The Israeli intervention: more legal questions on the Application of IHL and Aggression

The story on everybody’s mind since Monday is of course the Israeli’s ultimately bloody take over of a Turkish ship in international waters of the coast of Israel. Beyond the complex political situation, which I will try to avoid considering here (although I do find Turkey’s official support of the activists ironic given its own track-record in terms of human rights and refusal to acknowledge Kurdish pleas for independence, or at least autonomy), this situation raises a incredibly large array of legal questions, some of which are being dealt with already.
There is the question of whether this is an act of piracy, which I think is unlikely given the definition given in UNCLOS, as is developed here. The question of the legality of Israel’s blockade of Gaza has also given rise to a dense debate on Opinio Juris and the issue of whether the ICC can and should exercise jurisdiction for these events has been considered by Professor Schabas.

I’d like to briefly raise some additional issues that are puzzling me, and in fact relate to some of the previous arguments made.

For one, everybody is assuming the application of IHL to the situation, due to the conflict in Israel, or evaluating its application in light of the conflict between Israel and Hamas. Professor Schabas does this in his link by saying that the it would constitute a war crime because the situation in the occupied territories and Gaza in particular is an armed conflict. I find this quite unpersuasive, or at least to be explained. The facts are that Israel boarded a ship sailing under a Turkish flag in high seas. There is of course a political link with what is going on in Gaza, but is there a legal one? I would argue that there isn’t and that the fact that there is an armed conflict in the occupied territories is irrelevant.One rather needs to evaluate the existence of a conflict between Israel and Turkey in order to apply IHL to the situation. This is a strong methodological disagreement, but has few practical consequences. Indeed, it seems generally accepted (see the ICRC opinion paper) that a single event of military nature can trigger the application of IHL. In any case, given Tukey’s jurisdiction over the boat, the act can definitely prosecuted under national criminal law, and it is in this context that the claims to individual self-defense must be assessed.

Which leads to my second point, which is interesting in light of the ongoing debates at the ICC Review Conference in Kampala, is whether the Israeli intervention constitutes an act of aggression against Turkey. I’d say it probably constitutes an unauthorized use of force under the UN Charter, but does it rise to the level of Aggression? After a perfunctory reading of Resolution 3314 of the Assembly General on the definition of aggression, there are at least two categories listed in Article 3 of the Resolution that could seem to apply on the face of it:

“Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
[…]
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;”

This would apply assuming that a ship sailing under a Turkish flag, over which Turkey has exclusive jurisdiction, is considered as Turkish territory for the purposes of establishing an act of Aggression. I’m not familiar enough with the Law of the Sea to say for sure, but it would make sense. If such a qualification did apply, Israel’s international responsibility could be engaged.

In relation to the this point, what is, if any, Turkey’s responsibility under international law? As the country of nationality of the ship, it must be responsible for the actions of the ship to some extent. One can imagine that Israel could claim that Turkey failed in its international obligations by supporting the breaching by a ship carrying its flag of the territorial sovereignty of another State, despite that State’s systematic opposition to such entering in its territorial waters (this of course raises questions on the “excuses” that Turkey could put forward in terms of the provision of humanitarian aid in a situation of armed conflict and the correlative claims from Israel that the political claims associated to the endeavor would deny neutral status).

3 responses to “The Israeli intervention: more legal questions on the Application of IHL and Aggression

  1. IHL is relevant because the rules on blockades apply in armed conflicts, traditionally between State parties. If there is a legal blockade then there is also the right to "attack" neutral ships in international waters. The San Remo Manual states that merchant vessels flying the flag of neutral States may not be attacked unless they: "are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture".

  2. Thank you for your comment Anonymous. Just to clarify my position, I didn't say that that IHL was irrelevant. I said that it didn't seem such a clear cut case that IHL applied through the existence of an armed conflict between Israel and the palestinians, especially for an act having occurred on the high seas, on a ship carrying the flag of a third country… you have to establish an armed conflict between Israel and the third State.As for the San Remo manual, it's a non-binding indicative document and I'm a little skeptical at seeing it quoted everywhere without additional solid evidence of the existence of customary law in this field. As usual with the ICRC, its word that it is stating law is taken for granted…

  3. Dov Jacobs: Seems to me that your point on whether the Israeli actions constitute an act of aggression is mostly relevant (at least the most interesting) in the case that the blockade is illegal (assuming that the San Remo manual on this point is an expression of CIL – and I believe your doubts here are valid). I thought your argument on the potential international legal responsibility of Turkey was the most interesting, however. This seems to be an issue of attribution to me. The law of the sea (particular treaties such as the 1995 UN Fish Stocks Agreement) has some special rules for purposes of the fishing activities of a vessel (for instance), but I am not sure to what extent it has any rules on attribution for the purposes of state responsibillity that are applicable in this case. So, are you assuming that the test is whether Turkey are responsible for the actions of the vessel under the general law of state responsibility?

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