I keep reading on Progressive Blog sites and hearing Progressive pundits on the TV blabbing on and on about how Israel acted like a "rogue Nation" when it boarded a Turkish flagged carrying relief supplies to Gaza...well fellow member of the AIR posted an excellent response to this blather over there today, and with his kind permission I am cross-posting it here. Subotai, by his own admission does get a bit wordy, but every word is golden if you really want to understand any subject he's pontificating on.
Hostis Humani Generis
Posted by: LC Subotai Bahadur, Lord Pao An
June 4, 2010 at 10:14 pm
Let us speak of international law. Specifically, the law concerning war at sea. There has been mention previously that statements about the requirements of international law as it applies to the attempt to break the Israeli blockade were merely opinions. OK, then let us look at the actual texts.
Is there a state of belligerency between the Palestinian authorities who govern Gaza and the State of Israel?
Yes. The Palestinian government of Gaza has repeatedly declared itself to be at war with Israel, conducted attacks on Israeli territory, civilians, and armed forces. It has refused to negotiate with the government of Israel. If you accept that the Palestinians govern Gaza, they are at war. If they do not govern Gaza, then the area and its inhabitants are pirates, bandits, etc. and are outside the laws of nations.
Given the state of war between the Palestinians of Gaza and the State of Israel, what care under the various Hague and Geneva Conventions is owed to the Palestinians by the Israelis?
It is extremely limited. Article 2 of the Hague Convention defines its scope:
Art. 2. The provisions contained in the Regulations mentioned in Article I are only binding on the Contracting Powers, in case of war between two or more of them.
The Palestinians in Gaza are not a Contracting Power, having never signed the Hague and Geneva Conventions, nor followed any of its strictures. If they were following those strictures, they could still legally attempt to claim the protections, however they are not. Those Palestinians engaged in combat against Israel are not covered by the protections of the Geneva and Hague Conventions because they fail to follow the basic requirements of being a recognized belligerent:
ANNEX TO THE CONVENTION
REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND
SECTION I
ON BELLIGERENTS
CHAPTER I
On the qualifications of belligerents
Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer
corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination army.
Art. 2. The population of a territory which has not been occupied who, on the enemys approach, spontaneously take up arms to resist the invading troops without having time to organize themselves in accordance with Article 1, shall be regarded as belligerent, if they respect the laws and customs of war. [my emphasis]
Israel, as a signatory to the Geneva Conventions, is covered by Common Articles 2 & 3 of the 4th Geneva Convention, which extends protections to civilians in international conflicts and to a lesser extent to civilians in armed conflicts within a single nations borders. However, Article 4 of the 4th Geneva Convention in the course of defining who the class of Protected Parties actually consists of specifically EXCLUDES Nationals of a State which is not bound by the Convention.
If Palestinian Gaza is a state, which is at war with Israel; as a non-signer of the Hague and Geneva Conventions, neither those in arms against Israel, nor their civilian counterparts are covered by them. If Palestinian Gaza is NOT a state, and is not under the jurisdiction of a state [and no one I know of claims them] they are at best unlawful combatants and more like hostis humani generis.
That status accrues also to foreign nationals who act on their behalf as part of their war effort.
Now moving to the rules of warfare at sea. Naval warfare is governed under international law by The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994. This is the same manual carried on all US warships and is the basic text on the subject. A copy posted by the International Committee of the Red Cross can be found here: http://tinyurl.com/2v6jxty
Israel, years ago, declared a blockade of the coast of Gaza, openly and meeting the terms of the San Remo Manual which requires:
SECTION II : METHODS OF WARFARE
Blockade
93. A blockade shall be declared and notified to all belligerents and neutral States.
94. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.
95. A blockade must be effective. The question whether a blockade is effective is a question of fact.
96. The force maintaining the blockade may be stationed at a distance determined by military requirements. [my emphasis. There is no bar to maintaining a blockade in international waters. See Cuban Missile Crisis, 1962]
97. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules set out in this document.
98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked. [my emphasis]
99. A blockade must not bar access to the ports and coasts of neutral States.
100. A blockade must be applied impartially to the vessels of all States.
101. The cessation, temporary lifting, re-establishment, extension or other alteration of a blockade must be declared and notified as in paragraphs 93 and 94.
In reference to #95, that is a term of art in naval warfare. You cannot just declare a blockade, you have to actively patrol and enforce it. If it is not constantly enforced, it does not exist legally. Attention is drawn to #98. The term attacked includes all legal means and includes sinking.
The question of what flag the vessel attempting to breach the blockade is flying is irrelevant.
There are provisions for exemptions from attack, which some may try to bring into the discussion:
SECTION III : ENEMY VESSELS AND AIRCRAFT EXEMPT FROM ATTACK
Classes of vessels exempt from attack
47. The following classes of enemy vessels are exempt from attack:
(a) hospital ships;
(b) small craft used for coastal rescue operations and other medical transports;
(c) vessels granted safe conduct by agreement between the belligerent parties including:
(i) cartel vessels, e.g., vessels designated for and engaged in the transport of prisoners of war;
(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;
(d) vessels engaged in transporting cultural property under special protection;
(e) passenger vessels when engaged only in carrying civilian passengers;
(f) vessels charged with religious, non-military scientifc or philanthropic missions, vessels collecting scientific data of likely military applications are not protected;
(g) small coastal fishing vessels and small boats engaged in local coastal trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspection;
(h) vessels designated or adapted exclusively for responding to pollution incidents in the marine environment;
(i) vessels which have surrendered;
(j) life rafts and life boats. [my emphasis]
However that exemption is not absolute, and is specifically revoked under the following conditions:
Conditions of exemption
48. Vessels listed in paragraph 47 are exempt from attack only if they:
(a) are innocently employed in their normal role;
(b) submit to identification and inspection when required; and
(c) do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required. [my emphasis]
and
Loss of exemption
Hospital ships
[Sections 49-51 deal exclusively with the special conditions of Hospital Ships.]
All other categories of vessels exempt from attack
52. If any other class of vessel exempt from attack breaches any of the conditions of its exemption in paragraph 48, it may be attacked only if:
(a) diversion or capture is not feasible;
(b) no other method is available for exercising military control;
(c) the circumstances of non-compliance are sufficiently grave that the vessel has become, or may be reasonably assumed to be, a military objective; and
(d) the collateral casualties or damage will not be disproportionate to the military advantage gained or expected.
The attempt to divert or capture (52a) the blockade running flotilla was in fact what was required by international law as a first resort. They were attempting to exercise military control (52b) as allowed under the laws of naval warfare in maintaining a blockade. Since the blockade is in place to bar offensive weapons, especially rockets and missiles, from reaching Gaza to prevent further firings on Israeli civilians, a refusal to allow inspection or diversion does raise a reasonable assumption that it is carrying weapons, regardless of what they claim. That makes them a legitimate military objective (52c). While it is a judgment call as to proportion, the IDF is balancing the lives of their civilians who may be attacked in their homes by imported missiles against the lives of those who are deliberately breaking international law to aid those who would kill those civilians. (52d)
If it was Venezuelan flagged ships possibly bringing rockets to be fired from an enclave of the so-called Nation of Atzlan into Corpus Cristi, Texas; I know where I would want the balance to be in the judgment call if they were stopped by the US Coast Guard or Navy. [or Republic of Texas equivalents thereof *smile*]
Israel had every legal right to declare the blockade, to enforce it where their judgment of military requirements says to place the blockade line, to stop, to board, to search, or to divert any ship attempting to approach the blockade line. Under international law. And under that same international law, once there was resistance or refusal; they had every right to sink those vessels. And they still do for the next wave coming at them, and any after that.
Yes, international law grants rights and protections in war zones to innocent civilian traffic. But to keep those rights and to not be re-classified as a target, it also imposes responsibilities and duties of compliance. Failure to fulfill those responsibilities, or comply with directions means you are no longer an innocent civilian, but rather an enemy belligerent, subject to treatment as such.
I do wonder, if say those who object to the stopping of the blockade runners have ever driven in a foreign country in a vehicle with US plates. Say they come to a police roadblock. Do they stop, do as the officers say; and assuming that where they were going, what they were carrying, and what they were doing was legal, get sent on their way? Or do they try to breach the roadblock, try to outrun the cops, and then are surprised and aggrieved when they are stopped in a less than gentle manner? And if they resist the cops, do they believe that nothing should be done to them; either in the course of being subdued, or in court afterwards?
If any of you would happen to peruse this, and find that I am speaking out of the wrong orifice; please feel free to correct me, publicly, here.
LC Subotai Bahadur, Lord Pao An
~*~*~*~*~**~*~**~*~**~*~***~**~**~*~**~***~*~**~**~****
There you have it. Care to comment with your reaction ?
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