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