Israel als Schurkenstaat 253

http://www.guardian.co.uk/commentisfree/2010/jun/02/israel-aid-convoy-law

Who will bring Israel to book over flotilla attack?

This was almost certainly a breach of international law and

Turkey has the right to take charge of a criminal investigation

Daniel

Machover

guardian.co.uk, Wednesday 2 June 2010 11.00 BST

Will the rule of law be applied to Israel this time? In

principle, it is unlawful for a state to enforce a blockade

against ships that are flying the flag of another state on the

high seas. The only exceptions to this would be if the blockade

were mandated by the UN security council acting under chapter

VII of the UN charter. The basic principle under customary

international law as regards ships in international waters was

set out by the permanent court of international justice in the

SS Lotus case (1927):

"... vessels on the high seas are subject to

no authority except that of the state whose flag they fly. In

virtue of the principle of the freedom of the seas, that is to

say, the absence of any territorial sovereignty upon the high

seas, no state may exercise any kind of jurisdiction over

foreign vessels upon them."

While international law does allow for exceptions to the above

rule, entitling warships to interfere with ships flying the flag

of another state while in international waters in limited

circumstances, those exceptions do not apply to the events of 31

May. Indeed, a 1988 treaty (to which Israel is a party)

criminalises the unlawful and intentional seizure or exercise of

control over a ship by force, and all connected injuries or deaths.

If the Israeli boarding of the ship was illegal, then arguably

the passengers were entitled to act in self-defence against the

invading commandos. If so, they could use reasonable force to

defend themselves, the amount of force permitted being

determined by Turkish law.

And that is the point: it is clearly Turkish criminal law that

can and should predominate from this point on. The Mavi Marmara

is a Turkish-registered ship and was travelling peacefully in

international waters when Israeli forces boarded it. At least

one of the dead civilians is reportedly a Turkish citizen. The

Turkish authorities have the absolute right to assert that their

criminal justice system take sole charge of a criminal investigation.

Turkey is therefore perfectly entitled to demand that all

evidence, including the identity of all Israeli naval and other

forces, is handed over to its criminal justice authorities for a

full investigation and that Israel allow Turkish law enforcement

officials unimpeded access to the Israeli suspects. Israel is

after all a party to the 1959 European convention on mutual

assistance in criminal matters.

If Israel were to refuse, the UN security council, if concerned

about a threat to international peace and security, could then

back Turkish and international demands to this effect in a

chapter VII resolution. The question therefore arises: will

Turkey and the international community require Israel to comply

with the rule of law on this occasion?