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As Flotilla Inquiry Calls Grow Louder, Legality of Gaza Blockade Examined

June 2, 2010 at 12:00 AM EDT
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Israeli authorities are defending the raids of vessels bound for Gaza, as the international community presses for an independent investigation of the flotilla deaths. Judy Woodruff examines the legality of Israel's attack in international waters with two law experts.
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JUDY WOODRUFF: For more on the legality of Israel’s actions on Monday and its ongoing blockade of Gaza, we get the views of two international law scholars.

Anthony D’Amato is a professor at the Northwestern University School of Law. And Ruth Wedgwood is a professor at the School of Advanced International Studies at the Johns Hopkins University.

Thank you both for being with us.

Let me turn to you, Professor D’Amato.

Was Israel within its rights on Monday to board these ships and to redirect them away from Gaza?

ANTHONY D’AMATO, professor, Northwestern University School of Law: No, I don’t think so.

But I think it’s very lawyer clear, one of the clearest rules of international law is that there’s freedom of the seas. These — this flotilla had a right to do what they were doing, and Israel had no right to intercept them or to call it a blockade and stop them or to board their ships or anything like that. It’s a very clear principle.

JUDY WOODRUFF: Ruth Wedgwood?

RUTH WEDGWOOD, professor, School of Advanced International Studies at Johns Hopkins University: Well, Tony D’Amato is a good friend of mine, but I have to disagree with him.

Under ordinary law of armed conflict, you have a right to prevent even neutrals from shipping arms to your opposing belligerents. The U.S. itself…

ANTHONY D’AMATO: What armed conflict? What — Ruth…

RUTH WEDGWOOD: Let me just finish.

RUTH WEDGWOOD: Tony, let me finish.

The U.S. itself, as a neutral throughout most of the 1800s, had the duty to submit to inspection when it was shipping to — on the high seas, to make sure that cargoes weren’t in fact fueling any of the wars in Europe.

The dilemma here…

RUTH WEDGWOOD: Who’s fighting whom?

JUDY WOODRUFF: We’re going to ask you just to hold off, Professor D’Amato. As soon as she’s done, we will come right back to you.

ANTHONY D’AMATO: It’s a…

JUDY WOODRUFF: Just one second.

RUTH WEDGWOOD: It’s a debate.

JUDY WOODRUFF: We will be right back.

RUTH WEDGWOOD: It’s a moderated debate, Tony.

But the — I think the real structural dilemma here has been that the U.N. itself has proven very ineffective, wholly, alas, ineffective, in ever keeping arms from infiltrating, if you take UNIFIL in Lebanon with Hezbollah. The hope had been that this time would be different. It’s not.

So, the — the — any confidence that, in fact, either self-restraint or some kind of U.N. maritime patrol would prevent this, I think, is wishful.

JUDY WOODRUFF: But, Professor D’Amato, what I heard Ruth Wedgwood say initially is that in a — when you have a condition of armed conflict, one party does have the right, under international law, to do what Israel did.

ANTHONY D’AMATO: Now, what — what armed conflict are we talking about? There’s no armed conflict here.

These people aren’t fighting Israel. Israel isn’t in a war against these — this flotilla. These are — these are citizens. What war are we talking about, the war between Israel and Hamas? There’s no war there. Israel has — has conquered and is running the whole territory. Hamas doesn’t have any — any — they’re a conquered country.

So, this business that Ruth is telling us about is 200 years old. That’s in the old days, when one country was at war with another, and neutrals tried to ship arms to one of those two countries. Under those old laws of blockade — and Ruth knows this as well as anybody — they — they had — the country — the belligerents had a right to stop the blockade — to stop the — the shipments.

But that has no application now. It’s dragging in something that is long gone from international law. It’s an old regime of blockades, neutrality, contraband, and all the things that people don’t study anymore. Maybe that’s why they’re bringing it up.

JUDY WOODRUFF: All right, well, let’s come back to Professor Wedgwood.

RUTH WEDGWOOD: Well, blockades have been more recent than that. And I would distinguish blockade of everything from blockade of arms.

But if you take, for example, the wars in Yugoslavia, the U.N. itself, and NATO, through Operation Sharp Guard, enforced this, had a blockade on shipments to Yugoslavia.

JUDY WOODRUFF: Is the real debate here, Ruth Wedgwood, over whether Israel had the right to establish the blockade in the first place?

RUTH WEDGWOOD: Well, I think the ambition of the peace flotilla, so-called, is to basically denude Israel of what it thinks it was guaranteed in the 1993 Oslo Accords, which is the control of the external borders of Gaza and West Bank, and their desires to have this Gaza become an open port.

The problem with, again, is that you could easily have a rearming of Hamas, which caused a terrible conflict. And Tony, whom I love dearly, can call it what he wants, but the rockets that went into Israel and the responsive invasion of Gaza, that was an armed conflict.

JUDY WOODRUFF: Professor D’Amato, what about on this question…

JUDY WOODRUFF: Go ahead, but what about on this question of whether the blockade is the principal barrier, irritant here?

ANTHONY D’AMATO: Well, I — first of all, I don’t think — I don’t defend the Hamas’ rockets against Israel. In fact, I’m as opposed to that scenario as Ruth is.

As for the Balkans, yes, there was a U.N.-sponsored blockade, but it was the most permeable blockade you have ever seen. Nations were at liberty to ship all kinds of arms into that country during the ’90s.

As for the blockade now, it’s a word. It doesn’t have any meaning. You can’t — I can’t set up a blockade around my house and keep Ms. Wedgwood out of it. I mean, who can go on the high seas and stop ships from doing what they’re doing?

The Israelis had a right to wait on the beaches, as they first tried to do, actually, and wait for those ships to come in, and then they could say, we now want to search you because you might be carrying contraband.

But this notion of going way out into the high seas, or even into the territorial seas, which Israel doesn’t own, because they’re an occupying country, to do that is to — is to escalate a situation that is now redounding in Israel’s detriment. And I think they have made a horrible mistake here. The country is — is too much on the defensive. They should have let those people land and deliver their goods, and then leave.

I mean, it — you don’t need…

JUDY WOODRUFF: Let’s come back to Professor Wedgwood, because we have only got a few minutes left.

Is — is…

ANTHONY D’AMATO: All right.

JUDY WOODRUFF: Is this even something that can be settled by discussing the legal questions involved?

RUTH WEDGWOOD: Well, I think you often now have conflicts that are different than traditional conflicts. We have conflicts that have an international elements, even if they’re not classical state-to-state conflict.

We have the worry about the effect of terror groups on conflicts. I think, again, the role of Iran as a spoiler in the region, which is really preventing anything settlement of Israeli-Arab issues, is a very serious issue.

I — I worry, frankly, that the U.N. itself is losing its focus. It should be worried about the Iranian nuclear program. It should be worried about being effective in countering that. It should be worried about how to actually work out a monitored piece.

But to say that Israel itself has to be helpless in the face of the attempt to bring in unmonitored ocean traffic, the right of visit and search under the law of the sea, or under the law of armed conflict, can be conducted on the high seas.

JUDY WOODRUFF: You’re referring to what the U.N. position is. Professor…

ANTHONY D’AMATO: I — I agree with — I agree with Ruth’s assessment of the U.N. I agree with her statement about Iran. We’re on the same side on that issue.

But I don’t think that the principle of freedom of the seas should be placed in jeopardy for something that Israel could very well do in a more reasonable way, is to wait for those boats to come in and then check them out. They’re not — it doesn’t set up that kind of a situation of endangerment to Israel.

We — they already knew what was on the boats. And — and, when they don’t, they can wait and check them out and arrest people if they’re bringing in armaments and materiel and things like that.

This is an overreaction. And to defend it means that we are losing one of the basic principles of international law that go back thousands of years, that there is freedom of the high seas, that nobody can set up blockades on the high seas because they’re afraid of being embarrassed or any other reason.

JUDY WOODRUFF: A very quick response.

RUTH WEDGWOOD: We had a blockade around Cuba in the Cuban Missile Crisis.

If there was — the worry about how the violence started might well have occurred in the port, as well as on the high seas. And in — under traditional law of the sea, you can do visit and search before a boat gets to port.

JUDY WOODRUFF: We’re going to leave it there.

JUDY WOODRUFF: Ruth Wedgwood, Anthony D’Amato, we thank you both.