7 June 2010 **** Front Page 7 June 2010 **** Front Page
By Lynda Brayer
Racheli Gai writes: I've been listening to, and reading various items in which Israeli officials
and its PR people have tried to explain how and why what Israel did when it
attacked the Gaza Freedom Flotilla was legal and appropriate. Here is a
short essay by Lynda Brayer - a human rights lawyer who specializes in the
laws of war and international law in representing Palestinians and who lives
in Haifa - which puts the lie to any such claims.
The Attack on the Gaza Freedom Flotilla by Israeli Navy Commandos
on May 31, 2010
Crimes against the Peace and
Crimes against Humanity
During the pre-dawn hours of May 31, 2010, the Israeli Navy attacked the six
civilian vessels of the Gaza Freedom Flotilla. The attack took place in
international waters against ships flying under national flags of countries
with which Israel is not at war, namely Turkey, Greece and the United
States. The ships were carrying civilians from more than sixteen countries.
Salient points:
Since no state of war existed at the time, the attack on these vessels
constitutes an act of war against those governments under whose flags the
vessels were sailing.
The attack falls within the purview of the ius ad bellum, those laws which
govern the resort to armed conflict. Israel's action does not fall into the
category of the ius in bello or the laws which govern the actual conduct of
war.
Because this attack was carried out in international waters, the status of
the relationship between Hamas, or any other Palestinian body, and the state
of Israel is of no relevance whatsoever. Likewise, neither the blockade of
Gaza nor Israel's claims and legal interpretations regarding it has any
bearing on its acts of aggression in international waters.
This is not an act of piracy. Piracy is an act of aggression carried out in
international waters by individuals and not by states.
The following internationally binding treaties, charters, and agreements are
relevant to the attack by Israel:
1. Article 6 of the Charter Provisions of the Nuremburg Trials
(a) Crimes against Peace: namely, planning, preparation, initiation, or
waging of a war of aggression, or a war in violation of international
treaties, agreements or assurances, or participation in a common plan or
conspiracy for the accomplishment of any of the foregoing;
(3) Crimes against Humanity: namely murder…deportation, and any other
inhumane acts committed against any civilian population, before or during
the war...in execution of or in connection with any crime…whether or not in
violation of the domestic law of the country where perpetrated.
2. 1907 Hague Regulation Convention (XI) Relative to Certain Restrictions
with Regard to the Exercise of the Right of Capture in Naval War
Chapter II – The Exemption from Capture of Certain Vessels Article 4.
Vessels charged with religious, scientific, or philanthropic missions are
likewise exempt from capture.
Salient points:
The standard for judging the Israeli acts is objective and not subjective.
It is irrelevant what Israeli ministers, generals, admirals, or soldiers
thought or intended. The test is in what they did.
What they did was engage in acts of war using weapons of war in
international waters against vessels that are protected not only in
peacetime but also in times of war.
Israel has therefore committed both crimes against the peace and crimes
against humanity.
These are crimes that have international jurisdiction. Israeli political and
military personnel can be named in trials held in any and all countries of
the world. If the Israelis do not attend the trials, they can be tried in
abstentia, and those decisions in which the Israelis are found guilty can be
executed anywhere in the world.
Because unarmed civilians were murdered by a preplanned military attack,
capital crimes have been committed. While it would appear that the
international community no longer finds capital punishment civilized, the
punishments for these capital crimes can be multiple life sentences.
These crimes give rise to damage claims for huge sums of money and Israeli
accounts can be blocked using decisions finding them guilty.
The unarmed vessels were on a philanthropic mission, carrying civilians and
humanitarian supplies. Even if Israel were in a state of war with any of
these countries, it would be prohibited from capturing the vessels according
to the terms of the Hague Convention of 1907.
Conclusion:
It follows, therefore, that Israel was first of all not allowed to attack
these vessels militarily, and then not to board these vessels by force,
capture these vessels, attack the passengers, imprison them on the vessels,
forcibly remove them from the vessels, and steal their private property in
the form of cameras, computers, clothes, etc.
Every single act carried out by the Israeli military forces in international
waters no May 31, 2010, are unqualifiedly and absolutely violations of
international law.