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Revision as of 20:49, 4 June 2010

Numerous legal assessments of the Gaza flotilla raid have been published subsequently to the event. International law experts differ over the legality of the Israel action, with some saying that the raid is a violation of the Law of the Sea, while others maintain that Israel may legally board foreign vessels in international waters as part of a naval blockade. Both sides state that Israel is required by law to respond with only a proportional use of force in the face of violent resistance; whether the force used was proportional is disputed.[1][2] The issue of possible violation of international law was discussed at the UN security council. The United States blocked criticism of Israel for violating international law as proposed by Turkey, the Palestinians and Arab nations.[3]

Legal arguments supporting the action

Legality of the blockade

Alan Dershowitz, a professor of Law at Harvard Law School, wrote that the legality of blockades as a response to acts of war “is not subject to serious doubt.”[4] He likened Israel’s maritime blockade of Gaza to U.S. naval actions in Cuba during the Cuban Missile Crisis, which the U.S. had deemed lawful though not part of an armed conflict.[4] Similary, Allen Weiner, former U.S. State Department attorney and legal counselor at the American Embassy in The Hague, and now a Stanford Law School professor, said "the Israeli blockade itself against Gaza itself is not illegal".[5]

Ruth Wedgwood, a professor of International Law and Diplomacy at the School of Advanced International Studies at Johns Hopkins University, said that under the law of armed conflict, which would be in effect given Hamas's rocket attacks on Israel and Israel's responses, Israel has "a right to prevent even neutrals from shipping arms to [Hamas]".[6]

Eric Posner, international law professor at the University of Chicago Law School, noting that the raid had "led to wild accusations of illegality", wrote that blockades are lawful during times of armed conflict (such as the Coalition blockade of Iraq during the first Gulf War), and that "war-like conditions certainly exist between Israel and Hamas".[7] He compared Israel's blockade to that of the Union against the Confederacy (also, a non-state) during the U.S. Civil War.[7] The U.S. Supreme Court later affirmed the legitimacy of that blockade.[7]

Philip Roche, a partner in the shipping disputes and risk management team with the London-headquartered international law firm Norton Rose, also said: "On the basis that Hamas is the ruling entity of Gaza, and Israel is in the midst of an armed struggle against that ruling entity, the blockade is legal."[8] The basis for that is the law of blockade, derived from international law that was codified in the 1909 London Declaration concerning the Laws of Naval War, and which was then updated in 1994 in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea--"a legally recognized document".[8] He addressed the charge by Human Rights Watch that the blockade of a terrorist organization constitutes a collective penalty against civilians, ostensibly violating Article 33 of the fourth Geneva Convention, by saying "This argument won't stand up. Blockades and other forms of economic sanction are permitted in international law, which necessarily means that civilians will suffer through no fault of their own."[7]

International law Professor Ed Morgan of the University of Toronto, likewise, noting that it is clear that Israel and Hamas are in a state of armed conflict, which has been noted by the General Assembly to the Human Rights Council in its Goldstone Report, wrote that a blockade of an enemy’s coast is an established military tactic.[9] He pointed out that it is recognized as a means at the Security Council’s disposal under Article 42 of the UN Charter, and is similarly set forth in Article 539 of the Canadian Forces manual Counter-Insurgency Operations.[9] He wrote:

having announced its blockade, Israel had no obligation to take the ships’ crew at their word as to the nature of the cargo. The blockading party has the right to fashion the arrangements, including search at a nearby port, under which passage of humanitarian goods is permitted.[9]

Abbas Al Lawati, a Dubai-based Gulf News journalist on board the flotilla, opined that Israel is likely to cite the Gaza–Jericho Agreement (Annex I, Article XI) which vests Israel with the responsibility for security along the coastline and the Sea of Gaza.[10] The agreement stipulates that Israel may take any measures necessary against vessels suspected of being used for terrorist activities or for smuggling arms, ammunition, drugs, goods, or for any other illegal activity.[11] Professor Wedgwood opined that the goal of the flotilla was to: "denude Israel of what it thinks it was guaranteed in the 1993 Oslo Accords which preceded the Gaza-Jericho Agreement, which is the control of the external borders of Gaza and West Bank.... The problem ... is that you could easily have a rearming of Hamas, which caused a terrible conflict."[6]

Legality of enforcing the blockade on the high seas

Professor Dershowitz said that action taken in international waters is permissible if a legal blockade is in effect, and if there is no doubt that the offending ships have made a firm determination to break the blockade.[12] "It's okay for Israeli ships to operate in international waters to enforce [the blockade]," said Professor Weiner.[5]

Professor Ruth Wedgwood, similarly, said that "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".[6] She pointed out that the U.S. itself, as a neutral throughout most of the 1800s, submitted its ships to inspections on the high seas to allow belligerents to make sure that its cargoes weren't actually fueling any of the European wars.[6] She also noted that the U.S. itself blockaded Cuba during the Cuban Missile Crisis, also commented that in the wars in Yugoslavia, the U.N. itself, and NATO, through Operation Sharp Guard, imposed a blockade on shipments to Yugoslavia.[6] Roche also indicated that under the law of a blockade, a ship can be intercepted on the high seas as long as it is ship is bound for the blockaded territory.[8] Professor Posner, as well, wrote that "longstanding customary international law permits states to enforce publicly announced blockades on the high seas".[7] Professor Morgan also said that under the San Remo law, a blockade is often enforced in what would otherwise be international waters.[9]

Mark Regev, spokesman for the Prime Minister of Israel, referring to the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, said:

The San Remo memorandum states, specifically 67A, that if you have a boat that is charging a blockaded area you are allowed to intercept even prior to it reaching the blockaded area if you've warned them in advance, and that we did a number of times, and they had a stated goal which they openly expressed, of breaking the blockade. That blockade is in place to protect our people.[13][14]

Use of force

As to the use of force when boarding a ship in such circumstances, it is legal but must be proportionate, according to Commander James Kraska, professor of international law at the U.S. Naval War College, and Professor Morgan.[8][9] Proportional force does not mean that guns cannot be used by forces when being attacked with knives, but "there has got to be a relationship between the threat and response," said Kraska.[8] According to J. Peter Pham, a strategic adviser to U.S. and European goverments, "from what is known now, it appears that Israel acted within its legal rights".[8][9]

Professor Posner noted that the "1990 UN Basic Principles on the Use of Force & Firearms by Law Enforcement Officials" is not international law, but rather akin to vague "best practices" for advising countries with poorly trained police forces, and does not apply to a military operation.[7] He wrote further:

Military operations must respect the principle of proportionality, which is a fuzzy, "know-it-when-you-see-it" test. But one thing is clear. Ships that run blockades may be attacked and sunk under international law. If Israel had exercised that right, far more than nine people would have been killed.[7]

Piracy

Noting that some of used the word "piracy" to describe Israel's actions, Professor Morgan says the accusation is "inapt since, under both customary law and Article 101 of the UN Convention on the Law of the Sea, that applies only to acts done for private gain."[9]

Legal arguments opposing the action

Legality of the blockade

Dr. Turgut Tarhanlı, dean of the Law department of İstanbul Bilgi University,[15] cited the concept of innocent passage, under which vessels are granted safe passage through territorial waters in a manner which is not "prejudicial to the peace, good order or the security" of the state.[16] He said that

the Convention on the Law of the Sea stipulates that a coastal state may consider intervention if a ship is engaged in arms and drug smuggling, the slave trade or terrorist activities. However, the case with the aid boats is totally different. They set sail in accordance with the Customs Act and are known to be carrying humanitarian aid, not weapons or ammunition. According to the Convention on the Law of the Sea, Israel was not entitled to launch a military operation against the boats and activists.[17]

With regard to the Gaza–Jericho Agreement, Diana Buttu, a Palestinian-Canadian lawyer, professor, and former spokesperson with the Palestine Liberation Organization, said that Israel declared the Oslo Accords dead in 2001, and actually breached the agreements, so that a call to the applicability of the Gaza-Jericho Agreement is not plausible.[10]

Legality of enforcing the blockade on the high seas

Robin Churchill, international law professor at the University of Dundee in Scotland, said there was no legal basis for boarding the ships as they were in international waters.[18] A group of Israeli lawyers, including Avigdor Feldman, petitioned the Israeli High Court charging that Israel had violated the United Nations Convention on the Law of the Sea by capturing the boats in international waters. [19]

José María Ruiz Soroa, a Spanish expert in Admiralty law and co-author of the legal commentary "Manual de derecho de la navegación marítima",[20] said that Israel is not entitled according to International Law to constrain the freedom of navigation of any ship on the high seas, except in a number of situations that do not apply to the Gaza flotilla case. Blockade is not a valid reason as it is a concept only applicable to war situations. He also mentioned that Israel's action is a breach of the UN International Maritime Organization Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA),[21] which was signed by Israel in April 2009. According to the article 6.1 of the SUA, the jurisdiction over the offences that a ship might have committed lays in the State whose flag the ship is flying (in this situation, Turkey).[text 1]

Turkey's foreign minister Ahmet Davutoğlu said: "High-seas freedom, freedom of navigation, was one of the oldest forms of international law; no vessel could be stopped or boarded without the consent of the captain or flag State. Any suspected violation of the law did not absolve the intervening State under international law. To treat humanitarian delivery as a hostile act and to treat aid workers as combatants could not be deemed legal or legitimate".

Ove Bring, Swedish international law professor, said that Israel had no right to take military action.[22] That was supported by Mark Klamberg at Stockholm University,[23] Hugo Tiberg, maritime law professor[24] and Geir Ulfstein, professor at maritime law at University of Oslo,[25] while Jan Egeland, director of the Norwegian Institute of International Affairs said that only North Korea behaved in international waters in the same manner as Israel.[26]

Canadian scholar Michael Byers said that the event would only be legal if the Israeli boarding were necessary and proportionate for the country's self defence. Byers believes that "the action does not appear to have been necessary in that the threat was not imminent."[27]

In a legal analysis published by the Frankfurter Allgemeine Zeitung, a staff expert on international law said that countries are not allowed to extend their sovereignty on areas outside of their coastal waters.[28] In international waters, if there is reasonable suspicion of piracy or human trafficking, a country has the right to access foreign ships. If the suspicion remains, it can search the ship.[28]

Richard Falk, professor emeritus of international law at Princeton University and U.N. Special Rapporteur on the situation of human rights in the occupied Palestinian territory said that the “ships that were situated in the high seas where freedom of navigation exists, according to the law of the seas” and called for those responsible to "be held criminally accountable for their wrongful acts".[29]

Former British Ambassador[30] Craig Murray said that the raid was not an act of piracy, as the Israeli vessels carried a military commission, but said that it would be "an act of illegal warfare". According to Murray, the Law of the Sea rules that, when an incident takes place on a ship on the high seas the applicable law is that of the flag state of the ship on which the incident occurred, so the Turkish ship was Turkish territory. If the Israeli commandos were acting on behalf of the government of Israel in killing the activists on the ships, Israel would be in a position of war with Turkey, and the act would fall under international jurisdiction as a war crime. If, on the other hand, the killings were not authorised Israeli military action, they were acts of murder under Turkish jurisdiction and if Israel does not consider itself in a position of war with Turkey, then it must hand over the commandos involved for trial in Turkey under Turkish law.[31] After being later told that the Mavi Marmara may have been sailing under a Comoran flag, Murray reiterated that Israel's attack was illegal regardless of what flag the vessel was sailing under. [32]

Jason Alderwick, a maritime analyst at the International Institute for Strategic Studies of London, was quoted as saying that the Israeli raid did not appear to have been conducted lawfully under the convention.[33] Anthony D'Amato, international law professor at Northwestern University School of Law, argued that the San Remo Manual on International Law Applicable to Armed Conflicts at Sea applies to a situation in which the laws of war between states are in force. He said the laws of war do not apply in the conflict between Israel and Hamas, which isn't even a state. He said the law of the Geneva Conventions would apply.[1]

Use of force

The legal analysis published by the Frankfurter Allgemeine Zeitung said that Israeli soldiers had the right to defend themselves,[28] but if Israel used force against the ships without legal justification, the crew members had the right to defend themselves.[text 2] Said Mahmoudi, an international law professor, said that boarding a ship on international waters, killing and capturing civilians is not in line with the law.[34]

Minister Davutoğlu called the raid "a grave breach of international law and constituted banditry and piracy—it was “murder” conducted by a State, without justification". Prominent Turkish jurists characterized Israel's actions as a violation of international law and a "war crime." Turkey's deputy parliament speaker, Guldal Mumcu, said in a declaration that "[t]his attack was an open violation of United Nations rules and international law".[35]

Israeli judicial decisions

The Israeli Supreme Court rejected several legal suits against the IDF and Israel in the matter of the flotilla raid and wrote in the verdict that

"The soldiers were forced to respond in order to defend their lives. Unfortunately, the action ended, as was not to be expected, with the loss of lives. Nine people were killed and soldiers and flotilla participants were wounded. The action ended with the flotilla being stopped, its passengers removed and detained and Israel."

Supreme Court President Dorit Beinish defended the decision to prevent the ships reaching the Gaza Strip:

"In light of Hamas' control of the Gaza Strip, Israel has take various steps meant to prevent direct access to the Gaza Strip, including the imposition of a naval blockade on the Strip, which, according to the State's declaration, is meant to block the infiltration of weapons and ammunition into Hamas ranks which have carried out shooting and terrorist attacks in Israeli territory for years with the goal of harming civilians."

The court also rejected an appeal by right wingers to prevent release and deportation of activists who attacked IDF soldiers. [36]

The Israeli Supreme Court rejected three petitions demanding information on the whereabouts of some of the passengers brought to Ashdod.[37]

References

  1. ^ a b Colum Lynch (June 1, 2010). "Israel's flotilla raid revives questions of international law". Washington Post. Retrieved June 2, 2010.
  2. ^ "Was the Gaza Flotilla Raid Illegal?". The Guardian. Guardian News and Media. Retrieved June 2, 2010.
  3. ^ "Israel should lead investigation into attack on Gaza flotilla, says US". The Guardian. Guardian News and Media. Retrieved June 2, 2010.
  4. ^ a b Dershowitz, Alan. "Israel obeyed international law: Legally, the Gaza flotilla conflict is an open-and-shut case". Nydailynews.com. Retrieved June 4, 2010.
  5. ^ a b "Israel's flotilla raid revives questions of international law". Washingtonpost.com. Retrieved June 2, 2010.
  6. ^ a b c d e "As Flotilla Inquiry Calls Grow Louder, Legality of Gaza Blockade Examined | PBS NewsHour". PBS. June 2, 2010. Retrieved June 3, 2010.
  7. ^ a b c d e f g Posner, Eric. "The Gaza Blockade and International Law: Israel's position is reasonable and backed by precedent" (Subscription only). Opinion. WSJ Online. Retrieved June 4, 2010.
  8. ^ a b c d e f g Canada (May 31, 2010). "Israel's naval blockade pitches and rolls with the Law of the Sea". The Globe and Mail. Retrieved June 4, 2010.
  9. ^ a b Al Lawati, Abbas. "Q&A: Freedom Flotilla project in aid of Gaza". Retrieved June 1, 2010.
  10. ^ "Gaza-Jercho Agreement". Israeli Foreign Ministry. 4 May 1994.
  11. ^ Dershowitz, Alan (June 2, 2010). "Israel obeyed international law: Legally the Gaza flotilla conflict is an open-and-shut case". New York Daily News. Retrieved June 2, 2010.
  12. ^ "Israeli government defends raid". May 31, 2010. Retrieved May 31, 2010.
  13. ^ The 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, by Louise Doswald-Beck, can be found here [1] and also in the International Review of the Red Cross, no. 309, pp.583–594
  14. ^ "Microsoft Word - 1.Conference Program-EN 03-02-09 v1.doc" (PDF). Retrieved June 4, 2010.
  15. ^ "Jurists: Israeli flotilla assault violation of international law". Zaman. June 1, 2010.
  16. ^ "Jurists: Israeli flotilla assault violation of international law". Todayszaman.com. Retrieved June 2, 2010.
  17. ^ Teibel, Amy (May 31, 2010). "Israeli police say 16 Gaza activists sent to jail". Associated Press. {{cite news}}: Unknown parameter |coauthor= ignored (|author= suggested) (help)
  18. ^ Izenberg, Dan (May 31, 2010). "Israeli lawyers: Raid violates int'l law, Prosecution charges that Israel engaged in acts of piracy". Jerusalem Post.
  19. ^ "MANUAL DE DERECHO DE LA NAVEGACION MARITIMA (3ª ED.): en su libreria Casa del Libro". Casadellibro.com. Retrieved June 3, 2010.
  20. ^ "Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation". admiraltylawguide.com. Retrieved June 2, 2010.
  21. ^ Blogg. "SvD: "Israel har inte rätt ingripa militärt"" (in Template:Sv icon). Svd.se. Retrieved June 1, 2010. {{cite web}}: Text "Resebloggen" ignored (help)CS1 maint: unrecognized language (link)
  22. ^ "Dagens Juridik: Experter överens om Israel". Dagensjuridik.se. Retrieved June 1, 2010.
  23. ^ Björn Hansson 031-62 46 33 bjorn.hansson@gp.se (May 28, 2010). "GP: Professor i sjörätt: Israel gör fel" (in Template:Sv icon). Gp.se. Retrieved June 1, 2010.{{cite web}}: CS1 maint: numeric names: authors list (link) CS1 maint: unrecognized language (link)
  24. ^ Mari Torsdotter Hauge (May 31, 2010). "Professor: – Israel hadde ikke rett til å gripe inn" (in Template:No icon). Aftenposten. Retrieved June 2, 2010.{{cite web}}: CS1 maint: unrecognized language (link)
  25. ^ Marthe Haugdal (May 31, 2010). "NUPI-direktør: – Marinens angrep er helt ødeleggende for Israel Mener angrepet kan få katastrofale følger internasjonalt" (in Template:No icon). Verdens Gang. Retrieved June 2, 2010.{{cite web}}: CS1 maint: unrecognized language (link)
  26. ^ Martin, Patrick (June 1, 2010). "Was seizing the flotilla legal?". Globe and Mail.
  27. ^ a b c Von Reinhard Müller (January 6, 1990). "Israels Militäraktion: Auf Hoher See darf kein Zwang ausgeübt werden - Naher Osten - Politik". Faz.Net. Retrieved June 4, 2010.
  28. ^ "United Nations: Secretary-General 'shocked' by deadly raid on Gaza aid flotilla". Un.org. May 31, 2010. Retrieved June 4, 2010.
  29. ^ Hainey, Raymond (December 31, 2005). "Memos 'Prove Evidence used from Uzbek Secret Police'". Scotsman news online. Retrieved July 18, 2008.
  30. ^ Eva Smagacz (May 31, 2010). "Turkish jurisdiction". mondoweiss.com. Retrieved June 2, 2010.
  31. ^ "While the Israeli attack remains illegal, it means that the injured party - and the party with legal jurisdiction over the event - is the incapable Comoros Islands rather than the highly capable Turkey". Craigmurray.org.uk. Retrieved June 4, 2010.
  32. ^ How the flotilla bound for Gaza Strip sailed into death at sea. The Times, UK. 1 June 2010
  33. ^ Karoline Hoppe karoline.hoppe@dn.se (May 31, 2010). "DN: Folkrättsprofessorn: Israel har brutit mot internationell rätt" (in Template:Sv icon). Dn.se. Retrieved June 4, 2010.{{cite web}}: CS1 maint: unrecognized language (link)
  34. ^ "Israel to deport remaining Gaza flotilla activists". The Guardian. Guardian News and Media. Associated Press. June 2, 2010. Retrieved June 2, 2010.
  35. ^ Aviad Glickman,High Court rejects flotilla suits: Soldiers defended their lives, Ynet (English), 3.6.2010.
  36. ^ "Breaking News, Politics, Commentary from around the world". Newsmaxworld.com. May 31, 2010. Retrieved June 4, 2010.
References with quoted text or translations
  1. ^ "Un ilícito internacional". El País (in Spanish). Retrieved June 2, 2010. La actuación de las Fuerzas Armadas israelíes al tomar por la fuerza el control de buques mercantes de otra bandera en alta mar [..] y al causar la muerte violenta a varios de sus tripulantes, viola patentemente el Derecho Internacional [..]. Ningún Estado puede arrogarse facultades para restringir la libertad de circulación de cualquier buque por ese ámbito, ni menos ejercer la fuerza contra buques mercantes de otra bandera salvo en los contados casos en que lo autoriza el propio Derecho Internacional (piratería, trata de esclavos, sospechas de falsa bandera, etcétera). Y no cabe recurrir a la noción de zona o puerto bloqueado, propia del Derecho Marítimo de Guerra, cuando no existe tal guerra. [..] [..] se acordó en 1988 [..] el Convenio Internacional para la Supresión de Actos ilícitos contra la Seguridad de la Navegación Marítima (SUA) que [..] tipifica como delito el apoderarse por la fuerza de un buque o de su control, o el realizar actos de violencia contra las personas embarcadas, por cualquier motivo que se efectúe, sea privado o público, económico o terrorista. [..] el Estado israelí ratificó hace muy poco este Convenio (entró en vigor para él en abril de 2009) [..] El artículo 6.1 del SUA establece la jurisdicción obligatoria para sancionar los actos ilícitos en cuestión del país cuya bandera enarbola el buque en el cual o contra el cual se ha realizado el acto de fuerza.
    Translation: The actions committed by the Israeli Armed Forces when seizing foreign-flagged ships on international waters (...) and when causing the death of some of its passengers, do clearly violate the International Law (...) No State whatsoever can arrogate faculties for restricting the freedom of movement of any ship on international waters, much less for storming foreign-flagged ships, exception made of the few exceptions authorized by the International Law (piracy, slave trade, suspicions of fake identifications, etc.). Thus, it is not legitimate to resort to the Maritime War Law concepts of a blocked zone or blocked port, when such a war is inexistent (...) In 1988 it was agreed (...) the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) that (...) typifies as a crime taking control of a ship by force, or exerting violence over shipped persons, for whatever private or public reason, for whatever economic or terrorist interests. (...) Israel recently ratified this Convention (it entered into force for Israel on April 2009) (...) SUA Article 6.1 establishes as the forceful jurisdiction for sanctioning the illicit actions the same country whose flag carries the ship on which or against which the forceful action has been taken
  2. ^ Müller, Reinhard (June 2, 2010). "Auf Hoher See darf kein Zwang ausgeübt werden". Frankfurter Allgemeine Zeitung. Retrieved June 2, 2010. Den Staaten ist es völkerrechtlich nicht erlaubt, die Hohe See ihrer Souveränität zu unterstellen. [...] In der sogenannten Anschlusszone, deren Grenze 24 Seemeilen von der eigenen Küste verläuft, haben die Staaten noch Kontrollrechte – vor allem, um ihren Einreise- und Gesundheitsvorschriften Geltung zu verschaffen. [...] Es gibt auch ein Recht, fremde Schiffe zu betreten. Das setzt aber etwa voraus, dass ein begründeter Verdacht der Seeräuberei oder des Sklavenhandels besteht – oder dass vermutet werden muss, dass das fremde Schiff keine Staatszugehörigkeit besitzt. ... Nicht in Zweifel steht, dass sich israelische Soldaten gegen Angriffe zur Wehr setzen dürfen. Hat Israel allerdings ohne rechtlichen Grund Gewalt gegen die Schiffe eingesetzt, so durften sich deren Besatzungsmitglieder zur Wehr setzen. Translation: "Countries are not allowed by international laws to extend their sovereignty on international waters. ... In an area that is called the contiguous zone, which extends 24 nautical miles (44 km) from the coast of the country, states have the right to inspection – especially to ensure the application of immigration and public health laws and regulations. [...] There also exists a right to access foreign ships. This, however, presupposes that there is a well-founded suspicion of piracy or human trafficking – or that it must be suspected that the foreign ship is not registered in any country. ... There is no doubt that Israeli soldiers have the right to defend themselves against attacks. If Israel has used force against the ships without legal justification, however, the members of the crew had the right to defend themselves."
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