His Honor Ron Sokol in T"Ch 7961-07-15 has held that the maritime blockade on the Gaza Strip meets the technical requirements applicable to it. The Maritime Court mentioned that the State of Israel satisfies humanitarian obligations applicable to according the laws of the war of the sea and that the situation of the population in the Gaza Strip does not justify setting aside the maritime blockade.
The Maritime Court was asked to recognize the application of the State to confiscate the vessel Marianne in accordance with the Naval Prize Act 1864. The vessel – which was on its way to Gaza city - arrived in Israel with political activists aboard as well as humanitarian equipment. The navy asked it to change its course and not to enter the area of the maritime blockade around the Gaza Strip. The vessel did not response to the request of the navy, and soliders from the navy boarded the ship and brought it to the port of Ashdod. In Ashdod port, the vessel's crew, passengers and cargo were taken off the vessel, the crew were arrested for questioning and then released and taken out of Israel. The cargo which had been on board the vessel was checked and transferred to the Gaza Strip. A few days later, an application was filed with the Court by the State of Israel for the confiscation of the vessel.
The application for the grant of the order of confiscation of the vessel Estelle had been the first application, ever, which was filed with the Israeli court for the order of confiscation of a vessel according to the Naval Prize Law. [click here to read prior client update addressing this topic] In that case, the Maritime Court rejected the application of the State on the basis of laches given the lengthy period which had elapsed from the time of the arrest of the vessel until the filing of the application for confiscation of the vessel. The court found in that case that the State should return the vessel to its owners. The State appealed that decision to the Supreme Court (CA 7307/14) and on August 7, 2016, the Supreme Court handed down its decision, in which it rejected the appeal of the State and found that a vessel which has been caught must be brought before the court immediately and in any event within a number of days or weeks. Even while the hearings concerning the vessel 'Estelle' were continuing before the Court, more political activists were starting to arrange for the vessel 'Marianne' to sail to the Gaza Strip. In the matter of the vessel 'Estelle' the court only considered the issues as to the validity of the naval prize law, the jurisdiction of the Maritime Court and whether pre-conditions had been met. The question as to the legality of the maritime blockade on the Gaza Strip according to the standards of international law was not discussed. Accordingly, the decision in the case of the vessel 'Marianne' constitutes judicial precedent and is the first of its kind.
This time the State acted quickly and immediately after the arrest of the vessel filed a notice with the Maritime Court of its intention to request confiscation of the vessel. A number of days later, the application for confiscation of the vessel 'Marianne' was filed. So it was found that there was no technical fault in the filing of the application. In the application it was claimed that the vessel, its crew and passengers had asked to breach the maritime blockade on the Gaza Strip and entered the area of the blockade even though they knew of the maritime blockade. Thus it was argued that there was a claim for confiscation of the vessel according to the Naval Prize Law. The respondents claimed that there was no such cause of action for confiscation of the vessel, since the maritime blockade on the Gaza Strip is not legal and not proportional. They argued that the blockade does not meet the technical requirements for the imposition of a maritime blockade according to the rules of international law – it is not proportional and damages the population of the Gaza Strip beyond that which is required.
The Maritime Court examined the customary requirements (both the formal and the substantial requirements) according to the standards of international law for the validity of a maritime blockade imposed by a party to a conflict. There are 4 technical requirements for the validity of a maritime blockade: the public recognition of the imposition of the blockade, including the date of commencement thereof; the limits of the blockade and the time given to neutral vessels to leave the blockaded area; the effectiveness of the blockade in the manner in which the presence of troops of the State imposing the blockade are available to enforce the blockade; the equality or lack of discrimination in enforcing the maritime blockade against vessels of every State and the transfer and access to ports and beaches of neutral States. In addition, the legality of the blockade will be examined also in light of the obligations imposed to ensure adequate humanitarian conditions exist for the side against whom the blockade was imposed.
The Court examined the legality of the maritime blockade, which had been declared by the State of Israel on the Gaza Strip according to the laws of war at sea and found that the technical requirements for the validity of the maritime blockade were met. The Court also found that it was not proven that the State of Israel had breached its humanitarian obligations under the laws of war at sea towards the residents of the Gaza Strip. The Court mentioned that the State of Israel enables the entry of goods, food, medical equipment and humanitarian equipment into the Gaza Strip via overland crossings for the Gazan residents and that there was nothing to prevent the transfer of equipment in this manner. The Court rejected the argument of the respondents according to which the maritime blockade on the Gaza Strip damages the economy and trade making it difficult for the Gazan economy. In this respect, the Court commented that the burden from the maritime blockade was only partial since there are other ways in which the residents of Gaza may carry out international trade and so the economic damage resulting from the maritime blockade does not derogate from the requirements of proportionality. The Court also rejected the argument that the maritime blockade on the Gaza Strip constitutes a form of prohibited 'collective punishment' and stated that the imposition of the maritime blockade is intended to achieve military ends and does not constitute a 'punishment' of the residents also since alongside the declaration of the maritime blockade, it enables the entry of humanitarian equipment and food for the residents of the Gaze Strip.
In the end, the Court held that the vessel 'Marianne' arrived in Israel with the intention to breach the blockade and that its owners knew of this intention and knew that the State of Israel enforces the blockade such that if steps are taken to breach it, Israel will request confiscation of the vessel. The Court further held that since the purpose of sailing the vessel was to demonstrate and protest the blockade, this gave rise to a cause of action of confiscation. His Honor Judge Sokol returned to what was stated in the case of the vessel 'Estelle', in which the Israeli legislature was requested to address and take care by means of modern legislation the causes of action giving rise to the right to arrest and confiscate neutral vessels and to lay down clear and express provisions for confiscation procedures, as is appropriate for 21st century legislation. The judge also added that it is appropriate that the legislature will also examine the guides dealing with the laws of war at sea which are recognized under international law and will produce a guide which will address the rules applicable to war at sea, including laws of arrest, capture and confiscation of vessels.
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