When two widely divergent investigative panels launch their probes on the recent Israeli attack on a flotilla of ships carrying humanitarian aid to Gaza, one of the disputed issues under scrutiny would be the legality of forcibly boarding a vessel in international waters.
The two commissions of inquiry, one appointed by Israel and the other to be named by the UN Human Rights Council in Geneva, will seek answers to a number of unresolved questions triggered by the attack which killed nine Turkish nationals and sparked worldwide outrage and condemnation.
Did the Israeli raid transgress international law, violate the UN charter, and infringe on the Convention on the Law of the Sea?
How legitimate is the three-year-old naval blockade of Gaza by Israel, the occupying power?
John Quigley, professor of international law at Ohio State University, told IPS boarding a flagged vessel on the high seas is impermissible without the consent of the flag state.
The flag state here is Comoros, he said, and it apparently was not consulted and did not give consent.
He also said the Israeli Defense Forces (IDF) apparently concede that the boardings are unlawful under the law applicable in peacetime. Its only argument for the legality of the boardings is based on the law of war.
Still, says Quigley, the boardings are not legally valid under the law of war on the basis of a naval blockade.
First, the rationale for a naval blockade on the high seas is to keep vessels from getting to the shores of the enemy.
Here Israel controls the relevant shore – that of Gaza – argued Quigley. “Therefore, there is no basis for stopping vessels on the high seas.”
Secondly, he pointed out, a naval blockade may not be instituted if it imposes undue hardship on the population of the enemy’s territory.
Here the population is already suffering hardship from restrictions on entry of goods, and the sea blockade is part of that policy, he added.
On Monday, Israel named its own three-member “Independent Public Commission,” all of them Israelis, along with two international “observers,” Lord David Trimble, a Nobel Peace laureate from Ireland, and Brig. Gen. Ken Watkin, a former judge advocate general of the Canadian military forces.
The London-based Amnesty International Tuesday dismissed the “independent commission” as a virtual farce.
According to its mandate, the commission will not have access to members of the Israeli military who were involved in the planning and implementation of the military action. The only exception will be the chief of staff.
“And there is nothing to indicate that its findings or recommendations will be binding,” according to Malcolm Smart, AI’s director for the Middle East and North Africa.
He said the format of the government-appointed commission represents a disappointment and a missed opportunity.
“The commission looks to be neither independent nor sufficiently transparent, the two international observers may be denied access to crucial information, and the commission’s findings may not be used in future prosecutions,” Smart added.
He also said the creation of the commission must not distract attention from Israel’s continuing blockade of Gaza, which Israel must lift immediately.
“The Israeli authorities’ closure of Gaza constitutes collective punishment and is in clear violation of the Israel’s legal obligations as the occupying power,” Smart declared.
The Turkish government, which led the worldwide condemnation of the Israeli attack, criticized the government-appointed Israeli commission.
“Israel does not have the authority to assign a national commission to investigate a crime perpetrated in international waters,” said a statement released Tuesday by the Turkish Ministry of Foreign Affairs. “An inquiry to be conducted by such a commission cannot be impartial, fair, transparent, and credible.”
Turkey has, however, expressed its strong support for a proposal by UN Secretary-General Ban Ki-Moon for an international commission comprising one Turkish national, one Israeli, and three international experts. But Israel has rejected this proposal.
At a meeting in early June, the Human Rights Council adopted a resolution calling for an “independent international fact- finding mission to investigate violations of international law resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance.”
But the members of that fact-finding mission are yet to be named.
Kumar Chitty, an international legal consultant and a former UN assistant secretary-general and registrar of the International Tribunal for the Law of the Sea (LOS), told IPS: “The starting point is that neither Israel nor Turkey is a party to the Law of the Sea Convention.”
For that reason, he said, the Convention cannot be invoked by one against the other.
However, a non-state party to the LOS Convention may seek to treat the Convention as reflecting customary international law and act under it – as the United States does.
Under customary international law, and as reflected in the LOS Convention, Chitty pointed out, all states enjoy the freedoms of the high seas. These freedoms include primarily the freedom of navigation in the high seas, and are recognized as existing over the seas constituting the Exclusive Economic Zone (200 nautical miles from the coast beyond the territorial sea) and beyond.
“The right to impose a naval blockade flows not from the LOS Convention, but from the Laws of Armed Conflict, as part of customary international law,” he added.
But there are preconditions to its application, said Chitty, a former principal legal officer at the UN’s Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs.
“It is reflected in the Charter of the United Nations (Article 42),” he added. In addition, there are accepted naval practices that apply.
Under the Laws of Armed Conflict, a state party to an armed conflict has the right to establish a naval blockade on its enemy’s coast for security reasons.
A naval blockade means preventing the passage (entry or exit) of all vessels to or from the ports and coastal areas of the enemy, whatever the cargo carried by these vessels.
The Law of the Sea Convention does not deal with a naval blockade or the use of force, Chitty said.