Thursday, 3 June 2010

Gaza Flotilla: What Crimes?

Several readers of the blog have written in response to a posting earlier this week about the jurisdiction of the International Criminal Court with respect to the attack upon the humanitarian aid flotilla by Israel, asking what international crimes might be punishable.
Article 8(2)(b) of the Rome Statute lists several relevant provisions, including:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated...
Any of these might provide a basis for a prosecution involving the attack by armed forces upon an unarmed humanitarian assistance mission. Indeed, it would be astonishing if such an attack were not covered by one or other of the provisions.
Of course, there must be an armed conflict for war crimes law to apply. Such authoritative bodies as the Israeli Supreme Court and the Goldstone Commission have described the situation in the occupied territories, and Gaza in particular, as an armed conflict.

7 comments:

LeoB said...

Dear prof Schabas,

Some more insightsful than me in this matter has asked whether you think there is an armed conflict now (or rather when the attach at Ship to Gaza occured) such that war crimes laws should/could be applied.

It is not quite clear from you post what your opinion on this is. Could you please clarify that?

Hoffmann Tamás said...

With respect, Professor, I find your argument unpersuasive.

First of all, the status of Gaza as an occupied territory is highly dubious to say the least. Even though, there is vocal group supporting this view, it is difficult to see how that could be reconciled with the requirement of effective control over enemy territory.

Second, even if Israel is an occupying power with respect to Gaza, that does not mean that every armed incident taking place is necessarily an armed conflict. Israel clearly did not engage in international armed conflict with Turkey, whose ship the Israeli soldiers took over, and the crew of the ship cannot be regarded as an organized armed group with which Israel engaged in protracted armed violence.
In light of these considerations - especially my second point - I think you should reconsider the possibility of ICC jurisdiction over the incident.

Dov Jacobs said...

Professor Schabas, could you clarify why yourself at the end of your post, as well as other commentators are so readily applying the fact that there exists an armed conflict in the occupied territories to what is for me a legally different situation of Israel attacking a turkish ship in high seas, whatever the political links between the two situations is?

Louise said...

Israel says its blockade is legal because it is in “a state of armed conflict” with Hamas. (http://www.businessweek.com/news/2010-06-06/israeli-ministers-oppose-international-probe-of-flotilla-raid.html)

As occupying power exercising effective control over all Gaza (sea/air/land borders + the ability of the Israeli occupying forces to enter and leave at will as per 'Cast Lead' + duty to satisfy GCIV obligations to provide for protected persons subject to Israeli occupation being reaffirmed by authoritative figures) and of the West Bank including East Jerusalem, Israel is in an international armed conflict not just with Hamas but in all post-48 Palestine - including a wide variety of armed non-state actors including leftists, centrists, rightists, nationalists, communists and islamists.

Given Israel justifies the blockade on the basis that it is an action taken within an armed conflict, then an attack on neutral ships attempting to break said blockade can only be viewed as being actions taken within he context of the international armed conflict and therefore jurisdiction can properly accrue to the ICC.

Reports coming in suggest Turkish lawyers need to get their law straight - although journalists are generally very weak on ICL reportage anyway: http://www.ynetnews.com/articles/0,7340,L-3899016,00.html

Michael Kearney

Harlan said...

In a case involving Israel's targeted killings policy, the Israeli Supreme Court held "that between Israel and the various terrorist organizations active in Judea, Samaria, and the Gaza Strip (hereinafter "the area") a continuous situation of armed conflict has existed since the first intifada." See the subsection of the ruling under the heading "The General Normative Framework, A. International Armed Conflict"

The Foreign Ministry of Israel has consistently maintained that position. It said that Israel could not be held responsible for observing human rights covenants in Gaza or the West Bank because those areas are not part of Israel's sovereign territory and jurisdiction. It also claimed that events in the West Bank or Gaza are not subject to the mandates of human rights monitoring bodies "inasmuch as they are part and parcel of the context of armed conflict". See CCPR/C/ISR/2001/2, para 8 or E/1990/6/Add.32, para 6-7

In any event, the use of stand-off weapons and drones means that international armed conflicts don't inherently entail occupation of another state's territory. For example, Special Rapporteur John Dugard said Palestinian and IDF personnel responsible for committing war crimes by the firing of shells and rockets into civilian areas should be apprehended and prosecuted. See A/HRC/4/17 and IDF has fired more than 5,100 shells at Gaza in six weeks

The government of Israel linked the Gaza Aid Flotilla to the armed conflict. It has justified the commando operation in international waters on the grounds that the IHH is a terrorist organization that supports Hamas and the need to prevent deliveries of strategic materials and missiles to Gaza/Hamas in order to defend itself.

The General Assembly and the EU have endorsed the Goldstone report conclusion that the blockade constitutes collective punishment. Turkey was responding to a call from John Ging, head of the United Nation's Relief and Works Agency to “break the siege”. Turkey recognizes the state of Palestine and has called for international recognition of the Palestinian Hamas government. See "Recognition of the State of Palestine" and OIC members urge international community to recognize Hamas The Russian Federation, a member of "The Quartet", also recognizes the State of Palestine and has joined Turkey in calling for the involvement of Hamas in the peace process. See Israel blasts Russian talks with Hamas and Embassy of the State of Palestine in the Russian Federation

Hoffmann Tamás said...

Dear Harlan,

You seem to put a lot of emphasis on how Israel itself qualifies the conflict. However, that cannot give a conclusive answer. The qualification of the Israeli High Court was based on a passage from Cassese's International Law textbook, which I think it quoted out of context, and the Israeli government obviously tries to find a legal justification for the blockade.

However, as Dov pointed out, what you should really prove is that the incident itself took place within the context of an armed conflict. Had the ship been a Turkish battleship or a fighting vessel belonging to one of the militant Palestinian groups, you would have a good point. However, this incident took place on the high seas, on a Turkish civilian ship.

So once again, how could this situation fall within the material jurisdiction of the ICC? It was not an international armed conflict with Turkey, or a non-international armed conflict with an organized armed group (unless you submit that the civilians wielding clubs and knives should be regarded as members of an organized armed group.)

Harlan said...

Articles 40 and 41 of The San Remo Manual on International Law Applicable to Armed Conflict at Sea explain that, under certain circumstances, Merchant vessels may be targeted as military objectives during armed conflicts. So, the fact that Israel didn't attack a Turkish battleship or a fighting vessel belonging to one of the militant Palestinian groups does not dispose of the legal questions regarding proportionality, targeting, and etc.

Israel announced in advance that, if need be, it was prepared to capture the aid vessels and take the passengers and crew to Israel as prisoners. As soon as the IDF Commandos found themselves on board a foreign-flagged vessel with wounded or surrendering civilians of another State on their hands, and as soon as they detained prisoners, the applicability of the Geneva Conventions between those two States was triggered. Under those circumstances, it doesn't matter if the party that was attacked resisted. See for example the ICRC Opinion Paper: "How is the Term "Armed Conflict" Defined in International Humanitarian Law?

Absent a war or armed conflict, Israel has no belligerent or general law enforcement authority to hail, stop, and board any foreign-flagged merchant vessel in international waters.

Israel seems to be relying on the principle that there is no responsibility for harm caused by the armed forces of a State as a result of legitimate acts of war. Prime Minister Binyamin Netanyahu's spokesman, Mark Regev maintains that Israel was clearly within its rights to stop the aid flotilla, saying any state has the right to blockade another state in the midst of an armed conflict. He specifically cited the provisions of The San Remo Manual on International Law Applicable to Armed Conflict at Sea to justify the attack on the Turkish merchant vessel. See The Washington Post report: Israel's flotilla raid revives questions of international law

Prof Schabas alluded to the principles regarding the exercise of jurisdiction contained in an early PCIJ case and mentioned the on-going preliminary review regarding Palestine's capacity to accept the jurisdiction of the ICC.

The SS Lotus case involved jurisdictional questions arising from a collision between vessels flagged by France and Turkey. It is probably not without relevance to note that both parties agreed that "acts performed on the high seas on board a merchant ship are, in principle and from the point of view of criminal proceedings, amenable only to the jurisdiction of the courts of the State whose flag the vessel flies." See the Court's recital of the arguments and conclusions of the French government in its Counter-Case on page 7 (9 of 61 of the pdf file) here