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

by Eliav Lieblich

[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.

http://opiniojuris.org/2014/09/14/guest-post-update-israelpalestine-revival-international-prize-law/

7 Responses

  1. Great post, Eliav. I like your point about customary international law as codified in manuals vs. ‘actual’ state practice. It’s an intriguing distinction but it raises an interesting question: I am not familiar with the San Remo Manual, but presumably the Manual relies on some instances of state practice? Otherwise are we not dealing with some kind of enigmatic custom that lives on only in the minds of professors (presumably fascinated by legal history)?

  2. Hi Patryk,

    Thanks for the comment! Of course, the Manual relies on state practice. However most of the relevant cases are very old.
    It’s interesting to point out that the Israeli commission that investigated the Mavi Marmara incident (The Turkel Commission) also relied on the San Remo Manual’s requirement that a blockade be “proportional” as a customary rule, although there is absolutely no state practice to that effect (that I know of). So these things get lives of their own. Judges and lawyers want to see something written. Once you have a “manual” – there you go.

  3. Georgia maintains a blockade of Abkhazia, and has seized and auctioned of numerous third-country ships running the blockade.

    http://www.nytimes.com/2009/09/10/world/europe/10georgia.html?_r=0

    I would love to have more information on these proceedings, if anyone has them. Were the formal libels as prize? Or merely in rem seizures criminal property under Georgian national law?

    Because if it is the former, the Haifa court missed a rather extensive source of contemporaneous state practice.

    (And of course there is the fascinating issue raised by the Georgian blockade of a blockade against a non-state entity.)

  4. Just to note, the Gaza blockade is itself a blockade against a non-state entity. Israel sidesteps this question by relying on the Supreme Court’s decision that the Israeli/Palestinian conflict is international. The Palestinians of course don’t contest that view. But the historical example of a blockade against a non-state entity is of course the Union’s blockade in the Civil War.

  5. Just to clarify – the Gaza blockade is “against a non-state entity” in the eyes of Israel.

  6. Eugene, interesting link on Abchazia. From this one and several other articles, to me there is, however, indication to argue that Georgia is in fact not using the belligerent blockade regime, but its sovereign powers within its territorial sea. But very interested indeed on the actual legal basis.

    In my thought, generally a prize court judgment wrt breaching a belligerent blockade may be losing the vessel and also the goods, unless good-owners can convince the court they are neutral goods, but in principle a prize court does not also punish persons for breaching blockades. I may be wrong here, though. Maybe there are different views in different states.

  7. In dealing with Somali pirates, there is little to take as prize; the skiffs are fairly worthless and certainly no point in going through a prize proceeding. But this did happen, apparently without a formal prize proceeding:

    http://eunavfor.eu/eu-navfor-transfers-pirates-outboard-engines-to-the-djiboutian-navy/

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