Legal Analysis of the Provision of Humanitarian Assistance to the Palestinian Population of Gaza by the International Freedom Flotilla Under International Law
A Memorandum by PAL Law Commission on War Crimes, Justice, Reparations, and Return (PLC) &
Worldwide Lawyers Association (WOLAS)
May 10, 2024
The undersigned counsel finds that under all relevant principles and codes of international law, that the passengers of the vessels of the International Freedom Flotilla (Flotilla), flying, respectively, under the flags of Guinea-Bissau, and Palau are entitled to protection for their free and safe passage to Gaza for the purpose of delivering life-saving and humanitarian aid materials to Palestinians in Gaza.
Background Facts
Famine Looms in Gaza as Israel Blocks and Deters Aid Groups
The International Freedom Flotilla Coalition comprises 12 organizations from 10 countries. Among the participating organizations in the coalition are: İHH Humanitarian Relief Foundation and Mavi Marmara Association from Turkiye Canadian Boat To Gaza from Canada, My Care Malaysia from Malaysia, Ship To Gaza Norway from Norway, Palestine Solidarity Alliance from South Africa, Ship to Gaza from Sweden, US Boat to Gaza from the United States, Free Gaza Australia from Australia, Kia Ora Gaza from New Zealand, Palestine Solidarity Campaign and Breaking the Siege of Gaza from the United Kingdom.
These organizations, working for Palestine and Gaza in different regions of the world, are responding to the urgent humanitarian needs of Gazans – people who have been living under a 17-year blockade, which is a continuation of the 56-year occupation attempts of a 75-year-old apartheid regime. The organizations are acting in response to these needs as a moral alliance established in the name of peace, equality, justice, law, democracy, ceasefire, and civilians.
The aim is for a new humanitarian aid corridor to be established for Gaza. The goal is to alleviate the suffering of the people of Gaza, who have been living in deprivation. The ships in the Flotilla are carrying essential humanitarian aid materials, medical supplies, and technical equipment for humanitarian activities in Gaza.
At this moment, Gaza is suffering from a man-made famine which threatens to claim hundreds of thousands of lives. Indeed, according to the Integrated Food Security Phase Classification (IPC), as of February 7, 2024, over one million people in Gaza were on the brink of famine. As the IPC explained:
Between 24 November and 7 December 2023, over 90 percent of the population in the Gaza Strip (about 2.08 million people) was estimated to face high levels of acute food insecurity, classified in IPC Phase 3 or above (Crisis or worse). Among these, over 40 percent of the population (939,000 people) were in Emergency (IPC Phase 4) and over 15 percent (378,000 people) were in Catastrophe (IPC Phase 5).
Between 8 December 2023 and 7 February 2024, the entire population in the Gaza Strip (about 2.2 million people) is classified in IPC Phase 3 or above (Crisis or worse). This is the highest share of people facing high levels of acute food insecurity that the IPC initiative has ever classified for any given area or country. Among these, about 50 percent of the population (1.17 million people) is in Emergency (IPC Phase 4) and at least one in four households (more than half a million people) is facing catastrophic conditions (IPC Phase 5, Catastrophe). These are characterized by households experiencing an extreme lack of food, starvation, and exhaustion of coping capacities.[1]
(emphasis added).
These conditions have only worsened in the past two-plus months. One chief reason for this decline in conditions is the systematic murder of Palestinian aid and aid-delivery workers, Palestinians attempting to receive aid and the deterrent impact on humanitarian aid workers by the murder of 7 aid workers from World Central Kitchen (WCK) by Israeli forces. Just as the International Freedom Flotilla, WCK had brought humanitarian aid, including food and water, by sea to Gaza. In the case of WCK, they did so in close coordination and with the approval of Israel. This did not stop Israeli forces from killing 6 of WCK’s international aid workers. The killing of these aid workers — which was certainly not the first such incident, with Israel targeting aid workers in Gaza from other aid groups, including the International Red Crescent and the UNRWA — accomplished the goal that Israel had in carrying the killings out – deterring WCK and other aid groups from continuing to supply the people of Gaza.
As CNN reported on April 4, 2024, “As famine looms and cases of death by starvation emerge, at least three aid providers are suspending operations in Gaza after Israeli airstrikes this week killed seven workers from World Central Kitchen (WCK), an aid group that was central to a much-touted new sea corridor from Cyprus.”[2] CNN quoted the founder of WCK, Jose Andres, who stated, “The Israeli government needs to stop this indiscriminate killing. . . . It needs to stop restricting humanitarian aid, stop killing civilians and aid workers, and stop using food as a weapon.” As CNN further explained:
“All 2.2 million people in Gaza do not have enough food to eat, with half of the population on the brink of starvation and famine projected to arrive in the north “anytime between mid-March and May,” according to the Integrated Food Security Phase Classification (IPC).
“It is a huge blow to the humanitarian operation in Gaza,” said Juliette Touma, spokesperson at the UN’s Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), the principal aid agency in Gaza that has itself been sidelined by Israel.”[3]
To put a finer point on it, CNN, citing IPC, makes it clear that “starvation and famine” is expected to arrive for over one million Gazans right about now.
Meanwhile, if this all were not bad enough, Israel has even gone so far as to regularly shoot at Palestinians in Gaza attempting to obtain the meager aid that is being provided. Again, this is done with the intention to deter Palestinians from even trying to receive life-saving assistance. The most notorious of these “flour massacres” — so named because Palestinians have been killed attempting to obtain flour to make bread – occurred on February 29, 2024, when Israeli forces opened fire upon a crowd gathering around aid trucks.
According to the Office of the UN High Commissioner for Human Rights (OHCHR) on March 5, 2024, report of the incident, Israel killed 112 Palestinians and wounded 760 more in this “flour massacre.”[4] This type of incident has been repeated many times before and since this particular incident. As the OHCHR explains in this report, the February 29 “attack came after Israel has denied humanitarian aid into Gaza City and northern Gaza for more than a month. . . . [T]he 29 February massacre followed a pattern of Israeli attacks against Palestinian civilians seeking aid, with over 14 recorded incidents of shooting, shelling and targeting groups gathered to receive urgently needed supplies from trucks or airdrops between mid-January and the end of February 2024.”[5]
The extreme lack of food and clean water, intentionally imposed upon the people of Gaza, combined with the denial of life-saving medicines and the Israeli destruction of the health care system of Gaza, is also inevitably leading to the spread of disease throughout the Gaza Strip. This spread of disease and infection is especially impacting the most vulnerable of society, and especially children. Thus, as this report on a recent UNICEF report explains with great alarm:
“I visited four hospitals in the last five days, and I can tell you that every medical director has told me about the impact of the lack of resources and the lack of staff,”[6] UNICEF’s spokeswoman Tess Ingram said from outside the Kuwaiti Hospital in Rafah.
“They’re running at four times capacity. Children are dying due to infections. Children are dying from malnutrition. There’s just not enough staff and resources to go around… That’s why we have to rush this aid in, and that’s why we need a ceasefire.”[7]
Ingram adds that there are still serious challenges to transporting aid to those most in need due to ongoing violence, collapsed infrastructure, travel restrictions and a shortage of fuel and vehicles.
“The obstacles are many, but we’re still doing our best in these really difficult circumstances to bring food and water and medicine and nutrition treatments to the vulnerable that need it.”[8]
James Elder, another UNICEF spokesperson, earlier said Gaza was becoming a living hell for Palestinians.
“Gaza has become a graveyard for children. It’s a living hell for everyone else. And yet the threats to children go beyond bombs and mortars.”[9]
The International Court of Justice Orders Israel to Guarantee Life-Saving Aid for Gaza
Meanwhile, on January 26, 2024, the International Court of Justice (ICJ), the highest court in the world, ordered Israel to take a number of provisional measures to end what the Court determined is “plausibly” a genocide in Gaza.[10] The Court concluded specifically, that, as alleged by South Africa in its case against Israel, Israel is “plausibly” carrying out a genocide by, inter alia, “Deliberately inflicting on the group [Palestinians in Gaza] conditions of life calculated to bring about its physical destruction in whole or in part” within the meaning of Article II (c) of the Genocide Convention of 1948.
Accordingly, one of the provisional measures ordered by the Court was for Israel to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip” (ICJ Decision, Par. 80).[11] As demonstrated above, Israel has not only failed to abide by this order to “enable the provision of urgently needed basic services and humanitarian assistance,” it has actively been blocking humanitarian assistance, killing aid workers attempting to provide it and killing Palestinians attempting to access it.
Following the January 26, 2024, ICJ Decision, a US federal court in California also issued a decision agreeing that there is sufficient evidence to find that Israel is plausibly committing genocide in Gaza.[12]
Germany Brought to the ICJ Dock by Nicaragua
In a related case, Nicaragua has brought a case before the ICJ against Germany for its role in “facilitating the commission of genocide” by Israel in Gaza through its provision of Israel with around 30 percent of the weapons and munitions it is using in its assault against the Gaza Strip.[13] This case is brought pursuant to Article III of the Genocide Convention of 1948 which provides that “The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.”[14] (emphasis added).
As in the case of South Africa v. Israel, Nicaragua is also seeking provisional measures against Germany to end its facilitation of the genocide in Gaza before it is too late to save the people of Gaza.
UN Special Rapporteur Concludes There are Reasonable Grounds to Find Israel is Committing Genocide in Gaza
On March 25, 2024, UN Special Rapporteur Francesca Albanese, in her groundbreaking report entitled “Anatomy of a Genocide,” states that “By analyzing the patterns of violence and Israel’s policies in its onslaught on Gaza, this report concludes that there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met.”[15]
As Ms. Albanese explains in her report, prepared at the request of the UN Human Rights Council:
“After five months of military operations, Israel has destroyed Gaza. Over 30,000 Palestinians have been killed, including more than 13,000 children. Over 12,000 are presumed dead and 71,000 injured, many with life-changing mutilations. Seventy percent of residential areas have been destroyed. Eighty percent of the whole population has been forcibly displaced. Thousands of families have lost loved ones or have been wiped out. Many could not bury and mourn their relatives, forced instead to leave their bodies decomposing in homes, in the street or under the rubble. Thousands have been detained and systematically subjected to inhuman and degrading treatment. The incalculable collective trauma will be experienced for generations to come.”[16]
In pertinent part, Ms. Albanese sets forth in detail in Paragraphs 35 to 38 of her report how Israel, in contravention of the Genocide Convention of 1948, is “deliberately inflicting on the group [Palestinians] conditions of life calculated to bring about its physical destruction in whole or in part,” and how this deliberate infliction of harm has indeed been going on for some time through Israel’s long-time siege upon Gaza:
“35. By mid-December, Israel’s bombs and shells had destroyed or severely damaged most life-sustaining infrastructure, including 77 percent of healthcare facilities, 68 percent of telecommunication infrastructure, large numbers of municipal services, commercial and industrial sites, almost half of all roads, over 60 percent of Gaza’s 439,000 homes, 68 percent of residential buildings, all universities, 60 percent of other educational facilities, including 13 libraries. Israel has also destroyed at least 195 heritage sites, 208 mosques, 3 churches, and Gaza’s Central Archives (150 years of history). By the end of January, over one million civilians were forcibly displaced southward, their cities devastated.
- Sixteen years of blockade had already transformed Gaza into an isolated, densely populated depleted and nearly “uninhabitable” enclave, when, on 9 October 2023, Israeli Defense Minister Yoav Gallant, announced a “complete siege (. . .) no electricity, no food, no water, no fuel”. Israeli Minister of Foreign Affairs Israel Katz (then Minister of Energy) went further: “Humanitarian aid to Gaza? No electrical switch will be turned on, no water hydrant will be opened.” Deliberately denying essential supplies to an already besieged population was destined to cause deaths “more silent than those caused by bombs”.
- The total siege and near-constant carpet-bombing, along with draconian evacuation orders and ever-shifting ‘safe zones’, have created an unparalleled humanitarian catastrophe. Over 1.7 million Palestinians were displaced and forced into overcrowded UNRWA shelters and cramped quarters in southern Gaza, systematically targeted by the Israeli army, and later into makeshift shelters.
- Israel’s assault has decimated Gaza’s already fragile healthcare system. Hospitals, also sheltering displaced Palestinians, have been overwhelmed. By deliberately targeting hospitals, air and ground attacks gradually turned them into death zones. Israeli soldiers have occupied hospitals, encircling them with tanks and (drone-)snipers. By 12 February, only 11 of 36 hospitals and 17 percent of primary healthcare centers were functioning, only partially. Israeli soldiers have arrested, mistreated and tortured medical staff, patients and displaced people, and forced them – even premature babies – out of hospitals, in some cases causing the death of babies. The doctors who remained have worked night and day, making “impossible decisions” on patients to treat based on chance of survival.”[17]
The UN Human Rights Council Demands That Israel Lift Its Blockade of Gaza
Following this report, the UN Human Rights Council adopted a Resolution calling for an immediate ceasefire in Gaza. In addition, and quite relevant to the Freedom Flotilla, the Resolution “demanded that Israel immediately lift its blockade on the Gaza Strip and all other forms of collective punishment . . .” (emphasis added).[18] The same Resolution called for all States to end all sales and transfers of weapons to Israel.
US President Biden Announces Need for Access for Humanitarian Aid to Gaza by Sea
In his March 7, 2024, State of the Union Address, President Joe Biden announced that “US forces will build a temporary dock on the Gaza shoreline to allow delivery of humanitarian aid on a large scale . . . amid warnings of a widespread famine among the territory’s 2.3 million Palestinians.”[19] As President Biden explained: “Nearly two million more Palestinians under bombardment or displaced, homes destroyed, neighborhoods in rubble, cities in ruin, families without food, water, medicine. It’s heartbreaking. . . . Tonight, I’m directing the US military to lead an emergency mission to establish a temporary pier in the Mediterranean on the Gaza coast that can receive large ships carrying food, water, medicine and temporary shelters . . . .”[20] According to Biden, the Israeli government fully supports the creation of such a dock to facilitate the provision of humanitarian aid by sea.
UN Security Council Passes Resolution for Ceasefire and Humanitarian Aid to Gaza; Issued Press Statement Calling for Unhindered Delivery of Aid to Palestinians in All Gaza.
On March 25, 2024, the UN Security Council passed Resolution 2728 which called for an immediate ceasefire and “emphasize[d] the urgent need to expand the flow of humanitarian assistance and reinforce the protection of civilians in Gaza.”[21] It also demanded “the lifting of all barriers to humanitarian assistance at scale, in line with international humanitarian law as well as Council resolutions 2712 (2023) and 2720 (2023).”[22] (emphasis added). On April 11, 2024, the UN Security Council issued a press statement in which they reaffirmed and elaborated on UNSC Res 2728 stating, “[t]hey took note of the announcement by Israel to open the Erez crossing and allow the use of the Ashdod port for aid deliveries into Gaza but stressed that more should be done to bring the required relief given the scale of needs in Gaza. Council members … reiterated their demand to the parties to allow, facilitate and enable the immediate, safe and unhindered delivery of humanitarian assistance at scale directly to the Palestinian civilian population throughout the Gaza Strip, consistent with resolution 2720 (2023).”[23] (emphasis added)
UN experts demanded safe passage for Freedom Flotilla’s humanitarian mission to Gaza
Various representatives of UN Special Procedures of the Human Rights Council called for a safe passage for the Freedom Flotilla’s humanitarian mission to Gaza.
“The Freedom Flotilla has the right of free passage in international waters and Israel must not interfere with its freedom of navigation, long recognised under international law. As the Freedom Flotilla approaches Palestinian territorial waters off Gaza, it is essential for Israel to adhere to international law, including recent orders from the International Court of Justice to ensure unimpeded access for humanitarian aid.[24]
They further affirmed the demands of the Freedom Flotilla Coalition includes an immediate ceasefire, unrestricted access to humanitarian aid, and an end to the illegal blockade of Gaza. For them, “the Flotilla is a material manifestation of international support for the ongoing Palestinian struggle for freedom and self-determination, and the internationally recognised right to receive humanitarian aid without interference or hindrance.”[25]
And, “countries are not complying with their obligations to end Israel’s genocide and starvation in Gaza. In fact, many countries continue supporting Israel with weapons, funds and political support: this may make them complicit in Israel’s genocide and starvation. This is why civilians, like the Freedom Flotilla participants, are increasingly showing their solidarity by protecting and fulfilling Palestinian human rights through direct action. They express the will of a global movement, especially sustained by youth worldwide, to bring the horrors in Gaza to an end – in the interest of both Palestinians and Israelis.”[26]
As the convoy prepares for departure, concerns have been raised by UN experts about the safety of participants given past incidents and Israel’s actions towards humanitarian missions, since in 2010, Israel intercepted and attacked the Freedom Flotilla’s civilian ships in international waters, killing 10 passengers and wounding many others.
“We are especially concerned for the safety of the participants of the Freedom Flotilla in light of Israel’s repeated targeted attacks against UN and civilian humanitarian missions. Israel should remember that the world is closely watching and refrain from any hostility against the participants of the flotilla.”[27]
Legal Rights of the Flotilla and Its Passengers: Passage and Protection
Freedom of Navigation
Introduction
Generally, the right to freedom of navigation depends upon a number of factors, including the distance between a vessel and the shores of a foreign State. There are 4 different boundaries which alter the rights a vessel has for free passage. These different boundaries are as follows, in the order of farthest from shore to closest:
- High Seas/International Waters:Vessels in waters that are more than 12 miles off the coast of a country are considered to be on the high seas and in international watersfor navigational purposes, and hence enjoy the right of free navigation. As also discussed further below, there are still some limits on free navigation in international waters, but these limits are greatly circumscribed.
● Exclusive Economic Zones (EEZ):States have special rights regarding the exploration and use of marine resources in their EEZ, which may extend up to 200 nautical miles over their shores. The EEZ only confers upon the costal state rights of an economic nature, and therefore, does not pose additional restriction with regards to freedom of navigation on third states, so long as they respect the EEZ rights of the costal state. The rights of the coastal state in the contiguous zone is limited to infringements on customs, fiscal, sanitary, and immigration matters. Yet, the freedom of navigation is preserved as this zone is considered as part of high seas.
● Contiguous Zone Waters: This is an extension of limited jurisdiction up to 24 miles out to sea from the coast. This means a nation’s laws can be extended to vessels traveling in these waters. - Territorial Waters: These waters, which may extend up to 12 nautical miles, constitute part of the state territory, and therefore as a rule, subject to the coastal state jurisdiction. The ships of other states in these waters are subject to the innocent passage regime, which provides an uninterrupted passage right to the foreign ships provided that their passage is innocent. The waters that are on the landward side of the baseline are under the full national jurisdiction of the coastal State. The ports and harbors also fall under this category.
Freedom on the High Seas/International Waters
The rights of the Flotilla’s vessels and passengers, sailing, respectively, under the flags of the States of Turkiye Palau, Panama and Italy, are set forth principally in Article 87 of the UN Convention on the Law of the Sea (UNCLOS). While Israel is not a party to the UNCLOS, much of the UNCLOS is considered to be the codification of customary international law which thereby binds non-parties such as Israel and Turkiye.
Thr UNCLOS reads, in pertinent part:
Article 87 Freedom of the High Seas
- The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation. . . .
Furthermore, Article 89 of the UNCLOS emphasizes the doctrine of freedom of the high seas from another perspective, sovereignty/ownership. It states “no State may validly purport to subject any part of the high seas to its sovereignty.” When it comes to ships, Article 92 strongly establishes that the flag State has sole jurisdiction over their ships, stating that “ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this convention, shall be subjected to its exclusive jurisdiction on the high seas”.
Moreover, UNCLOS, Article 97(3) states that, “No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.”
In addition, UNCLOS, Article 110 (1) explicitly states that a warship which encounters a foreign merchant ship on the high seas is not justified in boarding unless there is reasonable ground for suspecting: (a) That the ship is engaged in piracy; or (b) That the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) the ship is of the same nationality as the warship.
This foregoing has been interpreted as meaning that all interference with a vessel under any pretense beyond the 12 nautical mile limit -or less depending on the breadth of territorial waters of the State concerned- from the shores of a foreign State ( the end of territorial waters) – is prima facie illegal. And, within the 24-mile to 12-mile limit, the right of interference is generally limited to preventing infringement of the foreign State’s customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea,” as well as to the proscriptions set forth below pertaining to travel through the high seas.
While some States have attempted to extend this limit by attempting to establish “exclusion” or “security zones” outside this boundary, similar to the Israeli blockade, 1958 Geneva Convention on Territorial Sea and Contiguous Zone does not recognize such exclusion or security zones, and the International Law Commission considered that extreme vagueness of the term security would open the way for abuses. Similarly, The International Law Commission, and the majority of States, do not accept the legality of security zones (or defense zones/neutrality zones) and therefore are unlikely to regard an ambulatory exercise of a right of (anticipatory) self-defense with any favor.
Still, the freedom generally to navigate international waters (a/k/a “the high seas”) does not end the discussion. Thus, the question of vessel interception (i.e., a state boarding, searching, or detaining a vessel of another state or non-state entity on the high seas or in territorial waters) is governed by the framework of international laws and conventions, including the UNCLOS as well as customary international law, and various treaties related to specific issues like slavery, drug trafficking and piracy.
In short, under certain circumstances, such as suspicion of piracy or slave trade, a State’s naval vessels may board and inspect foreign ships on the high seas. The right to visit, (which includes the right to board, and inspect) must be exercised in accordance with international law and could potentially be subject to specific treaty provisions. In the instant case, there does not appear to be any bilateral treaties between Israel and the respective Flag States that apply.
In any case involving disputes over maritime issues between States, UNCLOS provides a detailed resolution process for resolving said disputes. See, for example UNCLOS, Articles 279-287. Such dispute resolution should begin with consultations between the State Parties who must attempt to resolve their disputes through “peaceful means in accordance with the UN Charter.” If the States cannot resolve their differences between themselves, they have a choice of forums to resolve them, including (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI of UNCLOS; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; or (d) a special arbitral tribunal constituted in accordance with Annex VIII of UNCLOS for one or more of the categories of disputes specified therein.
If a vessel is boarded by a Foreign State such as Israel, the vessel should invoke these dispute resolution procedures and urge the Foreign State to consult with the Flag State to attempt to resolve the dispute peacefully.
Meanwhile, each exception to the general legal right to freedom of navigation in international waters has its own criteria for being properly invoked, and we therefore deal with them one at a time below.
Reasonable Suspicion Basis to Board, and Its Limitations
Generally, UNCLOS Article 110 allows a foreign vessel and/or a warship to board a foreign ship on the high seas if there is reasonable suspicion that the ship is engaged in piracy, slave trade, unauthorized broadcasting, or does not have a nationality, or has the same nationality as the warship. However, if the suspicions prove to be unfounded and the ship was boarded without adequate grounds, or the boarding and interception was excessive, the boarding party is liable for any loss or damage caused by the interception or boarding.
“Reasonable” suspicion in international law mirrors that found in most domestic laws, i.e. it is less than probable cause but more than just a hunch or vague suspicion, and it must be based on specific and articulable facts. Some examples of reasonable suspicion would be:; a ship is engaging in unusual navigation patterns; a ship is failing to respond to communications in a manner typical for commercial vessels. Moreover, any action taken based on that “reasonable suspicion” is limited in that it must be proportionate to the suspected illegal activity, must be limited in the harm and inconvenience caused, and upon boarding and disproving the suspicion the boarding party must withdraw and may be liable for compensation for any damages caused by that boarding and interception.
Stateless Vessels
Under International Law and UNCLOS, a stateless vessel is a vessel that: 1. Has no flag state, in that it flies no flag and does not have a valid registration with any state that has regulatory control over the vessel by way of inspection and certification for safety and legality of the ship’s operations and crew; and/or 2. sails without flying a national flag or fails to show its flag during an encounter in international waters and cannot prove its nationality when requested during a lawful encounter; and/or 3. Uses different (more than one) “flag of convenience” deceitfully in that it flies more than one flag or switches between flags to avoid detection and inspection.
A stateless vessel is generally exempt from protections afforded under international law – such as diplomatic protection- and UNCLOS for free passage. Upon a finding of unlawful activity the vessel may be subject to detention, seizure, and prosecution under the jurisdiction of the boarding state. A stateless ship falls into the unlawful category, but this does not grant any ship or state engaging with it the right to act unlawfully. The legal consequence of being a stateless ship is that it becomes subject to the jurisdiction of all states.
Piracy
Piracy on the high seas holds a unique status in international law. All states have jurisdiction, and indeed have a legal obligation, to seize pirate ships or aircraft and to arrest the pirates. Piracy is defined as illegal acts of violence, detention, or depredation committed for private ends by the crew or passengers of a private ship or aircraft in high seas or outside the jurisdiction of any state.
But again, a foreign State may only interfere with a vessel in international waters if it has “reasonable” suspicion that the vessel has been involved in piracy on the high seas.
In addition, as with all actions of vessel interdiction, any interference with a vessel suspected of piracy on the high seas must be necessary and proportional to the threat posed by the vessel, and must not entail “excessive force”, with the safety of the passengers always kept paramount. In addition, any interdiction by a Foreign State must comply with customary international law norms.
Interception for Security and Counter-Terrorism Post 9/11
There has been an increase in the interception of vessels for security and counter-terrorism reasons. This has led to the development of specific multilateral agreements and practices, such as the Proliferation Security Initiative.
Terrorism is defined as “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.”[28]
In light of the stated goal of UNCLOS in its Preamble to “promote the peaceful uses of the seas and oceans,” and Article 88 “the high seas shall be reserved for peaceful purposes”, the fact that terrorism is universally viewed as a threat to peace generally and the peaceful use of the seas in particular, and in light of numerous post-9/11 UN Security Council and General Assembly Resolutions imposing upon States the duty to suppress terrorism, it is generally accepted that terrorism is to be treated much like Piracy on the high seas. Therefore, a foreign State has the right of interdiction of a vessel that it reasonably suspects of terrorism or the imminent threat to carry out terrorism.
Slavery
Convention to Suppress the Slave Trade and Slavery and the UNCLOS expressly prohibits the transportation of slaves. Both 1958 Geneva Convention on the High Seasand the UNCLOS permit the boarding of a foreign vessel on the high seas if it is reasonably suspected of engaging in the slave trade, but neither Convention states the existence of any enforcement measures permitted in order to suppress the trade. The only right that exists is for a warship to proceed to verify the nationality of the foreign ship. It could be argued that only if the boarded vessel is of the same nationality as the warship may it be seized for engaging in the slave trade.
Other states may only report their findings to the proper 1authorities of the flag state. And indeed, as a general matter, the consent of the flag state (the state under whose laws the vessel is registered) is required before boarding, inspecting, or detaining a vessel in such an instance. Given this, it is important that each vessel in the Flotilla should (1) always fly their state flag; and (2) have a ready contact for their respective flag state and be prepared to share this contact if boarded.
Unauthorized Broadcasting
UNCLOS, Art. 109 provides for the suppression of unauthorized broadcasting from the high seas. The state under whose registry the ship is operating has jurisdiction, but if it does not take action, other states can intervene. This implies that advance consultation with the Flag State is required before a Foreign State may interdict a vessel for this purpose.
UNCLOS, Art. 109 provides for the suppression of unauthorized broadcasting from the high seas. All States are required to cooperate in this suppression. Unauthorized broadcasting is defined as the transmission of sound radio or television broadcasts from a ship or installation on the high seas, intended for reception by the general public, and conducted in contravention of international regulations, excluding distress calls. Individuals involved in such unauthorized broadcasting can face prosecution in several jurisdictions: the flag State of the ship, the State of registry of the installation, the State of the individual’s nationality, any State where the broadcasts can be received, or any State where authorized radio communications are being interfered with. This multi-faceted jurisdiction implies that advance consultation with the Flag State is required before a Foreign State may interdict a vessel for this purpose, ensuring that any intervention is conducted within the bounds of international law.
Migrant Interception
The UNCLOS provides specific guidelines for the interception of vessels, including those related to the control of illegal immigration and the interdiction for curbing slavery. Under Article 33, a coastal state may exercise control in a zone contiguous to its territorial sea to prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea, and to punish violations committed within its territory or territorial sea. This authority allows states to intercept vessels up to 24 nautical miles from their baselines to control illegal immigration. In contrast, Article 99 of UNCLOS mandates that every state take effective measures to prevent and punish the transport of slaves on ships authorized to fly its flag and prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, regardless of its flag, shall be considered free. The key differences between these two types of interdiction include the scope and jurisdiction—illegal immigration control is limited to the contiguous zone, while slavery interdiction is global and applies to any ship flying the state’s flag. Additionally, the enforcement mechanisms differ, with illegal immigration control involving unilateral actions by coastal states and slavery interdiction requiring broader international cooperation to prevent and punish slavery universally. These provisions highlight the distinct legal frameworks and enforcement mechanisms employed to address these critical issues under international maritime law.
Drug Trafficking
The UNCLOS instructs all states to cooperate in the suppression of the traffic in illegal drugs on the high seas. Enforcement of that duty, however, is not a matter of right under the Convention, but again, requires consent by the flag state to allow its ships to be interdicted.
Hot Pursuit
A coastal state may pursue a foreign vessel into international waters if the vessel has violated its laws in the internal waters, territorial sea or contiguous zone. Hot pursuit must begin while the pursuing ship, or aircraft, has the foreign ship within its sight or radar and must be uninterrupted. The pursuit must be ceased altogether if the ship enters the territorial sea of its own country, that of a third state or high seas. Hot pursuit must begin while the foreign ship is in the territorial sea or contiguous zone and must be continuous.
The Humanitarian Purposes of the Flotilla Give Special Protection to the Vessels
Of course, the vessels of the Flotilla are not engaged in any nefarious activities which, in reality, couldsubject them to search and seizure or any other form of interdiction under the established rules of international law. Rather, the vessels are engaged in peaceful, humanitarian purposes which fully comport with the letter and spirit of the UNCLOS in particular, and international law in generaland which should afford the vessels special protection from interference by Foreign States.
Specifically, as discussed further below, the vessels of the Freedom Flotilla have the right of free passage to deliver humanitarian relief to Gaza. This right is guaranteed, inter alia, by Articles 23 and 55 of the Fourth Geneva Convention, which require the free passage of humanitarian relief (Geneva Convention IV, Arts. 23, 55).
While Foreign States have the right to inspect vessels such as those of the Flotilla if they believe they are in contravention of any of the illegal activities discussed above, or of breaching a lawful blockade (which as we demonstrate below the Israeli blockade is NOT) it must be reiterated that this right to inspect should be executed in a manner that minimizes disruption to the vessel and its humanitarian mission, and any force used must be both necessary and proportionate.
The San Remo Principles Provide Protection Against Attack of Humanitarian Vessels in All Scenarios.
Under the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, a humanitarian aid convoy by sea enjoys lawful protections provided that the convoy’s primary purpose is humanitarian, and the convoy is neutral and provides no contribution to either party engaged in conflict. Generally, best practices include, but do not require, provision of notice to the blockading power, and to allow for inspection of supplies and personnel carried by the convoy. However, an illegally-blockading power does not enjoy the rights articulated in the San Remo Principles and is prohibited from interception and diversion of vessels headed to an illegally-blockaded territory. Simply put, a government enforcing an illegal blockade lacks the legal standing to restrict the passage of humanitarian vessels delivering essential aid to civilian populations.
A convoy establishes it has a Humanitarian Mission as its primary purpose when its primary purpose, as is the case here, is the delivery of aid materials intended to relieve civilian suffering, such as food, medical supplies, clothing, and shelter materials. The general principles and conventions governing international law recognize shelter as a basic necessity for human survival, qualifying them as humanitarian supplies. Shelter is particularly a humanitarian necessity in Gaza where, as of the time of this writing, over 70 percent of the homes of the Gaza Strip have been destroyed by Israel since October 7, 2023.
The convoy must also refrain from transporting cargo or persons that would directly contribute to the military efforts of any party. To avoid any misunderstanding (not for legal requirement) the convoy should also notify the blockading power of its intended passage and seek consent for passage. The blockading power, upon receipt of such notification, is obliged to consider allowing the passage of humanitarian relief for civilians, and in all cases is prohibited from attacking the vessel.
Upon meeting these conditions, any attack or interception of the humanitarian convoy is unlawful. Assuming arguendo that the Israeli blockade is legal – which it is not as we shown below – Rule 102 of the San Remo Principles on International Law Applicable to Armed Conflicts at Sea, specifically prohibits the attack of humanitarian vessels carrying supplies that are indispensable to civilian survival. Even where the blockading party board and inspect the vessel and determine it does not qualify for passage because it is not carrying only those supplies needed for humanitarian relief, and chooses to divert it, said finding does not allow for an attack.
As demonstrated below, the Freedom Flotilla vessels have said rights in spite of Israel’s siege and blockade of Gaza, for it is well-settled that the imposition of a blockade and severe restrictions on the movement of people and goods into and out of Gaza violates well-accepted principles of international law, including Article 33 of the Fourth Geneva Convention (Aug. 12, 1949, Art. 33, 6 U.S.T. 3516).
San Remo Principles & the Right to Intercept, Inspect and Divert are Not Applicable to An Illegal Blockading Party, Such as Israel
A State illegally blockading another country does not have the right to enforce that blockade, and thus does not have the right to inspect, divert and intercept any vessel, let alone a humanitarian vessel, heading towards the blockaded territory.
An illegal blockade, as determined under international law, negates the rights that a blockading party would normally enjoy under lawful circumstances, and is prohibited from interception and diversion of vessels. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea specifically excludes an illegally-blockading party from the rights set out in the San Remo Manual. Moreover, the Geneva Conventions and Additional Protocols maintain that an illegal blockade inherently contravenes the requirement of humanitarian protections during conflict. Customary international law, and decisions of various international tribunals, further and explicitly affirm the principle that illegal blockades cannot confer legal rights to intercept or divert vessels, in dicta and in analysis addressing the issues raised in several cases.
The Israeli blockade of Gaza is illegal under international law because it is in violation of Palestinian self-determination; in violation of the Geneva Conventions of 1949 prohibitions against the use of collective punishment and any form of brutality towards an occupied people, it has an extensive and disproportionately deleterious impact on Gaza’s civilian population, serves as collective punishment by its nature, its form and by recent express statements of Israeli government officials, and it unlawfully restricts freedom of movement and access to humanitarian aid. As such, this blockade violates the San Remo Manual, IHL and is a grave breach of the Geneva Conventions pursuant to the ICJ Advisory Opinion on the Wall (2004).
The Israeli blockade of Gaza – established in 2005, and which includes restrictions by land, air, and sea around the Gaza Strip – is illegal under International Law and precedent. Most notably, the Israeli blockade is a gross violation of the Palestinian Right to Self-Determination enshrined in the International Covenant on Civil and Political Rights (ICCPR), Article 1, in that it prevents the Palestinian people from managing their own resources, including water and electricity; impinges on their right to ingress and egress; prevents them from freely engaging in trade beyond their borders; and blocks them from managing and accessing their own borders for the purposes of receiving goods and services, including life-saving humanitarian aid.
While the Israeli alleged objective for the blockade is to prevent the inflow of weapons and military supplies to Gaza, this justification is itself in breach of Article 1 of the International Covenant on Economic, Social, and Cultural Rights (Article 1) which recognizes the right to armed action to protect a peoples’ right to self-determination from foreign occupation. In this scenario, and in all cases, an occupying power is limited in its response to armed hostilities and resistance by the principles of proportionality and necessity, which require the occupying power to ensure that any military response is proportionate to the threat. The Principle of Proportionality is the key measure by which a blockade is determined to be legal. Where there is no proportionality, a blockade is not legal. The Principle of Proportionality requires that any harm caused to civilians in the conduct of military operations must not be excessive in relation to the concrete and direct military advantage anticipated.
Israeli engagement in calorie counting, restriction of food items, such as chocolate and coriander, and its restriction on civilian goods, including essential items for survival and reconstruction, demonstrates that the blockade exceeds what is necessary to achieve its military objectives, even long before October 2023. As the Israeli blockade affects nearly every aspect of daily life in Gaza, it has long indicated a lack of proportionality between the military advantages gained and the extensive civilian harm caused. The current total siege of Gaza has been declared illegal by the UN High Commissioner for Human Rights, along with countless other Human Rights Bodies and Governments.
Given the facts and impact of Israeli policies and practices in Gaza now and historically, it is also unequivocal that the Israeli blockade, by way of its comprehensive and all-consuming devastating impact on the civilian population, is serving as a tool of collective punishment which is prohibited under the Fourth Geneva Convention. Israeli government official statements have expressly articulated their goal of collective punishment: to handicap and starve Palestinians into submission. Accordingly, the Israeli blockade, in its initial, prior and current form, fails the central test of Proportionality and therefore is not legal.
The blockade would also be unlawful under the San Remo Manual on International Law Applicable to Armed Conflicts at Sea Rules 93, 94, 102, and 103, which address the limitations of blockades and require a blockading party to allow the free passage of neutral shipping and non-military vessels, and specifically requires the passage of medical supplies and items necessary for the survival of the civilian population in Gaza.
Because an illegally-blockading party lacks legal basis to enforce the blockade, the rights typically associated with a lawful blockade, such as inspecting and diverting ships suspected of breaching the blockade, no longer apply. As such, the blockading state would be liable for any actions taken in this regard and in the enforcement of the illegal blockade. Moreover, States affected by an illegal blockade, including the flag states of impacted vessels, would have the right to seek remedies through diplomatic channels or international dispute resolution mechanisms for any related breaches by the blockading party.
Several UN Security Resolutions have also specifically addressed the need for unimpeded humanitarian access to populations in need during times of conflict. Just this month the UN Security Council passed UNSC Resolution 2728 to address “the urgent need to expand the flow” of aid into Gaza.
As discussed further below, in a situation where a population faces genocide, these laws and principles become particularly pertinent, as does the implementation of measures to protect such humanitarian aid convoys.
The Recent Developments in Gaza and the Recent Decisions of International Bodies Resolve any Doubts About the Right of Israel or any other State to Block or Deter the Flotilla
The right of the Flotilla to deliver humanitarian aid to Gaza, and its further right to the guarantee of safety and safe passage, are bolstered by the provisional measures ordered by the ICJ, the highest Court in the world, and specifically its admonition for Israel to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”
As Amnesty International emphasized after the ICJ issued this decision, Israel is obligated to follow this decision immediately, and all other States are obligated to act affirmatively to ensure this compliance. As Amnesty International wrote, “The stakes could not be higher – the ICJ’s provisional measures indicate that in the Court’s view the survival of Palestinians in Gaza is at risk. The Israeli government must comply with the ICJ’s ruling immediately. All states – including those who were critical of or opposed South Africa’s submission of the genocide case – have a clear duty to ensure these measures are implemented. World leaders from the USA, UK, Germany and other EU states must signal their respect for the Court’s legally binding decision and do everything in their power to uphold their obligation to prevent genocide. Failure to do so would be a grave blow to the credibility and trust in the international legal order.”13 (emphasis added). Amnesty International continued, “States must also take urgent steps to prevent ongoing international crimes, including by imposing a comprehensive arms embargo against Israel and Palestinian armed groups.” In short, all States must, in the words of the ICJ, “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to” Gaza.
The Flotilla’s mission to bring humanitarian assistance to Gaza is fully in keeping with the Order of the worlds’ highest Court. Therefore, safeguarding the Flotilla is an imperative legal duty of all states and a moral duty of all people. The obligation to provide political, military, and diplomatic support to a peaceful and lawful initiative like the International Freedom Flotilla is well rooted in State obligations under international law, as reaffirmed by the ICJ on January 26, 2024. The obligation to prevent genocide extends to the requirement to take proactive measures to prevent genocide.
Today it is inconceivable to consider that the Israeli blockade, in the context of genocide and the Israeli-made starvation of the Palestinian people meets the central condition of Proportionality, by which the legality of any blockade is assessed, or otherwise complies with international law. The ICJ’s finding of plausible genocide, its Orders and Additional Orders, along with reports and analyses by humanitarian organizations demonstrate unprecedentedly frightening humanitarian conditions, including the inception of one of the fastest paced famines on earth; and critical shortages of medical supplies and destruction of civilian infrastructure, including wholesale destruction of all facilities of water desalination, heating, employment, education, housing, and near total destruction of all medical facilities. This unequivocally establishes that the Israeli blockade of Gaza is disproportionate to its intended military objectives.
Moreover, the Israeli blockade is illegal as it unlawfully restricts the movement of people and goods, impeding access to humanitarian aid, contrary to the ICJ’s findings in the Advisory Opinion on the Wall regarding restrictions on freedom of movement.
Relevant to this discussion is also The Committee on the Elimination of Racial Discrimination’s (CERD) Early Warning and Urgent Action Procedure 7 which requires all State parties to the Genocide Convention to mobilize, i.e. to take proactive measures, to prevent genocide. This includes mobilizing both concerted international action and independent unilateral State action. Such independent State action includes participating in peacekeeping and stabilization missions and providing humanitarian assistance and support. Again, the Flotilla’s mission is fully in keeping with the word and spirit of these obligations, and the Flotilla is therefore entitled to the guarantee of safe passage by all States.
In addition, given the humanitarian imperative of access to humanitarian supplies, and the international recognition thereof, including the ICJ orders directing access to such supplies, and also given the protections afforded under IHL, intercepting or diverting these vessels under an illegal blockade would be an egregious violation of the San Remo Principles and the ICJ Order on Provisional Measures.
Such interception or diversion also amounts to an act in furtherance of war crimes and a violation of the Geneva Conventions of 1949. Indeed, the Rome Statute of the International Criminal Court (ICC), Article 8.2(b)(xxv) makes it clear that “willfully impeding relief supplies as provided for under the Geneva Conventions” is a serious violation of the laws and custom of war, and subjects those engaging in such conduct to individual liability for war crimes. The UN Security Council, in a number of Resolutions, such as S/RES/794 (1992) and S/RES/25334 (1993), has also made it clear that individual criminal liability for war crimes, and violations of the Geneva Conventions of 1949, arise from the intentional impeding of food and medical assistance to a civilian population during armed conflict.
Lest there be any doubt about the foregoing, the Resolution adopted by the UN Human Rights Council on April 5, 2024, described above, established the right of the Freedom Flotilla to bring aid to Gaza, free from any interference by Israel. Thus, the Human Rights Council, through this Resolution, has explicitly “demanded that Israel immediately lift its blockade on the Gaza Strip and all other forms of collective punishment . . ..” (emphasis added). Similarly, the UN Security Council, in Resolution 2720 (2023), demanded that the parties allow, facilitate, and enable the immediate, safe and unhindered delivery of humanitarian assistance at scale directly to the Palestinian civilian population throughout the Gaza Strip.
What’s more, President Joe Biden’s decision to build and open a seaport to facilitate humanitarian aid delivery to Gaza – a decision he claims is supported by Israel – is further support for the proposition that the Freedom Flotilla is fully within its rights to deliver humanitarian assistance by sea to Gaza.
In light of the foregoing, the vessels and passengers of the Freedom Flotilla are entitled to the guarantee of free and safe passage to deliver humanitarian aid to Gaza in order to alleviate the terrible suffering, including by famine and disease, of the Palestinians living there.
Attorneys:
Lamis J. Deek ;
Daniel Kovalik;
Hüseyin Dişli
[1] IPC Global Initiative – Special Brief – Gaza Strip, February 2024, https://www.ipcinfo.org/fileadmin/user_upload/ipcinfo/docs/IPC_Gaza_Acute_Food_Insecurity_Dec2023Feb2024.pdf
[2] https://edition.cnn.com/2024/04/04/middleeast/gaza-wck-aid-suspended-famine-intl/index.html
[3] Ibid.
[4] https://www.ohchr.org/en/press-releases/2024/03/un-experts-condemn-flour-massacre-urge-israel-end-campaign-starvation-gaza
[5] Ibid.
[6] https://youtu.be/fbZsXohFGcg?si=NdHg3B151V8OwJaf; https://en.mehrnews.com/news/213684/Children-dying-of-infection-at-overwhelmed-Gaza-hospitals.
[7] Ibid.
[8] Ibid.
[9] https://www.unicef.org/press-releases/gaza-has-become-graveyard-thousands-children
[10] https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf
[11] Ibid.
[12] https://ccrjustice.org/sites/default/files/attach/2024/01/91_1-31-24_Order-granting-MTD_w.pdf
[13] https://www.icj-cij.org/case/193
[14] https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
[15] https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session55/advance-versions/a-hrc-55-73-auv.pdf, p1
[16] Ibid.
[17] Ibid, paragraph 35-38.
[18] https://www.ohchr.org/en/press-releases/2024/04/le-conseil-adopte-cinq-resolutions-dont-celle-demandant-quun-cessez-le-feu
[19] https://www.theguardian.com/world/2024/mar/07/biden-us-port-gaza-aid-delivery
[20] Ibid.
[21] https://www.un.org/unispal/wp-content/uploads/2024/03/n2408081.pdf
[22] Ibid.
[23] https://press.un.org/en/2024/sc15658.doc.htm
[24] https://www.ohchr.org/en/statements/2024/04/un-experts-demand-safe-passage-freedom-flotillas-humanitarian-mission-gaza
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] United Nations General Assembly Resolution 68/119, 18 December 2013