U.S. ships will soon head to the Gaza coast to build a floating pier to provide Gazans with humanitarian aid. While President Joe Biden trumpets the pier’s potential to facilitate emergency assistance, it is unclear if he has thought through its complexities, and especially the legal implications for building such a structure.
As troops deploy from Newport News, Virginia, shocked at the short notice, the Pentagon is under the clock to develop a detailed plan before they arrive in the Eastern Mediterranean. Very roughly, the Pentagon seeks to construct a large floating dock adjacent to their ships. From there, transfer vessels will carry aid to a floating pier with a two-lane causeway stretching 1800 feet to Gaza’s coast. Biden says there will be no U.S. boots on the ground in Gaza, just on the pier. The biggest analogy to the Biden plan was a Joint Logistics Over-the-Shore operation to provide emergency food aid after the 2010 Haiti earthquake given that country’s civil unrest or to a lesser extent Hurricane Mitch in Honduras in 1998.
The circumstances in Gaza, however, are different. Gaza is an active war zone with Hamas embedded within the civilian population and stealing aid that comes through. This poses a security problem: Could civilians stampede the pier to either seek supplies or find safety? Does the United States have a plan to keep Hamas from diverting aid? Will there be an inspection regime for international assistance utilizing the pier given Hamas’ record of diverting aid to its military, tunnel, and terror infrastructure?
Under maritime law, U.S. naval ships are U.S. territory, even while they are in another nation’s territorial waters. Unlike in Haiti where a pier already existed and the Navy simply repaired it and then docked its ships, this pier in Gaza’s waters, whether built by the U.S. armed forces or independent contractors, could be considered U.S. property, and therefore, U.S. territory. This raises a number of follow-on legal questions that the Biden administration has yet to answer:
First, if the U.S. constructs a floating dock that can be attached to its ships, is that extension also considered U.S. territory?
Second, if the U.S. constructs a pier that is movable or removable, to whom does that structure belong? If it is anchored to Gaza’s beach, does it become part of Gaza’s territory or does it remain U.S. property?
Third, if the pier is, indeed, U.S. property as it is removable and if it is U.S. territory, would anyone entering it be able to claim asylum or refugee status in the United States?
Under international humanitarian law, no State has an obligation to let refugees enter their country. However, if refugees nevertheless manage to enter, international humanitarian law obligates the host State to care for them in accordance with the 1951 Geneva Convention Relating to the Status of Refugees. The prospect of these U.S.-created facilities being considered U.S. territory that can be overrun by Palestinians who may then claim asylum and refugee status in the United States should frighten everyone, especially since employing the international legal principle of military distinction to distinguish between Gaza’s civilians and combatants is nearly impossible.
There are other complications. Biden may want to ameliorate diplomatic criticism, but he may actually compound it. The international community criticized the U.S. Haiti pier effort for causing delays that led to the deaths of civilians. Scrutiny of the Gaza operation will be higher as Europeans and Arab countries seem to care much more about Palestinians than they do Haitians or Hondurans. That Biden deployed U.S. forces to a war zone with no real plan in place raises questions and could endanger lives. Simply put, Gaza’s pier may be an applause line at the State of the Union, but it is also an international refugee Pandora’s box.
