Tuesday, 1 June 2010

Enter The Israeli Pirates

"Its 3.30 AM. The waves caress the hull of the ship as I doze off in my cabin. The sun has not yet sun greeted the sky but the moon, having pulled an all nighter - and thus quite tired -, prepares to exit its solitary nocturnal adventure. Enter the whales and dolphins. Everything feels right...when suddenly, BAM! A group of armed men storm our ship, wake us up and, by threatening lethal force, demand control of the ship. The captain is held at gun point. I fear for my life. In the chaotic chain of events that followed, 9 crew members were killed."

I know what you may be thinking. And no, the above narrative is not a depiction of what happened on board the Mavi Marmara, the Turkish ship carrying aid to Gaza on May 31 2010. It could have been, but that was not my intention.

My depiction concerns maritime piracy. Piratical acts usually involve the boarding of a ship with the intent to dispossess the crew from the ship or of property found therein. In legal terms, it would be far fetched to characterise Israel's conduct as piratical.

However, a closer alternative analysis suggests otherwise. The Mavi Marmara incident occurred about 40 miles (64 km) out to sea, in international waters. International waters is an area that is vulnerable to a number of piratical acts. Pirates board the ship with weapons and seize the ship through the use force. Although the exact facts have not yet been established with regards to the Mavi incident, it is apparent that the flotilla heading to Gaza did not pose any threat to the Israeli State. The ships were, afterall, intended to deliver aid to Gaza.

There can be no doubt that the flotilla's actions were an act of human solidarity. By boarding the ships in international waters, Israel's conduct constituted a deprivation of the activists' good faith attempt to assist others in need, and figuratively to disagree with the blockade imposed by Israel. To this end, Israeli forces dispossessed the freedom of speech of the activists and humanitarian workers - their freedom to disagree with Israel's conscious deprivation of aid to people living in Gaza.

Some would argue that such acts merit greater stigma from the international community than the piratical seizure of a cargo ship for financial benefit. It is therefore contended that what Israel did was worse than an act of piracy as it deprived not only the people of the ship of their political freedom but also an entire population's basic necessities.

A note on the legal position of the incident: The UN Charter on the Law of the Sea (UNCLOS) stipulates that only if a vessel is suspected to be transporting weapons, or weapons of mass destruction, can it be boarded in international waters. Otherwise the permission of the ship's flag carrying nation must be sought. The charter allows for naval blockades, but the effect of the blockade on civilians must be proportionate to the effect on the military element for the blockade to be legally enforceable. A ship trying to breach a blockade can be boarded and force may be used to stop it as long as it is "necessary and proportionate". Clearly the blockade here was grossly disproportionate.

Perhaps these events demonstrates the natural limitations of international law. By continuing our parallel comparison with piratical acts, the analysis of piracy at sea helps general legal scholarship to understand the perplexity of the international legal order. Indeed, as Professor Kontorovich put it “the abject failure of the international response to piracy is a cautionary tale about the limits of international law.” In the same vein, I anxiously await the international community's response to the Mevi incident. Will it also be characterised as an abject failure?

What happened on board the Mavi Marmara highlights the inherent socio-political and religious tensions interwoven in Isreali-Palestinian relations. Such tensions will not be resolved by a single solution - the synergy of many tools will be required to resolve the hostility between both States. However, it appears that, once again, Israeli foreign policy has gone too far. Let the drafters of their policies be respectfully reminded that they are not above international law, nor are they superior to humankind's conscience.

1 comment:

Anonymous said...

Hits the nail on the head. Good job.