I have here in this blog intended to write and comment on the international legal perspective surrounding the flotilla incident but since it is difficult to comment on any aspect of International Law without analyzing the real or projected politics behind it, I wish to put this disclaimer, before continuing my blog, that any political or legal analysis here is purely for personal purpose, and I as the author of same, have no affiliation nor subscription to any political wing or ideology; neither to any organization which might have any commercial interest in such writing or ideas. This piece is intended to be purely innocuous analysis of the event, and not intended to hurt sensibilities of any individual, group of individuals or any kind of organization. And this holds true and applicable to my previous and future blogs too.

While the last piece analyzed and discussed the flotilla incident from the perspective of media reports from major (and prominent) channels, this piece I am writing tries to take in view a larger picture and takes into account the small but forceful voices which claim and try to convince that the picture is very different from what is portrayed for us to see. And these voices, mind my friend, cannot be ignored nor rejected.

Some channels of media have suggested on the possible connection of the flotilla and its members from the terrorist organization and it has been alleged that they have been carrying arms and ammunitions to the Gaza Strip, where the naval blockade and embargo still exists. In fact some reports claim that flotilla was sponsored by a terrorist organization that is responsible for quite many attacks on Israel. These counter claims to the popular media reports have come with audio – visual proofs which are loaded in thousands of numbers on You tube. The said videos show a group of activists singing in Arabic, a song that indicates towards killing the Jews. Another video shows a lady activist claiming enthusiastically that there is a victory for them if they are able to break naval blockade and even if they become martyrs for the holy cause. Another powerful video shows the combat between the activists and the Israeli commandos, which shows that the commandoes were really attacked as soon as they touched the board of the ship, and the ‘peaceful’ activists fought with them quite gallantly to say the least. Related to these are reports that many of the Israeli commandoes were just armed with paintball guns.

There are also vociferous reports on how Gaza is practically a developed place with a high standard of living, and one report even claiming that majority of Gazans belong to Upper Middle class. All this is due to their rampant smuggling through the tunnels that bypass into Egypt. These tunnels helps Gazans get the goods in less time and lesser price than what comes through Israeli Naval blockade, thus rendering the external aid unnecessary.

All these reports (presuming them to be true) made me ponder on few points – If it is true that flotilla was sponsored by terrorist organizations, and if the peaceful activists weren’t so peaceful either, then what reasons can be constructed around this event, and what will be their legal status from the point of view of International Law.

The reason that I could construct for Israel’s action against the flotilla is that of Self Defense. And this term self defense, as easy as it sounds, opens a Pandora’s box and hence, the classic debate on limits and legalities of Self Defense starts, which shall be discussed here in context of flotilla incident. And this is to be done while keeping in mind the basis for such discussion that is the possibility of terrorist nature of the flotilla, which opens another thread of discussion related to the State Responsibility in case of terrorist attacks.

Firstly, addressing the classic debate on limits and legalities of Self Defense, this debate is known in legal circles as the debate between in Article 2(4) of the UN charter, which prohibits “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”, and Article 51 of the charter, which impairs “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations”. (For a meaningful reading of this blog kindly look up to the full text of the articles so stated here). For the purposes of our discussion, our focus point in this debate will be the legality of anticipatory self-defense, which is know as Doctrine of Preemption. The world of scholars is divided in its opinion, as it the opposing block says that it is difficult to measure or prove the anticipation of threat, and hence conferring legality on something as abstract as anticipation, is perfect recipe for disaster, as then for every offence, best defense shall be the doctrine. But the supporting block has its arguments rooted in the need to nip the evil in the bud. This block vehemently argues that one cannot wait for real damage to happen before legally acting in self-defense, however it should be proved that the threat was immediate, imminent and real, thereby tracing the language and terminology used in Caroline Case. As far as my humble knowledge in this subject goes, preemptive strikes are legal, provided it is proved that the threat was immediate, imminent and real.

 Coming to the question on how to tackle a terrorist attack, and seeking the answer of this question in light of this debate, two things that have to be noted, firstly, Article 2(4), prohibits the use of force or threat of use of force against any ‘State’, and secondly, Article 51, upholds the Right of Self Defense in case of ‘any attack’, on the Member State. Construing thereby, ‘any attack’ on a member state by a terrorist organization, regardless of the legal personality of such organization, will give it a right of Self Defense (anticipatory self defense too) against such offender. And the act of defense by the State shall be legal, as technically reading Article 2(4), the use of force or threat of use of force is prohibited against any ‘State’ and not against a personality that is not a state.

Therefore coming to the flotilla incident, and looking it from other end of the spectrum, we find that what Israel did was legal as it has an ‘inherent’ right of self defense, which includes anticipatory self defense, which it used against an organization, which Israel suspected to be having terror links and mala fide intentions against the State of Israel. And this action of Israle can get a sanction too if it successfully proves that the danger was imminent, immediate and real.

However, such interpretations of existing laws should not be taken as only means to justify or accuse any State with respect to its acts against or in support of terrorism, what is needed is a solid body of International Law for this contemporary and ever growing problem of Terrorism which is eating into practically every part of the world.

But then, as I always say International Law is a reluctant law of reluctant nations, it is International Politics which carries the real sanction