Turkey takes Gaza blockade to The Hague court
by İbrahim Kaya*

The UN Commission of Inquiry, known as the Palmer Commission, comprised four members, two of whom were impartial; the Turkish and Israeli members did not join the deliberations, while the other two drafted the report, which was forwarded to the UN secretary-general. While it is not legally binding, the report holds political significance, and Turkey reacted strongly to its findings. The Turkish president called the report null and void, and the foreign minister announced a list of sanctions against Israel, including application to the ICJ.

It appears that in its application to the ICJ Turkey will seek a legal clarification of the Gaza blockade. The ICJ, a leading international court authorized to adjudicate legal disputes, is one of the main bodies of the UN. According to Article 38 of the ICJ Statute, annexed to the UN Charter, the court decides in disputes brought by the states under international law. The court does not have automatic jurisdiction in these cases, so unlike in domestic legal systems, the relevant state parties must grant their consent for the court to preside beforehand. This means that unless Israel agrees, Turkey will be unable to file a unilateral application seeking legal remedy at the ICJ. Even though it could be inferred that Israel would agree to the court’s jurisdiction, given that it justifies its action, it could also be argued that it would never do so.

The ICJ also issues advisory opinions. Under Article 96 of the UN Charter, the UN General Assembly, the Security Council and other UN bodies, as well as specialized agencies authorized by the General Assembly, may seek such opinions from the court. States do not have authority to apply to the court for an advisory opinion. States may, however, make efforts to ensure that the relevant UN bodies file an application on an issue they are concerned about. Turkey is not expected to do this in the Security Council, given that the US has veto power there. The UN General Assembly appears to be the best venue to take Turkey’s case to the ICJ, and recent media reports actually confirm that Turkey would pursue the case this way at the UN General Assembly on Sept. 12 in New York.

No difference in advisory opinion and binding legal decision

Even though an advisory opinion seems less significant than a binding legal decision, there is almost no difference between the two in practice. Unlike domestic law, the ICJ’s legal decisions are observed by the states alone, as there is no enforcement authority on the international level. In the case of a legal decision, an arbitration agreement is issued by the parties involved, or in the case of a request for an advisory opinion, the side applying to the ICJ drafts such an agreement. Viewed from this angle, it could be said that an advisory opinion could be the better option in this case in terms of its content.

Both types of cases carry similar political weigh. The court’s recent advisory opinions on nuclear armament, the wall constructed by Israel in the Occupied Territories and Kosovo’s unilateral declaration of independence have been considered politically and legally significant. In particular, the ICJ’s advisory opinion on the Israeli wall concluded that the construction of the wall was in violation of international law. A similar opinion on the Gaza blockade will have serious consequences for Israel, which will eventually have to lift the blockade.

As for the probable content of an application to the ICJ in this case, under the rules defining states’ international legal responsibilities, the state of Israel could be held responsible, by association with the blockade, for the acts of the Israeli Defense Forces (IDF) during the Mavi Marmara raid. The Palmer Report confirms this. Independently of whether or not the blockade is found to be legal, Israel is liable for an apology and for compensation. There is no need to take this to the ICJ.

It is still appropriate to take the issue of the blockade’s legality to the court, and in Turkey can offer three arguments at the UN General Assembly regarding its illegality. First, while conventional international law recognizes blockade as a wartime measure, it could be argued that the imposition of a blockade in its original sense is no longer compatible with international law. Originally, a blockade was defined as preventing the vessels of all states from entering or leaving an enemy’s territory. Upon a declaration of war, the warring parties declare their decision to impose a blockade and take action, if necessary, against any vessels violating the blockade. The 1856 Paris Declaration and the 1907 Hague Convention include such provisions. Blockades were imposed during World War I and II. However, wars of aggression were banned under the UN Charter. States can rely on violence only in times of self-defense, under a UN Security Council resolution. Therefore, embargo or blockade, which was considered legal in times of war in the pre-UN period, when war was a legitimate act, is no longer legal in its conventional sense. It can no longer be argued that civilian vessels not carrying war materials, or vessels registered to states not party to an armed conflict, are subject to blockade regulations. Therefore, Israel’s aggression against the Mavi Marmara, which had no intention of becoming involved in an armed conflict, was illegal.

Problems with the blockade

Second, it could be argued that even if considered legal, the blockade the Israeli authorities have imposed on Gaza is still illegal because it fails to meet the conditions applicable to a conventional blockade. A blockade can be imposed as a measure against the territories of another state involved in an armed conflict with the imposing party. Considering that Israel does not recognize Palestine as a state, it cannot possibly impose a blockade against it. Under the UN resolutions, the Palestinian territories are under Israeli occupation. And it is not legally possible to impose a blockade on an occupied territory.

Last, it could be argued that the Israeli blockade is against the rules of international law even if the conventional blockade rules are considered applicable. It should be recalled that the 2009 UN Human Rights Council Report finds the blockade illegal from this angle. Unlike the authors of the Palmer Report, this report was drafted by international lawyers: It confirms that the Israeli blockade should be considered illegal under the 1949 Geneva Conventions as it does harm to the civilian population and economy of Gaza.

In conclusion, an incident which Israel could have reasonably settled by offering an apology and paying some sort of compensation for the excessive and unnecessary acts of some of its servicemen has instead gained deeper dimensions and become a matter of international law, which has strained bilateral relations between Turkey and Israel. Turkey has substantial legal arguments to suggest that the blockade is illegal. And it seems that the ICJ is the proper venue for the discussion of these arguments.