The Israeli Foreign Ministry points RCW toward a Q&A conducted with MFA legal expert Sarah Weiss Maudi on the legality of the Gaza Strip blockade:
I'm glad to see the Israeli government engaging the media in this fashion, as I believe the debate over the blockade's legitimacy will only grow larger and louder as a result of this week's incident.
Something I find rather interesting about Ms. Weiss Maudi's defense of the blockade is her reliance on the international Law of Armed Conflict, coupled with her repeated reference to "the Hamas regime." Her defense, as international and maritime law expert Douglas Guilfoyle notes, is correct so long as the blockade doesn't "cause excessive damage to the civilian population in relation to the military advantage gained."
In other words, so long as Israel can demonstrate that the blockade is consistent with relative military gains against, as Ms. Weiss Maudi puts it, an enemy "Hamas regime" - and not just a punitive form of collective punishment against Gazans as a whole - then the blockade and boarding of vessels in international waters are both legitimate measures consistent with international law.
Indeed, Israel continues to insist that materials carried aboard the flotilla were likely intended for military purposes, which - perhaps? - makes the blockade and raid legit.
One (possible) problem: Hamas isn't the Palestinian government, but merely one party claiming leadership of that "regime." Another snag: Gaza isn't a state, nor does it represent the geographic entirety of the theoretical state of Palestine.
Kevin Jon Heller goes further:
Israelâ??s defense of the blockade thus appears to create a serious dilemma for it. Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas. And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza. Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas. But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention.
If the â??costâ? of the blockade is formally recognizing Hamas as a belligerent, maintaining the blockade would mean recognizing Hamas fighters as privileged combatants. (Just as the armed forces of any state are privileged combatants.) That would be fundamentally unacceptable to Israel, because Hamas fighters would then be entitled to attack Israeli combatants and would have to be treated as POWs upon capture.
My sense, or fear, is that Jerusalem is selectively cherry picking the international edicts it chooses to abide by. But perhaps I'm wrong, which is why I open the floor up to the legal beagles hiding amongst our readership.
My question(s): What is Hamas, and does Israel's answer to that question affect the legality of the Gaza blockade? You can email me with your take, or simply leave a comment here on the blog. I'll promote the more illuminating answers.
