International Law, Israel and Practicality

The debate over whether Israel violated international law by attacking the Turkish flotilla in international waters has begun. Unfortunately for Israel, it is likely to lose the legal argument despite the absurd attempt by FM Lieberman to justify the attack on the basis of international law – which he clearly does not understand nor cares to understand.

Aside from the pure stupidity of the selecting the wrong action from a range, it is part of a larger seige policy regarding Gaza that has failed catastrophically in achieving its goal of destroying Hamas. To hammer home that point, the Egyptian government today opened its border crossing to Gaza without a time limitation. Just to be clear, I believe that Hamas is a terrorist organization that hurts rather than helps the Palestinian people and needs to be consigned to a black hole somewhere.

The legal proposition that, absence a state of war, a state has the right to intercept ships in non-territorial waters is seriously flawed.

First, let’s dispose of one of the more absurd analogies such as the one here which equates this incident with the sinking, boarding or destruction of German ships in international waters by the US (or the UK, for that matter) during World War II. Unless news reports have missed it, Israel is not in a state of war with Turkey (although it might as well be, at this point). Furthermore, both during the First and Second World Wars there was serious condemnation by neutral nations for the blockades that affected their shipping imposed by the warring nations who were accused, correctly, of breaching international law. During the World War I England successfully ignored the complaints and continued to intercept, board and intern neutral ships bound for German ports if the navy determined that the cargo could, in any way, help the German war effort. There was no question that the actions were illegal, and effective; so effective in fact that those in Germany advocating unleashing unlimited submarine warfare overwhelmed those in the Kaiser's inner circle who opposed doing so because it was illegal. Circumstances of a declared war, however, changed the matrix of acceptability.

Second, by logical extension, Israel is now claiming the right to stop, destroy or seize any ship in international waters if it deems it to be a threat to its security. If this sounds absurd, it is. It is also profoundly stupid. Even the US relunctantly demurred  (under President Bush no less) from stopping and boarding a North Korean ship in international waters despite the fact that evidence strongly pointed to the possibility that it was carrying weapons destined for some unsavoury characters in the Middle East.

Under the United Nations Convention on the Law of the Sea, Israel would only be entitled to stop ships within its territorial waters if they breached any of the restrictions to the right of innocent passage. Israel could make a legitimate argument if the attack occurred within its territorial waters where innocent passage rules apply, but it did not. Innocent passage is the right of all ships to engage in continuous and expeditious surface passage through the territorial sea and archipelagic waters of foreign coastal states in a manner not prejudicial to its peace, good order, or security. Just ask Argentina.

Israel has no legal justification for its actions in international waters regardless of the inane remarks of its Foreign Minister – the same man incidentally who deliberately and publically embarrassed the Turkish ambassador last year and who has continually rejected all attempts by third parties to help in resolving the Palestinian issue.

Israel has engaged on a policy of confrontation and defiance with its ever shrinking circle of friends and handing its enemies the moral high ground. In effectively severing military and economic ties with Turkey with this action (something the current Turkish government was uncomfortable with in the first place) it has put it security at risk. It has also handed the current Turkish government an election victory.

But, ultimately it is not the legal question that matters.  Time and time again, this Israeli government has exhibited a remarkable aptitude for taking the least desirable route.  Assassination in Dubai using stolen, non-Israeli passports; embarrassing the Vice President of the United States and the Turkish ambassador; defying international opinion by continuing construction of illegal settlements and evicting Palestinians; continuing an ineffective blocade of an entire city; and, rattling sabers at Iran in an attempt to draw the United States into another war.  It has attracted the condemnation of Europe - particularly the UK and France while Ireland may go as far as expelling the Israeli ambassador- and irretrievably damaged its relations with a rising, powerful Turkey.  NATO is now involved because a member state's ship was attacked. 

As a result, there will be no new sanctions imposed on Iran and the fact that the United States agreed to the resolution in the UN condemning Israel's actions and calling for a raising of the Gaza siege is unprecedented. Turkey is lost as an even reluctant ally. Egypt has elected to break the circle. Nation's are now weighing their strategic interests and not to the benifit of Israel. This is a game changer.
Legal or not, this latest event puts Israel more at risk than ever. Time for Netanyahu and his conservative friends to go before Israel does.