Isreal & Law of the Sea!

Israeli commandos rappelled down to an aid flotilla sailing to thwart a Gaza blockade on Monday, clashing with pro-Palestinian activists on the lead ship in a botched raid that left at least nine passengers dead.

Bloodied passengers sprawled on the deck and troops dived into the sea to save themselves during several hours of hand-to-hand fighting that injured dozens of activists and six soldiers. Hundreds of activists – many of whom were apparently Turkish – were towed from the international waters to Israeli detention centers and hospitals.

Worldwide condemnation has come swiftly from around the world, while the response from the US has remained understandably mute, considering that Isreal is a key ally.Activists aboard the ship flying a Turkish flag, were attempting to break an embargo on the Hamas controlled Gaza area, from where, Isreal faces regular rocket fire.

ISRAEL’S attack on humanitarian aid vessel Mavi Marmaris was probably legal under international law, though, brutal and deemed to be the use of 'excessive force', say experts in marine law.

Accusations of piracy are also unlikely to hold water, as navies by definition cannot commit this crime.

However this is debatable.

Media interviews have seen Israeli government spokesman Mark Regev cite what he called the San Marino Memorandum as justification for Monday’s incident, which left nine peace activists dead. This appears to be a reference to the San Remo Manual on International Law Applicable to Armed Conflicts at Sea.

The San Remo Manual, compiled in 1994, represents a contemporary restatement of international law applicable to armed conflicts at sea. It was written under the auspices of the International Institute of Humanitarian Law, which is a respected and long-established non-governmental organisation. But the document does not have the force of law itself.

Section 67 (a) provides that: “Merchant vessels flying the flag of neutral states may not be attacked unless they 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.”

That clause would appear to give Israel’s move prima facie legitimacy, as Israel has imposed a blockade on the Gaza strip, which in itself is open to question. However, alternative interpretations are possible. One maritime lawyer, who asked not to be named, pointed to S.42(a), which further states: ‘It is forbidden to employ methods or means of warfare which are of a nature to cause superfluous injury or unnecessary suffering.’ Clearly the Israeli action has done just that.

Piracy is defined by article 101 of part VII of the Nations Convention on the Law of the Sea.( UNCLOS ) This states that piracy consists of “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”.

Note the word private. The Israeli navy can hardly be deemed to be private.“This was clearly an action of a state, which regarded itself as having the legitimate right to do this. What would distinguish this from piracy would be the motive, which is not criminal.”

The shipping industry has gone hyperbolic in its condemnation, of the naval action and the excessive use of force.

“As a matter of principle, and as enshrined in the UN Convention of the Law of the Sea, merchant ships have a right to safe passage and freedom of navigation in international waters,and the high seas shall be reserved for peaceful purposes. These fundamental principles of international law must always be upheld by all of the world’s nations.”

The International Transport Workers’ Federation said that it was “shocked and appalled” at Israels brutal show of force.

Once again, the lacuna, in clarity, in International Law, has resulted in innocent deaths!