Rule Selection in the Case of Israel’s Naval Blockade of Gaza: Law of Naval Warfare or Law of the Sea?

Abstract

The Israeli Navy enforcement of a blockade against Gaza, and the interdiction of the Mavi Marmara on 31 May 2010, raises the issue of whether or how the law of naval warfare applies in the struggle between Israel and Gaza. The law of blockade arose originally as a feature of international armed conflicts (IACs). If the Gaza conflict constitutes IAC, then the law of blockade applies. If, however, the Gaza conflict constitutes a non-international armed conflict (NIAC), the application of the law of blockade is less clear. While blockade originated as a legal concept in IAC, usage, state practice and opinio juris have caused it to migrate into NIAC. The analogy of the American Civil War offers clues for solving this riddle. The US experience suggests that if Gaza were regarded as a sovereign state, then a state of war—IAC—would exist between Israel and Gaza. In such case, there is no doubt that the imposition of blockade is lawful. But this determination places Israel in the same dilemma experienced by the Union during the Civil War. If Israel avails itself of the right to blockade Hamas, is it also willing to grant Hamas lawful belligerent status? If the law of blockade does not apply in the case of the Israeli armed struggle with Gaza because Gaza is not a ‘state’, then this determination produces the absurd result that a nation may defend itself using a lawful instrument recognized by the law of armed conflict in fighting another state, but must voluntarily forgo the option if confronted with an equally powerful entity that does not meet the legal definition. Consequently, the law of blockade applies in the case of Gaza because there is no other rule set that appropriately balances the interests of the belligerents and neutrals.

He also is a Senior Associate in the Center for Irregular Warfare and Armed Groups at the Naval War College, a Senior Fellow at the Foreign Policy Research Institute, a Senior Associate of the Institute for Communitarian Policy Studies at George Washington University and a Guest Investigator at the Marine Policy Center, Woods Hole Oceanographic Institution. As the former chief of the International Negotiations Division for the Director of Strategic Plans & Policy, Joint Chiefs of Staff, Commander Kraska led global maritime security strategy and policy for the U.S. armed forces. Commander Kraska recently completed a book on maritime piracy for Praeger Security International, and he is editing a volume on Arctic security for Cambridge University Press. His study, Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics recently was published by Oxford University Press in 2011. He earned a doctor of juridical science (J.S.D.) and master of laws (LL.M.) from the University of Virginia Law School and a doctor of jurisprudence (J.D.) from Indiana University Maurer School of Law. The views presented are those of the author and do not reflect the official policy or position of the Department of Defense.

Annex

Article XI, Annex I, Maritime Activity Zones (Map No. 6), Agreement on the Gaza Strip and the Jericho Area, Declaration of Principles on Interim Self-Government Arrangements [Declaration of Principles (DOP)], 13 September 1993

• 1. Maritime Activity Zones

  • a. Extent of Maritime Activity Zones

    The sea off the coast of the Gaza Strip will be divided into three Maritime Activity Zones, K, L, and M as shown on map No. 6 attached to this Agreement, and as detailed below:

    • 1. Zones K and M

      • a. Zone K extends to 20 nautical miles in the sea from the coast in the northern part of the sea of Gaza and 1.5 nautical miles wide southwards.

      • b. Zone M extends to 20 nautical miles in the sea from the coast, and one (1) nautical mile wide from the Egyptian waters.

      • c. Subject to the provisions of this paragraph, Zones K and M will be closed areas, in which navigation will be restricted to activity of the Israel Navy.

    • 2. Zone L

      • a. Zone L bounded to the south by Zone M and to the north by Zone K extends 20 nautical miles into the sea from the coast.

      • b. Zone L will be open for fishing, recreation and economic activities, in accordance with the following provisions:

        • (i) Fishing boats will not exit Zone L into the open sea and may have engines of up to a limit of 25 HP for outboard motors and up to a maximum speed of 15 knots for inboard motors. The boats will neither carry weapons nor ammunition nor will they fish with the use of explosives.

        • (ii) Recreational boats will be permitted to sail up to a distance of three nautical miles from the coast unless, in special cases, otherwise agreed within the Maritime Coordination and Cooperation Center as referred to in paragraph 3 below. Recreational boats may have engines up to a limit of ten horsepower. Marine motor bikes and water jets will neither be introduced into Zone L nor be operated therein.

        • (iii) Foreign vessels entering Zone L will not approach closer than 12 nautical miles from the coast except as regards activities covered in paragraph 4 below.

  • b. General Rules of the Maritime Activity Zones

    • 1. The aforementioned fishing boats and recreational boats and their skippers sailing in Zone L shall carry licenses issued by the Palestinian Authority, the format and standards of which will be coordinated through the JSC.

    • 2. The boats shall have identification markings determined by the Palestinian Authority. The Israeli authorities will be notified through the JSC of these identification markings.

    • 3. Residents of Israeli settlements in the Gaza Strip fishing in Zone L will carry Israeli licenses and vessel permits.

    • 4. As part of Israel’s responsibilities for safety and security within the three Maritime Activity Zones, Israel Navy vessels may sail throughout these zones, as necessary and without limitations, and may take any measures necessary against vessels suspected of being used for terrorist activities or for smuggling arms, ammunition, drugs, goods, or for any other illegal activity. The Palestinian Police will be notified of such actions, and the ensuing procedures will be coordinated through the Maritime Coordination and Cooperation Center.