Lieblich Guest Post: Yet Another Front in Israeli/Palestinian Lawfare–International Prize Law

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC), Herzliya; his book, International Law and Civil Wars: Intervention and Consent, has been recently published by Routledge]

While opinions are split whether U.S. Secretary of State John Kerry will be able to bring, in his recent efforts, any progress to the stalemated Israeli-Palestinian conflict, it seems that Israel has recently decided to take the conflict back to the 19^th century – at least legally. This time, we are talking about the revival of none other than age-old maritime prize law – a traditional body of the international law of war dealing with the belligerent capture of vessels and cargos.

The importance of maritime prize law peaked in the American Civil War, and steadily declined through the two World Wars into virtual disuse in the last decades. However, on the last week of December, the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel, held a first hearing in prize proceedings initiated by the State of Israel against the Estelle, a Finnish vessel, intercepted by the Israeli navy while attempting to symbolically breach the Gaza blockade in late 2012 (see the story, in Hebrew, here). The state requests the court to condemn the Estelle, which carried cement and toys, based on jurisdiction derived from the British Naval Prize Act of 1864 (!), and conferred to prize courts in Mandatory Palestine by the British Prize Act of 1939. At the time, Britain was interested in conferring such jurisdiction to courts in its colonies, protectorates and mandates in order to facilitate the condemnation of Axis maritime prizes captured in nearby waters. This power was never before exercised by Israel, which inherited the mandatory legislation upon its creation in 1948.

While the British prize laws are in essence jurisdiction-conferring rules, and deal mostly with procedure, the substantive norms of international prize law are derived from customary international law. Here lie the interesting aspects of the case. It is common knowledge, among those dealing with the nitty-gritty of IHL, that the process known as the “humanization of international humanitarian law” – as famously put by Theodor Meron – has generally not trickled to the law on maritime warfare. Prize law is perhaps a key example for this phenomenon.

For instance, while in ground warfare (and occupation) private property cannot be seized or destroyed absent pressing military necessity (for instance, Articles 23(g) & 52 of Hague Convention IV), private ships can be captured and condemned through proceedings in front of the seizing state’s prize courts, just for flying the enemy state’s flag. Essentially, thus, prize law doesn’t differentiate between the “enemy” state and its individual citizens, as modern IHL otherwise purports to do. In addition, “neutral” vessels can be condemned for carrying “contraband” – defined unilaterally by the capturing state – or, as in the case of the Estelle, for attempting to breach a blockade (for an attempt to state the customary international law on these issues see Articles 93 –104, 146, of the 1994 San Remo Manual). It should be added that the concept of blockade in itself seems like an outlier in contemporary law, since it can be looked upon, through a human rights prism, as a form of collective sanction against civilians.

Should the Haifa court find that it has jurisdiction over the case (an issue contested by the vessel’s owners), and that various alleged procedural defects in the state’s conduct are not sufficient to nullify the proceedings (for instance, the owners claim that the vessel was not delivered to the marshal of the prize court after capture, as required by the 1864 Act), it will have the opportunity to address some very interesting questions regarding the continuous relevance of prize law in the era of “humanization” of the laws of armed conflict.

One question relates to the legality of the Gaza blockade, and the potential effects over prize law deriving from it. Although traditional maritime law saw economic harm inflicted by a blockade as one of its raisons d’être, the 1994 San Remo Manual attempted to temper this harsh reality by introducing substantive limitations on blockades: these cannot be imposed if their sole purpose is starving the civilian population, or if they cause excessive harm to civilians in relation to the anticipated military advantage (Article 102). These requirements were deemed by Israel’s Turkel Commission as reflecting customary international law (¶75, 87 –88). However, as is known, the legal debate concerning the 2010 Mavi Marmara incident – perhaps the most “lawyered” maritime event since the Alabama claims – has been inconclusive regarding the adherence of the Gaza blockade to the proportionality requirement embodied in Article 102. While a Report by the U.N. Human Rights Council’s, Turkey, and some civil society organizations – including the ICRC – claimed that the blockade was disproportional at least at the time of the Mavi Marmara incident (the Gaza closure was eased significantly since), the Turkel Report, as well as a panel appointed by the  U.N. Secretary General, held the opposite. It will be interesting to see how the court, if at all, will navigate through the rough waters of these conflicting opinions. Of course, in the (unlikely) event that the court finds the Gaza blockade illegal for substantive reasons, it would have to decide whether the capture of the Estelle was null and void, a question that was never decided by prize courts until now.

Moreover, the court will have to address the potential effect of human rights law on the interpretation of the right to capture blockade-runners under traditional prize law. While the San Remo Manual restricts the capture of “enemy” vessels on humanitarian and philanthropic missions (Article 136), it is silent on exemptions from capture in the context of blockades. Specifically, it doesn’t address the status of vessels taking part in political demonstrations, such as, essentially, were the acts undertaken by the Estelle.  It will be interesting to see whether the right to freedom of expression, as derived from international human rights law, can be utilized in some form in order to temper the power to condemn the vessel.

Finally, the capture of the Estelle and the ensuing prize proceedings raise questions in Israeli constitutional-administrative law and its relations with customary international law; questions which can be relevant also to other jurisdictions. For instance, Israeli courts have traditionally applied a German-style proportionality analysis to military operations undertaken in the Occupied Territories (see the Israeli Supreme Court’s judgment on the West Bank Wall, ¶¶36 –44). It begs the question, for instance, whether participation in a symbolic non-violent demonstration at sea can justify condemnation in terms of proportionality – a question which is, of course, open for debate. Moreover, assuming that the state derives the power to condemn vessels from customary prize law, we are faced with a rather rare situation in which a state relies on customary international law in order to restrict a human right – here, the right to property – in absence of specific legislation in its internal law (recall, the British Prize acts are mainly jurisdiction-conferring).

In sum, there is never a dull moment in the legal realm of the Israeli-Palestinian conflict. The resurrection of prize law by Israel is lamentable – since it exposes how far the parties are willing to reach in order to score a few points in a never ending game – but it is also an opportunity to update this dormant field, should the Haifa court be up for the task.