Hezbollah declares Lawfare against Israel

Key legal facts relating to the confrontation between the M.S. Mavi Marmara and Israeli forces on May 31st, 2010


Key legal facts relating to the confrontation between the M.S. Mavi Marmara and Israeli forces on May 31st, 2010

· Israel and Hamas are in a state of armed conflict. Hamas controls the Gaza Strip, which is a coastal territory. Following a 2006 Palestinian election in which Hamas won, Hamas took control drove out the Palestinian Authority in 2007.

· The US Department of State designated Hamas a foreign terrorist organization on October 8, 1997[1] and has renewed that designation biannually since 1999.[2] Hamas’ primary foreign backer is Iran,[3] which was designated as a state sponsor of terrorism by the Department of State on January 19, 1984.[4]

· Israel’s blockade is legally valid under international law, as it meets the following criteria:

o The blockade was publicly declared prior to its imposition, which occurred on January 3, 2009.[5]

o The blockade has been, effective in preventing all non-humanitarian vessels from entering the blockaded area.

o The blockade has been applied impartially to all vessels.

o The blockade has not adversely affected access to neutral states.

o The blockade has permitted humanitarian assistance into the blockaded area.

· Israel’s blockade of the Gaza Strip was instituted as a direct response to ongoing acts of terrorism carried out from the territory, including over 10,000 rockets fired at Israeli civilians from 2002 to the present. Therefore, it was clearly notimposed for “the sole purpose of starving the civilian population or denying it other objects essential for its survival,” which would have been unlawful under international law as set forth in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea.

· Though not binding, the San Remo Manual was adopted in 1994 by the nonpartisan International Institute of Humanitarian Law[6] after a six-year compilation period. IIHL states on its website that the Manual “remains the most consulted manual at Naval Military Academies all over the world, and an essential work of reference on a global scale.”[7]The Manual is frequently cited as an authority by governments, academics and non-governmental organizations.

· The San Remo Manual provides that merchant vessels may be attacked when they “are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture.” Furthermore, the Manual provides that “Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.” The Mavi Marmara publicly indicated, and in fact broadcast its intent to breach the blockade and clearly resisted capture through physical violence.

· The San Remo Manual specifies that, “[a]s an alternative to visit and search, a neutral merchant vessel may, with its consent, be diverted from its declared destination.” Similarly, “If visit and search at sea is impossible or unsafe, a belligerent warship or military aircraft may divert a merchant vessel to an appropriate area or port in order to exercise the right of visit and search.” The Mavi Marmara is anomalous among the ships in the Gaza Flotilla in that it was the only ship that refused to be diverted to the Israeli port of Ashdod for safe inspection.

· The San Remo Manual further demands that blockades be effective and impartially applied to vessels from all states. Israel has a duty to enforce its blockade effectively and uniformly.

· This right includes greeting potentially hostile vessels prior to their entry into a coastal nation’s territorial sea – which is to say outside the blockade zone. Precedent for this type of action includes extraterritorial enforcement of blockades by US Presidents Abraham Lincoln and John F Kennedy during the Civil War and Cuban Missile Crisis respectively, British actions during the Falklands War of the 1980s, and current standard operation procedures by both American and Canadian Coast Guard vessels.

· Israel had reasonable cause to suspect that ships in the flotilla might be attempting to smuggle weapons via Gaza’s port. Previously, the Iranian vessel Karine A was intercepted by Israel in 2002 while en route to Gaza and found to be carrying 50 tons of weaponry,[8] while the Gaza-bound Monchegorsk was impounded in Cyprus in 2009 after Iranian weapons were found on board.[9]

· Recent United Nations resolutions condemning Israel’s actions boarding the Mavi Marmara have no basis in any form of customary or treaty-based international law, fail to cite material facts or substantive legal authority, and thereby represent political outrage – not legal procedure.

· The resolution already adopted by the UN Human Rights Council that calls for an international investigation into Israel’s actions bears the condemnatory and conclusory title, “The Grave Attacks by Israeli Forces against the Humanitarian Boat Convoy.”[10] The resolution was brought by Pakistan on behalf of the Organization of the Islamic Conference, Palestine, and Sudan on behalf of the Group of Arab States, and begins by criticizing the blockade before condemning Israel’s “outrageous attack,” and the resultant “killing and injuring of many innocent civilians.” The resolution concludes with a call for “an international independent fact finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance.”

· Article 1 of the NATO Charter calls upon members “to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.” Articles 5 and 6 impose additional obligations on members to maintain security in the North Atlantic and the Mediterranean Sea. Turkey’s complicity in aiding and abetting the Gaza flotilla should be examined by a duly appointed NATO commission to determine whether Turkey materially breached its obligations as a member of NATO.

· The disparate legal responses to Israel’s actions and Turkey’s culpability in aiding and abetting the flotilla, and particularly in allowing the ship to leave port with a number of hostile terrorist sympathizers on board appear to constitute lawfare, which is defined as the use of the law as a weapon of war, or more specifically, the abuse of the law and legal systems for strategic political or military ends. Selective application of legal principles and omission of material facts are common lawfare tactics.

For further reading, please refer to the following international treaties and articles, as well as to the Lawfare Project website at http://www.TheLawfareProject.org

[1] http://www.state.gov/s/ct/rls/crt/2008/122449.htm

[2] http://www.state.gov/s/ct/rls/other/des/123085.htm

[3] http://www.state.gov/s/ct/rls/crt/2008/122449.htm

[4] http://www.state.gov/s/ct/c14151.htm

[5] http://en.mot.gov.il/index.php?option=com_content&view=article&id=124:no12009&catid=17:noticetomariners&Itemid=12

[6] http://iihl.org/

[7] http://www.iihl.org/Default.aspx?pageid=page12044

[8] http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2002/1/Seizing+of+the+Palestinian+weapons+ship+Karine+A-.htm

[9] http://fpc.state.gov/documents/organization/142787.pdf

[10] http://daccess-dds-ny.un.org/doc/UNDOC/LTD/G10/137/84/PDF/G1013784.pdf?OpenElement