JURIST Guest Columnist Itzchak Kornfeld of the Faculty of Law at The Hebrew University in Jerusalem says that Israel is in a state of war with Hamas and, pursuant to the UN Charter, has the right to self-defense, including the right to inspect foreign vessels for weapons being brought to the group…

The recent Israeli Navy commando raid on the six-vessel Turkish Free Gaza flotilla has again exploded the Israeli-Palestinian conflict onto the world stage. And as usual, the two sides have staked out their positions. According to Ha’aretz, Captain R., a member of the Israeli naval commando force that raided the lead ship, the Mavi Marmara, characterized the ship’s on-deck welcome as follows: “every commando who entered the ship was met by a number of activists who charged at the soldiers and attacked them. At least 75 percent of the activists took part in what the soldiers later described as a ‘lynch.'” A “lynch” is how the Israeli government is now characterizing the entire affair. On the other side, Turkish activist Nilufer Cetin, who hid with her 1 year old baby in her cabin’s bathroom aboard the Mavi Marmara, told reporters in Istanbul that “[t]he ship turned into a lake of blood….”

In turn, Turkish Prime Minister Recep Tayyip Erdogan and other Turkish leaders claim that the commando raid was a pirate attack on Turkish citizens. Erdogan told lawmakers in the Turkish parliament that “this bloody massacre by Israel on ships that were taking humanitarian aid to Gaza deserves every kind of curse,” and called the Israeli action an “attack on international law.” According to Reuters, Hamas Chief Khaled Meshal called “on all states… to cut diplomatic ties with Israel and urged Moscow and Washington to make it end its blockade of Gaza, after nine people died when Israel raided Gaza-bound aid ships.” Finally, Israeli journalist, Gideon Levy, a reporter for Ha’aretz, wrote mordantly, in an article headlined, Netanyahu Was Right: “Some 7 billion human beings (less about 5 million Israeli Jews ) are wrong. They haven’t got a leader like Netanyahu, and that’s why they go on thinking that seizing passenger ships in international waters is an act of piracy, no different from the deeds committed by the pirates of Somalia.”

The Israeli military has already begun an investigation into the incident that may reveal the facts, or at least some of them. International investigations may follow. However, lawyers across the world have been weighing in on whether Israel violated international law. For example, in a commentary in the Times of London, Mark Stephens, a London based Solicitor, claims that “[t]he actions of the commandos amounted to piracy and a breach of international law… [t]here are strict rules governing what can be done in international waters, and many countries also have laws similar to our Piracy Act of 1837.” However, Mr. Stephens fails to cite any international law to support his claim. Similarly, a leading international lawyer, Iran’s supreme leader Ayatollah Ali Khamenei “called for Israel’s prime minister and defence minister to face trial for the deadly raid on a Gaza aid flotilla in the eastern Mediterranean. The United States, Britain and France must also be held accountable for Monday’s Israeli raid on the aid ships, said Khamenei, who is all-powerful in the Islamic republic,” according to the AFP.

Alternatively, Professor Julian Ku, of the Opinio Juris international law blog wrote an incisive article titled “Did the Israeli Defense Forces Commandos Commit “Piracy”? Nope.” in which he addressed the charge that Israel’s commando raid was an act of piracy. Responding to these political claims Professor Ku cites the United Nations’ Convention on the Law of the Sea (“UNCLOS”). UNCLOS governs numerous maritime activities including the jurisdiction of coastal States and the rights and freedoms of other States. Article 101 defines acts of piracy as follows:

Piracy consists of any of the following acts:

(a) 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:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft….

(Emphasis supplied).

Based on current reports, it does not appear that even the members of the six-ship Free Gaza flotilla or their defenders claim that the Israeli Navy commando raid was “committed for private ends.” Indeed, the commandos boarded the ships for public purposes, which are just the opposite of private purposes. Moreover, in the broad legal spectrum, piracy cannot be committed by national ships, only by private ships or by national ships that have been taken over by their crews.

UNCLOS article 101 is considered a general definition of piracy under customary law. See e.g., the International Law Commission’s 1956 commentary to their draft convention on the law of the sea, later adopted as the Convention on the High Seas.

By way of background, prior to UNCLOS’ adoption in 1982, customary law did not authoritatively define piracy. For example, in its 1927 decision on the S.S. Lotus, the Permanent Court of International Justice held that “[P]iracy by the law of nations, in its jurisdictional aspects, is sui generis.” Indeed, as the noted twentieth century British international law publicist J. L. Brierly noted in his book The Law of Nations: “There is no authoritative definition of international piracy, but it is of the essence of a piratical act to be an act of violence, committed at sea or at any rate closely connected with the sea, by persons not acting under proper authority.”

The Proportionality Question

Luca Schicho, Dr. Iur. candidate, at University of Vienna, Faculty of Law, has asked the following question: if piracy is not the central question here what is? The answer is how much “legal” force Israel used against the flotilla, i.e., the question then revolves upon the European concept of proportionality. This issue was also raised by Chancellor Angela Merkel of Germany on May 31, 2010, who also noted that a neutral fact finding determination is required if the questions regarding proportionality are to be truly answered. Chancellor Merkel appears to be raising a political issue.

In contrast, the legal answer was was dealt with by the the International Tribunal on the Law of the Sea (“ITLOS”), the tribunal set up by UNCLOS, in its 1999 decision in the MV Saiga Nr. 2 (St. Vincent v. Guinea) case. In discussing whether the force used by Guinea in stopping and boarding the Saiga was excessive, the Tribunal asserted that it was required to consider the circumstances of the ship’s arrest, ruling that “Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention [of the Law of the Sea], requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.” (para. 155 of the opinion).

Finally, where does Israel – or for that matter any State – base its jurisdiction to board the flotilla’s ships? That power arises from Article 51 of the United Nations Charter. Article 51 provides the following:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

This entire episode arose out of Israel’s blockade of Gaza. It is well known that Israel is at war with Hamas, the governing body in Gaza – who is also at war with the Fatah (the Palestinian Liberation Organization), which governs the West Bank, and whose members were cast off of the tops of buildings to their death in June 2006 – and therefore, pursuant to the UN Charter, has the right to self-defense, which includes boarding foreign vessels to check if they are bringing weapons to its enemy.

Itzchak Kornfeld is a researcher at the Hebrew University of Jerusalem Faculty of Law. His e-mail is kornfeld.itzchak@mail.huji.ac.il