Gaza.

If not Pirates, then what?

We have a lot of time for Yvonne Ridley at this blog. She is a consistently intelligent and a vocal defender of Palestinian rights in particular. However, we think her article on the Freedom Flotilla over at counterpunch.org, whilst well reasoned, cites an international law which does not apply in these circumstances. Having said that, we have found a law which does apply, but which details crimes which Israel will probably never be charged with. But more on that later.

Ridley cites Article 3 of the Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation:-

1. Any person commits an offence if that person unlawfully and intentionally:

(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

(b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or

(c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or

(d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

(e) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

(f) communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).

Seems pretty clear cut.  However, Israel has indicated that it is in “armed conflict” (war) with Gaza, in which case, Article 2 of the same Rome Convention appears to apply:

1. This Convention does not apply to:

(a) a warship; or

(b) a ship owned or operated by a State when being used as a naval auxiliary or for customs or police purposes; or

(c) a ship which has been withdrawn from navigation or laid up.

2. Nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.

Israel’s defence would surely be that it is at war with Gaza and it’s warships are immune under the Rome Convention.  Israel did not break the Rome Convention as it was using warships, not private ships, against the Freedom Flotilla, and warships are immune from the Rome Convention.

Ridley’s article did however remind us of something else we had seen earlier regarding calling what Israel did “piracy”. Julian Ku at Opinion Juris informs us that Israel did not commit piracy according to Article 101 of the U.N. Convention on the Law of the Sea (UNCLOS) (my bold):

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

We hate it when pedantry gets in the way of a good blog post, but Ku is correct, we should “drop the stupid piracy meme”. Israel used warships against private ships and the attack was not for personal gain, so cannot technically be considered “piracy”.

But having cited that law, Ku does not explain if there is anything which for which Israel could be charged using UNCLOS.  Well, I think there is, and I’d love Julian Ku to give his opinion on it.

Article 110 (‘Right of Visit’) of UNCLOS states

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;

(d) the ship is without nationality; or

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

4. These provisions apply mutatis mutandis to military aircraft.

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.

This seems absolutely clear to me.  

I doubt that Israel is party to any treaty which allowed it to storm a foreign ship in international waters, and there is no suggestion that the Mavi Marmara was committing piracy, was engaged in the slave trade, was engaged in unauthorized broadcasting, or was in actual fact an Israeli ship.

If Israel had waited until the Freedom Flotilla had actually approached or breached its blockade of Gaza, its case would be on stringer grounds, but the very fact that the flotilla was still on the high seas (international water) and not at all near the blockade, the actions of Israel do not appear to be justified under international law.  Indeed, international law now requires that Israel compensates for “any loss or damage that may have been sustained”.

Additionally, under UNCLOS Israel was apparently already breaking international law before they even set foot on any of the ships as they started to pursue the Flotilla in international waters (where Israeli law does not apply) and then forced the ships into Israeli waters. Article 111 (‘Right of hot pursuit’) indicates (my bold):

1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.

So, Israel appears to be guilty of breaking several articles of international law before we take into account the killing of 9 civilians.

It is interesting to note that Israel, marketed as “the only democracy in the Middle East” has not yet ratified UNCLOS, which presumably means that it does not wish to be burdened with this apparently cumbersome international law as this would mean it would be held responsible for its actions on the high seas.

It is interesting to note that Egypt, Iran, Iraq and Jordan have all ratified UNCLOS, so they have agreed to be bound by it, whilst “democratic” Israel is still refusing to do so.

Can you say “double standards and hypocrisy”?