line of 20 nautical miles before they capture the ship.

If they attempt to breach Israel’s blockade, they must follow all of Israel’s orders. They are required by international law to comply with all Israeli demands.

The organizers of the flotilla state that they are pursuing humanitarian purposes; assume this is true for argument’s sake. Of course, a blockade must take into humanitarian considerations, however, this does not mean any humanitarian consideration.

For the blockade to be prohibited the humanitarian crisis inflicted on the civilian population would need to be excessive in relation to the military advantage anticipated from the blockade. The inconveniences in Gaza cannot be considered excessive. In reality, the blockade would only be excessive if it was preventing essential goods needed for survival.

The blockading power has the right to search ships. In addition, they may prescribe certain routes for the ships to take and they have the authority to decide how the goods are disseminated.

It is quite clear that if the organizers offer resistance or do not comply with the IDF, they [the IDF] are entitled, but in truth, obliged to take all necessary measures to prevent the flotilla from breaking the blockade.

...Question: What is your take on the latest news regarding Gilad Shalit?
If the Palestinians wish to be taken seriously by international community and by human rights activists as well, they should reconsider their position and do everything to provide him with the fundamental rights guaranteed to all prisoners. They should give the ICRC immediate access.

Question: Do the rockets from Gaza have any legal basis?
I do not think there is anything under international law that allows this. I don’t care so much if there is some form of legitimacy. To me it is important that we see that there are armed hostilities. These hostilities show that there is an armed conflict. Due to this, Israel is entitled to make the use of the entire spectrum of the laws of armed conflict, including a blockade. The legality of the rockets plays no role to the view of whether the IDF can create or enforce a blockade.

Question: What is your take on the UN’s position on the flotilla?
We know there is no official UN position. We know that last year the UNHRC delivered an opinion, which bluntly stated that the blockade is unlawful without giving an argument as to how it reached that conclusion. It claimed collective punishment and all the international lawyers that I have spoken to are shaking their heads as they say it is not collective punishment, this is a matter of warfare. Recently, we have seen that Israel goes behind the requirement of providing the essential goods for survival.[emphasis added]

Hat tip: KS

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