US BOAT TO GAZA’s ship, The Audacity of Hope Athens, Greece Photo: Aaron Maté
Attorney General Eric Holder is being called on, again, to support a lawsuit aimed at last year’s Gaza Freedom Flotilla, by employing a rarely-used neutrality law that would allow the US to seize vessels that tried to break Israel’s blockade on Gaza.
Mavi Marmara Photo: Stringer Turkey / Reuters
The plaintiffs want to get their hands on the Mavi Marmara and 13 other Gaza flotilla ships, including presumably the American boat, The Audacity of Hope in Greece.
The person who filed this lawsuit is an American living in Jerusalem, Dr. Alan J. Bauer. He’s being assisted by Shurat HaDin (the rightwing Israel Law Center). Remember them? Specializing in lawsuits against “terrorists” and combat voyeurism:
Shurat HaDin – an Israeli “lawfare” group that set up legal roadblock after roadblock against “Gaza Freedom Flotilla II” last year – has for several years offered tours of Israel that take in the sort of sights a military fanboy would love, from Hezbollah watching on the Lebanese border to visiting the IAF units that carry out targeted killings and viewing military trials of alleged Hamas operatives (that was part of the 2011 trip). Also, there is a BBQ. The one-week trip costs around US$3,000 and is billed as “Taking it to a Whole New Level,” “The Ultimate Mission to Israel”………..one of this year’s highlights is a trip to the undisclosed naval base where the Israeli navy is holding flotilla ships it’s impounded.
The precedent-setting lawsuit, which has since been transferred to the District of Columbia District Court, asks the US authorities to seize the flotilla vessels on the grounds that groups and individuals – including the Free Gaza and US to Gaza campaigns – violated US law by raising funds in the US to furnish and fit out the ships, whose intent was to commit hostilities against US ally Israel.
The flotilla ship Mavi Marmara, owned by the Hamaslinked Turkish Islamic group IHH, sailed from its dock in Antalya, Turkey, on May 26, 2010, in order to meet up with several other ships in international waters off the coast of Cyprus. Several days later, on May 30, 2010, the Gaza Freedom Flotilla vessels set sail from those international waters to Gaza. The IDF raided the flotilla a day later, on May 31, 2010.
Significantly, in the lawsuit, Bauer argues that he is acting as an “informer” to the US authorities under section 962 of the US Code of Laws, an old and rarely-used piece of legislation that allows a plaintiff to seize vessels outfitted in the US for use against an American ally state. The legislation entitles the informer to 50 percent of the proceeds of the forfeited ships.
Last week, US District Court Judge Rudolph Contreras asked the US Department of Justice to file a statement of interest by June 29, regarding whether Bauer as a private citizen has the legal standing to bring the lawsuit.
Greta Berlin, co founder and spokesperson for the Free Gaza Movement, doesn’t seem phased and will not be deterred. She tells me:
No one from this faux Israeli intelligence agency has ever contacted any of us. They have not issued warrants, orders to appear (or disappear) or been served with anyone other than propaganda.
The Audacity of Hope is still in Greece and we are making arrangements for other groups to use it. Most of us are working on the new initiative called Gaza’s Ark and have no intention of stopping our work to free the people of Gaza from Israel’s illegal blockade.
Let the hell fun begin, election year ding dong: “The Audacity of Hope impounded by the US gov’t!” It begs the question, how low will Obama go to appease the Israel lobby? Will they split the proceeds and allow The Audacity of Hope to be seized by Shurat HaDin’s combat voyeurs? Will tourists board the Mavi Marmara and oogle all over the deck where an American citizen, Furkan Dogan, was murdered at point blank range along with 8 other Turkish victims?
This is a resuscitated stunt by an outfit in cahoots with Netanyahu’s office designed to put Obama between a rock and a hard place in the run up to elections.
The zios gang has always used US courts like their own private mafia collector and enforcer…’Sue” is their middle name. I can’t even list all the bizarre lawsuits I have seen by the Israeli or holocaust or victim groups, it’s in the hundreds, maybe thousands.
People should start suing them in other countries courts not so friendly to zios and seizing their assets..that might slow them down…I don’t know why more people don’t do that.
When I look at Obama I see a man who is averse to or afraid to make powerful enemies both as a man and a politician.
It’s really pathetic because he has or had more power than anyone, all that ‘Hope’ power with the public and the world after his election, but he didn’t use it because he doesn’t really trust Americans to accept some truth and rally around it or him.
So now he’s just another politician, getting elected by pandering to niches and identities. Yesterday it was gays, today he’s pandering to illegals on immigration, tomorrow it will be public employees and so it goes on and on while Romney will be pandering to Christians, anti abortinist and gay haters.
I notice that some pundits are finally beginning to put down the pandering and niche campaigning of Obama and Romney.
‘It’s really pathetic because he has or had more power than anyone’
Yeah. I opposed him because I didn’t agree with many of his ideas. However, we were (and are) in a heck of a mess, so once Obama won, I took the position, ‘okay. let’s do it his way.’ Point being, we have to move. In which direction has almost become secondary. Staying where we are won’t work.
He couldn’t put anything in the end zone. The guy is just terminally weak. He always settles for crumbs. It’s like the school yard, and the bully comes up and demands his lunch. Obama tries to negotiate and is allowed to keep one carrot stick. It’s pathetic — and everyone from Congress to Israel has his number.
He is way, way out of his depth. The guy is about qualified to be a state assemblyman, and that’s all he should be.
There was a notorious legal case in federal court in 1917 entitled United States v. Motion Picture Film “The Spirit of ’76″ which upheld government seizure under the Espionage Act of a movie about the American Revolutionary War because it depicted atrocities committed by British soldiers and might therefore undermine support for an ally.
If nothing else, the suit will probably be kicked on political question grounds.
He is right that the fundraisers could be prosecuted for financing an act of war against a country with which the U.S. is not at war, but that is the government’s call, not his.
This guy no more gets to set foreign policy for the U.S. than the flotilla people do.
financing an act of war
more garbage postings
“more garbage postings”
When Fredblogs visits the Wizrd he’ll have a present for him, and then he can go home the way he likes, 100% straw man.
Sorry if it makes you feel bad, but running a blockade is an act of war. Whether you like the blockading country or not. It is a fact that it is an act of war. It is also a fact that the U.S. has laws against financing acts of war against countries that the U.S. is not at war with.
Sorry if it makes you feel bad, but running a blockade is an act of war.
Please provide a citation Fred. Admiralty Law has always held that passengers and crew of blockade runners were not to be treated as prisoners of war and that liability was limited to seizure of the ship and its cargo, subject to a decision obtained from a prize court. You know, those steps that the Israelis and their supporters always forget.
The San Remo Manual stipulates that
The Helsinki Principles on the Law of Maritime Neutrality provides that
The Commentary on the San Remo Manual (page 191) says:
Happy to oblige. San Remo Manual. crew are POWs from the get go. 166c neutral vessels crew, committing offense under paragraph 67. specifically 67a, breaching a blockade and after prior warning refuse to stop. Passengers only if they fight.166a
As for your cites, Israel doesn’t confiscate the cargo, they either send it on to its destination or send it back with the ship.
Fredb:
THE MYSTERIOUS SAN REMO TREATY, HASBARISTS’ DELIGHT
Whenever Israel gets itself into serious hot water and kills a lot of people and looks really bad in the process, if it can, the MFA and the rest of the hasbara brigade goes into overdrive, dusts off all the possible avenues of defense they can find. Lately, with the Gaza flotilla shortly to embark on its attempt to break the illegal Israeli blockade of Gaza, and with memories fresh in the world’s mind of the nine dead bodies shot at point blank range by Israeli naval commandos, hasbarists are turning to an obscure international treaty to defend the indefensible: the collective punishment of 1.5 million Gazans by Israel’s armed forces.
I’m so tired to hearing these chirping hasbarists crickets all singing the same song (I must’ve had six different commenters in the past year who each separately raised San Remo as justification for the blockade) that I wanted to thank a commenter who pointed me to a rebuttal of the San Remo argument. It was written by a former British ambassador, Craig Murray. And before you question his credentials, let’s present them:
…Former Head of the Maritime Section of the Foreign and Commonwealth Office. He negotiated the UK’s current maritime boundaries with Ireland, Denmark (Faeroes), Belgium and France, and boundaries of the Channel Islands, Turks and Caicos and British Virgin Islands. He was alternate Head of the UK Delegation to the UN Preparatory Commission on the Law of the Sea. He was Head of the FCO Section of the Embargo Surveillance Centre, enforcing sanctions on Iraq, and directly responsible for clearance of Royal Navy boarding operations in the Persian Gulf.
I quote Ambassador Murray in full (italics are mine):
Why San Remo Does Not Apply
Every comments thread on every internet site on the world which has discussed the Israeli naval murders, has been inundated by organised ZIonist commenters stating that the Israeli action was legal under the San Remo Manual of International Law Applicable to Armed Conflicts at Sea.
They ignore those parts of San Remo that specifically state that it is illegal to enforce a general blockade on an entire population. But even apart from that, San Remo simply does not apply.
The manual relates specifically to legal practice in time of war. With whom is Israel at war?
There is no war.
Israeli apologists have gone on to say they are in a state of armed conflict with Gaza.
Really? In that case, why do we continually hear Israeli complaints about rockets fired from Gaza into Israel? If it is the formal Israeli position that it is in a state of armed conflict with Gaza, then Gaza has every right to attack Israel with rockets.
But in fact, plainly to the whole world, the nature and frequency of Israeli complaints about rocket attacks gives evidence that Israel does not in fact believe that a situation of armed conflict exists.
Secondly, if Israel wishes to claim it is in a state of armed conflict with Gaza, then it must treat all of its Gazan prisoners as prisoners of war entitled to the protections of the Geneva Convention. If you are in a formal state of armed conflict, you cannot categorise your opponents as terrorists.
But again, it is plain for the world to see from its treatment and description of Gazan prisoners that it does not consider itself to be in a formal position of armed conflict.
Israel is seeking to pick and choose which bits of law applicable to armed conflict it applies, by accepting or not accepting it is in armed conflcit depending on the expediency of the moment.
I have consistently denounced Hamas rocket attacks into Israel. I have categorised them as terrorism. If Israel wishes now to declare it is in armed conflcit with Gaza, I withdraw my opposition and indeed would urge Hamas to step up such attacks to the maximum.
Does Israel really wish to justify its latest action by declaring it is at war with Gaza? That is what the invocation of San Remo amounts to.
So please no more references to San Remo. It’s a red herring argument.
link to richardsilverstein.com
We all answer the San Remo Manual for the same reason that if you ask 10 people what 2+2 equals, then 8 or 9 of them will say “4″. It’s the right answer. There are no parts of the San Remo manual banning “a general blockade on an entire population”. There are parts that ban blockades for the sole purpose of starving people (this one is for the purpose of keeping out weapons) or if the damage to the civilian population is excessive compared to the military gain. Which is a matter of opinion and not exactly a tough hurdle as long as the Palestinians continue to fire weapons at Israel and the Iranians are prepared to give them better weapons. It especially isn’t the case because Israel lets in any food or humanitarian shipments after inspection.
The manual relates to armed conflicts, that’s actually right in the title. There is nothing in it that requires a full scale or even a declared war to be going on before a blockade can be put in place, just an armed conflict. Which this is.
Oh, and I’m sorry, but next time you cut and paste your entire argument, I’m just going to ignore it. I consider that cheating.
Happy to oblige. San Remo Manual. crew are POWs from the get go. 166c neutral vessels crew, committing offense under paragraph 67. specifically 67a, breaching a blockade and after prior warning refuse to stop. Passengers only if they fight.166a
You ran several red lights on your way to Article 166 that made the attempt to capture the vessels on the High Seas patently illegal and justified the resistance offered by the passengers and crew. You forgot to mention that it says the passengers and crew are normally supposed to be released and are not to be made prisoners of war. BTW, there were hundreds of passengers and only a handful offered any resistance.
– link to icrc.org
*Note 70 only applies to aircraft. 60 and 63 only apply to enemy vessels. 67 only applies to vessels that are actually breaching a blockade, and only when, after prior warning, they intentionally and clearly refuse to stop. Both the Secretary General’s Inquiry and the UN HRC Inquiry determined that the flotilla was attacked without warning or having been asked to stop. The attack took place in international waters 64 nautical miles from the Blockade zone.
So please provide a cite which says that the flotilla violated the actual blockade zone. All of the international inquires determined that they did not (see below). While you’re at it, you’ll also need to cite “a permissive rule of law” that allows the IDF to ignore the exclusive territorial jurisdiction of the Neutral flag state when the “Area” of naval operations in question is defined as “the High Seas” in accordance with UN Convention on the Law Of the Seas (UNCLOS). You see, that’s an explicit violation of international law and the provisions of Article 12 of the San Remo Manual. It recognizes the sovereignty and exclusive jurisdiction of the vessel’s flag State.
Let’s review:
*The San Remo Manual does not constitute a ratified international agreement that preempts other conventions or customary laws.
*Section I: “Scope Of Application Of The Law” informs everyone that the parties are bound by international law from the moment that a conflict begins – and that in cases covered by other international agreements (such as the UNCLOS) civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience.
link to icrc.org
*Where you missed the boat is “Section IV : Areas Of Naval Warfare”. It permits the belligerents to conduct operations on the high seas against one another, but Article 12 contains a general prohibition:
–http://www.icrc.org/ihl.nsf/WebART/560-04?OpenDocument
The following sections explain why Israel was prohibited from boarding foreign flagged vessels without consent 64 miles from its blockade zone on the high seas.
The official commentary notes that “Area” is defined in accordance with the UNCLOS. It also notes that:
– link to books.google.com
Under conventional law, reflected in Part VII “High Seas” of the UNCLOS, and universal rights flowing from the general customary rule reflected in the S.S. Lotus decision, and Article 12 of the Rome Statute, the flag State has exclusive territorial jurisdiction over vessels operating on the high seas. The UNCLOS says:
link to un.org
*The Oxford Manual of 1913 and the San Remo Manual of 1995 were unratified attempts to codify customary law by a small number of participating States. The Manuals actually conflict with articles 3 and 4 of “The Convention on Restrictions With Regard to the Exercise of the Right of Capture in Naval War (Hague XI); October 18, 1907″. Article 3 provides that even in territorial waters, local fishing vessels and their appliances, rigging, tackle, and cargo are exempt from capture, unless they engage in actual hostilities. Article 4 stipulates that vessels charged with religious, scientific, or philanthropic missions are likewise exempt from capture. link to avalon.law.yale.edu
The general rule in the S.S. Lotus case is that the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form against the territory of another State.
The UNCLOS contains no permissive rule to the contrary for blockades on Areas of the High Seas. The only exceptions are for repression of slavery, piracy, illicit traffic in narcotic drugs or psychotropic substances, and illegal broadcasting. — link to un.org
Even the most favorable inquiry into the attack noted that the flotilla was a very great distance from the blockade zone and that the IDF did not actually request the vessels to stop and permit a boarding party to come on board for a visit or inspection:
FYI, the documentary history of major US foreign policy decisions indicates that both Israel and the US consider blockades of international waterways to be illegal, e.g.
*President Johnson and Abba Eban both considered the Gulf of Aqaba to be an international waterway and felt that a blockade of Israeli shipping was illegal and potentially disastrous to the cause of peace.
link to history.state.gov
*Prime Minister Eshkol also claimed that the blockade was illegal and an act of defiance against the international maritime community.
link to history.state.gov
During the UN Diplomatic Conferences on the Law of the Seas, the Law of Treaties, and the Establishment of the International Criminal Court the only references to blockades were ones which defined them as 1) a threat or use of force prohibited by the UN Charter; 2) a crime against humanity; 3) a crime of aggression. Use full text search: link to untreaty.un.org
The commentary on the San Remo Manual indicated that there was no consensus that blockades of coastal waters were necessarily legal:
The conclusion was that such a blockade would be illegal in either event due to the rule of proportionality. — link to books.google.com
166 doesn’t say to release the passengers and crew unconditionally, they lay out the conditions under which they can be held as POWs. Which conditions exist here. Israel just magnanimously chooses not to hold the crews as POWs even though under the clearly laid out rules, they can.
The UNHRC can find that black is white, that doesn’t make it so. There is audio footage of the radio room of an Israeli ship that proves that the flotilla ships clearly and deliberately refused to stop after clear warnings.
link to youtube.com
As for UNCLOS, Sorry, Neither Israel, nor Turkey is a signatory to that treaty.
As to blockade of Eilat, it was an act of war against Israel, not illegal. Presidents and prime ministers are often loose and inflammatory with their terminology.
Back to San Remo. International waters don’t matter. You can stop and search anywhere other than the territorial water of a neutral state. Says so right in the manual. Technically, once they declared their intentions, they were subject to being stopped the minute they left their previous port country’s territorial waters.
Also, as I said, the Israelis allow food through after search. Therefore, the blockade can’t be starving anyone. Has there been even one death from starvation in Gaza since the blockade started?
There are no parts of the San Remo manual banning “a general blockade on an entire population”.
That’s completely irrelevant, since the San Remo Manual has never been opened for signature or accession as a binding international agreement. Article 102 explains a few relevant situations in which the declaration of a blockade is indeed prohibited. Those prohibitions are contained in other binding documents that reflect customary international law.
In Judge Stephen M. Schwebel’s, Justice in International Law, Chapter 33, Aggression, Intervention, and Self Defense in Modern Law, the former ICJ President noted that when the General Assembly adopted the consensus Definition of Aggression it was concluding more than fifty years of sporadic discussions among the members of the international community of states on that subject. The definition included blockades as specific examples of constituent acts of the crime of aggression. In the Paramilitary Activities in and Against Nicaragua” case, which dealt specifically with the mining of Nicaraguan harbors, the ICJ ruled that the definition reflected binding customary international law. After the 1995 San Remo Manual was published, the definition was incorporated into amendments to the Rome Statute of the ICC. The amendments were adopted during a review conference in 2010, held shortly after the attack on the flotilla.
According to the official San Remo commentary, one of the situations in which a blockade against a general population would be prohibited is one in which malnutrition and stunted growth and permanent developmental problems among a clinically significant percentage of the children living in the blockaded territory are observed. See the New York Times article on the Lancet report: Gaza’s Stunted Growth Problem. It explains that in pockets of northern Gaza 30 percent of children suffer from stunted growth and permanent health problems. link to topics.blogs.nytimes.com
The responsible treaty monitoring bodies and humanitarian watchdogs have repeatedly put Israel on official notice about the problems of hunger and malnutrition. So, there is ample evidence of on-going criminal intent, mens rea, to support charges under either the genocide or aparthied conventions, i.e. :
I’ve pointed out on several occasions that the official commentary on Article 102 explained that many of the 28 participants concluded that binding treaty protocols had already rendered naval blockades illegal under any circumstances. All of the participants concluded that if malnutrition were a side effect that would be unlawful under the rule of proportionality. See the commentary on page 179 link to books.google.com
166 doesn’t say to release the passengers and crew unconditionally, they lay out the conditions under which they can be held as POWs.
Fred your desperation is showing. The question is governed by customary and conventional international laws contained in the 4th Geneva Convention, its Protocols, and the UN Convention on the Law of the Seas. Using circular logic to justify recursive trips through a non-binding document over and over again is pointless.
As for UNCLOS, Sorry, Neither Israel, nor Turkey is a signatory to that treaty.
Mavi Marmara was flagged in Comoros, which is a signatory of the Charter of the League of Arab States, the UNCLOS, and the Rome Statute. The League Secretariat filed a fact finding report with the ICC Prosecutor alleging that the blockade of Gaza is illegal. FYI, the ICJ and PCIJ rulings on the jurisdiction of flag states and the prohibitions of slavery, piracy, drug trade, and illegal broadcasting all say that state practice shows that those are incontestably part of binding customary international law.
Both Israel and Turkey are unconditionally bound by the customs reflected in the UNCLOS. Customary law reflected in the Geneva Conventions applies to the belligerent parties from the moment a conflict begins whether they are signatories to the applicable conventions or not.
You keep ignoring the requirement for Israel to observe the rights, sovereignty, and jurisdiction of flag states on the high seas in accordance with both convention and custom per the guidance and commentary on Article 12 of the San Remo Manual. You also have a definition of “attempting to breach the blockade” that can’t be found in the Manual and which none of the international inquiries has accepted.
The UNHRC can find that black is white, that doesn’t make it so.
I was quoting the findings from paragraphs 110-117 of the Secretary General’s “Palmer Inquiry”, not the UN HRC. However, both international inquiries said that Israel acted unacceptably, prematurely, and while the ships were a great distance from any enforceable blockade zone. They also agreed that the attack began without any request for the vessels to stop or allow boarding parties to come aboard. Palmer labelled that “unacceptable”, which is not a synonym for “legal” and UNHRC found it criminally illegal.
Article 67 of the San Remo Manual simply doesn’t apply. FYI, neither the passengers nor the crews were ever treated or classified as “prisoners of war” under the terms of the Third Geneva Convention. In fact, both international inquiries noted that the passengers were subjected to forms of abuse that are strictly prohibited by the provisions of GC III or GC IV.
You are right American, Shurat Hadin are taking legal action against all activists against Israel, even cases which have absolutely no merit, but they have deep pockets and they know a majority of people can be censored and intimidated into silence or inaction simply with the possible burden of costs and/or bad publicity, they are legal thugs. Philip Giraldi had an excellent article on them over at Antiwar.com May 23, 2012, Terrorizing Through Lawfare.
It looks like the point of law is going to be:
“…commit hostilities against US ally Israel…”
i.e. with the exception of US and Israel, every. single. word. i.e. frivolous.
Ally as a legal concept in particular seems to be the fulcrum. I can’t imagine a court according Israel “ally” status without an actual treaty. But as everyone here knows, on this issue these strained, extrapolating hyper-ventilations have a nasty habit of catching on.
In a rational world/court system, I’d say tossed. Contreras is an Obama appointee who seems to have a civil rights background. So maybe tossed quickly, but who knows.
link to dcd.uscourts.gov
Thanks.
It doesn’t actually matter. The law in question are about countries that the U.S. is not at war with, not about allies.
“or people with whom the United States is at peace”
link to law.cornell.edu
The questions here are whether a private individual has standing to bring the case (I’d think probably not) and whether “hostilities” includes all acts of war or only violent acts of war.
That’s what I thought – no sane person could interpret the transport of food, medicine, wheelchairs etc as intent to ‘commit hostilities against a Israel’. The only hostility, as ever, was from the Israeli military in areas where they have no jurisdiction. You would also have to question what status as an ‘ally’ Israel has, given its acts of violence against Americans, whether the Liberty or individuals like Rachel Corrie, and its numerous spying activities. Arguably Israel acts against the interests of the US, and as such it would be surely more pertinent to take them to court for their seditious acts, endangering US citizens and causing others to want to do harm to them. It is frivolous, mendacious and should be treated as such.
Although no doubt the lobby will be working overtime to nobble the judges and officials, as usual.
“…commit hostilities against US ally Israel…”
I suspect that Eric Holder won’t even bother to reply to a request. This statute was never intended to be used by an informer to force the government to impound unarmed vessels. The Audacity of Hope was not, and is not, an armed vessel or battle cruiser. The US government has never impounded it on the basis of information provided by the informer, Mr. Bauer. So the plaintiffs have failed to state a claim for which relief can be granted by the Court (50 percent of nothing is nothing). See 18 U.S.C. § 962 : US Code – Section 962: Arming vessel against friendly nation
Most of the other vessels named in the original complaint filed in New York had never even visited a US port. So there was no apparent nexus for the US to exercise its limited maritime jurisdiction.
In any case, I think Eric Holder will start impounding foreign-flagged humanitarian aid vessels for committing “acts of war” when pigs fly. In recent years the US government has repeatedly expressed concern when other governments have targeted NGOs and NGO workers for arrest or expulsion from regions embroiled in armed conflicts. There is a principle of customary international law reflected in the Geneva Conventions and the 1st Additional Protocol which discourages treating any offer of humanitarian aid as a hostile act.
I think you’re right for once, Hostage. It is unlikely that a court will grant standing to a private individual under this law. Also, for political reasons, the U.S. government is unlikely to prosecute people who have committed violations of this law in a non-violent manner (or even a violent manner such as on the Mavi Marmara), even if “hostilities” does mean “all acts of war” rather than “violent acts of war”.
Also, for political reasons, the U.S. government is unlikely to prosecute people who have committed violations of this law in a non-violent manner (or even a violent manner such as on the Mavi Marmara), even if “hostilities” does mean “all acts of war” rather than “violent acts of war”.
#PropagandaFail, the passengers of the Mavi Marmara didn’t attack and board any Israeli vessels in international waters – and they were 60 miles outside the published coordinates of any Israeli blockade.
FYI, Turkey was the petitioner in the S.S. Lotus Case in which the PCIJ affirmed that the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form against the territory of another State. Foreign-flagged vessels and aircraft are considered part of the territory of the flag State. There is no permissive rule that allows a State to enforce a blockade outside the declared coordinates.
Except that they are only territory for some purposes, which don’t include breaching a blockade. Otherwise there would be no such thing as a legal blockade. Sorry, but when your assumption about the legal status of something results in a conclusion that would wipe out an entire body of law, if you were right, then your assumption is wrong. Oh, and the San Remo manual allows blockades to stop ships in International Waters.
San Remo 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
“Subject to Capture outside neutral waters”. “Neutral waters” are the territorial waters of a neutral country (San Remo 14). International waters are therefore “outside neutral waters”. So neutral ships attempting to breach a blockade are subject to capture in international waters. Q.E.D.
Except that they are only territory for some purposes, which don’t include breaching a blockade.
I notice that you couldn’t provide a citation for that bogus claim about “breaching the blockade” before, and that you still haven’t.
I’ve provided you with a very specific citation to Part VII, High Seas, Article 92, “Status of Ships” in the UNCLOS which explicitly states that “save in exceptional cases expressly provided for in international treaties or in this Convention” ships shall be subject to the flag State’s exclusive jurisdiction on the high seas.
That exclusive jurisdiction is recognized in both general and customary international law. I notice that you failed to find an international treaty with an express provision or “permissive rule to the contrary” for blockades that would allow the IDF to ignore the guidance contained in Article 12 of the San Remo Manual guidelines:
The laws that you tried to cite on “Protected Persons”, Articles 161-168, are codified in the Geneva Conventions. Protected persons are those “who find themselves in the hands of a Party to the conflict of which they are not nationals.” As the IDF advances onto the neutral territorial jurisdiction of another High Contracting Party – and its soldiers come into contact with civilians – its obligations under the Geneva Conventions are automatically triggered. Commanders and their subordinates can only ignore those obligations with respect to wounded or surrendering passengers at their own peril.
For example, Articles 8(2)(b)(1) and 8(2)(b)(2) together with Article 12(2) and 12(3) of the Rome Statute allow the ICC to exercise its jurisdiction whenever the framework of customary international law contained in the Geneva Conventions are violated on board a vessel or aircraft of any State. Blockades are not among the “grounds for excluding criminal responsibility” listed in Article 31 of the Statute. link to untreaty.un.org
San Remo 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:
One last time, the UNCLOS only permits exceptions to the exclusive jurisdiction of the flag state which are contained in the UNCLOS itself or in another international agreement. So according to the specific guidance contained in Article 1 and 2 of the San Remo Manual, this is a case that is governed by international law and international agreements. The general guidance contained in the San Remo Manual doesn’t preempt customary or conventional law.
The Palmer Inquiry noted that Israel had attacked while the flotilla was still a great distance from the blockade zone and that it attacked without ever asking the vessels to stop or allow boarding parties to come aboard:
#PropagandaFail
You’ve cited a very specific part of UNCLOS which is an entirely irrelevant treaty since Israel is not a signatory and for that matter neither is Turkey. Rule number one of law is cite the relevant law, not just some law lying around that doesn’t have jurisdiction. Further cites to that irrelevant treaty will be ignored. Got anything relevant? Or is the inapplicable treaty your whole case? As to your citations of inapplicable parts of San Remo, vague citations about responsibilities to neutral states do not override the specific and clear authorization in 166c and section 67 that allow crew members _on_ neutral ships who _are_ citizens of _neutral_ countries to be made POWs if they attempt to breach a blockade.
The specific parts of an applicable law override the more general parts of the law.
You’ve cited a very specific part of UNCLOS which is an entirely irrelevant treaty since Israel is not a signatory and for that matter neither is Turkey.
No that proposition is incorrect. Israelis are not free to violate the customary rules in that subsection of the treaty, simply because their state is not a signatory to a particular convention that codified them. Israel does have primary and exclusive jurisdiction over its vessels on the high seas, but it is not immune from the customary exceptions listed in the UNCLOS regarding the slave trade, the drug trade, piracy, and illicit broadcasting.
The Preamble of the UNCLOS explains that it is a codification of existing international laws. FYI, the article on the exclusive jurisdiction of the flag state was taken verbatim from Article 6 of the earlier 1958 UN Convention on the High Seas. Israel is a signatory to that convention, which is still a “treaty in force”.
*See the page on the 1958 Geneva Convention on the Law of the Sea at the UN Treaty Organization:
link to untreaty.un.org ; and
* The text of Article 6 of the Convention on the High Seas on page 31: link to treaties.un.org
Here is a cite to an article which deals with the customary status of the rule:
Rule number one of law is cite the relevant law, not just some law lying around that doesn’t have jurisdiction.
We’ve been over and over this. In the S.S. Lotus Case, the Permanent Court of International Justice stated rule number one:
link to icj-cij.org
The customary rule regarding “Freedom of the high seas” is reflected in Article 92 of the UNCLOS. The rule with regard to exclusive flag-state jurisdiction in Article 92 is that only the customary exceptions (permissive rules) listed in the UNCLOS or exceptions listed in another international treaty preempt the flag state’s jurisdiction.
So I”ll ask you once again, can you cite an international treaty that contains a permissive rule which allows Israel to enforce a unilaterally declared blockade – 64 miles outside the blockade zone – against a foreign-flagged merchant vessel traveling on the high seas?
Fredb :
Wrong. UNCLOS is part of customary international law. 162 country’s has ratified that. End of story.
@Hostage
We’re just going to have to agree to disagree. You stick with the idea that a treaty that isn’t signed by either Israel, or Turkey, or for that matter the U.S. overrides the San Remo manual. Which every relevant authority cites for the rules concerning blockades. I’ll stick with the fact that it doesn’t.
We’re just going to have to agree to disagree. You stick with the idea that a treaty that isn’t signed by either Israel, or Turkey, or for that matter the U.S. overrides the San Remo manual.
Sorry Fred, there’s nothing to disagree about. I provided you with a specific citation to the 1958 Geneva Convention on the Law of the Sea and a link to the applicable UN Treaty Organization page on the subject. It explains that as of July 2008, 63 States are bound by the terms of the Convention on the High Seas (CHS), including both Israel and the United States. link to treaties.un.org
That means that the US and Israel have accepted and are bound by the explicit terms of Article 6 of the CHS:
The San Remo Manual is a publication of the ICRC. It’s official commentary explains that many of the participants felt that the conventional and customary prohibitions on the use of collective punishment and starvation as methods of warfare had rendered blockades illegal. Accordingly, the commentary advises that:
— link to icrc.org
The principles of customary international law regarding protected persons which have been codified in international agreements are binding on all states or parties that engage in armed conflict, including non-signatories. See:
*The Judgement of the International Military Tribunal, Nuremberg regarding the application of the Hague Convention to non-signatories: link to avalon.law.yale.edu
*General Assembly resolution 95 (I)
link to un.org
* In the Eichmann case, the Israeli Supreme Court held that General Assembly resolution 95 (I) is evidence that the Nuremberg principles form part of customary international law. According to the Court, “if there was any doubt as to this appraisal of the Nuremberg Principles as principles that have formed part of customary international law ‘since time immemorial,’ such doubt has been removed by two international documents. We refer to the United Nations Assembly resolution of 11.12.46 which ‘affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal, and the judgment of the Tribunal”
link to untreaty.un.org
*In 1993, concurrent with the Security Council adoption of the Criminal Statute for the ICTY it adopted the Secretary General and expert panel reports which concluded that, beyond any doubt, the Geneva Conventions of 1949 had passed into the body of customary international law that is binding on all non-signatory parties that engage in armed conflicts. It did all of that under the auspices of a Chapter VII resolution that is binding on all UN member states.
– Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808, 3 May 1993 link to icty.org
UN Security Council resolutions relevant to the Statute of the Tribunal
link to icty.org
Once the IDF special forces disembarked from their warships and aircraft and used force or the threat of force to seize a fleet of neutral merchant vessels flagged by other states and injured or killed persons, that was a violation of several treaties, including Article 3 of The International Maritime Organization (IMO) Convention For The Suppression Of Unlawful Acts Against The Safety Of Maritime Navigation (SUA) 1988. Turkey or any other country can acquire jurisdiction under Article 6(2)(a), if during the commission of the violation a citizen of that State is seized, threatened, injured, or killed. Israel, the United States, and Turkey are all signatories. See:
*The Text link to treaties.un.org
*The Status of participants link to imo.org
Wrong. UNCLOS is part of customary international law. 162 country’s has ratified that. End of story.
Correct. Ever since the Nuremberg Judgment made “murder and ill-treatment of persons on the seas” by the armed forces of any country a War Crime, a few countries have wasted everyone’s time trying to create loopholes and exceptions. –http://avalon.law.yale.edu/imt/judlawre.asp
In fact, every time that an international legal prohibition has been adopted against wars, blockades, interfering with the supply of humanitarian aid, & etc. it has resulted in efforts to revive and legalize each of those practices, e.g. the Oxford Manual, the San Remo Manual, the Helsinki Principles, & etc.
The state proponents of the global “War on Terror” are just the latest example. Even they claim the right to freedom of navigation and exclusive jurisdiction over their own vessels on the high seas are customary rights (more below).
Fredblogs says that “every relevant authority” cites the ICRC San Remo Manual on blockades, but the UN certainly doesn’t assign any particular weight to it. It’s treaty bodies have uniformly declared that Israel’s blockade is illegal. That opinion is shared by the relevant ICRC authorities too.
During the first Gulf War the coalition members thought that they had the authority to perform military intercept operations in support of a blockade. But many UN member states, including Cuba, did not interpret the UN Security Council resolution that broadly. Secretary General Perez de Cuellar and the UN Legal Affairs Department supported that position stating that “only the United Nations, through its Security Council Resolutions, can really decide about a blockade” in line with Article 42 of the UN Charter. So another resolution was obtained on 29 November of 1990 using the Article 42 language authorizing the use of “all necessary means” to uphold and implement resolution 660 (1990) and to restore “international peace and security” in the area. — See Richard Zeigler, Ubi Sumus? Quo Vadimus?: Charting the Course of Maritime Interception Operations, 43 NAVAL L. REV. 1, 26-35 (1996) note 114, at page 28.
The conventional authority of the Security Council to impose blockades has subsequently been called into question. Some of the treaty prohibitions on using blockades as a method of warfare have achieved customary status. Nobody has cited the San Remo Manual to defend arms embargoes or blockades in those cases. For example, in the Bosnia genocide case, Judge Elihu Lauterpacht affirmed a preliminary objection (paras 98-107 on Pages 64-71) which held that the Security Council arms embargo was illegal because it had, in effect, required the member states to assist in Serbia’s genocidal activities, while denying the Bosnians the ability to exercise an inherent and customary right to self-defense.
Israel has always employed propaganda about terror groups to prevent the Palestinians from arming themselves to provide for their own legitimate self-defense needs. For example our President said:
President Reagan objected to the provisions of UNCLOS on deep sea bed mining, but issued a public policy statement which explained that the US accepts and will act in accordance with the balance of the convention relating to traditional uses of the oceans — such as navigation and overflight, because they confirmed existing maritime law and practice.
The US Naval Law Review said:
The DHS and Coast Guard already rely on the customary rules in the Convention on the Law of the sea:
link to dhs.gov
Hodgkinson, Sandra L. et al. “Challenges to Maritime Interception Operations in the War on Terror: Bridging the Gap.” American
University International Law Review 22, no. 4 (2007): 583-671 explains that
– Note the authors were assigned to Navy Reserve Civil Law Support Activity 104, which is the reserve unit that supports the Office of the Judge Advocate General, United States Navy, International and Operational Law Division, in Washington D.C.
In customary international law, opinio juris is the second element (along with state practice) necessary to establish a legally binding custom. Anyone who thinks that the San Remo Manual has suddenly made unilaterally declared blockades legal should read: “Security Council Condemns Acts Resulting in Civilian Deaths during Israeli Operation against Gaza-Bound Aid Convoy” and guess again. Many of the members have declared the blockade illegal. — link to un.org
The international community of states is never going to accept Israel’s attempts to portray humanitarian aid shipments and peace activists as terrorists.