On 29 May 2010 the Gaza Freedom Flotilla, consisting of six civilian ships and 700 human rights activists and journalist from over 40 countries, set sail for the Gaza Strip carrying over 10,000 tonnes of aid and supplies1 for Gazan civilians. The purpose of the Flotilla was to bring much needed supplies for the reconstruction of Gaza ( Aid supplies included, amongst other things, medical supplies, concrete and other building materials.) , a territory and population that remains largely in ruins after Israel bombing during Operation Cast Lead in 2008-09 and to protest – a non-violent and peaceful protest – against Israel’s illegal military blockade against the Gaza Strip, which has, amongst other things, prevented any rebuilding since the Israeli bombing and engendered a humanitarian crisis.
At 04:00 on Monday 31 May 2010, Israeli naval commandoes rappelled from helicopters onto a Gaza Freedom Flotilla ship (the Mavi Marmara) while it was travelling through international waters (approximately 90 miles or 150k/m from the coast of Gaza). The ship was flying a Turkish flag. During an operation designed to gain control of the ship, the Israeli commandos opened fire on the civilians, killing at least ten (at the time of writing - this estimate is not yet confirmed: the figure could be higher) and injuring many more.
Israel has imposed, as part of its general blockade against Gaza, a blockade of the coastline around Gaza (20 nautical miles), preventing ships from entering, leaving and in many cases, operating within Gazan waters. Israel argues that it acted in order to prevent the Flotilla from breaching the blockade.
Imposing a blockade over a coastline is not legal under international law save in specific circumstances involving armed conflict: war must be declared (imposing a unilateral blockade is, in and of itself, an act of war) or Israel must be acting as a belligerent occupier (something which it strongly denies). Israel has declared a unilateral blockade around Gaza, arguing that it is in a state of war with Hamas. However, it is generally agreed that certain items – such as food, water, and medical supplies for the sick and wounded – are to be permitted through the blockade and that banning these items is not permitted under international law. Furthermore, with the exception of a binding decision by the United Nations Security Council, it is unlawful for a State to enforce a blockade against ships flying the flag of another State in the high seas.
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.
Because the incident took place on the high seas does not mean however that international law is the only applicable law. The Law of the Sea is quite plain that, when an incident takes place on a ship on the high seas (outside anybody's territorial waters), the applicable law is that of the flag state of the ship on which the incident occurred. In legal terms, the Turkish ship was Turkish territory.
There are therefore two clear legal possibilities
Possibility one is that the Israeli commandos were acting on behalf of the government of Israel in killing the activists on the ships. In that case Israel is in a position of war with Turkey, and the act falls under international jurisdiction as a war crime.
Possibility two is that, if the killings were not authorised Israeli military action, they were acts of murder under Turkish jurisdiction. 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.
In brief, if Israel and Turkey are not at war, then it is Turkish law which is applicable to what happened on the ship. It is for Turkey, not Israel, to carry out any inquiry or investigation into events and to initiate any prosecutions. Israel is obliged to hand over indicted personnel for prosecution.
Since the ship was sailing in the high seas, the underlying basic international law principle that applies is exclusive flag jurisdiction, which was identified as part of customary international law by the Permanent Court of International Justice in 1927:
It is certainly true that – apart from certain special cases which are defined by international law – vessels on the high seas are subject to no authority except that of
the State whose flag they fly
“[F]ailing the existence of a permissive rule to the contrary, [a State] may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention...
...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.”
Both the international law of human rights and international humanitarian law require operations undertaken by armed forces – whether in law enforcement or armed conflict modes – to be proportionate. The 1990 Basic Principles o the Use of Force and Firearms by Law Enforcement Officials offer some guidance on this matter –
Principles 4 and 5 explain that:
4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may
use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) minimize damage and injury, and respect and preserve human life;
(c) ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
(d) ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.
Since the initial boarding of the ship was likely illegal, the civilian passengers did had the right to act in self-defence against the invading soldiers. However, lawful self defence on the part of the civilians was limited to reasonable force in the circumstances. Since the ship’s flag determines the legal jurisdiction of the ship that it flies and, in this case, it was a Turkish flag, the precise rules on self-defence and the amount of force permitted, is determined by Turkish criminal law. However, given that the Israeli commanders were displaying firearms and the response appears to have been through the use of ‘sharp objects’ including ‘sticks’ and in some cases, ‘bladed weapons’, it is arguable that the response by the civilians was indeed proportional to the threat they faced, especially if evidence emerges that Israeli commandos had used their weapons on any civilians prior to their actions against the commandos.
As the ship was flying a Turkish flag and pursuant to the principle of exclusive flag jurisdiction, Turkey has complete jurisdiction over the vessel, and it is within its rights to conduct and demand a full investigation into the violation of its sovereign rights and Israel’s violation of international law, including international human rights and humanitarian law provisions protecting the right to life of civilians and breaches of Turkish homicide law etc. Israel should be required to release all the evidence to the Turkish authorities and the civilians who have been kidnapped by Israel should be given immediate access to their consulates and legal assistance and be enabled to give their accounts to the Turkish authorities without delay. The full details of the dead and injured should be released to the consulates and published without delay to end the anxiety of waiting friends and relatives.
Maybe Izrael have a plan to meet Hitler in 9. hell circle for revenge