legality of boarding ships (re. Israel)

[scm1001]

Please no politics, but just trying to make “legal” sense of the Israeli boarding of the flotilla.

I suppose several questions ask themselves.

1. Does Israel regard Gaza as a separate country now?
2. Under what international agreement or law does it support its blockade under ?
3. Does Israel claim territorial rights to the waters outside Gaza? If say a Turkish warship tried to sail to Gaza could Israel say that it was trespassing in Israeli waters?
4. Is it “legal” to board a ship in international waters and under what circumstances can one take the ship back to harbour?
   thanks

[Tom_Tildrum]

You might also ask about the legality of those aboard the ships using force against the Israeli commandos.

The commenters at Volokh have been discussing the legalities in a couple of threads. Much of it the same old Isr-Pal arguments, but there is some discussion of the relevant international law.

[CookingWithGas]

@scm1001

3. Does Israel claim territorial rights to the waters outside Gaza? If say a Turkish warship tried to sail to Gaza could Israel say that it was trespassing in Israeli waters?
4. Is it “legal” to board a ship in international waters and under what circumstances can one take the ship back to harbour?

There are several pages of coverage of this incident in this morning’s Wall Street Journal, but oddly they don’t squarely address the legality of the actions of either Israel or the ship’s occupants. There is no description of the exact location of the incident, or any commentary as to whether the ships were in international waters.

There is an indirect quote of the Turkish prime minister claiming the ships were in international waters. This claim is unsubstantiated. I have read no counter-claim by Israel that they were in Israeli waters.

It is clear that the flotilla had been planned for some time, Israel was aware of it and also had time to plan for its reaction to it, and the flotilla would have expected an Isaraeli response. This was not a surprise for either side.

@Tom_Tildrum

You might also ask about the legality of those aboard the ships using force against the Israeli commandos.

This seems to depend on the answers to the first questions. IMHO (IANA expert in international maritime law) if you are legally in international waters and are boarded by an armed military force, you have the right to defend yourself with poles and chairs. If you are trespassing illegally in the first place then the question of what you do when boarded is an aggravating factor and not really the main point anyway.

[Teacake]

@Tom_Tildrum

You might also ask about the legality of those aboard the ships using force against the Israeli commandos.

The OP specifically asked about the boarding, not the aftermath, and specifically asked for “no politics”.

OP, there’s a thread in Great Debates which, whilst tiresome in certain posters’ attempts at political point-scoring, may contain some links and quotes that are of some use to you in trying to work this out.

[Giles]

@Teacake

The OP specifically asked about the boarding, not the aftermath, and specifically asked for “no politics”.

Well, if the Israeli forces are boarding the ships unlawfully, then presumably those on board the ships are entitled to self-defense measures. It does seem to be a genuine legal question, and one closely linked with the first one.

[ralph124c]

If the ships were indeed carrying contraband (weapons, etc.), then Israel should have news crews on hand when the cargo is off loaded.
I would have sent naval ships to the Palestinian port, and kept the ships from docking-no casualties and no propaganda shots of Israeli commandos shooting people.

[Malthus]

I’ve asked the exact same question in the great debates thread.

Here’s the limits of my knowledge on the subject. I hope someone with actual experience and information can help.

This all assumes, purely for the sake of argument, that the blocade of Gaza is itself legal.

The primary source of law is the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, which is in effect a restatement or summary of customary international law.

The Manuel is here:

http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/7694fe2016f347e1c125641f002d49ce

The important provisions are sections 146 and 67, which state as follows:

146. Neutral merchant vessels are subject to capture outside neutral waters if they are engaged in any of the activities referred to in paragraph 67 or if it is determined as a result of visit and search or by other means, that they:
     …

(f) are breaching or attempting to breach a blockade.

and

67. Merchant vessels flying the flag of neutral States may not be attacked unless they:

(a) 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;

“Neutral waters” are defined here:

14. Neutral waters consist of the internal waters, territorial sea, and, where applicable, the archipelagic waters, of neutral States. Neutral airspace consists of the airspace over neutral waters and the land territory of neutral States.

All of this tends to show that the attack was legitimate (“attack” here means any sort of interference with the ships running the blocade). The fact that the ships were in “international waters” is irrelevant. The relevant fact is that the ships were not in “neutral waters”.

On the other hand, the United Nations Convention on the Law of the Sea of 10 December 1982 states as follows:

http://www.un.org/Depts/los/convention_agreements/texts/unclos/part7.htm

Article110

Right of visit

“1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;

(d) the ship is without nationality; or

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

4. These provisions apply mutatis mutandis to military aircraft.

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service"

Under these provisions, the important fact is that the ships were in “international waters”. I believe that this is the source of the statements that the Israeli action was “illegal”. However, Israel is not a signatory to the Convention (neither, curiously, is the US). Not being a signatory to the treaty, it is not binding on them.

At least, that appears to be the situation. I’m no expert - I merely looked into the matter on my own. Can anyone provide a more fulsome analysis?

[Tom_Tildrum]

@Teacake

The OP specifically asked about the boarding, not the aftermath, and specifically asked for “no politics”.

OP, there’s a thread in Great Debates which, whilst tiresome in certain posters’ attempts at political point-scoring, may contain some links and quotes that are of some use to you in trying to work this out.

It was a serious statement, and I appreciate those who have attempted to answer.

[Peremensoe]

@Malthus

This all assumes, purely for the sake of argument, that the blocade of Gaza is itself legal.

Well, that’s sort of the crux, isn’t it?

For that, you’d have to start with the OP’s first question, does Israel regard Gaza as a state (with which it is at war, and could therefore act legally in the conduct of an internationally-recognized state of war).

@Malthus

However, Israel is not a signatory to the Convention (neither, curiously, is the US). Not being a signatory to the treaty, it is not binding on them.

Non-signatories are not bound, but neither are they protected. A signatory state might regard any action against their vessels by a non-signatory as ipso facto piracy. On the other hand, it seems Turkey is also a non-signatory.

[Gary_T]

@spark240

For that, you’d have to start with the OP’s first question, does Israel regard Gaza as a state (with which it is at war, and could therefore act legally in the conduct of an internationally-recognized state of war).

But if Israel does not regard Gaza as a state, does it not then regard it as part of Israel? And thus does it not have a right to refuse access to any ships for any reason?

[Malthus]

@spark240

Well, that’s sort of the crux, isn’t it?

For that, you’d have to start with the OP’s first question, does Israel regard Gaza as a state (with which it is at war, and could therefore act legally in the conduct of an internationally-recognized state of war).

The restatement quoted above does not appear to require the existence of a soverign nation as the target in order to have a blocade - which makes sense, otherwise there could never be a “legal” blocade of a successionist territory (for example, should the US South ‘rise again’, the US feds could not legally blocade 'em like they did last time).

The provisions defining the establishment of a blockade simply require the state enforcing it to declare its existance, and obey the rules of war in relation to it:

93. A blockade shall be declared and notified to all belligerents and neutral States.

94. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.

95. A blockade must be effective. The question whether a blockade is effective is a question of fact.

96. The force maintaining the blockade may be stationed at a distance determined by military requirements.

97. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules set out in this document.

98. 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.

I did not see anything here that states that a blockade may not be declared against a territory that is in dispute or lacks a recognized state government.

Non-signatories are not bound, but neither are they protected. A signatory state might regard any action against their vessels by a non-signatory as ipso facto piracy. On the other hand, it seems Turkey is also a non-signatory.

This is significant for Turkey but not Israel, as it is Turkey who, presumably, would be seeking protection for its ship in this case.

Certainly, a state may consider the creation of a blockade to be a provocation sufficient to trigger war. The question, though, is whether the blockade is “illegal”.

[Tom_Tildrum]

What does it mean that the blockade must be “effective”? If Israel had allowed these ships through, would it be subject to a claim in the future that the blockade was improper because letting the earlier ships through rendered it ineffective?

Alternatively, maybe deliberate passage is OK, and “effective” is only not met when the blockader tries to stop ships but fails.

[Malthus]

@Tom_Tildrum

What does it mean that the blockade must be “effective”? If Israel had allowed these ships through, would it be subject to a claim in the future that the blockade was improper because letting the earlier ships through rendered it ineffective?

Alternatively, maybe deliberate passage is OK, and “effective” is only not met when the blockader tries to stop ships but fails.

I assume that means a would-be blockader may not, legally, declare a blockade area that they have no actual physical means to enforce.

[Teacake]

@Tom_Tildrum

It was a serious statement, and I appreciate those who have attempted to answer.

I didn’t mean to imply that your question wasn’t serious. However the OP appeared to me to be asking about very specific things, and your question did run the risk of derailing the thread, throwing it into the “who broke the law first” debates which seem to embody this whole situation most of the time, and denying the OP an answer to their questions. Which were all about Israel’s actions, and not at all (as yours was) about the actions of the people trying to get to Gaza. I should think they would have appreciated answers to their original questions as much as you appreciate answers to yours.

[The_Great_Philosopher]

Here’s what the BBC says:

*   The UN Charter on the Law of the Sea says 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".
* The Israeli Defense Forces say soldiers acted in self-defence.
* An investigation, either by the UN or by the ship's flag-carrier Turkey, is required to find if the use of force was proportionate to a claim of self defence.

Ultimately it seems like it’s all either subjective or based on facts we don’t know. Israel was not allowed to board the ship in international waters; unless they suspected the ship to be carrying weapons or to be breaching a “proportionate” naval blockade. Did they suspect the ship to be carrying weapons? Was the ship actually weapons? Is Israel’s blockade of Gaza “proportionate”? Even if the answer to any of those is yes, the response of the IDF had to be a “proportionate use of force”. Was it?

[signal11]

@Teacake

I didn’t mean to imply that your question wasn’t serious. However the OP appeared to me to be asking about very specific things, and your question did run the risk of derailing the thread, throwing it into the “who broke the law first” debates which seem to embody this whole situation most of the time, and denying the OP an answer to their questions. Which were all about Israel’s actions, and not at all (as yours was) about the actions of the people trying to get to Gaza. I should think they would have appreciated answers to their original questions as much as you appreciate answers to yours.

I tend to agree with the opinion of Giles - the two questions are related. The legality of Israel’s boarding action directly answers the question of the legality (if not the morality) of those on board repelling or resisting the boarding action.

[The_Great_Philosopher]

And just as a side point, I always find these discussions of whether a major action taken by a nation-state is legal “under international law” a bit pointless anyway. There’s no international government, no international police force and no real international army, so the idea that international laws are enforceable the same way national laws are just seems bizarre to me. If you have the power or the international support to get away with something, it doesn’t matter whether it’s “internationally illegal” or not, does it? The question of its legality seems academic and completely redundant in practice. But anyway, back to the topic…

[Teacake]

@signal11

I tend to agree with the opinion of Giles - the two questions are related. The legality of Israel’s boarding action directly answers the question of the legality (if not the morality) of those on board repelling or resisting the boarding action.

Yes, the questions are related, obviously. But as the first answer in GQ, to ask another question which appeared deliberately to lead off into the usual Israel-Palestine debating, it didn’t seem… polite. Not that I’m trying to tell Tom Tildrum (or indeed anyone else) what to do, but I kind of would have liked to see some straightforward answers to the actual original questions, without the politics, myself, too. Anyway, we’ve all been back and more questions have been asked, but I do note that the OP appears to have given up on this thread.

[Malthus]

@The_Great_Philosopher

Here’s what the BBC says:

Ultimately it seems like it’s all either subjective or based on facts we don’t know. Israel was not allowed to board the ship in international waters; unless they suspected the ship to be carrying weapons or to be breaching a “proportionate” naval blockade. Did they suspect the ship to be carrying weapons? Was the ship actually weapons? Is Israel’s blockade of Gaza “proportionate”? Even if the answer to any of those is yes, the response of the IDF had to be a “proportionate use of force”. Was it?

The problem here is that the only source of law cited is the “UN Charter on the Law of the Sea”, by which I assume the BBC reporter means “the United Nations Convention on the Law of the Sea”.

Neither Israel nor Turkey are signatories.

[Malthus]

@The_Great_Philosopher

And just as a side point, I always find these discussions of whether a major action taken by a nation-state is legal “under international law” a bit pointless anyway. There’s no international government, no international police force and no real international army, so the idea that international laws are enforceable the same way national laws are just seems bizarre to me. If you have the power or the international support to get away with something, it doesn’t matter whether it’s “internationally illegal” or not, does it? The question of its legality seems academic and completely redundant in practice. But anyway, back to the topic…

I tend to agree, but I would like to know if the charges of “illegality” have any weight on their own terms.