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Israeli Interception of the Flotilla Under International Law

Cyril C. Eluma - 7/19/2010

The writer intends to examine as to whether the Israeli Interception of Turkish Flag ‘Freedom Flotilla’ Ship in the international water that was heading to Gaza Strip violates international law and international maritime law; also, is as to whether Israel’s commando use of force was legal and justified under the principles of customary international law as reaffirmed in Article 51 of the United Nations Charter, as Israeli government claims for self-defence in their interception of the Turkish flag ‘Freedom Flotilla’ ship. Thus, Israel argues that its commando used force only after those on the Gaza bound Turkish flag ‘Freedom Flotilla’ ship attacked them.
The writer also intends to ascertain as to whether there was any violation of the international humanitarian law and treaties as contained in the various Geneva Conventions, as well as, in the 1899 and 1907 Hague Conventions.
The writer argues that the armed conflict between Israel and the Gaza authorities in particular, and Palestinian Authority as a whole must be viewed extensively as part of the contentious issues that led to the Turkish Flag ‘Freedom Flotilla’ incident. The writer argues that the constant firing of rockets into Israel by the Hamas military wing and the Palestinian militants prompted the Israeli imposition of blockade against Gaza Strip, although, such imposition of blockade may amount to collective punishment.
The writer argues that such collective punishment may be in violation of Article 3 of the Third Geneva Convention of 1949, as innocent civilians may fall victim of punishment for a crime they never committed, the writer, however, argues that in light of the armed conflict between Israel and the Gaza authorities, the major problem is that one may not be able to differentiate between a civilian and a militant, thus, the inability to differentiate between a civilian and a militant may create avenue for civilian casualties.
One of the possible avenues for civilian casualties therefore is the Israeli imposition of blockade against Gaza Strip, where the people that reside in Gaza Strip either as a civilian or a militant faces such collective punishment. The writer defines such collective punishment as ugly situation. However, Israel as a state has right to protect its citizens from harassment and torture as a result of the constant firing of rockets by the Hamas military wing and the Palestinian militants that reside in the Gaza Strip.
The question therefore is as to whether the Israeli government claim for self-defence following the interception of the Turkish Flag ‘Freedom Flotilla’ ship was legal and justified.
The writer argues that in application of the doctrine of self-defence, the customary international law elements requires that for there to be a valid exercise of the right of self-defence, the exercise of such right must be necessary, imminent and proportional. Thus, following the Caroline incident of 1837, Daniel Webster’s argued that Britain would need to show that ‘the necessity of that self-defence is instant, overwhelming, leaving no choice of means, and no moment for deliberation’.
In the light of the Caroline incident of 1837, Daniel Webster’s argument suggests that there must be presence of necessity, and imminent threat, however, where necessity and the existence of an imminent threat have been established, a response in defence of such imminent threat must be proportional.
The question, then, is as to whether Israel’s military use of force was proportional. The answer may be either yes and or no, considering the fact that those on board were using metal rod, clubs, sticks, and perhaps knives in attacking Israeli commandos as evidenced in the video recorded. Yes, because Israeli commandos were protecting themselves; thus, acting in self-defence. No, because those on board were alleged to be peace activists, unless if proven otherwise as may be seen in the video recorded, as they were on the mission to deliver humanitarian aid to Gaza, as Gaza Strip has been under blockade for more than three years.
The delivery for humanitarian aid is recognised within the international humanitarian law as contained in the Geneva Conventions of 1949, as well as, the 1899 and 1907 Hague Conventions.
However, in the light of the Turkish Flag ‘Freedom Flotilla’ incident, under the United Nations Charter, Article 51 of the Charter grants both individual and collective self-defence, although, Article 2(4) of the UN Charter prohibits the use of force, but Article 2(4) of the UN Charter has exceptions, and one of the exceptions is the right of self-defence.
Therefore, Israel’s claim for self-defence in the interception of the Turkish Flotilla ship in the international water that was heading to Gaza Strip may be argued to be legal and justified, the reason being that the Israeli interception of Turkish flag flotilla ship complies with the principles of necessity and imminent threat as it has been argued that Hamas is internationally regarded as a terrorist organisation, and that an Israeli soldier was kidnapped few years ago by the Hamas militants, and that the soldier has not yet been released.
Another issue is the fact that a lot of rockets are usually fired daily from the Gaza Strip into Israel, thus, the Israeli imposition of blockade against Gaza Strip, therefore, implies that any ship heading to Gaza Strip may come under Israeli inspection so as to avoid the smuggling of weapons.
Although, the disagreement over the proper meaning of the right of self-defence under Article 51 of the United Nations Charter has posed a high debate amongst some state actors, as the interception of the Turkish flag flotilla ship and the subsequent armed attacks that lead to the death of Turkish nationals in the international water based on self-defence as Israeli government claimed has raised international legal questions, namely: whether the Israeli Interception of Turkish flag flotilla ship in the international water that was heading to Gaza Strip violates international law, and whether such interception was legal and justified.
The issue of self-defence or perhaps anticipatory self-defence as this incident suggests, are often launched by some states against an imminent threat, thus, this may provides grounds for defensive argument to Israel as such Israeli controversial Interception of Turkish flag flotilla ship in the international water seems to be based on the principle of anticipatory self-defence. Article 51 of the UN Charter therefore recognised the right of self-defence, although, Article 51 is limited to those circumstances or situations where an actual armed attack has occurred, and States acting in self-defence under Article 51 are technically required to report to the Security Council.
The question is as to whether Israel was under armed attack. The answer is that considering the fact that Hamas militants in the Gaza Strip has been firing series of rockets into Israel; and that the firing of series of rockets into Israel may prompt the issue of anticipatory self-defence to be raised, and if raised Israel may be justified in its interception of the Turkish flag ‘Freedom Flotilla’ ship in the international water that was heading to Gaza Strip.
Donald R. Rothwell argued that Anticipatory self-defence is built upon the principle of classical self-defence, as anticipatory self-defence arises ‘whereby a state which believes that it is about to suffer an armed attack retains the rights to launch a defensive military strike upon an expected aggressor state in order to thwart an armed attack it may have been on the brick of suffering.’
Anticipatory self-defence, therefore, suggests that a state ‘anticipates’ an armed attack or imminent threat and acts in a manner that will repel, thwart or stop the threat posed by the expected attacker. D.S Yost argued that ‘a state is justified in launching an attack against the aggressor before actually being attacked itself’. Istvan Pogany also argued that anticipatory self-defence is essential so that a state confronted by an imminent threat or attack may take an immediate steps to ensure its national survival.
Thus, the Israeli Interception of Turkish flag flotilla ship in the international water suggests that because Israel as a state is about to fall a victim of armed attack having experienced series of rocket attacks conducted in the form of terrorism by the Hamas organisation in the Gaza Strip, the State of Israel then decided to repel such imminent attack by intercepting the Turkish flag flotilla ship in the international water. Such interception therefore may be argued to be legal and justified if the Flotilla ship is boarded with weapons.
Weapon could be defined as any material or object that can inflict pains, kill or cause a person to sustain an injury. Therefore, the use of metal rod, clubs, sticks, and perhaps knives in attacking Israeli commandos as evidenced in the video recorded amounts to weapon or weapons that threaten a person or person’s life. In this case, Israeli commandos had to adapt to self-defence, and such adaptation is justified within the meaning of Article 51 of the UN Charter.
The question, although, is as to whether Gaza Strip is a State. The answer is that Gaza Strip is not yet a State, but an offshoot or part of Palestinian territory under Palestinian Authority, though; it has been argued that Palestinian territory is under Israeli occupation, and by this position, Israeli government claim for self-defence may not be legal following the International Court of Justice opinion of 2004, thus, the court rejected the argument that Israel could built the wall in self-defence, the court argued that its rejection was based on the grounds that the Israeli government exercised effective control over the West Bank.
The writer argues that Israeli government has disengaged from the Gaza Strip in 2005, but retains full control over Gaza water and air space until Gaza Strip and Palestinian Authority as a whole attains the status of statehood. At this point, the writer argues that Israel may not effectively rely on self-defence as Gaza Strip is still under Israeli occupation, although, Gaza Strip is being ruled by Hamas after a successful coup against the Fatah organisation. The writer however argues that Hamas is internationally regarded as a terrorist organisation, and by definition; terrorist organisations are those organisations that seek to influence the decision of the government by illegal use of force.
However, as part of maintaining an occupation, the writer argues that a state may use force against any threat or impending threat so as to protect its citizens either its military or its civilians, although, the use of force is regulated under the terms of The Hague and Geneva Conventions; which means that a state may not actively apply the doctrine of self-defence.
On the other hand, the writer argues that, if Israel could be able to produce an evidence to show that Israel acted on the basis of self-defence within the meaning of Article 51 of the UN Charter, Israel, then, may be legal and justified in its action against the Turkish flag ‘Freedom Flotilla’ ship in the international water boarded by the peace activists alleged to have attacked Israeli commandos with weapons or objects, such as metal rod, clubs, sticks, and perhaps knives as evidenced in the video recorded, as every state has the right to protect its citizens.
Therefore, the issue as to whether the Israeli Interception of Turkish Flag Flotilla Ship in the international water that was heading to Gaza Strip violated international law depends on the proper interpretation and application of the international maritime law.
By applying the Helsinki Principles on the Law of Maritime Neutrality, to Israeli interception of the Gaza-bound Turkish flag ‘Freedom Flotilla’ ship in the international water, a ground for questioning whether international law was violated, and whether actually there was any violation of international law by the Israeli government, shows that the principle indicates that Israel was right in its interception of the Gaza-bound Turkish flag flotilla ship in the international water.
The reason being that the important applicable clauses in the Helsinki Principles are as follows:
Clause: 5.1.1: Neutral ships in belligerents ports.
A neutral ship in a belligerent port enjoys the same protection against attacks as civilian objects in land warfare.... Neutral warships in belligerent ports retain their right of self-defence.
Clause: 5.1.2: Protection against attacks.
Clause: 5.1.3: Merchant ships flying the flag of a neutral state may be attacked if they are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refused to stop, or intentionally and clearly resist visit, search, capture or division.
Clause: 5.1.4: Merchant ships flying the flag of a neutral State may be attacked if the
(a) Engage in belligerent acts on behalf of the enemy;
(b) Act as auxiliaries to the enemy’s armed forces;
(c) Are incorporated into or assist the enemy’s intelligence system;
(d) Sail under convoy of enemy warships or military aircraft; or
(e) Otherwise make an effective contribution to the enemy’s military action, e.g., by carrying military materials and it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.
Clause: 5.2.1: Visit and search.
...[B]elligerent warships have a right to visit and search vis-a-vis neutral commercial ships in order to ascertain the character and destination of their cargo. If a ship tries to evade this control or offers resistance, measures of coercion necessary to exercise this right are permissible. This includes the right to divert a ship where visit and search at the place where the ship is encountered are not practical.
Clause: 5.2.10: Blockade.
Blockade, i.e the interdiction of all or certain maritime traffic coming from or going to a port or coast of a belligerent, is a legitimate method of naval warfare. In order to be valid, the blockade must be declared, notified to belligerent and neutral States, effective and applied impartially to ships of all States. A blockade may not bar access to neutral ports or coasts. Neutral vessels believed on reasonable and probable grounds to be breaching a blockade may be stopped and captured. If they, after prior warning, clearly resist capture, they may be attacked.
Also, another issue considered in this article is as whether a country would love to permit or authorise its nationals to violate another country's territory. The writer argues that no country would love to permit or authorise its nationals to violate another country's territory. In this case, Turkish government role may have to be questioned as Turkish government role may have intentionally planned to violate Israeli sovereignty, even though, the interception of Turkish flag ‘Freedom Flotilla’ ship took place in the international water.
The writer also argues as to whether it was fair, reasonable and justified for Turkey as a NATO member state, to exercise or tried to invoke Article 5 as reaffirmed in Article 6 of the NATO Charter, (The North Atlantic Treaty Organisation, Washington D. C., 4th April 1949), as these Articles grants power to NATO member countries in initiating military strike against any state that attacked its member. In this case, Israel could have been attacked, as Turkey had hurriedly called for NATO emergency meeting following the ‘Freedom Flotilla incident’. The reason was that Turkey may have contributed immensely, either directly or indirectly to the Turkish flag ‘Freedom Flotilla’ incident.
The writer therefore argues that this attempt to bring two different but inseparable fused elements into clash should be investigated by the NATO organisational body as Turkish role may have undermined the integrity of the NATO as a responsible body. Turkey as a member of NATO may therefore be investigated so as to create a strong but balance and impartial grounds for Turkish continues membership in the NATO body.
The essence is to prevent future harassment against non member state as such character may be an embarrassment to the NATO as a responsible body if any of its member countries or states tries to play a smart but dangerous game of such nature against a non-member state. Thus, there must be a clear difference or line drawn between a responsible NATO member state, and a NATO member state that sponsor terrorism, as any NATO member state that sponsor terrorism against a non-member state or an associate member of NATO undermines the integrity of NATO as a legitimate and responsible body.
The writer argues that if Turkey is found to have abused its privileges as a NATO member state, it then means that Turkish membership into NATO may be brought into question, as such questionable membership demands an outright membership review. The aim is to make corrections in order to prevent future embarrassment; otherwise, there may be an impending danger, considering the fact that Article 5 as acknowledged in 6 of the NATO Charter suggests that ‘an attack on a member state of NATO is an attack on NATO’. The resultant effect therefore is a collective military response in retaliation of such armed attack.
According to Article 5 of the NATO Charter:
“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
“Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security”.
Article 6 (1) further provides that:
For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:
on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France (2), on the territory of or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;
on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.
These provisions therefore indicate that Israel’s interception of Turkish flag ‘Freedom Flotilla’ may have fallen within the meaning of Article 5 as reaffirmed in 6 of the NATO Charter. The question is as to whether such Israeli action may have prompted NATO military strike against Israel. The answer is probably no, considering the fact that Israel is regarded as an offshoot or part of United States, though, as an independent State.
Thus, the writer argues that this inseparable fusion of United States and Israel may bring into question the role played by Turkish government in the ‘Freedom Flotilla’ incident, as Turkish role may have fallen within the meaning of abetting and supporting of a crime against an associate of NATO member state, thus, making Turkey a NATO member state sponsor of terrorism against a NATO member state interests, in this case, United States of American interests, as Turkey may have planned or have in mind that any attack against Israel, is an attack against United States. The Israeli government claim for self-defence may therefore be argued to be legal and justified within the meaning of Article 51 of the UN Charter.