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and The Legal Framework of International Law by Lynda Brayer and Andrew Wimmer Part I On Monday, May 31, 2010, an elite commando force of the Israeli Navy attacked and captured the six vessels constituting the Gaza Freedom Flotilla along with the ships’ more than 600 passengers on the high seas. The flotilla was carrying humanitarian aid destined for the 1.5 million people of Gaza who have been living under Israeli siege for three full years. Since Monday’s attack a considerable number of commentators and activists alike have somewhat too glibly referred to the commandos as pirates and their attack as an act of piracy. While that imagery might capture the headlines in the same manner the attack itself did, it serves both to detract from the seriousness of the attack and to prevent our understanding of the true nature of its criminality. Article 101 of the United Nations Convention on the Law of the Sea (or UNCLOS, also known as the Law of the Sea Treaty) defines piracy as “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, on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft.” The Oxford English Dictionary shows that the noun pirate is derived from the Greek verb peiran, meaning “to attempt, attack, or assault,” with a pirate being “one who robs and plunders on the seas...or cruises about for that purpose; one who practices piracy; a sea robber.” We know that the commandos were not private individuals carrying out a private enterprise. Rather they were members of the Israeli Navy, identifiable as such by their uniforms and insignia, and by the insignia on their helicopters, warships, and speedboats. They were not acting on their own but were sent by the State of Israel's political and military leadership to carry out a publicly declared state mission. Nor did the Israeli commandos attack and board the Mavi Marmara or the other ships of the flotilla in order to rob the passengers or plunder the ships’ equipment. There is no disagreement that the reason for the attacks and subsequent capture of the vessels, followed by the detention and questioning of the passengers, had nothing to do with purposes and activities associated with piracy. The purpose, as publicly stated by the Israeli government, was to prevent the vessels arriving in Gaza, their passengers disembarking, and their humanitarian aid being distributed to the population. Article 88 of the Law of the Sea Treaty affirms that the “high seas shall be reserved for peaceful purposes,” with Article 89 stating further that “no State may validly purport to subject any part of the high seas to its sovereignty.”
The crimes that Israel committed during its assault on the vessels and civilian passengers of the Gaza Freedom Flotilla fall firmly within the category of “high crimes.” The assault, rather than an act of piracy, must be defined as a “crime against the peace” and a “crime against humanity” as Israel subjected “part of the high seas to its sovereignty” in a murderous attack on unarmed civilian vessels. The severity of these crimes is magnified precisely because the criminal actor is not an individual but a highly militarized state, the power of which is exponentially greater than that of any individual or group of individuals. In Part II of this paper we explore the legal framework in international law in greater detail. We have laid stress here on the specificity of terms and their meanings. Without a careful use of language, as we have seen in the myriad of articles referring to the attack as piracy, we are condemned to the very barbarity of which the Israeli attack is an example. When law is abused through the deliberate abuse of language, the only logical outcome is the abuse of human beings that law comes to protect. The abuse of law leads logically to barbarism. Clarity of language is essential if we are to understand the reality in which we live. It is such understanding that is necessary if we are to enter the struggle to change the immorality in which the world is drowning, and to create, in contrast, a civilized and decent world. Part II
The Legal Framework of International Law
The Attack on the Gaza Freedom Flotilla by Israeli Navy Commandos on May 31, 2010 Crimes against the Peace and Crimes against Humanity During the pre-dawn hours of May 31, 2010, the Israeli Navy attacked the six civilian vessels of the Gaza Freedom Flotilla. The attack took place in international waters against ships flying under national flags of countries with which Israel is not at war, namely Turkey, Greece and the United States. The ships were carrying civilians from more than sixteen countries. Salient points: 1. Since no state of war existed at the time, the attack on these vessels constitutes an act of war against those governments under whose flags the vessels were sailing. 2. The attack falls within the purview of the ius ad bellum, those laws which govern the resort to armed conflict. Israel’s action does not fall into the category of the ius in bello or the laws which govern the actual conduct of war. 3. Because this attack was carried out in international waters, the status of the relationship between Hamas, or any other Palestinian body, and the state of Israel is of no relevance whatsoever. Likewise, neither the blockade of Gaza nor Israel’s claims and legal
interpretations regarding it has any bearing on its acts of aggression in international waters. 4. This is not an act of piracy. Piracy is an act of aggression carried out in international waters by individuals and not by states. The following internationally binding treaties, charters, and agreements are relevant to the attack by Israel: 1. Article 6 of the Charter Provisions of the Nuremburg Trials (a) Crimes against Peace: namely, planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (3) Crimes against Humanity: namely murder…deportation, and any other inhumane acts committed against any civilian population, before or during the war...in execution of or in connection with any crime…whether or not in violation of the domestic law of the country where perpetrated. 2. 1907 Hague Regulation Convention (XI) Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War Chapter II – The Exemption from Capture of Certain Vessels Article 4. Vessels charged with religious, scientific, or philanthropic missions are likewise exempt from capture. Salient points: 1. The standard for judging the Israeli acts is objective and not subjective. It is irrelevant what Israeli ministers, generals, admirals, or soldiers thought or intended. The test is in what they did. 2. What they did was engage in acts of war using weapons of war in international waters against vessels that are protected not only in peacetime but also in times of war. 3. Israel has therefore committed both crimes against the peace and crimes against humanity. 4. These are crimes that have international jurisdiction. Israeli political and military personnel can be named in trials held in any and all countries of the world. If the Israelis do not attend the trials, they can be tried in absentia, and those decisions in which the Israelis are found guilty can be executed anywhere in the world. 5. Because unarmed civilians were murdered by a preplanned military attack, capital crimes have been committed. While it would appear that the international community no longer finds capital punishment civilized, the punishments for these capital crimes can be multiple life sentences. 6. These crimes give rise to damage claims for huge sums of money and Israeli accounts can be
blocked using decisions finding them guilty. 7. The unarmed vessels were on a philanthropic mission, carrying civilians and humanitarian supplies. Even if Israel were in a state of war with any of these countries, it would be prohibited from capturing the vessels according to the terms of the Hague Convention of 1907.
Conclusion: It follows, therefore, that Israel was first of all not allowed to attack these vessels militarily, and then not allowed to board these vessels by force, capture these vessels, attack the passengers, imprison them on the vessels, forcibly remove them from the vessels, and steal their private property in the form of cameras, computers, clothes, etc. Each and every act carried out by the Israeli military forces in international waters on May 31, 2010, is unqualifiedly and absolutely a violation of international law. Appendix: The Gaza Freedom Flotilla included six vessels on May 31, 2010 1. Mavi Marmara, passenger boat, Turkey 2. Sofia, cargo ship, Greece 3. Gaza I, cargo ship, Turkey 4. Gaza II, cargo ship, Turkey 5. Spendoni, passenger ship, Greece 6. Challenger I, passenger ship, United States The majority of the passengers aboard the ships were Turkish citizens. There were also nationals from Britain, Australia, Greece, Canada, Malaysia, Algeria, Serbia, Belgium, Ireland, Norway, Sweden, Kuwait and the United States. Three German parliamentarians were aboard the Turkish boat that was stormed. There were also two Palestinian Members of the Knesset. Swedish author Henning Mankell was also on board the flotilla.
Lynda Brayer is a human rights lawyer who specialized in the laws of war and international law in representing Palestinians. She lives in Haifa. She can be reached at email@example.com. Andrew Wimmer has written about the use of torture by the United States and has been engaged in political organizing and direct action relating to the practice of extraordinary rendition. He lives in St. Louis, Missouri. He can be reached at firstname.lastname@example.org.
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