Tuesday, 8 June 2010
The Attack on the Gaza Flotilla and International Law
In rejecting UN and EU proposals for an independent inquiry into the Gaza Flotilla Incident, Israeli Prime Minister Benjamin Netanyahu has stated that “it would create a problematic precedent”. It would indeed: the dangerous notion that Israel is accountable to the international community and is subject to international law as the rest of the world defines it.
There is only one rule of International Law applicable to Israel, a rule established by the persistent, deliberate and knowing ‘customary practice of Nations’, and backed by an endless succession of lawyers: the rule that Israel is exempt from international law. No other State is so authorised to argue entirely opposite principles of law in the same case, or to argue that black is white and white is black.
As a result of 60 years of condoned illegalities, of flagrant violations aided and abetted, one piled on top of the other, every concept or precept of international law relating to war, sovereignty and human rights in relation to the Middle East conflict has been corrupted and deranged beyond meaning. No international lawyer can now define what Palestine or the Palestinians are as a legal entity. It is impossible to determine if Israel and Palestine are in a state of armed conflict. The terms ‘State’, ‘belligerent’, ‘territory’ or ‘blockade’ have no meaning or can mean anything. The hopeless wreckage that is Gaza today well illustrates the wreckage that is international law. Israel, with the connivance of the West, has obliterated the legal content of every single concept of international law that might possibly assist the Palestinians. This is the legal corollary of its attempt to obliterate the Palestinians from History.
The attack on the Mavi Marmara is a turning point, not because of its blatant criminality or brutality, but because for the first time many NATO powers have come to realise that Israel’s impunity and immunity threatens Western interests, and that it is necessary to re-assert international law.
Since international law does not permit us to talk of the Palestinians as a legal entity, let us instead talk Turkey.
‘An Armed Attack’
An armed incursion by a State on the territory or territorial jurisdiction of another State is one of the most serious violations of international law. It constitutes an ‘aggression’, an act of war and a violation of sovereignty.(1) In repelling an armed incursion on its territory a State can use unlimited force, including the slaughter of thousands of fleeing soldiers, as occurred on the ‘Highway of Death’ between Kuwait and Basra during the 1991 Gulf War. There is no rule of international law that prevents the civilians of an attacked State – or citizens of any other State who happen to be present – from using unlimited force to repel an armed incursion on the territory of that State.
No test of ‘reasonableness’ is applicable. Only the attacked State can decide what is reasonable on its own territory (the principle of sovereignty) with respect to attackers. A State need not act ‘proportionately’. The principle of proportionality is only engaged when the exercise of a right by a State impinges on the rights of another State. Armed intruders have no rights.
An armed incursion in international law is therefore not analogous to an intrusion by an armed burglar in English law! A householder must act reasonably in the use of self-defence. For example, he or she cannot shoot a fleeing burglar.
A State’s use of force in repelling an armed intrusion is only subject to the following limitations:
- Since international law and the UN Charter requires States to act in good faith, and to minimise international tensions, a State should take steps to ascertain whether the armed incursion is innocent or accidental. If the armed intruder engages in hostile activity the State can use lethal force immediately.(2)
- Attackers must not be killed with prohibited weapons
- Attackers that are ‘hors d’combat’ may not be killed: those taken prisoner, those surrendering, the injured.
A State is strictly responsible for the actions of its officials, agents, employees or any civilian under its control. It is irrelevant that officials act contrary to explicit State orders or instructions, or their actions are contrary to the law of that State. For example, suppose a traffic officer gets angry with a foreign national, takes out his revolver and shoots him. It cannot be argued that the officer was acting in accordance with State orders. Indeed, his act is a criminal offence. Yet the State is still responsible. Only if a State can demonstrate that a person’s official status was accidental to his wrongdoing can it evade ‘state responsibility’. Thus General Noriega’s drug-running activities were deemed – rather implausibly - to be unconnected to the fact that he was President of Panama and that he used state facilities to smuggle drugs into the US.
It is therefore irrelevant whether, in launching their attack on the Mavi Marmara, Israeli commandos were ordered to ‘shoot to kill’ or handle passengers with kid gloves, or whether they acted in contravention of any orders. State responsibility is objective, not subjective..
Interference with ships on the high seas
A flagged vessel is not the same as the sovereign territory of the flag State, but it has an analogous status in international law.(3) The world economy is very dependent on shipping. It would collapse without it. Ships are very vulnerable and so, with few exceptions, international law strictly prohibits any interference with vessels on the ‘high seas’ (i.e. ‘international waters’).(4) International Law is also anxious to prevent States exercising juridiction over international waters as this leads to conflict between States.
States are only authorised to interfere with shipping on the high seas in the following circumstances:(5)
- To suppress piracy(6) and slavery.(7)
- Where a vessel shows no flag, or shows the flag of a foreign State, and there is reason to believe it is of the same flag as the intercepting State.
- In the case of a lawful naval blockade (below).
Additionally, where a ship, by virtue of its design or disrepair, or incompetent navigation, is a significant danger to shipping, or poses a significant danger because of cargo content or infection, etc, a State may take control of it to avoid the danger. There is no authority for this, but the flag-State could not succeed in a legal challenge.
If a State launches an armed incursion against a ship flagged in another State in circumstances other than these, then those aboard the ship - regardless of their nationality - have the same unlimited right to use force to repel the incursion as in the case of an armed incursion into another State’s territory.
The Attack on the Mavi Marmara
In determining the legal position in respect of the attack on the Mavi Marmara it is important not to be influenced by the humanitarian drama involved in the event and to stick closely with the legal issues. Israeli lawyers and propagandists always use the human angle to fudge the issue and muddy the waters. Unfortunately, many pro-Palestinians activists, keen to arouse public outrage, fall into this trap.
It is equally important to avoid totally inappropriate applications of concepts derived from domestic criminal law with a view to ‘explaining things to the public’. Such an approach is counterproductive and unnecessary. If pro-Palestinians lawyers deploy arguments such as ‘self-defence’, then Israeli lawyers will do the same. Then the issue becomes a confused ‘balancing act’ where everything gets thrown in and nothing can be resolved. Israel gets off the hook again.
The Israeli assault on the Mavi Marmara was an act of war and an armed violation of the sovereign rights.
Therefore Palestinian lawyers should not countenance any criticism or examination of the actions of flotilla activists defending the sovereign rights of this State.
The moment Israeli commandos attacked the Mavi Marmara they, and the flotilla activists, ceased to be ordinary persons and became State actors in a serious violation of international law. Their individual motivations of either side is irrelevant.
It is irrelevant whether flotilla activists were acting in self-defence or not. The concept of ‘self-defence’ as an exculpatory device is not engaged since there is no limit to the use of force to repel an armed incursion on sovereign territory and there is no requirement to be reasonable.
Israeli commandos cannot avail themselves of any legal defence - ‘self-defence’, ‘reasonableness’, ‘proportionality’ – because their State’s fundamental violation of international law makes all their actions illegal – however ‘reasonable’ or ‘proportionate’ they may otherwise be. Israel’s armed incursion cannot be broken down into individual actions to see which ones are legal and which are not – the usual Israeli legal tactic of confusing issues and undermining the central violation: an act of armed aggression.
This is why concepts from domestic criminal law should not be used in relation to this incident. For example, it is possible that Israeli soldiers shot and killed flotilla activists as the only way to protect their own or each others' lives because they were overwhelmed by a brave and ferocious defence from people on the Mavi Marmara. However introducing concepts such as ‘self-defence’ and 'reasonableness' only offers Israel a way out. It means that the legal battle gets bogged down in irrelevant issues such as ‘who did what to whom at what time and what was he intending at the time’. As every criminal defence lawyer knows, such ‘complications’ always benefit a defendant who is otherwise likely to be convicted.
The Law of Naval Blockade
A naval blockade is legitimate form of warfare recognised in international law.(8) It permits a State to interfere with vessels on a defined portion of the ‘high seas’ where it normally has no jurisdiction and where such an interference would be a serious violation of international law. Usually a State blocks enemy merchant shipping that may carry material useful to the enemy State’s war effort. It cannot block humanitarian or purely civilian supplies as this would be waging war on civilians. Starvation blockades are illegal. (9)
A blockade also gives a State limited powers of inspection of vessels of neutral States not involved in hostilities for the purpose of establishing whether they are carrying military supplies or not (contraband). The concept of proportionality does apply here because the rights of one State (the right to inspect for contraband) clashes with the rights of another (sovereign rights, free passage).
A blockade is only lawful in two circumstances; it is authorised by a Resolution of the UN Security Council,(10) or it is applied in the context of a war between States. In the latter circumstance a blockade must comply with certain conditions:
- A blockading State must be at war with the blockaded State or a ‘belligerent’.(11) Israel refuses to recognise ‘Gaza’ or ‘Hamas’ as a State or as a belligerent. It thus robs the Palestinians of any legal status so as to deny them the protection of international law. Furthermore Palestine does not exist in international law as a State.
- The blockading State must notify all States likely to be effected of the area under blockade. Normally a blockading State lodges a notice with maritime organizations, including a map specifying the blockaded area – or sends diplomatic notes to the relevant countries. Since Israel considers itself immune from international law, it has given no notice to anyone.
- Blockades targeting the civilian population are illegal. Several UN bodies have stated that the effect of the blockade is to significantly harm the population of Gaza. That this is also the intention of the blockade is evidenced by the fact that Israel rejects UN and EU proposals to monitor the blockade. This would prevent the supply of military contraband – but would make it impossible to impose a 'starvation blockade', Israel’s real intention.
Israel’s blockade of Gaza is therefore illegal.
In any case, in relation to the assault on the Mavi Marmara, whether the Gaza blockade is illegal or not is irrelevant because the attack occurred in international waters outside the blockaded area. This is where Israel has screwed up badly, and why Netanyahu was so furious with Defence Minister Ehud Barak. There is no point in having international rules that specify that a State must define a blockaded area if a State can interfere with vessels outside this area. If the Israeli action is legal it means, in effect, that a State can interfere with foreign shipping anywhere it chooses in international waters. If this is so, there is no point in having rules of naval blockade. The very notion of a lawful blockade becomes meaningless by being arbitrary, as does the concept of ‘international waters’ or ‘territorial waters’.
It is interesting to consider why Israel engaged in such a legally and diplomatically risky operation. As strong possibility is that Israeli intelligence officers and politicians convinced themselves that since the ship was organized by Islamists who had been involved during the 1990s in the CIA-funded jihad in Bosnia and Chechnya, it must be carrying weapons and explosives for Hamas. To catch the ship in such circumstances – a single firearm or grenade would have sufficed - would have been a spectacular propaganda coup that would have justified the Gaza blockade, the crushing of Gaza, and the violation of a foreign vessel - whatever the legal position. It would have totally discredited the Freedom Flotilla movement. With Netanyahu far away in Washington, Defence Minister Ehud Barak would have become an instant national hero. It was an opportunity too good to miss, which blinded the Israelis to the consequences of failure.
But to succeed the ‘Islamists terrorists’ had to be prevented from disposing of weaponry and other incriminating evidence by throwing it overboard. The ship could not be merely disabled and towed like the other boats in the flotilla. It had to be seized intact in a swift commando operation, its occupants immobilized, and towed to port for all the world to see. Since nothing was found, Israel has been left dangling in the wind.
The international community has traditionally allowed Israel to engaged in whatever violations of international law it wanted to – against Palestinians or Arabs. Western Powers do not really care about the Palestinians. The international community turned a blind eye to the totally illegal Gaza blockade and its humanitarian consequences. But to make a mockery of the law of the sea affects vital Western interests which may soon make themselves felt.
A turning point in International Law
By the standards of Israeli-perpetrated atrocities over many decades, the attack on the Mavi Marmara is an insignificant pinprick. The day following the attack Israel killed 5 Palestinians without any protest from the international community.
But the attack on the Mavi Marmara is a violation with very serious repercussions for the international community and the world economy. This is why there is a general feeling that this time things are different. Violations of international law that go unchallenged soon become grey areas of debatable legality – which encourage States to bend the law if they can get away with it, paving the way for general lawlessness.
China has a coastline 18000 km long. It also has territorial jurisdiction over thousands of islands, far from the mainland, giving it an extensive legal and territorial ‘reach’ that potentially allows it considerable influence over Asia’s economy and security. As China asserts itself as a global power it also asserts its territorial, maritime and naval power. Scores of maritime confrontations have occurred between China and its neighbours in recent years, which have largely gone unreported in the media, but represent a significant worry for Western powers. The West, led by the US, is doing its best to hem China in diplomatically. Only a week before the attack on the Mavi Marmara US Secretary of State Hilary Clinton was all geared up to use North Korea’s torpedoing of a South Korean frigate – an incident it rightly describes as an ‘act of war’ - to muscle its way into Asian affairs or, in policy wonk speak, to ‘enhance Asia’s regional security architecture’. With America’s failure to condemn the assault on the Mavi Marmara, and Vice President Joe Biden making a fool of himself on prime-time TV trying to justify it with helpful folksy explanations, (12) the Clinton initiative has lost credibility and has had to be put on the back burner as Asian diplomats snigger behind their hands. International Law is becoming international, rather than just a tool of the West.
Comparisons, however odious, appear inevitable. In terms of international law very little separates Israel and North Korea. Both states continually stick two fingers up to the international community and world opinion: Israel because it has the diplomatic protection of the USA, North Korea because it has that of China. If Western diplomacy is to have any traction in Asian maritime and naval issues, it needs to stop double dealing. Indeed, many Asians simply cannot understand why the West tolerates a persistent regional troublemaker like Israel, anymore than why China continually tolerates North Korea.
And China’s seas are not the only problematic area. In the Arctic Russia has also unilaterally staked a claim to a large part of the region and its resources – to the annoyance and alarm of neighbouring States. What if Russia starts applying Israeli standards of international behaviour in furthering its interests? That is what Russia has done: it has unilaterally plonked its flag on the ocean floor and declared, ‘This is all mine’. The Russians have at least invoked international law rather than Abraham, which represents some kind of progress.
As the world emerges from the two-power stalemate of the Cold War world, and recovers from the power-fantasies of the Bush years, many more States are starting to assert their interests. Western powers are slowly coming to realise that in protecting their interests they will have to rely on concepts of international law which they have allowed Israel to violate, and which they themselves have flouted on many occasions. It is this realization that has led to President Obama’s ‘reengagement with international law’ after the lawlessness and the arbitrary application of law fostered by Clinton and Bush. Meanwhile, the Israeli political leadership has convinced itself that Obama is an evil enemy of Israel; a poisoned view, informed by not a little racism, which prevents it from seeing that the world around it is slowly changing.
Nothing much is going to happen over the attack on the Mavi Marmara, at least not in public. No one is going to prosecute Israel over anything. The Western Powers are not even going to slap Israel’s wrist. But things have changed for ever. The West now recognises that for its own good it must tear up its blank cheque and keep Israel under tighter control. This is good for international law. To judge by it comments, the Israeli political leadership does not appear to understanding what is happening, thinking it can carry on in the same old way. Which means that it will soon get itself into even bigger trouble.
1. One of the best guides to the laws of war is by the Israeli Yoram Dinsten’s War, Aggression and Self-Defence, 4th Edition, Cambridge 2004. Just ignore examples applied to Israel, where Dinstein’s reasoning becomes dubious.
2. Intruding military aircraft in times of peace can be destroyed immediately if they display any hostile action such as taking evasive actions, switching on attack or defence radar, etc.
3. Art 110, UN Convention on the Law of the Sea 1982., SS. Lotus Case (France v. Turkey.), 1927 Permanent Court of International Justice: “A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State of the flag of which it flies, for, just as in its own territory, that State exercises its authority upon it, and no other State may do so.”
The much quoted Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988 does not apply to States.
4. SS. Lotus Case (France v. Turkey.), “Vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them.”
5. Art 22, Geneva High Seas Convention 1958
6. The French blockade of Algeria of 1827-1829, in which other powers participated, was to suppress piracy.
7. During the early 19th Century the Royal Navy regularly ‘visited’ ships to suppress slavery, much to the annoyance of the the nation that now provides Israel legal cover.
8. The law of naval blockade is defined by the London Declaration of Naval War 1909 and the San Remo Manual on International Law Applicable to Armed Conflict at Sea, both of which only apply to war between States. The Manual is not a binding document but a guideline in default of a law. Article 67(a) of the Manual permits the attack of neutral merchant vessels that “are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture.”
9. Para 102 of the San Remo Manual prohibits a blockade if "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". The UN's Goldstone Report states that the blockade may constitute an international crime: "Israeli 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… could lead a competent court to find that the crime of persecution, a crime against humanity, has been committed."
10. Article 41 United Nations Convention.
11. A ‘belligerent’ is a party to an armed conflict that is not a state, such as a national liberation movement or a rebel junta, which is recognised as a legal entity by others States. Britain recognised the Southern Confederacy as a beligerant during the American Civil War.
12. “The Israelis say ‘Here you go. You’re in the Mediterranean. This ship — if you divert slightly north you can unload it and we’ll get the stuff into Gaza.’ So what’s the big deal here? What’s the big deal of insisting it go straight to Gaza? Well, it’s legitimate for Israel to say, ‘I don’t know what’s on that ship. These guys are dropping eight — 3,000 rockets on my people.’