Rule Selection in the Case of Israel's Naval Blockade of Gaza: Law of Naval Warfare or Law of the Sea?

Abstract

On 27 September 2010 the UN Human Rights Council in Geneva released its analysis of the 31 May 2010 boarding of the large passenger liner, Mavi Marmara, by forces of the Israeli Navy. The ship was interdicted in the eastern Mediterranean Sea by Israeli commandoes, who rappelled vertically onto the top deck of the ship from a helicopter. The boarding incident and ensuing melee that unfolded on the deck of the ship left several Israeli military members seriously injured and resulted in the death of nine Turkish nationals. The event ignited a firestorm of controversy in international humanitarian law. These sad and unfortunate results raise interdisciplinary questions concerning both fact selection—determining what actually happened, or whose version of the facts are accepted—and rule selection—what was the legal relationship between Israel and the vessel Mavi Marmara. Because of the tense stand-off between the Gaza Strip and Israel, however, and the volatile brew of religion, politics and geography that colors choices of fact selection and rule selection, analysis of the incident is especially challenging. The issues of fact selection are more important for resolving questions surrounding the deaths and injuries of persons on board the ship and Israeli naval personnel. Factual claims necessarily are colored by a veneer of subjectivity, and in this case go more toward determining whether the use of force on the part of Israeli commandoes was lawful. The nature of the tactical operation that unfolded on board the ship and the reaction of the vessel's passengers are bitterly disputed, inseparable from who used what force and when. © 2010, T.M.C. Asser Instituut and the Authors. All rights reserved.