International law expert Qafisheh: No justification for murder in the law of the sea

“According to the law of the sea, a state may search a ship solely in cases exclusively enumerated in Article 110 of the 1982 Convention on the Law of the Sea, namely: piracy, slave trade, unauthorized broadcasting, a ship without nationality and improper presentation of the flag of the attacking state. None of these circumstances are relevant to the Turkish flotilla under consideration. There is no justification for murder,” said Dr. Mutaz M. Qafisheh, answering our questions from Hebron.

In addition, he said that the attack constitutes political “piracy” in the sense that the perpetrators behaved as pirates normally do and not as soldiers belonging to a state. “The Mavi Marmara's mission to Gaza was an act of humanitarian intervention. Such humanitarian missions have recently become a right, and even a duty, that entails a sense of responsibility -- known as the ‘the responsibility to protect' in modern international legal scholarship.”

The Turkish government has expelled Israel's envoy, frozen military cooperation and warned that the Turkish navy could escort future aid flotillas. The two countries had previously worked closely together on military cooperation and intelligence sharing, as both countries sought reliable partners in a volatile part of the world.

Dr. Qafisheh elaborated on the issue for Monday Talk.

The Palmer report concludes that Israel's naval blockade of the Palestinian territory is "a legitimate security measure in order to prevent weapons entering Gaza by sea and its implementation complied with the requirements of international law." Its enforcement "may take place on the high seas and may be conducted by force if a vessel resists." What is your evaluation of this statement?

This statement reflects the Israeli opinion. [Sir Geoffrey Winston Russell] Palmer has embraced that point of view without reviewing or taking into account any of the many UN positions on the blockade of the Gaza Strip, such as the Goldstone report and the Human Rights Council's resolutions, or the reports of the UN special rapporteur on the occupied Palestinian territory, let alone the specific UN Human Rights Council's particular findings on the incident at hand. For this reason, a number of UN independent experts, via a press release published in Geneva on Sept. 13, have wondered “How can Israel's blockade of Gaza be legal?” The experts noted, “The Palmer report does not recognize the naval blockade as an integral part of Israel's policy [of isolation] towards Gaza, which has a disproportionate impact on the human rights of civilians.” One may even go further and consider the blockade, due to the fact that it is causing serious bodily and mental harm to the entire population of Gaza, as a form of a crime to which the 1948 Convention on the Prevention and Punishment of the Crime of Genocide -- Article 2, paragraph B -- applies. As has been correctly pointed out by Richard Falk, UN special rapporteur on the occupied territory, “The Palmer report was aimed at political reconciliation between Israel and Turkey. It is unfortunate that in the report politics should trump the law.” But even politically, the report yielded destructive effects. It led to the worst diplomatic tensions between the two states. The report was quite naive in its expectations, approach and outcome.

The legality of the blockade largely stems from the legality of the occupation. If the occupation of the occupied territory is unlawful, then the blockade would be illegitimate. The illegality of the occupation is well known and has been qualified as such by a myriad number of resolutions of the General Assembly, Security Council and Human Rights Council as well as by the International Court of Justice. The illegality of Israeli control over the Gaza Strip is beyond question in international law, and there is no need to discuss it here. Thus, the conclusions of Palmer were strange and at odds with other UN positions. It is, indeed, “manifestly ill-founded.” No one with basic legal logic or humane values would agree with Palmer. The UN secretary-general should discard the report and consider it as an opinion of a wrongly hired politician.

Israel could have physically captured the Turkish ship without firing a shot, for example by pulling the civilian Mavi Marmara into Israeli coastal waters with larger warships, of which it has many. But Israel willfully attacked the vessel. It is a simplification to consider the reaction of the activists on board the ship as resistance that legitimizes killing. It is naïve, too, to legalize the blockade by such a huge force against unarmed Gazans. The UN position as worded in the Palmer report is an overt sign of support for the perpetrators. It can be deemed encouraging further killings, which is internationally recognized as a crime. Palmer probably thought that we are still living during the Holocaust era in which the Israelis are always viewed as victims. Such a mentality still prevails in certain “guilt-ridden” states, we know. The whole characterization of the situation by Palmer is political; it is null and void by any legal criteria.

And the findings of the report clash with Turkey's condemnation of the blockade as illegal collective punishment; in addition, Turkey further argues that Israel's May 31, 2010 seizure of the Mavi Marmara in international waters was tantamount to "piracy," exacerbated by the killing of nine pro-Palestinian activists on board. What do you think of this argument?

The blockade constitutes a collective punishment for some 1.6 million civilians in Gaza. This is not only the Turkish position, it is the correct characterization according to international law of the situation and it is the position of the entire international community with the exception of Israel and Palmer. The International Committee of the Red Cross has considered the blockade as a collective punishment that constitutes a war crime based on the fourth Geneva convention. As I said above, many UN resolutions, reports and studies have repeatedly reaffirmed this Turkish position. The blockade is unlawful by all counts due to the illegality of the occupation and due to human rights and humanitarian law violations resulting therefrom.

The attack constitutes political “piracy” in the sense that the perpetrators behaved savagely as pirates normally do and not as soldiers belonging to a state. The Mavi Marmara's mission to Gaza constituted an act of humanitarian intervention. Such humanitarian missions have recently become a right, and even a duty, that entails a sense of responsibility -- known as the “the responsibility to protect” in the modern international legal scholarship. There is an obligation on the part of all states to participate in humanitarian assistance and to protect suffering civilians. Protecting the human rights of children starving under the military blockade is also an “erga omnes obligation,” namely one “owed to the international community as a whole” according to Article 48 of the International Law Commission (ILC) Draft Articles on State Responsibility. In its 2001 commentary on this article, the ILC gave a particular right to any party to protect “groups or people” or “non-State entities” like those imprisoned in Gaza.

Even if it can be argued that Israel has the right to control the coastal waters of Gaza, there was no legal ground whatsoever for the Israeli forces to attack foreign vessels in international waters. It is well known in international law that targeting any ship on the high seas constitutes an attack against the state whose flag the ship is flying. According to the law of the sea, a state may search a ship solely in cases exclusively enumerated in Article 110 of the 1982 Convention on the Law of the Sea, namely: piracy, slave trade, unauthorized broadcasting, a ship without nationality and improper presentation of the flag of the attacking state. None of these circumstances apply to the Turkish flotilla under consideration. There is no justification to murder.

Turkey's standpoint matches that of a UN Human Rights Council inquiry boycotted by the Israelis. What would you say about the discrepancy between the two reports coming out of the same UN body?

In the case of contradictions between an individual opinion such as that of Palmer and an official position adopted by the international community represented by the Human Rights Council, the latter should prevail. This is no more than basic logic. The individual opinion is non-binding to the secretary-general or to any UN body, while the secretary-general is under an obligation to implement the decisions of the political bodies of the UN, such as the Human Rights Council. It would be a legal mistake for the secretary-general if he endorses the report. I am sure that the International Court of Justice would arrive at the same conclusion if Turkey, through the General Assembly, requests an advisory opinion.

During my years of work at the UN Office of the High Commissioner for Human Rights in Geneva, Beirut and Palestine, Israel has constantly boycotted human rights missions to investigate its practices. Israel, for example, does not recognize the mandate of the UN Special Committee to investigate the Israeli practices affecting the human rights of the population of the occupied territories. The reason for that attitude is simple -- the Israeli human rights violations are so obvious, not only to investigators but to anyone who just follows the news. I cannot even imagine how Palmer could not have understood.

Do you think the Palmer report's findings in favor of Israel's defense doctrine may have an impact on international opinion?  

The report might influence those who blindly support Israeli polices and crimes under all circumstances. It may affect those hypocrites, like the politicians who fear losing their posts if they do not show that they are more Zionist and extreme than [Israel's Foreign Minister Avigdor] Lieberman. But the report would not convince anyone who reads it objectively nor those who believe in human rights and peace, or those who believe that ethics have a place in inter-state relations.

In an interview with Al Jazeera television, Turkey's prime minister said that "the attack that took place in international waters did not comply with any international law. In fact, it was grounds for war. However, befitting Turkey's greatness, we decided to act with patience.” What do you think about this comment as an international law expert?

States do wage war for smaller attacks than this incident. Just imagine if those killed would have been Israelis. An even smaller number of Israelis were injured, not even killed, when Israel launched its war on the Gaza Strip in 2008-2009 in retaliation, killing more than 1,000 innocent civilians. The attack by Israel would give Turkey various countermeasures that can be taken, including exercising self-defense and counterattack and to prosecute the killers. The demands for compensation and the request for official apology are just the minimum. Prime Minister [Recep Tayyip] Erdoğan has been courageous enough to demand the end of the blockade of Gaza as well. I am sure, given the dilemma in which it put itself, Israel will capitulate at the end of the day.

‘One major loser: Occupation'

What do you think Israel and Turkey gained or lost from the UN report?

Turkey is winning the hearts and minds of the people in the Middle East. If one checks data of newborn children across the region, the name Erdoğan would not be uncommon. The public opinion in the region was probably irrelevant a few months ago, but with the Arab Spring and with the beginning of liberation from Western-backed dictatorial regimes in the region, the views of the people do matter. This will have more concrete significance in the years to come. In the process, there would be one major loser, that is, the occupying country. The arrogance of power and the spoiled childlike behavior of the occupying country will no longer be tolerated by free people. Just think of the storming of Israel's embassy in Cairo last week or the decision by [Israeli Prime Minister Benjamin] Netanyahu to evacuate his diplomatic staff from Jordan this week. The governments that would be elected by free people would no longer accept subordination, hypocrisy or humiliation. The whole region and the rules of the game, vis-à-vis the Middle East, would change once and for all. If Israel and its blind supporters continue dealing with the people of the region with their old-fashioned mentality, they will soon discover that they were wrong. But probably they will only wake up when it's too late, I'm afraid.

Do you think it was a wise decision for Turkey to accept the establishment of the UN panel headed by former New Zealand Prime Minister Geoffrey Palmer?

Turkey probably accepted the establishment of the panel because the facts surrounding the incident were clear-cut. Over the past 10 years, the Turkish government acted on the global stage based on goodwill, ethics and justice, not according to selfish tactics. Turkey, by such conduct, sets a new approach in international relations that can be considered a model which ought to be followed. That is indeed an expression of greatness and confidence, not a sign of weakness. Probably Turkey did not expect that Geoffrey Palmer and Alvaro Uribe -- official authors of the report -- would be at this level of subjectivity, biased and senseless, despite knowing, perhaps, that both men had strong ties with Israel. Given its content and conclusions, I am quite confident that the report was written in Tel Aviv, not in New York as has been claimed.

‘Report shows Israeli commandos committed willful killing'

Indeed, the report has strong language about Israel's use of force. It says: “The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable. Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the Panel by Israel for any of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel.” Do you think this would prompt international judicial mechanisms to act on this finding of the report?

While he admits that the use of force by Israel was disproportionate, Palmer blamed Turkey for allowing the humanitarian flotilla to go to Gaza. Illogical but yes, this sort of statement of facts can be used against Israel in certain judicial proceedings. The report and the Human Rights Council's report showed that Israeli commandos committed crimes of willful killing or murder. Willful killing and murder amount to “war crimes” or “crimes against humanity” as the case may be. As the Mavi Marmara was registered in the Comoros, which is a state party to the Rome Statute of the International Criminal Court (ICC), such facts can be used to prosecute the killers and their leaders at the ICC in The Hague. This option should be explored.

PROFILE

Dr. Mutaz M. Qafisheh

He holds a Ph.D. in international law from the Graduate Institute of International Studies, Geneva. He is a professor of international law at Hebron University in Palestine. He is also a practicing international lawyer, providing advice to several states and international organizations. His former positions include UN human rights officer in Geneva, Beirut and Ramallah; regional director for the Middle East and North Africa for Penal Reform International (PRI) of Amman, Jordan; director of the Legal Education Program for the Rule of Law Program of the US Agency for International Development in Jerusalem; and advisor to the Palestinian Parliament. He has written five books and a number of articles, including “The International Law Foundations of Palestinian Nationality” (Brill: Linden, 2008); “Article 1D,” in “The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary” (Oxford University Press, 2011); and “Palestinian Citizens of the Future State” (PLO, 2011).