Opening the route.
The Israel Defense Forces forcibly boarded the Mavi Marmara and accompanying vessels on the high seas, 70 miles from the Gaza shore. Under the law, the high seas are open to vessels of all states. A blockade, as the report says, allows for an exception in wartime. Neutral-flagged vessels may be stopped on the high seas because of a belligerent's interest in preventing military-related supplies from reaching the coast of an adversary, and as the report states, Israel had security concerns.
The Palmer report gives no significance, however, to the fact that Israel controls the Gaza coast. As a result, Israel has no need to intercept on the high seas. The rationale for a high seas blockade is absent. Israel rationalized the interception at 70 miles out on the basis of the declared destination and a declared intent to refuse to be stopped. These are not valid reasons for an interception on the high seas.
Regardless of the location of the interception, there are additional reasons why the interception was unlawful.
First, a blockade cannot be imposed to starve the population of the blockaded territory. The Palmer report gives a narrow interpretation of what that means and concludes that Israel is not in violation. But there is a factual issue over the level of restrictions on entry of goods by land or by sea and their impact on the population of Gaza. The seriousness of Israel's restrictions, moreover, must be assessed in light of Israel's responsibility for doubling Gaza's population in 1948 by expelling Arabs from other areas of Palestine.
Second, in its capacity as belligerent occupant, Israel bears obligations to the population of Gaza. Article 43 of the 1907 Hague regulations requires Israel to maintain the normal life of the population. Israel must allow the population to be adequately supplied. Unlike the 1949 Geneva Convention, the 1907 Hague regulations are fully accepted by the Supreme Court of Israel as binding on Israel on the basis of customary international law. The Palmer report ignores the basic fact that Gaza is under belligerent occupation. This is so despite Israel's 2005 pullout, given Israel's continuing control of Gaza's borders. So the report misses this set of obligations. As belligerent occupant, Israel stands in the role of a trustee to ensure the well-being of the population and thus bears obligations much stricter than simply not starving the population.
Third, one other level of legal obligation - similarly not mentioned in the Palmer Report - is relevant to the legality of Israel's action against the flotilla. Israel controls the Gaza coast only by force of arms. Its control is a product of Israel's unlawful use of force dating from June 5, 1967, when it falsely informed the UN Security Council that three Israeli villages had just been shelled from Gaza, and that Egyptian aircraft were in flight en route to bomb Israel. Having committed aggression, Israel was under an immediate legal obligation to withdraw. Even if one were to accept arguendo Israel's contrived further argument that it acted in lawful defense on June 5, 1967, in anticipation of a supposed Egyptian attack, Israel would not be entitled to exercise dominion in any way over Gaza for such a period of time.
In addition to the issue of the legality of the blockade, the Palmer report assesses the legality of the level of force used by the IDF during and after boarding the flotilla vessels. In regard to the Mavi Marmara, the Palmer report concludes that the IDF used excessive force, resulting in multiple deaths and injuries.
The Palmer report does not mention the possibility of criminal prosecution for these acts, but a September 2010 study conducted under the auspices of the UN Human Rights Council said there was reason for criminal prosecution for "willful killing" on the Mavi Marmara under the laws of war. "Willful killing" is a war crime. Jurisdiction in this situation lies in the International Criminal Court. As mentioned in the Palmer report, the Mavi Marmara, though Turkish-owned and operated, was registered in Comoros. Comoros is a state party to the ICC statute. The ICC has jurisdiction over war crimes committed on a vessel registered in a state party. Investigation can be requested by anyone who presents relevant information to the ICC prosecutor. Investigation would be not of Israel as a state but of particular officials. This formal mechanism is available to determine liability for the deaths and injuries on the Mavi Marmara.
John Quigley is a professor of international law at Ohio State University. His most recent book is "The Statehood of Palestine: International Law in the Middle East Conflict" (Cambridge University Press, 2010). This commentary is published by Daily News Egypt in collaboration with bitterlemons-international.org.
Daily NewsEgypt 2011
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