Guest Post: Update on Israel/Palestine and the Revival of International Prize Law

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC)]

Back in January, I wrote a guest post  about prize proceedings initiated by the Government of Israel against the Finnish vessel Estelle, intercepted by the Israeli navy while attempting to breach the Gaza blockade in late 2012. As I wrote back then, the proceedings were held before the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel. The State based its application to condemn the vessel on old pieces of British legislation, which granted prize jurisdiction to courts in Mandatory Palestine (the British Naval Prize Act of 1864 and the British Prize Act of 1939).

As I noted back in January, prize powers have never been exercised by Israel before. Moreover, prize proceedings are extremely rare globally. Indeed, since customary prize law allows belligerents to capture and condemn private vessels – both “enemy” and, in some cases, “neutral” – prize law seems at odds with contemporary human rights norms protecting private property.

In this context, my January post raised several questions for the Haifa Court. Among these, I’ve questioned the continuous relevance of prize law in the human rights era, and whether Israeli administrative law will affect the Court’s understanding of prize law. Well, the wait is over: on August 31, the Court (Judge Ron Sokol), has rendered a 33-page decision in The State of Israel v. The Vessel Estelle.

I will spare the readers from detailing the Court’s finding of jurisdiction, although doubtless interesting to legal historians: the bottom line is that it has found itself to have inherited the jurisdiction from the former British prize courts in Palestine. But the Court had some interesting things to say in terms of substantive prize law. Thus, it acknowledged that while in land warfare, private property enjoys strong protection, this might not be the case in naval war. However, the Court noted – referring, inter alia, to our discussion of this issue on Opinio Juris  (¶46) – that the scarcity of prize adjudication since World War II could be a product of the turn to human rights in international law. The Court commented, in this context, that “various aspects” of prize law might not be compatible with modern law and with “individual rights.”

Importantly, the Court seems to posit that prize law applies in situations of armed conflict, even in absence of a declaration of war. This seems in line with the general trend in modern IHL in which it is the factual existence of an “armed conflict” that triggers the plethora of belligerent rights and obligations, rather than any formal declaration.

Another point of interest in the ruling concerns the concept of desuetude and customary international law. The Estelle’s owners claimed that the fact that the State has never made use of its prize powers, implies that these have fallen into desuetude. The Court responded that prize powers still exist in customary law, although prize proceedings have virtually disappeared from state practice in the last 70 years. It based this conclusion chiefly on the fact that the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, which deals, inter alia, with prize law– was published relatively recently (1994). This is indeed a strong statement regarding the increasing power of such manuals in the construction of customary international law, and the decreasing importance of actual state practice.

However, at the end of the day, the Court rejected the State’s application. Relying on Article 146 of the San Remo Manual, it stressed that customary international law obliged the capturing state to bring the vessel to adjudication immediately after capture, since its legality is per se contingent upon judicial authorization. In the case of the Estelle, movement to condemn took place only 10 months after its capture.

The immediacy requirement was perceived by the Court as more than a mere technicality:

The immediacy requirement is not a strictly technical one. Once a vessel is captured, the Court is required to determine the legality of the capture and to give instructions. In such proceedings all of those with interests in the vessel can appear before the Court … any delay might compromise their rights. (¶70)

Furthermore, the Court ruled that since past captures in similar circumstances have not led to prize proceedings, and since the State has not publicly declared a change in this policy, the ship owners had an “expectation interest” that the Estelle will be released. Here we see notions of domestic administrative law affecting the Court’s application of customary international law.

Thus, in the end, it was the delayed action in initiating the proceedings that led the Court to order the release of the vessel. This procedural defect allowed the Court to sidestep some of the more complex and sensitive aspects of the question.

The Court closed its ruling by stating that prize law is still part and parcel of customary international law; but when applied to specific circumstances, it should be interpreted “in light of the changes of the times and considering contemporary legal perceptions.” The Court accordingly called upon the State to enact updated prize legislation reflecting these developments.

In sum, the ruling answered some (but definitely not all) of the questions I raised in my January post. Prize law is apparently still alive; however it might be tempered by human rights norms. It is impossible to know whether we will get to see, in our lifetimes, how this tempering effect will play out, or, rather, considering the scarcity of prize proceedings, the next prize ruling will be analyzed by our grandchildren.