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Israel's Misadventure - An Int'l Politics and Int'l Legal Analysis

This week Israel’s attack on flotilla ships carrying aid to Gaza strip found its place in headlines of all major dailies. This legally and politically sensitive issue has refused to die down and media is splashed with passionate anti- Israel sentiments from Arab countries, disapproving statements issued by other countries, breaking of diplomatic ties by Turkey, and a confounded US trying hard to make its commitment to ‘independently enquire into actual happenings of the event’ sound like neutral. But even with all this opprobrium surrounding Israel, from enemies and allies alike, it has refused to lift up the embargo it has put on Gaza strip since the 2006 siege. And has taken into the control second flotilla coming with tones of aid just days after its naval commandos stormed the first flotilla of civilian aid ships.

Politically, the embargo on Gaza and this development in Israel – Palestine Conflict, is elusive yet very interesting. Surrounded by a ring of unfriendly Arab Muslim countries, and sustaining pro- Palestine West Bank and Hamas controlled Gaza strip in the heart of its territory, Israel’s struggle for maintaining its existence is multi fold. Therefore for years it gained sympathy from major blocks, and inspite of  ever growing conflict since 60 years of its existence, it is a developed country with a one of the best Human Development Index in the world. But since the siege of Gaza and the storming of civilian aid ships last week, it has distanced its allies so much so, that its staunchest ally US is also seeing Israel more as a burden rather than asset, a fact conceded to by Isarel’s foreign intelligence, ‘Mossad’.

The latest misadventure of Israel has made it look more like a bully (an art it must be learning from its best friend US!) rather than a country continuously struggling with its enemies inside and outside its borders. And what I do not understand is that how did Israel miss the point that this power show by it could be such a politically and diplomatically damaging move, as had the aid ships reached Gaza, the volunteers would have considered it as a victory over strict embargo imposed by Israel, and if they were to be attacked (which they were eventually) they would be seen as martyrs and Israel would have been bombarded with international comdemnation (which it is being done presently). Therefore it was a win win situation for those protestors. How come Israel did not see through it, or on a second thought, perhaps it did not care much. And it did not care because may be it has stopped caring at all as centuries of violence and persecution faced by Jews has made Israel quick to act defensively, and since offence remains the best defense, the sharp and lethal actions/ reactions of Israel point towards the inherent and deeply embedded sense of insecurity and the constant need to ferociously protect their interests. Perhaps they have learnt from their disturbed past the might is right  - and may be it is!

Legally speaking, Israel has broken an array of International legal rules and standards. However the focus in this blog will be only on Law of Sea, and analysis of other laws shall be dealt in later blogs.

Starting with the law of seas, Israel challenged the most sacrosanct rule of freedom of high seas, the very fact that the ship was seized in International Waters, makes it guilty of breaching the freedom of any vessel in high seas. Any defence or justification forwarded by Israel on the grounds that the flotilla was violating the rules and regulations it has imposed in its territorial sea does not hold ground, as, the laws which are imposed on territorial sea by any State in exercising its sovereignty over such waters do not extend to territorial sea nor even to its EEZ (exclusive economic zone). Here in this case though the news reports explicitly mention the waters to be International Waters and I have been unable to find data as to where the flotilla was exactly located and if those waters had any sui juris status, therefore, even if presuming that those waters had sui juris status, the offensive action of Israel will still not be justified. At this point, MV Saiga No.2 case holds comparative value, wherein a foreign ship was held not subject to Guinea’s general custom laws in latter’s EEZ regime.

Alleviating the option of ‘Right to Hot pursuit’ (enshrined in Art. 111 of UNCLOS 1982) which does not (legally, technically and physically) apply here as right of hot pursuit is given to pursue an offending vessel from territorial waters to High seas (and not other way round!!), one solution, which I, as a humble novice of this law, can think of, is the peaceful arrest of the flotilla as soon they touch the Territorial waters. As the it would be legally viable (also technically and physically) to arrest a vessel which is breaking the laws and rules imposed by the state which in this case would be bringing the non permitted aid items to Gaza by those ships. This would have at the most, invited or rather sparked off the old debate on Israel’s strict naval blockade which regulates, monitors and blocks the unlisted aid items brought to Gaza, and would not have invited international condemnation and wrath to Israel over killing the human rights activists. And now more than all the condemnation what is more deteriorating for Israel at this point of time is that, that due to the killing of 9 Turkish volunteers it has put in the peril its diplomatic ties with once close friend and neighbor Turkey, and distancing its ally US due to such rash and irresponsible act.

Next comes the flouting of procedure of seizing a vessel. The standard procedure is – Visit, Board, Search, Seizure (VBSS). Not wanting to go in details of same and assuring the reader that there is nothing more to the procedure than the standard meaning of words used, it is to be noted that even the Israeli military has admitted that failures of both planning and execution led to the botched raid on a flotilla. If they had been acting according to procedure they would have first landed on the ship, taken it into control, one team would have searched the ship while other would have guarded the crew and passengers, and all this mayhem would have been avoided totally. Instead the commandos landed on the ship and got engaged in a violent fight with the pro Palestine protestors, who were unarmed or scarcely armed with non lethal weapons rather objects like sticks and golf clubs. Thus cornering itself and snatching away any defence Israel might had claimed on the basis that it followed all the international procedure before seizing the ship. But this messed up strategy has made this venture look more like a pirate attack on the flotilla.

The bad idea, strategy and planning has pushed Israel on brink of isolation. I do not know whether there would be any punitive action against Israel for breach of international legal obligations, as I always say International Law is a reluctant law of reluctant nations, it is International Politics which carries the real sanction.


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