Russell Buchan

II. THE PALMER REPORT AND THE LEGALITY OF ISRAEL'S NAVAL BLOCKADE OF GAZA

On 3 January 2009 Israel deployed a naval blockade against Gaza in order to prevent materials entering or leaving Gaza that could be used by Hamas in its ongoing armed conflict with Israel. 1 With the humanitarian crisis in Gaza worsening, on 31 May 2010 a flotilla of vessels carrying humanitarian aid expressed its intention to violate the naval blockade and deliver the aid to Gaza. Before violating the blockade and whilst still on the high seas, Israel sought to enforce its blockade and capture the vessels. This occurred largely without incident except in relation to the Mavi Marmara (a vessel sailing under the flag of the Comoros), which resisted capture by the Israeli special forces and continued to sail in the direction of Gaza. As Israel special forces boarded the Mavi violence ensued, with nine crew members of the Mavi being killed and dozens of others injured (principally Turkish nationals). Several members of Israels special forces were also injured. Israel eventually assumed control of the ship and the crew members were detained and the vessel and its cargo confiscated.

THE INTERNATIONAL LAW OF NAVAL BLOCKADE AND ISRAEL'S INTERCEPTION OF THE MAVI MARMARA

In this article I discuss the legality of Israel’s interception of the Mavi Marmara on 31 May 2010. Although Israel’s stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on 31 May 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel’s use of force to capture the vessel went beyond what was necessary in the circumstances.

The Externalization of Peacekeeping: Policy, Responsibility, and Accountability

The post-Cold War trend towards the privatization of some of the security and military functions of post-conflict and conflict operations conducted by states is extending to peacekeeping operations undertaken by the UN and other organizations. This article examines the policies behind the increased use of private military and security contractors (PMSCs) in peacekeeping, considers the obstacles to accountability and responsibility caused by this development, and suggests ways of overcoming these obstacles to provide remedies for victims of human rights abuse at the hands of such contractors.

The Mavi Marmara Incident and the Application of International Humanitarian Law by Quasi-Judicial Bodies

Whether Israel’s enforcement of its naval blockade against the Mavi Marmara on 31 May 2010 was in conformity with international humanitarian law has been recently considered by four quasi-judicial bodies. This chapter compares and contrasts the four reports produced by these quasi-judicial bodies and identifies significant discrepancies between them as to the interpretation and application of international humanitarian law (the law of naval blockade). In the light of this, this chapter then locates the role of quasi-judicial bodies within the broader context of international adjudication; specifically, and although recognising the clear benefits of quasi-judicial bodies in a world order where judicial bodies proper are often unable to exercise their jurisdiction, this chapter flags up some of the potential problems that this new type of adjudication yields for international law generally and international dispute resolution in particular.

A Clash of Normativities: International Society and International Community

This paper will suggest that since the end of the Cold War liberal states have instituted a new regime of international relations and of international peace and security in particular. Historically, legitimate statehood could be situated virtually exclusively within international society; in their international relations all states subscribed to a common normative standard which regarded all states qua states as legitimate sovereign equals irrespective of the political constitution that they endorsed. With the end of the Cold War, however, an international community of liberal states has formed within international society which considers only those states that respect the liberal values of democracy, human rights and the rule of law as legitimate. Non-liberal states are not only denigrated as illegitimate but more significantly they are stripped of their previously held sovereign status where international community, motivated by the theory that international peace and security can only be achieved in a world composed of exclusively liberal states, campaigns for their liberal transformation. Finally, it will be suggested that despite the disagreement between liberal states over the decision to invade Iraq in 2003 international community survives, and thus its (antagonistic) relationship with non-liberal states continues to provide a useful method for theorising international peace and security in the contemporary world order.

The Crisis in Crimea and the Principle of Non-Intervention

During the civil unrest in Ukraine in early 2014 Russia began supplying rebel groups in Crimea with military equipment, deployed military forces into Crimea and encouraged and supported Crimea’s secession from Ukraine. This article claims that Russia’s conduct between February and March 2014 constitutes unlawful intervention and not a use of force. It reaches this conclusion by, first, exploring the meaning and content of the principles of non-intervention and the non-use of force and then, second, by examining Russia’s justifications namely, that it intervened at the request of Ukraine’s competent authorities, to protect endangered Russian citizens and to support Crimea’s claim to self-determination. The overall aim of this article is to highlight the content and meaning as well as the legal boundaries of the principle of non-intervention as an international legal norm distinct from the prohibition against the use of force.

Developing Democracy Through Liberal International Law

By deploying the concepts of the international society and the international community this article constructs and defends an explanatory framework that enables us to better understand the complex international political and legal structure of the contemporary world order and better explain why violations of international peace and security occur. The international community describes an association of liberal states that has formed within the politically pluralist international society of sovereign states since the end of the Cold War and which considers only those states that exhibit respect for liberal values as legitimate. Moreover, it argues that the international community has demonstrated a tendency to deny non-liberal states their previously held sovereign right to non-intervention and has instituted a global campaign for their liberal reformation. The existence of the international community is evidenced by reference to the practice of liberal states vis-a-vis non-liberal states since the end of the Cold War and particular attention is paid to the reaction of the international community to the overthrow of the democratic regimes in Honduras and the Ivory Coast and the violent suppression of pro-democracy demonstrations in Libya and Syria. In light of these developments, this article assesses the impact of the international community upon international law and suggests that international law is being reformulated in order to construct a liberal international law that allows for the effective promotion of liberal values.

Explaining Liberal Aggression: The International Community and Threat Perception

In this article I intend to uncover the ideological factors that sustain the international community’s campaign for liberal development. I argue that this is because the international community perceives non-liberal states to be a threat to their liberal peace. I submit that the international community perceives non-liberal states to be a threat because non-liberal governments are considered to be in a state of aggression with their own people. This is based upon the belief by the international community that liberal democracy represents a universally desired system of governance. To this end, the population agitate against the non-liberal regime, campaigning for liberal reform, seeking to realise their liberal desires, which thus creates a state of aggression between the ruler and the ruled. Considering that liberal states regard domestic conduct to be the primary indicator of likely international conduct, the international community perceives non-liberal states to be likely aggressive international actors. Thus, for the international community the only way that they can avert the threat posed by non-liberal states is by subjecting them to liberal reform. In the final section of this article I will reveal how the international community determines which non-liberal states should be prioritised for liberal reformation.