Please, Can We Stop the Stupid Gaza Piracy Charge?

Please, Can We Stop the Stupid Gaza Piracy Charge?

The Gaza Flotilla raid has launched an unbelievable amount of public commentary related to public international law because so much of the debate is framed around the legality of Israel’s raid, its blockade of Gaza, etc.  Some of the discussion has been interesting and useful (see again Kevin’s posts on legality of the blockade).  But then there is the continuing tendency of Israel’s more unhinged critics to keep calling the raid “an act of piracy.”  As I explained before, even if Israel had boarded the ships in Turkish waters and massacred everyone just for fun, it would not be piracy. Yet this hasn’t stopped the following random assortment of Israel critics from continuing to use the stupid piracy charge:

The Foreign Minister of Turkey

Libya’s U.N. Ambassador

Spanish Member of the European Parliament

The Nation

Pat Buchanan

Bill Press

The Canadian Union of Postal Workers (!?!?)

I could go on, but I won’t.  Aside from demonstrating the limits of this blog’s readership the flagrant stupidity of this “piracy” meme reflects a remarkable lack of seriousness among (some of) Israel’s critics about the legality of the raid and the blockade.  So next time you hear the Foreign Minister of Turkey decrying Israel’s violations of international law, for instance, you can feel confident he actually cares nothing at all about international law, and is just looking for a convenient slogan to slam Israel.

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Benjamin Davis
Benjamin Davis

“tantamount to banditry and piracy”

is what the Turkish Foreign Minister called it. 

This is spin where he does not call it piracy but comes as close to it as possible so that we understand that he is pissed off.  Ah the language of diplomatic expressions of anger.  This is not law or legalism. 

In a way, it is stepping under the legal forms in which we all speak and raising the very interesting issue of these ships being Turkish flagged ships, then the Israeli commandos boarded Turkish territory. 

In THAT vision of what happened the Turkish Foreign Minister may have a stronger claim of protest of Israeli overreaction as I understand that Israel and Turkey are not at war.

Is this the SS Lotus redux?

Also, on the commandos boarding and the defense/self-defense discussion, do the people on board the ship have the right to defend themselves against the boarding commandos?  Are they under a duty not to engage with the foreign forces boarding their ship?  I am not aware of any duty of that kind. 

Best,
Ben

dov jacobs

Pat,
The fact that you failed to see that you should delete the indicative “response…” part in the box is enough answer to your irrelevant comment…

Benjamin,
I actually argue that the application of IHL to the taking over of the boat comes from the existence of a armed conflict between Israel and Turkey and that it is not te qualification of armed conflict in the palestinian territories that is relevant here. Everybody is assuming that, but nobody as yet has answered my point, which you can find here.

Julian,
You can add the vice-president of the far-right Front National party in France…

Brian
Brian

Benjamin Davis wrote: “do the people on board the ship have the right to defend themselves against the boarding commandos?”

I guess that depends on how you define “defend themselves”.  As was seen by the events that transpired on the other ships in the flotilla, the people on board were not at risk of harm if they didn’t pose a physical – even potentially lethal – threat to the commandos.  It is clear from video taken from the ship’s security cameras that they were preparing for battle with iron bars, sling shots etc. before the commandos boarded.

In light of the fact that the commandos boarded initially without force, and only resorted to force (intially non-lethal) once they were set upon, the self-defense argument seems disingenuous.

B.Davis:”Are they under a duty not to engage with the foreign forces boarding their ship?”
I wouldn’t think that they are under a duty not to engage with the foreign forces, but with the decision to engage with commandos comes natural consequences.   Unless one’s aim is PR rather than victory, that’s probably a fight one wouldn’t pick.

Kevin Jon Heller

I agree with Julian.  But I note the word “piracy” doesn’t appear in The Nation article to which he links (just in the title, which the author likely didn’t write)!

M. Johnson
M. Johnson

Alas, politicians have never been bound to reality or precise legal definitions. 
 
I actually want to know if anyone’s arguing that the flotilla fighters committed piracy.  While obviously depending on how the facts shake out, I find that that’s an easier argument to make than the Israeli’s committing piracy.  If the flotilla fighters joined the flotilla knowing that their ship would be boarded by Israeli commandos and wanted to create a public relations mess for Israel, you could argue that the flotilla fighters committed piracy when they (passengers on a private ship) attacked (illegal act of violence) the commandos (crew of second craft) in order to protest the blockade/fight the Israelis/etc. (for political/private ends).  Posing as aid workers could be argued as fraud to induce the commandos to board unprepared so the fighters could attack them more easily.  I see it as similar to a pirate ship posing as a friendly ship to lure in victims.  Whether the attack is initiated on the victim ship or on the pirate ship, the pirates still set the situation up for their private purposes.

Shudderbug
Shudderbug

Let’s run the numbers:
Dead Israeli commandos: 0
Dead Turkish and American volunteers: 9

The volunteers have a right to defend themselves from foreign soldiers forcing themselves onto their boat. Even if you think they didn’t have the right to attack the Israeli forces with their shoddy collection of make shift weapons you can’t, in good faith, claim that this justified killing 9 civilians. 

And speculating that the volunteers were some kind of organized fighter unit looking to cause a PR disaster just sounds loony.

M. Johnson
M. Johnson

Shudderbug,
I’m not arguing that the flotilla fighters did in fact commit piracy.  I’m arguing that there is a possible scenario where the fighters could be argued to be pirates.  Beyond reading the discussions on this blog, I haven’t been paying much attention to the Israeli commando raid in the news because it’s part of a very old morass of a conflict where no one ever agrees on anything.

However, just after the raid there was speculation on the identity of the fighters, their connections to terrorist organizations, their purpose for running the blockade (e.g. to go fight Israel), etc.  It’s turning out that the fighters were probably just hotheads reacting to the commandos. Fine, not piracy. 
But I would argue that sending people into public places to blow themselves up is a loony way to promote a political cause, but that’s terrorism for you.  With this in mind, having a group infiltrate aid-workers to escalate an expected confrontation to a lethal level is not so loony.  Again, I’m not saying that this is what the situation was.  I’m only saying that that was a possibility at one point and that under that scenario, piracy could be argued.

Michael
Michael

does anyone here have any doubt that the state of israel consistently violates international law? this recent event, whatever the proper legal qualification, is but another incident where israel opts for force over legality. one could tempted to refer, for illustrative purposes, to the ICJ advisory opinion on the Wall. interestingly enough, a probable reaction on the side of israel’s supporters would be that advisory opinions are not binding. well, to put it simply and not to enter into considerations which would probably lead this post to be censored, while advisory opinions are not binding instruments, international law per se presents that feature. indeed, it is difficult to sustain that the legal aspects of the Wall opinion do not reflect the proper reaction of international law as regards israeli conduct in relation to gaza. and if I dare here to call israel a criminal state, I do so by reference to the terminology adopted at a certain point in the work of the international law comission on article 19 of the project on state responsibility (of course, although technically the crime of state no longer exists as a legal term, the particular consequences attached to serious breaches of obligations under… Read more »

David Bernstein
David Bernstein

“So next time you hear the Foreign Minister of Turkey decrying Israel’s violations of international law, for instance, you can feel confident he actually cares nothing at all about international law, and is just looking for a convenient slogan to slam Israel.”

This doesn’t differentiate the Turkish foreign minister from Amnesty International, Human Rights Watch, and other leftist NGOs.

David Glazier

My personal view is that Israel’s conduct towards Gaza is counterproductive towards achieving real peace/security, but I’m disappointed by the number of commentators whose legal opinions are clearly colored by their political views.  I also note that a number of those commenting on these developments seem to assume that they can simply take tenets from domestic rules of self-defense and apply them in a maritime environment which is not correct. IF Israel is in an international armed conflict with anyone — there is no requirement here that it be in/with Gaza, then Israeli naval vessels are entitled to exercise the belligerent right of visit and search to stop any merchant (i.e., non governmental) vessel outside of neutral waters which they have reason to suspect may be aiding an adversary.  Such action is permissible on the high seas, as well as in Israeli territorial waters.  There is NO right of self-defense against such an action; the merchant ship is obligated to submit or else loose its protection against attack.  IF the vessel is considered to be subject to capture after inspection, then it may be brought in to a friendly port where a court, fulfilling the traditional responsibilities of a “prize court,” must determine the… Read more »

Joe
Joe

Wouldn’t piracy usually connote taking things for financial gain?  I don’t think that’s what happened here.

M. Johnson
M. Johnson

Joe, Piracy can be for any personal reason: greed, hatred, revenge, etc. Intent to steal is not required. Mr. Glazier, I agree with you for the most part.  I think, however, that it’s still an open question if and how political intent fits into piracy.  Because they lacked the two-ship requirement, the Santa Maria and the Achille Lauro incidents can’t be the definitive proof that political intent is not private intent.  Experts at the time weren’t sure they could convict on piracy for both the single-ship and political intent factors. Since they didn’t try, nothing was determined.  The Harvard Research Commentary does list a ship attacking another for political reasons as one of the acts that could arguably be included in the definition of piracy, although they don’t list any precedent.  More recently, in Castle John v. Mabeco (77 ILR 537), the Belgium Court of Cassation decided Greenpeace boarding and damaging a ship to prevent it from dumping waste was piracy, stating that the acts were committed “to further a personal point of view on a particular problem, albeit with a political perspective.” Of course, Castle John could be distinguished from the flotilla situation since the Belgium court was very careful to point out that… Read more »

Brian
Brian

Dave Glazier, thanks for your professional and in-depth posting – some of which surprised me.  I hope you won’t mind that I have quoted a part of your post on another thread on piracy on this site (not quite sure why there are two).
The thread is http://opiniojuris.org/2010/06/01/did-the-israeli-defense-forces-commandos-commit-piracy-nope/ if you want to check that I haven’t taken your words out of context or want to add anything more to the discussion there.

Respectfully.

robg
robg

Maybe people would stop “the stupid Gaza piracy charge” if you were able to explain why Israel’s behaviour does not amount to piracy? You say that so far piracy was always just “committed for private ends” ? Well maybe it just got a little worse and piracy is now even committed by States.

Brian
Brian

Israel’s behaviour does not amount to piracy in the same way as a Big Mac does not amount to a “two-all-Veggie-pattie-lettuce-cheese-special-sauce-pickles-onions-on-a-sesame-seed-bun” burger.  Definition of terms is very important in law.  And they are there for a reason.

Altalena
Altalena

Hi there
I’m new to this excellent blog – recent events have brought me here and I read through the posts concerning the incident.

I have a question, hope it’s interesting enough to be discussed: if Erdogan chooses to sail to Gaza as today’s news suggest, or if Turkey lends navy ships to escort future humanitarian aid AND Israel attacks these ships, would that necessarily mean that NATO is legally bound to assist Turkey in the incident ?

I don’t suppose they would attack Israel, but what legal argument can NATO resort to in view of Art 5 of the Treaty?

Brian
Brian

That’s an interesting and scary question.  Firstly let’s hope cooler heads prevail, and Erdogan does not seek further provocation and escalation.

As an relatively uneducated guess, I would say that as Art 5 refers to right of self-defense, and as Dave Glazier says above blockade runners don’t have a right to resist being stopped from running the blockade, there is no right to self-defense that NATO can exersize.

I’m sure there’ll be lots of replies to this.  And some of them may even be on point.

Brian
Brian

On a related note, if Erdogan himself, or Turkish naval vessels do try to break through the blockade, would that be considered a Turkish act of war against Israel?

Benjamin Davis
Benjamin Davis

“There is NO right of self-defense against such an action; the merchant ship is obligated to submit or else lo(o)se its protection against attack.  ” This might seem strange, but it seems to me that if this is the rule, the merchant ship has the choice to submit or not.  If it does not submit, the rule is not saying that it is in breach of its obligations, but that it loses its protection against attack.  If it does not submit and loses its protection against attack, then the Israelis (or any blockade enforcing country in this setting) can attack – presumably – consistent with proportionality and necessity.  When the Israelis now attack the Turksih merchant ship and the people on board seek to repel the attack – do the people on board have the right to seek to repel that attack after the ship has refused to submit to the Israeli boarding etc.? I guess what this is is an international variant of the Henry Louis Gates at his front door situation. The rule described above has a logic to try to avoid violence by having the merchant ship comply.  However, there may be settings such as what we saw where the merchant ship decides… Read more »

Brian
Brian

Ben:”If it does not submit and loses its protection against attack, then the Israelis (or any blockade enforcing country in this setting) can attack – presumably – consistent with proportionality and necessity. .”

Brian: That is the crux of the problem.  Proportionality is not based on similarity of casualties on both sides.  If one side responds to a lethal force attack with better lethal force, that is proportional.  In fact, it is the way in which all battles are won.  The boarding folks- being beaten with iron bars by activists who don’t have a right to self-defense against the boarding – have a right to defend themselves with lethal force.

From the analysis above: “resistance making the vessel liable to being attacked/sunk rather than merely captured.”.

So a legal response to resistance would be to attack or sink the vessel itself – that would put all the lives on the vessel in danger – not just those illegally carrying out the beatings and stabbings.  The way it played out, Israel avoided this by endangering its soldiers who only used lethal force when their lives were in peril.

Ali
Ali

Response…
 
It is misleading to call the volunteers on those ships “fighters” . This notion is basically going along with whatever the Israeli occupation army is saying. As far as Julian’s post. I think it is politically motivated for it totally disregards the rule of law for making a political statement of blind support of Israel regardless what Israel does.

Benjamin Davis
Benjamin Davis

The ship involved apparently was flagged in the Comoros Island – making it Comoros territory – signator of the Rome Statute per a note I saw from Francis Boyle.

Reflagging like that suggests to me a very sophisticated operatioin to place the Israeli military in a situation where (distinction, proportionality, and necessity) analyses would lead to deaths as an effort to delegitimize the Israeli blockade etc.  Much more than a purely humanitarian mission.

The Irish ship being renamed the Rachel Corrie and with no violence is another variant.  Everyone in Ireland would know that name as would the IDF types.  Sinking or violence on the Fair Rachel so to speak would resonate in passions in ways that neither the Irish or Israeli governments would want.  So the symbolism.  And the people selected to be on board such a ship (or permitted to be on board such a ship) would have to be totally non-violent or else they would dishonor the memory of Rachel Corrie.  Very heavy stuff.

Best,
Ben

Juan José
Juan José

One of the Spanish “activists” (well, I think this is only an euphemism, but at the moment I won´t discuss this point) has just told they are going to file a criminal complaint against Israel (?) before National Court, and, of course, he has talked about “piracy”. Perhaps it´s plain ignorance or perhaps something worse, but anyway there is no point in insisting: they will go on using “piracy”. I suppose they (I´m only talking about Spanish “activists”) think word “piracy” is great, because it seems so dark and evil.

O tempora O mores!

 

David Glazier

A minor point but one that those that care about the law should be clear on – a merchant ship is NOT the national territory of the flag state.  If it were, it would not be possible for other nations to routinely exercise jurisdiction over events onboard foreign ships in their territorial waters, and merchant ships could grant political refuge/asylum as warships currently can.  Nevertheless, it is correct that the ICC can exercise jurisdiction over events onboard civilian ships and aircraft registered by a state party.  But that is because Article 12 para. 1 (a) of the Rome Statute specifically extends jurisdiction to vessels and aircraft, not because they are state territory per se. Of course for the ICC to have jurisdiction over the Israeli conduct, then their actions must constitute either genocide, crimes against humanity, or war crimes.  The latter would seem the most likely, BUT a war crime requires an actual armed conflict, and IF there is an armed conflict, then Israel has a solid claim that it was either engaged in the enforcement of a legitimate blockade or exercising belligerent authority to visit and search.  I am not a defender of Israeli conduct by any means, but as a law of war… Read more »

Benjamin Davis
Benjamin Davis

“If it were, it would not be possible for other nations to routinely exercise jurisdiction over events onboard foreign ships in their territorial waters, ”

I understand this as meaning that territorial jurisdiction may be exercised by the territorial state but that does not prevent the flag state from asserting its own laws pursuant to the relevant jurisdiction principle the flag state selects.   

“and merchant ships could grant political refuge/asylum as warships currently can.”

I take this point as saying that the flag state could make this possibility the rule as a matter of internal law, though it might be broader than what the relevant international law states. 

As to the Comoros being principled or not, I think it is very interesting this was done in a context when precisely such a referral to the ICC is being contemplated.  I am not sure it is principled or not, I am just saying that it appears to be thought through.

Best,
Ben

Brian
Brian

Ali:”It is misleading to call the volunteers on those ships “fighters” . This notion is basically going along with whatever the Israeli occupation army is saying. ”

And saying that they’re not fighters you are basically going along with their narrative.  For an impartial view, let’s go to the video.  The security video from the ship shows them preparing for battle prior to the boarding. (around 9:36pm on the 30 May)  Subsequent video shows them attacking the Israelis as they attempt to board.

Interested what you call “occupation army”.  There’s no army occupying Gaza.   Or do you mean the Israeli Army (i.e. all of Israel is occupied Palestine)?

Brian
Brian

There’s been a lot of talk about what Israel can or can’t be charged with, and in light of the discussions and video evidence, it seems not much.

Can I ask, what could the “activists” be charged with?

Are there laws about changing the flag on the ship? (Comoros/Turkey)?

If, as was said above, there is no right to resist the blockade, can those who started the violence with metal bars and knives be charged?  Would it be something like resisting arrest?  Assault?

If it is confirmed that the perpetrators are known terrorists, are others on the vessel guilty of aiding terrorists?

And surely endangering an infant on board a vessel going to breach a naval blockade with a reasonable assumption – if not hope – that there will be some sort of skirmish should be illegal.  But who would bring the charges? – The parents obviously won’t.

I’d be interested to hear some informed opinion on the these questions.

Bob
Bob

@Brian Very good questions Brian. The activists cannot be charged with anything under international law. Local laws of their home countries or other country with jurisdiction may apply (e.g., If U.S. law forbids acts of war by American citizens on countries which the U.S. is not at war with, the U.S. could charge American citizens on the crew or who attacked the soldiers). However, the crew, and any passengers who fought the capture of the ship could be held as prisoners of war by Israel under the same rules as captured enemy soldiers (up to Israel). When the ship attempted to breach the blockade (counts from minute it left port), the crew of the ship were eligible to be held as POWs if captured. The ship was eligible to be captured (taken as a prize, ownership transferred to Israel upon capture) as soon as it left port. Israel couldn’t have actually legally captured them until they left the waters of a neutral state. The passengers who didn’t fight the Israelis would have to be let go. However, attacking the soldiers, even to resist boarding, wasn’t a crime (in international law), but it was an act of war. They had the… Read more »

Bob
Bob

Oh, as to the changed flag, I don’t know. As to child endangerment laws, probably the flag state would have jurisdiction, and probably the state(s) of which the parent and child were citizens (just guessing on those though). In general, governments bring criminal charges, not individuals.

Fels
Fels

Brian, the five named by the IDF as terror suspects are Hassan Aynsey, Hussein Orush, Fatima Mohammadi, Ahmed Omemun and Ken O’Keefe. Ken O’Keefe is a U.S. Marine veteran who gained attention with his attempt to stop the U.S.’s invasion of Iraq by organizing ‘human shield’ volunteers to place themselves in harm’s way. He was accused of planning to train Hamas militants which is a great idea if they want a crack squad of non-violent demonstrates. I believe he’s been released.

Brian
Brian

Fels :”Ken O’Keefe is a U.S. Marine veteran who gained attention with his attempt to stop the U.S.’s invasion of Iraq by organizing ‘human shield’ volunteers to place themselves in harm’s way.”

Brian:  So he is an international war criminal then.  Given that according according Article 28 of the Fourth Geneva Convention the use of “human shields is prohibited.

I wonder why they let him go.

Brian
Brian

Bob: “As to child endangerment laws, probably the flag state would have jurisdiction, and probably the state(s) of which the parent and child were citizens”

Brian: does that mean that no-one can act for the child if the relevant country supports the action?  Could Article 28 on GCIV on human shields come into play?

Fels
Fels

Brian:  So he is an international war criminal then.  Given that according according Article 28 of the Fourth Geneva Convention the use of “human shields is prohibited.
I wonder why they let him go.
Maybe because the use of human shields is only a firing offense there?

Brian
Brian

Fels, the ban on neighbour procedure was from the Israeli High Court, so breaking it is an internal Israeli affair.  Unless you can show that a particular breach contravenes GCIV Article 28. Simple answer.. Article 28 of GCIV states:”The presence of a protected person may not be used to render certain points or areas immune from military operations.” Anyone who reads the story you linked to can see that the Israeli Army did not use the presence of a protected person to render areas immune from military operations. Not convinced? Here’s the long answer. Neighbour procedure does not mean “human shield”  It is a procedure whereby forces use a local resident to warn the residents of a house that an arrest is imminent.  The use of the procedure is meant to enable uninvolved civilians to leave the house and allow the suspects to turn themselves in, thus minimizing the risk of injury to civilians. In this particular case, as long as there were civilians inside, they were the human shields.  The Israeli actions of telling someone to get the other civilians out was to stop them from being endangered.  Tragically, a second unit who didn’t know what was going on saw a… Read more »

Jenli

Hamas declares that it is at war with Israel. This war is halted by ceasefire since some month. Israel declared blockade to Gaza stripe and therefore executes this law: Helsinki Principles on the Law of Maritime Neutrality 5.1.2(3) Merchant ships flying the flag of a neutral State may be attacked if 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, capture or diversion. 5.1.2(4) Merchant ships flying the flag of a neutral State may be attacked if they: (a) engage in belligerent acts on behalf of the enemy; (c) are incorporated into or assist the enemy’s intelligence system; (e) otherwise make an effective contribution to the enemy’s military action, e.g., by carrying military materials, and it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions. 5.2.1 Visit and search As an exception to Principle 5.1.2. paragraph 1 and in accordance with Principle 1.3 (2nd sentence), belligerent warships have… Read more »

Fels
Fels

Arguing that adult civilians voluntarily placing themselves in harm’s way to stop the actions of their government is a war crime under GCIV while sending foreign civilians into combat zones is ok is an utter farce.  The ‘neighbor procedure’ would have be fine if you were asking little Fatimah to go next door and tell the neighbors someone’s found their dog. It’s not ok when you are sending her in between your troops and the suspects who just might want to shoot at them, that’s when it becomes a matter of war crimes and not internal laws. That the other unit’s reaction to the “suspicious person” (your words) was to shoot a 14 year old girl doesn’t make it look like they were exercising much discrimination (what would have happened if the civilians had actually left the building?). Soldiers are perfectly capable of warning civilians to leave the area without endangering others which is what happens now. Although you can’t blame the IDF for following the Israeli government’s policy that the 4th Geneva Convention doesn’t apply to Gaza*; it took a HCJ case to force abandonment of the policy. It’s not the first Palestinian to be injured like this (or… Read more »

Brian
Brian

Fels:Ken O’Keefe voluntarily gave up his protected person status when he put himself into harms way. Brian: Does that mean that Gazan civilians who voluntarily stayed in houses (after being warned by soldiers) that became the scene of military operations lost their civilian status.  That’s interesting. Fels:”if you were asking little Fatimah…” Brian:Israel sent in the mother.  The mother sent in her daughter (Rena, not Fatima). When she was injured, the army evacuated her and the Israeli hospitals treated her.  If the injury was anything other than accidental, why would they have done that? When Israel used the procedure, it was because civilians had more confidence and were more likely to leave the place of a potential battle if told by their neighbours and family members face to face, than ordered by soldiers over megaphone.  It was to save Palestinian civilian lives and property.  Is that a bad thing? The alternative was for Israeli soldiers to call through a megaphone, and whoever chose not to come out, or wasn’t allowed to come out was put in danger. Apart from not wanting to harm innocent civilians, what motivation would the IDF have for this procedure? There was a suggestion that it… Read more »