Experts & Views
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
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And self defence by a nation against non-state actors armed with chairs and golf clubs? Where is the "armed attack"? ICJ has repeatedly held that armed attack has to be of a certain threshold and mere skirmishes do not amount to armed attack.
And what about necessity and proportionality?
Why was it necessary to arrest the vessel on the international waters?
Keep going.
Thank you very much for your kind comments. Before I address any of your questions, I must appreciate your courtsey so shown to me in comment no.3. Thank you again for your kind and encouraging words.
Coming to the points you have raised, they are certainly interesting and engaging points which I missed out completely during my research and writing. And I concede that they should have been addressed more convincingly. However, I do not claim myself to be an expert of International law, I am just a novie who is very interested in the subject and through these blogs I am just trying to enhance my knowledge and sharpen my skills in the subject. So, frankly I am not trying to defend any party out here, its just a dispassionate legal analysis on the basis of all the reprts I can lay my hands on, whether pro Israel or pro Palestine. But I must stress on the fact that comments from readers like you help me broaden my own vision and make me research more and more in the subject.
I would certainly try to find the answers of questions raised by you and try to incorporate them in my next writing. After all, it is readers which make a writer! I hope to stay in touch with you through my blogs. And if you don't mind can I please have your email id, so that I can have further discussions in International Law from someone so good in subject as you.
Cheers!
i just went through aralyah's previous blog on this issue and posted a comment not so much legal. her's above blog is further analysis of last one and i wuld say appreciable analysis. i wuld again maintain that iam nt much into law becoz it's boring but Gaza Strip and Israel has always caught my eye and i cannot stop myself enhancing my knowledge spectrum to which the above blog has added sufficient bandwidth and iam more enlightened. coming to arguments raised by you(#2), here i begin:
raised arguments- Anticipatory self defence:
as some jurists maintain that art 51 incorporates within itself preemptive self defense also referred as anticipatory self defense but owing to complex nature of art. 51 the doctrine is negated by many though it is practiced by Israel on several previous occasions.here i won't be indulging in evolution contents or legal fortifications of this doctrine but would establish that If I were a country surrounded by several vulnerable countries which eye on my natural and historical resources( Israel has both christian and Muslim artifacts and religious places) I would press every possible measure to protect myself even if it is arbitrary to few( hamas and palestine).
even if Israel presses this preemptive measure is there any fault when USA can apply it effectively twice on Iraq and in Vietnam. but this reason won't be applicable in present scenario though it justifies previous rocket attacks on Israeli territory.
Where is the "armed attack"?
art 51 encompasses right to self defense which is triggered only when there happens a armed attack. now what shall constitute a 'armed attack' is laid by ICJ in Nicaragua and partial application of definition of aggression which is concluded as: acts of armed force against another state of such gravity as to amount an actual armed attack by regular forces. but in present incident neither was Israel attacked by a armed force so nor did it retaliated in anticipatory self defense.
the whole idea of application of this doctrine in present condition is worthless( reasons provided in comment to 1st blog on this issue).
Why was it necessary to arrest the vessel on the international waters?
your this question is also partially answered in previous comment where i've provided that since facts are clouded it is still not known as to where the armada was actually arrested. we only know that it was halted when soldiers of Israeli army were attacked by light weaponry when they tried to search the vessel. later they were arrested. but as I've maintained earlier that Gaza's boundaries are surrounded by Israel and it verifies each ship reaching its shores which is not accepted by adjacent Arab nations( why will Pak allow Indian convoy without its scrutiny in POK).
i fully accept aralyah's conclusion that the incident is in limelight due to int'l politics and also add that conflict relates to recognition of disputed territory by other nations same as Pakistan Occupied Kashmir...........
As someone briefly mentioned, you have also missed the doctrine of proportionality. Article 51 of the ILC's Articles on State Responsibility states that countermeasures must commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question. While this is certainly customary law (Gabcykovo-Nagymaros), some authors believe that proportionality has even evolved into a general principle of international law. Either way, Israel has stood in repeated violation of this doctrine, even back in 2009 in its response to the rocket fires on its territory from Palestine. The casualties were around 5 Israelis as compared to more than 1000 Palestinians. This is not taking into account the harsher sanctions imposed on everyday life in the fractured Palestinian territories.
A blockade need not be enforced in territorial waters. In fact it very rarely is, because it exposes the blockading ships to attack from the shore.
An interestin article. But when we talk of "anticipatory' self defence, what exactly are we discussing :
a) Israel's action in boarding the vessel, or
b) The attack on the Israeli commandos by some of the Mavi Marmara's passengers, or
c) The shooting of the nine passengers by Israeli commandos.
"a" does not apply, because a notified blockade is not an act of self defence, nor is its enforcement.
"c" is hardly "anticipatory" as the commandos claim they shot back after they were attacked.
That leaves us with "b". The Mavi Marmara was attempting to run the blockade. Once a blockade is notified it is a requirement that it be continuos, effective and non discriminatory. If these conditions are not met and ships are selectively intercepted and detained, then the blockading state (Israel in this case) could be charged with piracy.
However the defence of anticipatory self defence cannot be sought to be included in self defence, otherwise it would be like giving a blanket opppurtunity to every country which fels itself threatened by such alleged terrorists ships. Israel must be made answerable for its acts, otherwise International law wil be openly flouted by all the nations.
#6- Int'l Irony- You have commented superbly on both my blogs. I found your arguments cogent and strong. In fact your comments have enhanced my knowledge too, and cleared some points I was slightly confused in. Hats off to you, in fact I guess its your comment which has been declared best comment of the week by the LI Team. I would love to interact with you and widen my horizons, can I please have your email id?
@ Anees - I would like to address your point by stating the fact that we have no definite report of the whole incident. Media can show anything it wants to. And I have not tried to be judgemental here as what I intend to do a legal analysis of the situation, and thats why I have written two blogs on this addressing both the perspectives. But I will still hold that, presuming that, flotilla was carrying militants and arms and explosives, then Israel would have been fool not to arrest the vessel. For this I would like you to refer to #6's comments
@dubby- Yes, that is exactly what I want to say. Thank you for stating my point of view so precisely. And thank you for adding the piracy angle, this adds to my knowledge too.
@Yogini- thank you for your kind compliments. what you are arguing against anticipatory self defence is the argument forwarded by the scholars and international legal luminaries, who are against this concept, in the ever brewing academic debate on this topic. However the very fact that doctrine of preemption exists and has been made use of by States again and again, forces us accept the reality that somewhere it has been included in self defence in practice.
Thank you all for your comments!!
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