Did the Israeli Defense Forces Commandos Commit “Piracy”? Nope.

by Julian Ku

I tread warily into the debate over the Israeli commando raid on the Gaza flotilla.  There has been no shortage of commentary and reactions abroad (here in the U.S., it seems most folks are unmoved by the whole incident).  Of course, most of the facts are hotly disputed and, frankly, will remain hotly disputed.  Still, let me start by advising IDF critics to drop the silly accusation that Israel committed “piracy,” which various folks have made here, here, and here.  The IDF raid may well have violated international law governing disproportionate and excessive use of force against non-combatants (although the IDF claims their commandos were armed only with paintball guns).  But whatever can be said about the legality of the raid, it was not, as a legal matter, piracy. Let’s go to the U.N. Convention on the Law of the Sea, Article 101:

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;

(emphasis added).  I don’t think even the Gaza flotilla defenders claim that the IDF raid was “committed for private ends.” (Just the opposite, actually).  And, in general, piracy cannot be committed by a national ship, only by private ships or by national ships that have been taken over by their crews.  (Given my recent brain cramps, I am of course happy to be corrected here by piracy experts out there, but I think this is right).

So can we drop the stupid piracy meme?  There are some very hard legal issues here:  Is Israel’s naval blockade legal? (Probably). If so, was the boarding in international waters legal? (Maybe). And even if so, did the IDF use disproportionate force?  (I have no idea).  This last question is really the key issue here, and it is also the one that is never going to be resolved with any certainty given that it is dependent on neutral factual determinations that will never happen here.

http://opiniojuris.org/2010/06/01/did-the-israeli-defense-forces-commandos-commit-piracy-nope/

25 Responses

  1. Michael,

    Per Julian’s links: Mark Stephens, a partner with the London law firm, Finers Stephens Innocent; Dr. Elias Akleh, an Arab writer of Palestinian descent, born in the town of Beit-Jala; and, Iran’s supreme leader Ayatollah Ali Khamenei.  All are absolutely objective sources of the piracy claim….

  2. Julian:

    Thanks for your incisive post.

    Your recent brain cramps notwithstanding I believe that you are are on the mark with the Piracy issue.  Of course, I am happy to yield on this point if one of our colleagues has another interpretation.

    As to the questions raised in the last paragraph of your post, to wit:
    There are some very hard legal issues here:  Is Israel’s naval blockade legal? (Probably). If so, was the boarding in international waters legal? (Maybe).

    Israel relies on Article 51 of the UN Charter for its actions.

    Article 51 provides the following:

    “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

    With regards to the lat issue you raise:

    And even if so, did the IDF use disproportionate force?  (I have no idea).  This last question is really the key issue here, and it is also the one that is never going to be resolved with any certainty given that it is dependent on neutral factual determinations that will never happen here.

    The facts are unclear for any assessment at this juncture.  However, PM Netanyahu on his arrival from Canada at Ben Gurion Airport asserted that the people on the Flotilla’s lead ship, the Mavi Marmara, attempted to “lynch” the Israeli Navy commandos – equivalent to the U.S. Navy SEALS.  Amos Harel, the foremost military correspondent in Israel, who writes for Haaretz (the Nation), a very left leaning newspaper, wrote in today’s (June 1) edition, in an article with the by line
    Israel Navy commandos: Gaza flotilla activists tried to lynch us
    that “Activists on board a six-ship flotilla carrying aid to the Gaza Strip tried to lynch the Israel Navy commandos who boarded their Turkish-flagged boat early Monday, Israel Defense Forces sources told Haaretz on Monday afternoon. At least nine people were killed and several more were wounded in the fighting that erupted aboard one of the ships.
    The IDF confirmed that at least seven Navy commandos had been wounded, two of them seriously, in a fight which apparently broke out after activists tried to seize their weapons.”

    Moreover, he reports that “The commandos, who intercepted the Turkish ferry Mavi Marmara after it ignored orders to turn back from its course to Gaza, said they had encountered violent resistance from activists armed with sticks and knives. According to the commandos, the activists threw one of the soldiers from the upper deck to the lower after they boarded. The organizers of the flotilla said the troops opened fire first.” 

    So, we will have to wait and see.  But under the current circumstance – the huge screw up by Mr. Netanyahu, Minister of Defense Ehud Barak and Deputy PM Moshe (“Boogy”) Ayalon, a former Chief of Staff, who have been tagged with making the decision to use navy commandos to board the ships, on their own – I believe that Israel should under these conditions request a number of well respected international diplomats to assist in conducting an investigation of what happened.  Although such a decision  may be an affront to Israel’s sovereignty it would certainly lend international legitimacy to the examination of what really happened.

    Best,

    Itzchak

  3. Julian,
    you very quickly dismiss the accusation of piracy as “silly” and “stupid”; however, even if the result of your analysis might ultimately be the right one, the solution is far from being as clear-cut as you present it. The question whether State vessels (acting for non-private ends) could commit acts of piracy under customary international law (as opposed to under UNCLOS) would deserve a more elaborate treatment. In a 1988 article about the Achille Lauro case (cf. below) Malvina Halberstam retraces the controversy on this point and shows how both could be argued without being “stupid”, resting on existing precedents such as the 1937 Nyon Agreement. I refer you and interested readers to Halberstam’s article as a basis for a possible discussion on these points.

    Malvina Halberstam, ‘Terrorism on the High Seas’ (1988) 82 AJIL 269

  4. I too believe it is hard to argue that Israel committed piracy but since neither Israel nor Turkey are members to UNCLOS, maybe it would be useful to look into customary law a little more before closing the debate. Though I would be surprised if the answer was Israel committed piracy. My guess is UNCLOS reflects CIL on this regard…

  5. Julian
     
    The piracy issue, as put forth in your post,  is a diversion and a side show. So I am not going to even write about it. The Israeli propaganda on this case, which your post provides crucial ammunition to, focuses no Hamas, Hezbollah, missile defense, Iran’s nuclear program, the Taliban, Pakistan, add to that the possibility of a Martian invasion of Israel that is perhaps supported by Iran and helped by Hamas and Hezbollah.
     
    The real issue which you have avoided and of course Israel does too, is having 1.5 million Palestinians living like dogs in a big prison called Gaza. This, so Israeli imported settlers living on stolen Palestinian lands can enjoy “ peace and quiet” without having to hear the noises and the hauls of their victims to the south.
     If we are going to argue about legal wordings and the technicalities of International law, while  neglecting  the human calamity unfolding in Gaza, what good are we as human beings.
     

  6. Julian,
    I certainly agree on the piracy point, as the term “piracy” seems to be used rather as a political accusation than as a legal qualification. But the central question is, whatever Israel may want to base the seizure on, proportionality.
     
    The question has been dealt with by ITLOS in 1999: “In considering the force used […] the Tribunal must take into account the circumstances of the arrest in the context of the applicable rules of international law. Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.” (M/V Saiga (No. 2) (St. Vincent v. Guinea), ITLOS, Judgement, 1 July 1999, 38 ILM 1323 (1999), para. 155)
    And again a PCA Tribunal in 2007: “The Tribunal accepts the argument that in international law force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary.” (Guyana v. Suriname, PCA, Award, 17 September 2007, 47 I.L.M. 166 (2008), para. 445)

    For this reason, seizures of naval vessels are undertaken after the issuing of signals and warnings, rather than in suprise raids at 4am. They are undertaken by police officers rather than by commandos. Israel may be claiming to have met “inappropriate resistance” by the activists on board, and there were clearly attempts to attack and repell the boarding party by part of the activists.
    But we should keep in mind that Israel decided to send 10 commandos which attempted to seize the vessel as if they were facing armed pirates (I wouldn’t spot a paintball gun from a real one, for my part). Someone planned this operation and planned it extremely badly, and as a consequence, at least 9 activists were killed and dozens of others, including most of the commandos involved, were seriously injured.

    If a State decides to use force against vessels of another State in the High Seas, it has to take precautions and consider possible consequences. The Israeli officials responsible for the operations clearly failed to do so. Therefore, Israel failed to meet the conditions imposed on whatever right it claims to have been exercising.

    PS: As far as I know, there has been no single incident of seizure of pirate vessels with anything near 10 deaths – and those were aid activitis armed with sticks and knives, not pirates with AK 47s and RPGs.

  7. obviously the piracy issue is not at the heart of the debate, but do not forget the SUA convention here, to which Israel is a party

  8. Basically it sets out that its accaptable for a belligerent to board and inspect neutral merchant ships, and specifically provides for such if these ships attempt to break a blockade (Article 67. Merchant vessels flying the flag of neutral States may not be attacked unless they: (a) 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 …)

    Section II deals with Blockade. It sets out the mechanics of declaring a blockade – start date/ end date etc – which I don’t think Israel has met, and continues to say at Article 98 that ‘Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.’

    However at Article 102: The declaration or establishment of a blockade is prohibited if: (a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or (b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.

    I don’t think one can say the Israeli blockade has the sole purpose of starving Gaza since its reasonable to think that arms would be provided to the Palestinians were there to be total freedom of access (which wouldn’t be unlawful as a national liberation movement and party to an international armed conflict).

    Having regard to (b) however, consider the many conclusions by Goldstone etc and by the almost unanimous statements by international leaders that the blockade is unreasonable and must be lifted (or at the very least eased) on the basis that it is unlawful due to collective punishment etc. If one accepts that the blockade of Gaza is causing civilian damage in excess to direct military advantage gained – something which I’d suggest is incontrovertible – then the blockade must be considered as being not in compliance with Article 102.

    Thus the rights accruing to a belligerent enforcing a legitimate blockade cannot be considered applicable with regards Israel.

    Like I said, this Manual is non-binding and I haven’t had time to read further, but I’m also working on the basis that Gaza remains subject to Israeli belligerent occupation and therefore these regulations can apply – and can be extended to the High Seas. I’d appreciate some comments from an expert though.

  9. [deleted for appalling incivility — and deleted by KJH, not by JK]

  10. Response…Ali writes: “The real issue which you have avoided and of course Israel does too, is having 1.5 million Palestinians living like dogs in a big prison called Gaza. This, so Israeli imported settlers living on stolen Palestinian lands can enjoy “ peace and quiet” without having to hear the noises and the hauls of their victims to the south.”

    Flame: First, Israel and Egypt are blockading the Hamas controlled Gaza, yet you do not complain about the lack of support or assistance from Egypt.  Second, if you wish to rehash history, the Palestinian Arabs were removed by their fellow Arab countries in order to wipe out the Palestinian Jews.  Third, the area of Gaza was completely turned over to Palestinian authority and all Israelis were removed, some forcibly by Israeli troops.  Fourth, Hamas control of the Gaza did not utilize the resources left behind to continue nor improve the living conditions of their own people.  Fifth, more goods are shipped into Gaza, in accordance with International law, however Hamas does not want to accept it because it is controlled by international agencies and goes to the people instead of Hamas.

    Ali writes:  “If we are going to argue about legal wordings and the technicalities of International law, while  neglecting  the human calamity unfolding in Gaza, what good are we as human beings.”

    I agree with you.  However you need to assess the whole situation not just a portion.  The so-called “human calamity” in the Gaza was/is created by Hamas.  They are the ones who are more interested in using resources, supplies, and money to attack civilians; Israeli, Egyptian, and Palestinian.  The Gaza was left intact with businesses, utilities, homes, etc. all in good order.  Instead of working toward building the Gaza, they instead terrorized their own people and launch attack after attack on civilian populations.

  11. Maybe it is time we also got past the canard that Gaza is a human calamity per Ali. People can say whatever they like when being subjective. But objective facts collected by organizations like WHO, Unicef – such as mortality, infant mortality, access to health care, access to clean water, nutrition, hospital beds, etc. put the human conditions in Gaza (even under the current circumstances) well above those of many nations in the region – like Yemen, Afghanistan, Sudan, Somalia, etc.
    Gazans do suffer, but it is not a humanitarian crisis, it is a political crisis.

  12. Raphael,
    UNCLOS article 101 is considered a general definition of piracy under customary law. See the Int’l Law Commission’s 1956 commentary to their draft convention on the law of the sea, later adopted as the Convention on the High Seas.  The Commission specifically rejects the Nyon agreement’s definition of piracy.

    Whether UNCLOS 101 entirely inclusive of all forms of piracy is a separate question. Even after the Nyon agreement, however, the consensus was that a public ship cannot commit piracy because the flag state is answerable for any unlawful action the ship commits. See Oppenheim’s International Law 9th ed., p748. One of the core principles of piracy is its refusal to accept the authority of any state (thus the response of universal jurisdiction).

    Also, how is Halberstam’s article on point? While she does discuss how the Achille Lauro incident could be considered piracy, her focus was on non-state actors, whether they could be classified formally as insurgents, and the question of how to classify political intent.  The maritime terrorism v. piracy debate is not what the Israeli commando raid is about.
    As for the SUA Convention mentioned by another commenter, it’s not applicable here.  Article 2 states that the convention does not apply to warships or government ships being used for customs or police purposes.

  13. M. Johnson,
    thank you for your answer…
    I find the historical elements that Halberstam brings for the interpretation of custom quite interesting, since the question of how to classify political intent can be answered only by discarding the “private ends” requirement or interpreting it very broadly. However I agree with you that the Nyon Agreement is an exception and that there are not enough arguments to assert such a broad definition of piracy. The issue, though, was discussed at the time of the Achille Lauro case, and it would maybe be worthwhile to discuss it again; it is especially so in a context where, contrary to what was the case before, complementary State responsibility and individual criminal responsibility for certain acts becomes the rule and not the exception. (Piracy was always about individual criminal responsibility, and at the time where the offence of piracy emerged, the idea of universal jurisdiction over agents of the State for international crimes would have been absurd: State responsibility would have been the only applicable paradigm. It is not so anymore.) The rationale that “a public ship cannot commit piracy because the flag state is answerable for any unlawful action the ship commits” certainly explains why the law is as it is, but is also a reasoning that appears quite obsolete.
    This brings me to the SUA Convention, which intends precisely to ensure individual criminal responsibility for “unlawful events at sea”. I would be glad to stand corrected on this, since I only discover the subject now, but: reading Article 2 in context with the rest of the Convention, in particular Article 3, I think that the definition contained in Articles 1 and 2, which you have quoted, only defines the ‘victim’ ship, and not the ‘attacker’. The offence can be committed by “any person”, not necessarily by a ship, so if the intent was to exclude ‘State attacks’ it should have been spelled out in a completely different way; the scope of Article 2 would then be to reserve the special regime that would apply to attacks against warships or police/customs ships. It also is quite difficult to imagine that “a ship which has been withdrawn from navigation or laid up” would carry an unlawful attack at sea, while it is logical that an attack against such a ship would not be covered by the Convention.
    Halberstam’s article is useful again, since it describes the drafters of the Convention as generally accepting the fact that “any person” committing the offence includes persons acting on behalf of a government, even if they did not want to say so expressly (pp. 305-306). She adds that the question was referred to the Diplomatic Conference, so a definitive answer on the question should be easy to find.

  14. Raphael,
    I wish I could find the drafting commentary to the SUA Convention. I read SUA article 2 the same as you at first, but, for various reasons that are too long to go into here, changed my interpretation.  Meanwhile, I think what Halberstam’s article mentions about state responsibility on the pages you cited actually goes to show that most states would not have accepted prosecution for people acting on behalf of the government.  She says it was referred to the Diplomatic Conference and we can see in the final draft that the proposals from Kuwait and Saudi Arabia were rejected.  She says that “most” believed that article 3’s ‘any person’ meant that the convention would apply regardless on whose capacity the offender was acting.  I’m always suspicious of terms like “most” or “few.” The real question is who (big states or little ones?) believes that.  The Kuwaiti proposal was that “any person, whether acting on his own initiative or on behalf of a government, commits an offence…” I don’t see how that doesn’t effect state responsibility.  On the one hand, international law is holding more and more people individually accountable for actions done under orders.  On the other hand, along the lines of the United States’ reason for not joining the ICC, there are fears that such enforcement will become a political weapon and fear of prosecution could hamstring militaries from even legal actions.
     
    Also, while I see your point about evolving individual criminal responsibility, I don’t think that excluding public ships acting for public ends is obsolete.  If such a ship commits some sort of international crime, then it will be held responsible but not for piracy. International piracy is a very specific crime even if looking beyond the UNCLOS 101 definition. Before UNCLOS, most definitions stated something along the lines that piracy is an act of aggression committed without authorization from any sovereign power. See Piracy Jure Gentium, [1934] AC 586 for a quick summary of definitions.  Thus a warship sinking an enemy ship was legal, a warship committing unjustified acts of violence against a non-belligerent was illegal but not piracy (redress was to be sought from the flag state), and a warship that revolted against its flag state and sailed for its own purposes committing acts of violence became both a private and a pirate ship.  See Oppenheim’s International Law 8th ed., sec. 273.  Recognized insurgents were granted authority to the extent that they could attack the government they were rebelling against but not any 3rd parties, for that would then be piracy. To extend piracy to public ships acting for public ends would cause even more confusion over the definition of piracy, considering there’s already the debate over whether private ends can include political ones and what “illegal acts” means in the UNCLOS definition.

  15. Steve, do you have a link for that data on the human conditions in Gaza?

    For more on the humanitarian crisis in Gaza, you might be interested in this article http://fullcomment.nationalpost.com/2010/05/25/fancy-restaurants-and-olympic-size-pools-what-the-media-won’t-report-about-gaza/#ixzz0p0XIKArN

  16. Response… The International Maritime Bureau defines ‘piracy’ as acts committed at sea in furtherance of criminal purposes, such as, in the recent Israeli case, kidnapping, conversion of another’s property, state uses of force outside the principle of proportionality, etc.  Everyone always retains a lawful right to resist the unwanted application of force from another to convert another’s property or kidnap or detain the person, so if we try to affirm that Israel had a legal right to its raid, we have odd situation that there exist in the same universe both a legal right to do X and a legal right to resist X.

    But the most sensible point has already been stated previously, which is that the traditional definition of piracy as a private act makes sense only according to the now utterly outdated context when it was first formulated — i.e., before international law punished state action.

  17. J.Dawes wrote:” we have odd situation that there exist in the same universe both a legal right to do X and a legal right to resist X”

    Laws of war can often seem strange in relation to normal life, but it seems that once an armed conflict has started one side has a legal right to attack military targets (do X) and the opposite side has a legal right to defend and counterattack (resist X).  Of course the first side has a right to defend against the counterattack (resist the resistance to X, if you will) and so forth in a battle.  In that situation it seems pretty obvious that there is a legal right to do X and to resist X.

    It surprised me to hear though, that as far as maritime law goes, there is no right for blockade runners to resist capture.  I would have thought that if they choose to battle that would be their right to try, and then accept the consequences of their choice (i.e. they may lose).

    A more knowledgeable mind than mine (David Glazier) wrote in another thread on this site:

    If Israel is in an actual armed conflict in which Hamas is an adversary, then it is also entitled to maintain a blockade, and stop vessels suspected of being blockade runners at whatever distance the blockading nation deems military feasible.  Again, there is no right of self-defense on the part of a blockade runner, resistance making the vessel liable to being attacked/sunk rather than merely captured.

    Which in terms of your observation, there is a legal right to do X, but no legal right to resist X in the same universe. While I accept that is the case, it seems counterintuitive to me.  I’d be interested to hear other legal opinions on the issue.

Trackbacks and Pingbacks

  1. […] Law Professor Julian Ku states emphatically that the IDF raid on the flotilla was not […]

  2. […] Julian Ku re. why Israel’s boarding wasn’t piracy. […]

  3. […] papers and people condemning Israel’s “act of piracy” (read more about that here) against a flotilla of “peaceful humanitarian aid workers” attempting to break the Gaza […]

  4. […] to and categorically rejects the charge that the operation was an act of piracy, as does Julian Ku at Opinio Juris.  Douglas has also given two interviews on the BBC which are worth listening to. See here and also […]

  5. […] The Washington Post’s musings over whether Israel had violated international law or committed piracy were answered as soon as someone bothered to read international law or look up the definition of piracy. […]

  6. […] The Washington Post’s musings over whether Israel had violated international law or committed piracy were answered as soon as someone bothered to read international law or look up the definition of piracy. […]

  7. […] for private ends by the crew or the passengers of a private ship or a private aircraft.” As explained by Hofstra Law School professor, Julian Ku, the IDF raid was clearly not carried out for “private ends.” He continues, “in general, […]

  8. […] The Washington Post’s musings over whether Israel had violated international law or committed piracy were answered as soon as someone bothered to read international law or look up the definition of piracy. […]