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NILR 2011
THE INTERNATIONAL LAW OF NAVAL BLOCKADE AND ISRAELS INTERCEPTION OF THE MAVI MARMARA
by Russell Buchan*
1. Introduction
2. The international law of naval blockade2.1 When is the deployment of a naval blockade lawful?2.1.1 Were Israel and Hamas engaged in an international armed conflict on 31 May
2010?2.1.1.1 Crosses the border of the state2.1.1.2 Occupation2.1.1.3 Third-state involvement2.1.1.4 Belligerency 2.1.2 The principle of proportionality2.2 Enforcement of a naval blockade
3. Conclusion
Abstract
In this article I discuss the legality of Israels interception of the Mavi Marmara on 31 May 2010. Although Israels stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justied on the basis of international humanitarian law. Specically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conict. I argue that on 31 May 2010 Israel was not engaged in an international armed conict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material
*Lecturer in Law, University of Shefeld; [email protected].
Netherlands International Law Review, LVIII: 209-241, 2011 2011 T.M.C. Asser Instituut and Contributors doi:10.1017/S0165070X11200032
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R. BUCHAN
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from being delivered to Hamas ghters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israels use of force to capture the vessel went beyond what was necessary in the circumstances.
1. INTRODUCTION
From June 1967 until May 1994 Israel implemented a complete military occupation over Palestine.1 In 1994 Israel...