Legal assessments of the Gaza flotilla raid
Encyclopedia
Many legal assessments of the Gaza flotilla raid
were published subsequent to the event. International law experts (and non-lawyers) differed over the legality of the action by Israel. Most agree that Israel was required to respond with at most a proportionate use of force in the face of violent resistance; whether the force used was proportionate was disputed.
Some, such as law experts Harvard Law School Professor Alan Dershowitz
, Chicago Law School Professor Eric Posner
, and Johns Hopkins International Law and Diplomacy Professor Ruth Wedgwood
, said that the naval blockade
, the boarding in international waters, and the use of force were in accord with long-standing international law. Dershowitz compared the blockade with the U.S. blockade of Cuba during the Cuban Missile Crisis
and Posner with the Coalition blockade of Iraq during the first Gulf War
.
The United Nations High Commissioner for Human Rights, the International Committee of the Red Cross
, the National Lawyers Guild
's International Committee, Istanbul Bilgi University
's Law Department Dean Turgut Tarhanlı and other experts have concluded that the blockade was itself illegal, or agreed with University of Dundee
international law professor Robin Churchill that the boarding on the high seas was illegal even if the blockade were lawful, or agreed with international law professor Said Mahmoudi that the use of force was disproportionate and the raid was therefore illegal even if the blockade and the boarding in international waters were lawful. An investigation by a panel of legal experts convened by the UN determined that the use of force by the Israeli military was disproportionate, that the Israeli military violated international law, and found clear evidence sufficient for war crime
s prosecutions under the Fourth Geneva Convention
- which defines humanitarian protections for civilians in a war zone and prohibits total war.
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.In July 2011, the UN investigative committee for the 2010 Flotilla to Gaza concluded that the blockade is legal.
, Navanethem Pillay, has condemned Israel's blockade of Gaza on numerous occasions, calling it "a direct contravention of international human rights and humanitarian law. It must end now”.
The "United Nations Fact Finding Mission on the Gaza Conflict" in its Goldstone Report said:
The International Committee of the Red Cross
said that Israel's blockade violated the Geneva Conventions
and stated that it constituted a collective punishment imposed in clear violation of Israel's obligations under international humanitarian law.
The San Remo Manual on International Law Applicable to Armed Conflicts at Sea
provides that:
Article 54 (1) and (2) of Additional Protocol I to the Geneva Conventions prohibit the starvation of a civilian community regardless of the motive involved. The "Explanation" that accompanies the text of the San Remo Manual clarifies that some parties argued
that, as starvation of a civilian population is already prohibited under existing law the word ‘sole' should be deleted. The word 'sole' was retained because if a blockade has both the unlawful purpose of starvation together with a lawful military purpose, the provision in (b) would still render the blockade unlawful if the effect on the civilian population is excessive in relation to the lawful military purpose. Subparagraph (b) therefore reflects the impact of the rules of proportionality and precautions.
Dr. Turgut Tarhanlı, dean of the Istanbul Bilgi University
's Law Department, 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. He said that:
With regard to the Gaza–Jericho Agreement, Diana Buttu
, a Palestinian-Canadian lawyer and former spokesperson for 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.
Guilfoyle told Aljazeera that, while a blockade is a recognized tool of warfare, a close look should be taken as to whether there was proper notification of the Gaza blockade, and whether it inflicted "excessive damage to the civilian population in relation to the concrete military advantage expected".
Amnesty International
, in a report dated June 1, 2010, included the opinion that "As a form of collective punishment, Israel’s continuing blockade of Gaza is a flagrant violation of international law."
The European Parliament, in a June 14, 2010 resolution, called the Gaza blockade "collective punishment in contravention of international humanitarian law" and demanded its immediate cessation.
, 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.” 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.
Similarly, 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".
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]".
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". He compared Israel's blockade to the Union blockade
by the Union
against the Confederacy
(a non-state) during the U.S. Civil War. The U.S. Supreme Court later affirmed the legitimacy of that blockade.
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." 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". 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."
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. 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.
He wrote:
U.S. Vice President Joe Biden
said "Israel has a right to know – they're at war with Hamas – has a right to know whether or not arms are being smuggled in. It's legitimate for Israel to say, 'I don't know what's on that ship. These guys are dropping ... 3,000 rockets on my people.'"
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. 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.
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."
in Scotland, said there was no legal basis for boarding the ships as they were in international waters
. A group of Israeli lawyers petitioned the Supreme Court of Israel
charging that Israel had violated the United Nations Convention on the Law of the Sea
by capturing the boats in international waters, but a Supreme Court ruling signed by Justice Dorit Beinish rejected those suits outright.
José María Ruiz Soroa, a Spanish maritime law scholar and co-author of the legal commentary Manual de derecho de la navegación marítima, 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. He said blockade is not a valid reason, as it is a concept only applicable to war situations. He also said 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), which was signed by Israel in April 2009. He said that according to the article 6.1 of the SUA, the jurisdiction over the offences that a ship might have committed lies in the state whose flag the ship is flying. SUA Article 9 states "Nothing in this Convention shall affect in any way the rules of international law pertaining to the competence of States to exercise investigative or enforcement jurisdiction on board ships not flying their flag."
According to George Bisharat
, a professor at Hastings College of the Law, Israel's blockade of Gaza was illegal, and enforcing the blockade in international waters was similarly illegal. Bisharat wrote that "flotilla passengers were entitled to defend themselves against Israel's forcible boarding of the Mavi Marmara, whether or not Israeli commandos fired immediately on landing on the ship's deck".
Turkey's foreign minister Ahmet Davutoğlu
said:
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 believed that "the action does not appear to have been necessary in that the threat was not imminent."
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. 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.
Richard Falk, former professor of international law at Princeton University
and U.N. human rights investigator in the Palestinian territories 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".
Former British Ambassador, and head of the FCO
Maritime Section, Craig Murray
said on his website 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. 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.
Jason Alderwick, a maritime analyst at the International Institute for Strategic Studies
of London, said that the Israeli raid did not appear to have been conducted lawfully under the convention. 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.
Linda Brayer, an Israeli human rights lawyer who specialized in the laws of war and international law, concludes that:
argued that the flotilla's interception was lawful, as Israel had publicly declared its blockade, and had given the ships prior notification, and that activists had made it clear by written and oral statements that they intended to violate the blockade. It further argued that international law allowed a state to enforce a naval blockade in international waters, so long as the blockade did not impede access to the ports or coasts of neutral states.
Several legal experts say, under the law of a blockade, intercepting a vessel could apply globally so long as a ship is bound for a "belligerent" territory.
Alan 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. "It's okay for Israeli ships to operate in international waters to enforce [the blockade]," said Allen Weiner
. Douglas Guilfoyle, a lecturer at University College of London since 2007 who authored Shipping Interdiction and the Law of the Sea in 2009, told Aljazeera that if the blockade was legal, "then yes, a ship could have been intercepted on the high seas, if there was a suspicion it was attempting to breach the blockade."
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". 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. She also noted that the U.S. itself blockaded Cuba during the Cuban Missile Crisis
, and 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. Roche also indicated that under the law of a blockade, a ship can be intercepted on the high seas as long as it is bound for the blockaded territory. Professor Posner, as well, wrote that "longstanding customary international law permits states to enforce publicly announced blockades on the high seas". Professor Morgan also said that under the San Remo law, a blockade is often enforced in what would otherwise be international waters.
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 UNHRC fact-finding mission also determined based on both "forensic and firearm evidence" that Furkan Dogan
, a 19 year old American citizen of Turkish descent, and five Turkish citizens were murdered execution-style on May 31 on the Mavi Marmari by the Israeli raiders. The report of the fact-finding mission stated that the killing of Dogan and the five Turks by the Israeli commandos "can be characterized as extra-legal, arbitrary and summary executions."
A legal analysis published by the Frankfurter Allgemeine Zeitung said that Israeli soldiers had the right to defend themselves, but if Israel used force against the ships without legal justification, the crew members had the right to defend themselves. 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.
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".
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. He wrote further:
Israeli authorities said marines who boarded the vessel opened fire in self-defense after activists clubbed and stabbed them and snatched some of their weapons.
Professor Morgan says that to describe Israeli actions in this case as "piracy" 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." Nevertheless, some have used the word to denounce the incident.
British political activist Craig Murray
opined, "A word on the legal position, which is very plain. To attack a foreign flagged vessel in international waters is illegal. It is not piracy, as the Israeli vessels carried a military commission. It is rather an act of illegal warfare."
The Court defended the decision to prevent the ships from reaching Gaza:
The Court rejected petitions by right wingers (the Shurat HaDin Israel Law Center and the Almagor Terrorist Victims Association) to prevent the release and deportation of activists who attacked the IDF soldiers pending an investigation. The Court supported the attorney general's decision to release the activists, noting that:
The Court also rejected three petitions demanding information on the whereabouts of some of the passengers brought to Ashdod. In one leftist suit, the petitioners initially ascribed "illegal actions" to the State of Israel, calling its actions "massacre, murder, and ... piracy." But the petitioners revoked their petition after receiving the State Prosecutor's response and the Court's comments. The Court observed: "It is clear that the suit was filed in haste. Even though the petitioners knew nothing of what had occurred, they did not hesitate to hurriedly place the gravest possible stain on the IDF forces' actions".
A petition submitted to the Israeli Supreme Court by the al-Jazeera television network, on behalf of journalists working for the network who had been arrested on the ship, requesting their release, was deemed moot as the journalists had already been released.
, prosecutor
at the International Criminal Court
(ICC) asking that the Israelis involved be criminally prosecuted before the ICC.
Citizens of states that have signed the treaty that founded the ICC are subject to prosecution for war crimes before the ICC. Although Israel is not a signatory of the ICC treaty, in the lawyer's view the ICC has jurisdiction over the incident in international waters because the Mavi Marmara was sailing under flag of the Comoros Islands and many Turkish citizens were present onboard, and the Comoros Islands is a signatory to the treaty that established the ICC. Their argument for ICC jurisdiction is supported by prominent international jurists such as Desmond da Silva, a QC
and former UN war crimes prosecutor.
Gaza flotilla raid
The Gaza flotilla raid was a military operation by Israel against six ships of the "Gaza Freedom Flotilla" on 31 May 2010 in international waters of the Mediterranean Sea...
were published subsequent to the event. International law experts (and non-lawyers) differed over the legality of the action by Israel. Most agree that Israel was required to respond with at most a proportionate use of force in the face of violent resistance; whether the force used was proportionate was disputed.
Some, such as law experts Harvard Law School Professor Alan Dershowitz
Alan Dershowitz
Alan Morton Dershowitz is an American lawyer, jurist, and political commentator. He has spent most of his career at Harvard Law School where in 1967, at the age of 28, he became the youngest full professor of law in its history...
, Chicago Law School Professor Eric Posner
Eric Posner
Eric Andrew Posner is Kirkland and Ellis Professor of Law at the University of Chicago Law School. He is the son of the prominent federal appellate judge Richard Posner.-Education and clerkship:...
, and Johns Hopkins International Law and Diplomacy Professor Ruth Wedgwood
Ruth Wedgwood
Ruth N. Wedgwood is an American law professor who holds the Edward B. Burling Chair in International Law and Diplomacy at the School of Advanced International Studies, Johns Hopkins University, in Washington, D.C.- Family origins :...
, said that the naval blockade
Blockade
A blockade is an effort to cut off food, supplies, war material or communications from a particular area by force, either in part or totally. A blockade should not be confused with an embargo or sanctions, which are legal barriers to trade, and is distinct from a siege in that a blockade is usually...
, the boarding in international waters, and the use of force were in accord with long-standing international law. Dershowitz compared the blockade with the U.S. blockade of Cuba during the Cuban Missile Crisis
Cuban Missile Crisis
The Cuban Missile Crisis was a confrontation among the Soviet Union, Cuba and the United States in October 1962, during the Cold War...
and Posner with the Coalition blockade of Iraq during the first Gulf War
Gulf War
The Persian Gulf War , commonly referred to as simply the Gulf War, was a war waged by a U.N.-authorized coalition force from 34 nations led by the United States, against Iraq in response to Iraq's invasion and annexation of Kuwait.The war is also known under other names, such as the First Gulf...
.
The United Nations High Commissioner for Human Rights, the International Committee of the Red Cross
International Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
, the National Lawyers Guild
National Lawyers Guild
The National Lawyers Guild is an advocacy group in the United States "dedicated to the need for basic and progressive change in the structure of our political and economic system . ....
's International Committee, Istanbul Bilgi University
Istanbul Bilgi University
Istanbul Bilgi University is a private, non-profit university in Istanbul, Turkey. It was actually established in 1994 under the name ISIS , but its name was changed to Istanbul Bilgi University with the foundation of the school on June 7, 1996...
's Law Department Dean Turgut Tarhanlı and other experts have concluded that the blockade was itself illegal, or agreed with University of Dundee
University of Dundee
The University of Dundee is a university based in the city and Royal burgh of Dundee on eastern coast of the central Lowlands of Scotland and with a small number of institutions elsewhere....
international law professor Robin Churchill that the boarding on the high seas was illegal even if the blockade were lawful, or agreed with international law professor Said Mahmoudi that the use of force was disproportionate and the raid was therefore illegal even if the blockade and the boarding in international waters were lawful. An investigation by a panel of legal experts convened by the UN determined that the use of force by the Israeli military was disproportionate, that the Israeli military violated international law, and found clear evidence sufficient for war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
s prosecutions under the Fourth Geneva Convention
Fourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
- which defines humanitarian protections for civilians in a war zone and prohibits total war.
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.In July 2011, the UN investigative committee for the 2010 Flotilla to Gaza concluded that the blockade is legal.
Arguments opposing legality of blockade
The United Nations High Commissioner for Human RightsOffice of the United Nations High Commissioner for Human Rights
The Office of the United Nations High Commissioner for Human Rights is a United Nations agency that works to promote and protect the human rights that are guaranteed under international law and stipulated in the Universal Declaration of Human Rights of 1948...
, Navanethem Pillay, has condemned Israel's blockade of Gaza on numerous occasions, calling it "a direct contravention of international human rights and humanitarian law. It must end now”.
The "United Nations Fact Finding Mission on the Gaza Conflict" in its Goldstone Report said:
1733. The Mission ... considers that the series of acts that deprive Palestinians in the Gaza Strip of their means of subsistence, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country, that limit their rights to access a court of law and an effective remedy, could lead a competent court to find that the crime of persecution, a crime against humanity, has been committed.
International Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
said that Israel's blockade violated the Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
and stated that it constituted a collective punishment imposed in clear violation of Israel's obligations under international humanitarian law.
The San Remo Manual on International Law Applicable to Armed Conflicts at Sea
San Remo Manual on International Law Applicable to Armed Conflicts at Sea
The San Remo Manual on International Law Applicable to Armed Conflicts at Sea was adopted in June 1994 by the International Institute of Humanitarian Law after a series of round table discussions by naval and legal experts...
provides that:
102. The declaration or establishment of a blockade is prohibited 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.
Article 54 (1) and (2) of Additional Protocol I to the Geneva Conventions prohibit the starvation of a civilian community regardless of the motive involved. The "Explanation" that accompanies the text of the San Remo Manual clarifies that some parties argued
that, as starvation of a civilian population is already prohibited under existing law the word ‘sole' should be deleted. The word 'sole' was retained because if a blockade has both the unlawful purpose of starvation together with a lawful military purpose, the provision in (b) would still render the blockade unlawful if the effect on the civilian population is excessive in relation to the lawful military purpose. Subparagraph (b) therefore reflects the impact of the rules of proportionality and precautions.
Dr. Turgut Tarhanlı, dean of the Istanbul Bilgi University
Istanbul Bilgi University
Istanbul Bilgi University is a private, non-profit university in Istanbul, Turkey. It was actually established in 1994 under the name ISIS , but its name was changed to Istanbul Bilgi University with the foundation of the school on June 7, 1996...
's Law Department, cited the concept of innocent passage
Innocent passage
Innocent passage is a concept in admiralty law which allows for a vessel to pass through the territorial waters of another state subject to certain restrictions. The UN Convention on the Law of the Sea defines innocent passage as:...
, 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. 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.
With regard to the Gaza–Jericho Agreement, Diana Buttu
Diana Buttu
Diana Buttu is a Palestinian-Canadian lawyer and former spokesperson with the Palestine Liberation Organization. She is best known for her work as a legal adviser and negotiator on peace negotiations between Israeli and Palestinian organizations. President George W...
, a Palestinian-Canadian lawyer and former spokesperson for the Palestine Liberation Organization
Palestine Liberation Organization
The Palestine Liberation Organization is a political and paramilitary organization which was created in 1964. It is recognized as the "sole legitimate representative of the Palestinian people" by the United Nations and over 100 states with which it holds diplomatic relations, and has enjoyed...
, said that Israel declared the Oslo Accords
Oslo Accords
The Oslo Accords, officially called the Declaration of Principles on Interim Self-Government Arrangements or Declaration of Principles , was an attempt to resolve the ongoing Palestinian-Israeli conflict...
dead in 2001, and actually breached the agreements, so that a call to the applicability of the Gaza-Jericho Agreement is not plausible.
Guilfoyle told Aljazeera that, while a blockade is a recognized tool of warfare, a close look should be taken as to whether there was proper notification of the Gaza blockade, and whether it inflicted "excessive damage to the civilian population in relation to the concrete military advantage expected".
Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
, in a report dated June 1, 2010, included the opinion that "As a form of collective punishment, Israel’s continuing blockade of Gaza is a flagrant violation of international law."
The European Parliament, in a June 14, 2010 resolution, called the Gaza blockade "collective punishment in contravention of international humanitarian law" and demanded its immediate cessation.
Arguments supporting legality of blockade
Alan DershowitzAlan Dershowitz
Alan Morton Dershowitz is an American lawyer, jurist, and political commentator. He has spent most of his career at Harvard Law School where in 1967, at the age of 28, he became the youngest full professor of law in its history...
, professor of Law at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
, wrote that the legality of blockades as a response to acts of war “is not subject to serious doubt.” He likened Israel’s maritime blockade of Gaza to U.S. naval actions in Cuba during the Cuban Missile Crisis
Cuban Missile Crisis
The Cuban Missile Crisis was a confrontation among the Soviet Union, Cuba and the United States in October 1962, during the Cold War...
, which the U.S. had deemed lawful though not part of an armed conflict.
Similarly, Allen Weiner
Allen Weiner
Allen S. Weiner, former Stanford Professor of International Law, is a senior lecturer in International Law at Stanford Law School, and co-director of the Stanford Program in International and Comparative Law and the Stanford Center on International Conflict and Negotiation.-Awards:*State Department...
, former U.S. State Department attorney and legal counselor at the American Embassy in The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
, and now a Stanford Law School
Stanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...
professor, said "the Israeli blockade itself against Gaza itself is not illegal".
Ruth Wedgwood
Ruth Wedgwood
Ruth N. Wedgwood is an American law professor who holds the Edward B. Burling Chair in International Law and Diplomacy at the School of Advanced International Studies, Johns Hopkins University, in Washington, D.C.- Family origins :...
, a professor of International Law and Diplomacy at the School of Advanced International Studies at Johns Hopkins University
Johns Hopkins University
The Johns Hopkins University, commonly referred to as Johns Hopkins, JHU, or simply Hopkins, is a private research university based in Baltimore, Maryland, United States...
, 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]".
Eric Posner
Eric Posner
Eric Andrew Posner is Kirkland and Ellis Professor of Law at the University of Chicago Law School. He is the son of the prominent federal appellate judge Richard Posner.-Education and clerkship:...
, international law professor at the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
, 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
Gulf War
The Persian Gulf War , commonly referred to as simply the Gulf War, was a war waged by a U.N.-authorized coalition force from 34 nations led by the United States, against Iraq in response to Iraq's invasion and annexation of Kuwait.The war is also known under other names, such as the First Gulf...
), and that "war-like conditions certainly exist between Israel and Hamas". He compared Israel's blockade to the Union blockade
Union blockade
The Union Blockade, or the Blockade of the South, took place between 1861 and 1865, during the American Civil War, when the Union Navy maintained a strenuous effort on the Atlantic and Gulf Coast of the Confederate States of America designed to prevent the passage of trade goods, supplies, and arms...
by the Union
Union (American Civil War)
During the American Civil War, the Union was a name used to refer to the federal government of the United States, which was supported by the twenty free states and five border slave states. It was opposed by 11 southern slave states that had declared a secession to join together to form the...
against the Confederacy
Confederate States of America
The Confederate States of America was a government set up from 1861 to 1865 by 11 Southern slave states of the United States of America that had declared their secession from the U.S...
(a non-state) during the U.S. Civil War. The U.S. Supreme Court later affirmed the legitimacy of that blockade.
Philip Roche, a partner in the shipping disputes and risk management team with the London-headquartered international law firm Norton Rose
Norton Rose
Norton Rose is an international legal practice offering a business law service from 39 offices across Europe, Asia Pacific, Canada, Africa and the Middle East...
, 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." 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
San Remo Manual on International Law Applicable to Armed Conflicts at Sea
The San Remo Manual on International Law Applicable to Armed Conflicts at Sea was adopted in June 1994 by the International Institute of Humanitarian Law after a series of round table discussions by naval and legal experts...
--"a legally recognized document". 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."
International law Professor Ed Morgan
Ed Morgan (professor)
Edward M. "Ed" Morgan is a professor of international law at the University of Toronto.-Education:Morgan attended Northwestern University , the University of Toronto , and Harvard Law School ....
of the University of Toronto
University of Toronto
The University of Toronto is a public research university in Toronto, Ontario, Canada, situated on the grounds that surround Queen's Park. It was founded by royal charter in 1827 as King's College, the first institution of higher learning in Upper Canada...
, 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. 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.
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.
U.S. Vice President Joe Biden
Joe Biden
Joseph Robinette "Joe" Biden, Jr. is the 47th and current Vice President of the United States, serving under President Barack Obama...
said "Israel has a right to know – they're at war with Hamas – has a right to know whether or not arms are being smuggled in. It's legitimate for Israel to say, 'I don't know what's on that ship. These guys are dropping ... 3,000 rockets on my people.'"
Abbas Al Lawati, a Dubai-based Gulf News
Gulf News
Gulf News is a daily English language newspaper published from Dubai, in the United Arab Emirates with a December 2009 BPA audited circulation of over 117,036 qualified copies...
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. 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.
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
Oslo Accords
The Oslo Accords, officially called the Declaration of Principles on Interim Self-Government Arrangements or Declaration of Principles , was an attempt to resolve the ongoing Palestinian-Israeli conflict...
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."
Arguments opposing legality of high seas enforcement
Robin Churchill, international law professor at the University of DundeeUniversity of Dundee
The University of Dundee is a university based in the city and Royal burgh of Dundee on eastern coast of the central Lowlands of Scotland and with a small number of institutions elsewhere....
in Scotland, said there was no legal basis for boarding the ships as they were in international waters
International waters
The terms international waters or trans-boundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems , and wetlands.Oceans,...
. A group of Israeli lawyers petitioned the Supreme Court of Israel
Supreme Court of Israel
The Supreme Court is at the head of the court system and highest judicial instance in Israel. The Supreme Court sits in Jerusalem.The area of its jurisdiction is all of Israel and the Israeli-occupied territories. A ruling of the Supreme Court is binding upon every court, other than the Supreme...
charging that Israel had violated the United Nations Convention on the Law of the Sea
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
by capturing the boats in international waters, but a Supreme Court ruling signed by Justice Dorit Beinish rejected those suits outright.
International Maritime Organization
The International Maritime Organization , formerly known as the Inter-Governmental Maritime Consultative Organization , was established in Geneva in 1948, and came into force ten years later, meeting for the first time in 1959...
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), which was signed by Israel in April 2009. He said that according to the article 6.1 of the SUA, the jurisdiction over the offences that a ship might have committed lies in the state whose flag the ship is flying. SUA Article 9 states "Nothing in this Convention shall affect in any way the rules of international law pertaining to the competence of States to exercise investigative or enforcement jurisdiction on board ships not flying their flag."
According to George Bisharat
George Bisharat
George Bisharat is a Palestinian-American professor of law and frequent commentator on current events in the Middle East, and the Israeli-Palestinian conflict in particular.- Life :...
, a professor at Hastings College of the Law, Israel's blockade of Gaza was illegal, and enforcing the blockade in international waters was similarly illegal. Bisharat wrote that "flotilla passengers were entitled to defend themselves against Israel's forcible boarding of the Mavi Marmara, whether or not Israeli commandos fired immediately on landing on the ship's deck".
Turkey's foreign minister Ahmet Davutoğlu
Ahmet Davutoglu
Professor Ahmet Davutoğlu is a Turkish political scientist, an academic and an ambassador. On May 1, 2009, he was named Minister of Foreign Affairs of Turkey after being the chief advisor to the Prime Minister of Republic of Turkey.-Life and career:...
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.
Canadian scholar Michael Byers
Michael Byers (Canadian author)
Michael Byers is a Canadian legal scholar and non-fiction author.- Academic background :Byers was educated at the University of Saskatchewan, where he received his BA with majors in English literature and political studies. He then studied at McGill University, achieving his LLB and BCL degrees. He...
said that the event would only be legal if the Israeli boarding were necessary and proportionate for the country's self defence. Byers believed that "the action does not appear to have been necessary in that the threat was not imminent."
In a legal analysis published by the Frankfurter Allgemeine Zeitung
Frankfurter Allgemeine Zeitung
The Frankfurter Allgemeine Zeitung , short F.A.Z., also known as the FAZ, is a national German newspaper, founded in 1949. It is published daily in Frankfurt am Main. The Sunday edition is the Frankfurter Allgemeine Sonntagszeitung .F.A.Z...
, a staff expert on international law said that countries are not allowed to extend their sovereignty on areas outside of their coastal waters. 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.
Princeton University
Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....
and U.N. human rights investigator in the Palestinian territories 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".
Foreign and Commonwealth Office
The Foreign and Commonwealth Office, commonly called the Foreign Office or the FCO is a British government department responsible for promoting the interests of the United Kingdom overseas, created in 1968 by merging the Foreign Office and the Commonwealth Office.The head of the FCO is the...
Maritime Section, Craig Murray
Craig Murray
Craig John Murray is a British political activist, former ambassador to Uzbekistan and former Rector of the University of Dundee....
said on his website that the raid was not an act of piracy
Piracy
Piracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...
, 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
Law of the sea
Law of the sea may refer to:* United Nations Convention on the Law of the Sea* Admiralty law* The Custom 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. 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.
Jason Alderwick, a maritime analyst at the International Institute for Strategic Studies
International Institute for Strategic Studies
The International Institute for Strategic Studies is a British research institute in the area of international affairs. It describes itself as "the world’s leading authority on political-military conflict"...
of London, said that the Israeli raid did not appear to have been conducted lawfully under the convention. Anthony D'Amato, international law professor at Northwestern University School of Law
Northwestern University School of Law
The Northwestern University School of Law is a private American law school in Chicago, Illinois. The law school was founded in 1859 as the Union College of Law of the Old University of Chicago. The first law school established in Chicago, it became jointly controlled by Northwestern University in...
, 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
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
would apply.
Linda Brayer, an Israeli human rights lawyer who specialized in the laws of war and international law, concludes that:
It follows, therefore, that Israel was first of all not allowed to attack these vessels militarily, and then not to board these vessels by force, capture these vessels, attack the passengers, imprison them on the vessels, forcibly remove them from the vessels, and steal their private property in the form of cameras, computers, clothes, etc.
Arguments supporting legality of high seas enforcement
The Israeli Foreign MinistryMinistry of Foreign Affairs (Israel)
The Israeli Ministry of Foreign Affairs is one of the most important ministries in the Israeli government. The ministry's role is to implement Israel's foreign policy, and promote economic, cultural, and scientific relations with other countries....
argued that the flotilla's interception was lawful, as Israel had publicly declared its blockade, and had given the ships prior notification, and that activists had made it clear by written and oral statements that they intended to violate the blockade. It further argued that international law allowed a state to enforce a naval blockade in international waters, so long as the blockade did not impede access to the ports or coasts of neutral states.
Several legal experts say, under the law of a blockade, intercepting a vessel could apply globally so long as a ship is bound for a "belligerent" territory.
Alan Dershowitz
Alan Dershowitz
Alan Morton Dershowitz is an American lawyer, jurist, and political commentator. He has spent most of his career at Harvard Law School where in 1967, at the age of 28, he became the youngest full professor of law in its history...
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. "It's okay for Israeli ships to operate in international waters to enforce [the blockade]," said Allen Weiner
Allen Weiner
Allen S. Weiner, former Stanford Professor of International Law, is a senior lecturer in International Law at Stanford Law School, and co-director of the Stanford Program in International and Comparative Law and the Stanford Center on International Conflict and Negotiation.-Awards:*State Department...
. Douglas Guilfoyle, a lecturer at University College of London since 2007 who authored Shipping Interdiction and the Law of the Sea in 2009, told Aljazeera that if the blockade was legal, "then yes, a ship could have been intercepted on the high seas, if there was a suspicion it was attempting to breach the blockade."
Ruth Wedgwood
Ruth Wedgwood
Ruth N. Wedgwood is an American law professor who holds the Edward B. Burling Chair in International Law and Diplomacy at the School of Advanced International Studies, Johns Hopkins University, in Washington, D.C.- Family origins :...
, similarly, said that "the right of visit and search under the law of the sea
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
, or under the law of armed conflict, can be conducted on the high seas". 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. She also noted that the U.S. itself blockaded Cuba during the Cuban Missile Crisis
Cuban Missile Crisis
The Cuban Missile Crisis was a confrontation among the Soviet Union, Cuba and the United States in October 1962, during the Cold War...
, and also commented that in the wars in Yugoslavia, the U.N. itself, and NATO, through Operation Sharp Guard
Operation Sharp Guard
Operation Sharp Guard was a multi-year joint naval blockade in the Adriatic Sea by NATO and the Western European Union on shipments to the former Yugoslavia. Warships and maritime patrol aircraft from 14 countries were involved in searching for and stopping blockade runners.The operation began on...
, imposed a blockade on shipments to Yugoslavia. Roche also indicated that under the law of a blockade, a ship can be intercepted on the high seas as long as it is bound for the blockaded territory. Professor Posner, as well, wrote that "longstanding customary international law permits states to enforce publicly announced blockades on the high seas". Professor Morgan also said that under the San Remo law, a blockade is often enforced in what would otherwise be international waters.
Mark Regev
Mark Regev
Mark Regev , formerly Mark Freiberg, is an Australian-born Israeli diplomat and media spokesman. He is currently the spokesman for the Prime Minister of Israel and an advisor on foreign press and public affairs, a position he has held since his appointment by the former Prime Minister Ehud Olmert...
, spokesman for the Prime Minister of Israel
Prime Minister of Israel
The Prime Minister of Israel is the head of the Israeli government and the most powerful political figure in Israel . The prime minister is the country's chief executive. The official residence of the prime minister, Beit Rosh Hamemshala is in Jerusalem...
, 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.
Positions that use of force was illegal
A UNHRC fact-finding mission headed by several prominent international law specialists was charged by the UN to undertake an investigation of the IDF raid. In its September 2010 report the UN panel found that the IDF broke international law, and that there was evidence sufficient to initiate prosecutions for breaches of the Geneva Convention. In particular, the panel, after interviewing more than 100 witnesses, found clear evidence for prosecution for the war crimes of "wilful killing; torture or inhuman treatment; wilfully causing great suffering or serious injury to body or health" under Article 147 of the Fourth Geneva Convention. The report stated that:- "The conduct of the Israeli military and other personnel towards the flotilla passengers was not only disproportionate to the occasion but demonstrated levels of totally unnecessary and incredible violence.”
The UNHRC fact-finding mission also determined based on both "forensic and firearm evidence" that Furkan Dogan
Furkan Doğan
Furkan Doğan was a Turkish American who was residing in Turkey permanently. He was the youngest person killed on MV Mavi Marmara ship, in the Gaza flotilla raid and became a political symbol after his death...
, a 19 year old American citizen of Turkish descent, and five Turkish citizens were murdered execution-style on May 31 on the Mavi Marmari by the Israeli raiders. The report of the fact-finding mission stated that the killing of Dogan and the five Turks by the Israeli commandos "can be characterized as extra-legal, arbitrary and summary executions."
A legal analysis published by the Frankfurter Allgemeine Zeitung said that Israeli soldiers had the right to defend themselves, but if Israel used force against the ships without legal justification, the crew members had the right to defend themselves. 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.
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".
Positions that use of force was lawful
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. 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. According to J. Peter Pham, a strategic adviser to U.S. and European governments, "from what is known now, it appears that Israel acted within its legal rights."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. 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.
Israeli authorities said marines who boarded the vessel opened fire in self-defense after activists clubbed and stabbed them and snatched some of their weapons.
Piracy
Under international law, the Israeli raid was considered state action and not piracy. Commander James Kraska said, "Whether what Israel did is right or wrong, it is not an act of piracy. Piracy deals with private conduct particularly with a pecuniary or financial interest."Professor Morgan says that to describe Israeli actions in this case as "piracy" 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." Nevertheless, some have used the word to denounce the incident.
British political activist Craig Murray
Craig Murray
Craig John Murray is a British political activist, former ambassador to Uzbekistan and former Rector of the University of Dundee....
opined, "A word on the legal position, which is very plain. To attack a foreign flagged vessel in international waters is illegal. It is not piracy, as the Israeli vessels carried a military commission. It is rather an act of illegal warfare."
Israeli Supreme Court decisions
The Israeli Supreme Court rejected six petitions, from both leftist groups and rightist groups, against the IDF and Israel in regard to the raid "in the absence of just cause to intervene in the decision of the attorney general." Supreme Court President Dorit Beinish wrote in the Court's decision 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 soldiers encountered a harsh and violent response.... The soldiers were attacked with knives, clubs, and metal rods. Attempts were made to snatch their personal weapons and to violently injure them. One of the soldiers was even dropped over the side of the ship.
The Court defended the decision to prevent the ships from reaching Gaza:
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.... Among other things, the State offered the flotilla's organizers to unload the cargo carried on the ship and to transfer the shipment ... via Israel. This offer was rejected.
The Court rejected petitions by right wingers (the Shurat HaDin Israel Law Center and the Almagor Terrorist Victims Association) to prevent the release and deportation of activists who attacked the IDF soldiers pending an investigation. The Court supported the attorney general's decision to release the activists, noting that:
After considering the fact that nine of the flotilla's participants were killed and dozens were injured, he reached the conclusion that the public, political, and security interests in this case trump law enforcement. We did not find any ground for intervening in this decision or in the considerations at its foundation.
The Court also rejected three petitions demanding information on the whereabouts of some of the passengers brought to Ashdod. In one leftist suit, the petitioners initially ascribed "illegal actions" to the State of Israel, calling its actions "massacre, murder, and ... piracy." But the petitioners revoked their petition after receiving the State Prosecutor's response and the Court's comments. The Court observed: "It is clear that the suit was filed in haste. Even though the petitioners knew nothing of what had occurred, they did not hesitate to hurriedly place the gravest possible stain on the IDF forces' actions".
A petition submitted to the Israeli Supreme Court by the al-Jazeera television network, on behalf of journalists working for the network who had been arrested on the ship, requesting their release, was deemed moot as the journalists had already been released.
International Criminal Court
Lawyers representing the Turkish victims and the Islamic Turkish NGO IHH wrote to Luis Moreno OcampoLuis Moreno Ocampo
José Luis Moreno OcampoMoreno Ocampo's surnames are often hyphenated in English-language media to distinguish Moreno as a surname, rather than a given name. is an Argentine lawyer who has been the Prosecutor of the International Criminal Court since June 16, 2003...
, prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
at the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
(ICC) asking that the Israelis involved be criminally prosecuted before the ICC.
Citizens of states that have signed the treaty that founded the ICC are subject to prosecution for war crimes before the ICC. Although Israel is not a signatory of the ICC treaty, in the lawyer's view the ICC has jurisdiction over the incident in international waters because the Mavi Marmara was sailing under flag of the Comoros Islands and many Turkish citizens were present onboard, and the Comoros Islands is a signatory to the treaty that established the ICC. Their argument for ICC jurisdiction is supported by prominent international jurists such as Desmond da Silva, a QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
and former UN war crimes prosecutor.
See also
- San Remo Manual on International Law Applicable to Armed Conflicts at SeaSan Remo Manual on International Law Applicable to Armed Conflicts at SeaThe San Remo Manual on International Law Applicable to Armed Conflicts at Sea was adopted in June 1994 by the International Institute of Humanitarian Law after a series of round table discussions by naval and legal experts...
, aims to provide a contemporary restatement of international law applicable to armed conflicts at sea.