International Legal Implications of Israel's Attack on the Gaza Aid Flotilla
This panel was convened at 3:00 p.m., Friday, March 25, by its moderator, Naomi Roht-Arriaza of the University of California, Hastings College of the Law, who introduced the panelists: Sari Bashi of Gisha-Legal Center for Freedom of Movement; Daoud L. Khairallah of Georgetown University Law Center; Sarah Weiss Ma'udi of the Office of the Legal Adviser, Ministry of Foreign Affairs of Israel; and Naz Modirzadeh of the Harvard Program on Humanitarian Policy and Conflict Research.
REMARKS BY SARI BASHI *
Let me start with the context of the Gaza aid flotilla incident, which we believe is crucial to understanding the Israeli maritime closure of Gaza, now in place for 44 years.
Since the Israeli occupation of Gaza in 1967, Israel has prevented use of Gaza's territorial waters for movement of persons or goods. The Oslo Accords signed in the 1990s contemplated permitting fishing up to 20 nautical miles from Gaza's coast, but in reality fishing is only permitted for up to 3-6 miles from the coast. A deep water seaport was to be built by agreement, and construction began in 2000, but in 2001 Israel bombed the construction site and has not permitted reconstruction to take place.
In 2005, Israel removed civilian settlers and its permanent ground troop presence from Gaza. Israel claimed an end to the occupation of Gaza and, consequently, an end to Israeli responsibility over Gaza. Notwithstanding the withdrawal, I believe that the law of occupation continues to apply in Gaza because of continued Israeli control, and Gisha will issue a position paper to that effect later this year.
Even after 2005, Israel continued to prevent access to and from Gaza via the sea. It described the source of such exercise of authority generally as a different body of law--the law of armed conflict.
Until 2007, Israel's policy of allowing goods to enter and leave Gaza by land was reportedly a policy of free access, subject only to restrictions stemming from security needs. Human rights groups often disagreed with this characterization, alleging that closures of the crossings were designed to apply pressure on the population in Gaza in response to political developments or attacks by armed groups in Gaza on Israeli civilians or soldiers.
Closure Policy as Economic Warfare
In 2007, after the Hamas movement took over internal control of Gaza, Israel declared a policy of "economic warfare," seeking to paralyze the economy in order to "weaken Hamas." Israel said it would only permit the entrance of goods "essential to the survival of the civilian population."
Remarks by senior security officials reveal a direct relationship between the behavior of militants or political actors--including rocket fire on Israeli civilians--and permission for civilians in Gaza to receive basic goods. At various points, crossings were closed or truckloads of goods were blocked following escalations of violence.
The lists of items permitted or banned show a policy designed to prevent economic development. So, for example, table salt was permitted into Gaza as a humanitarian consumption item, but industrial salt was banned because it was an input for local food production, which would allow people in Gaza to engage in production and economic activity. Mathematical formulas (revealed in Gisha's Freedom of Information petition) were set to determine how much food would be allowed into Gaza by security officials, as a way of setting a minimum level to which the food supply could be reduced without causing health problems.
Declaration of Naval Blockade
On January 3, 2009, in the midst of the war in Gaza, Israel declared a "naval blockade" that remains in effect today. What changed with the 2009 declaration of a naval blockade?
Before the declaration of the maritime closure, Israel was preventing ships from entering or leaving Gaza, regardless of whether suspicion existed that they might be carrying arms. …