A/HRC/15/21
to enforce that blockade on the high seas.41 A blockade must satisfy a number of legal
requirements, including: notification, effective and impartial enforcement and
proportionality.42 In particular a blockade is illegal if:
(a)
it has the sole purpose of starving the civilian population or denying it other
objects essential for its survival; or
(b)
the damage to the civilian population is, or may be expected to be, excessive
in relation to the concrete and direct military advantage anticipated from the blockade.43
52.
A blockade may not continue to be enforced where it inflicts disproportionate
damage on the civilian population. The usual meaning of “damage to the civilian
population” in the law of armed conflict refers to deaths, injuries and property damage.
Here the damage may be thought of as the destruction of the civilian economy and
prevention of reconstruction further to damage. One might also note, insofar as many in
Gaza face a shortage of food or the means to buy it, that the ordinary meaning of
“starvation” under the law of armed conflict is simply to cause hunger.44
53.
In evaluating the evidence submitted to the Mission, including by OCHA oPt,
confirming the severe humanitarian situation in Gaza, the destruction of the economy and
the prevention of reconstruction (as detailed above), the Mission is satisfied that the
blockade was inflicting disproportionate damage upon the civilian population in the Gaza
strip and that as such the interception could not be justified and therefore has to be
considered illegal.
54.
Moreover, the Mission emphasizes that according to article 33 of the Fourth Geneva
Convention, collective punishment of civilians under occupation is prohibited. “No
protected person may be punished for an offence he or she has not personally committed.
Collective penalties and likewise all measures of intimidation or of terrorism are
prohibited.” The Mission considers that one of the principal motives behind the imposition
of the blockade was a desire to punish the people of the Gaza Strip for having elected
Hamas. The combination of this motive and the effect of the restrictions on the Gaza Strip
leave no doubt that Israel’s actions and policies amount to collective punishment as defined
by international law. In this connection, the Mission supports the findings of the Special
Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, Richard Falk,45 the report of the United Nations Fact-Finding Mission on the Gaza
Conflict46 and most recently the ICRC47 that the blockade amounts to collective punishment
in violation of Israel’s obligations under international humanitarian law.
55.
It might be suggested that a belligerent in an armed conflict has a right to visit,
inspect and control the destinations of neutral vessels on the high seas, irrespective of any
41
42
43
44
45
46
47
San Remo Manual, para.10(b).
Ibid., paras. 93-95, 100.
Ibid., para 102.
C. Pilloud and J. Pictet, Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (International Committee of the Red Cross, 1987), p.53, para. 2089.
See also Oxford English Dictionary definitions: “to deprive of or keep scantily supplied with food” or
to “subdue by famine or low diet”.
A/HRC/13/53, para.34
The Mission considered the policy of blockade “amounts to collective punishment intentionally
inflicted by the Government of Israel on the people of Gaza”; A/HRC/12/48, para. 1878.
In its statement of 14 June 2010, the ICRC maintained that “the whole of Gaza's civilian population is
being punished for acts for which they bear no responsibility. The closure therefore constitutes a
collective punishment imposed in clear violation of Israel's obligations under international
humanitarian law”.
13
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