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

Yearbook of International Humanitarian Law, Forthcoming

28 Pages Posted: 4 May 2011

See all articles by James Kraska

James Kraska

Stockton Center for International Law, U.S. Naval War College; Harvard University - Harvard Law School; University of California Berkeley School of Law; Council on Foreign Relations (CFR)

Date Written: March 3, 2011

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.

Keywords: Blockade, Naval Warfare, Gaza, Israel, Law of the Sea, Hamas, Mavi Marmara, Non-international armed conflict, maritime interception operations, MIO, Visit, Board, Search and Seizure, VBSS, use of force, LOAC, Law of Armed Conflict, freedom of navigation, international humanitarian law

Suggested Citation

Kraska, James, Rule Selection in the Case of Israel’s Naval Blockade of Gaza: Law of Naval Warfare or Law of the Sea? (March 3, 2011). Yearbook of International Humanitarian Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1830267

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