http://www.thejournal.ie/turkey-launches-international-legal-challenge-to-gaza-blockade-217422-Sep2011/TURKEY IS TO LAUNCH an international legal complaint against Israel’s naval blockade of the Gaza strip, after expelling Israel’s ambassador and severing military ties with the country.
Turkey’s foreign minister Ahmet Davutoglu told state TV that his country had dismissed an official UN report into the blockade, which led to the deaths of nine Turkish activists and the wounding of seven Israeli soldiers aboard an aid flotilla during an armed standoff in May 2010.
That UN report – which found that Israel had acted legally to secure its territory, but said the killing of the activists was “unacceptable” – had not been ‘endorsed’ by the UN and was therefore not a binding opinion, PA quoted http://www.google.com/hostednews/ukpress/article/ALeqM5iZ1GWHlP_VHVDEUmGiFWdomssfdg?docId=N0180071315096556770A Davutoglu as saying.“What is binding is the International Court of Justice. This is what we are saying: let the International Court of Justice decide,” he said, adding that procedures to initiate the case would start this week.
---------------------------------------------------------------------------------------
Part of the detailed legal argument that will be used in part by the Turks:
http://www.foreignpolicyjournal.com/2010/07/20/the-illegality-of-israels-naval-blockade-of-gaza/snip
The San Remo Manual applies to “armed conflict at sea” (Article 1). Yet there is no armed conflict at sea in this case. Gaza has no navy (nor does it have an army or air force). Attacks against Israel are limited to rockets fired by militant groups from the land against targets on the land. Nonetheless, let us consider that a state of “armed conflict” exists and presume the principles of the San Remo Manual are fully applicable.
The Manual explicitly states that: “The principles of necessity and proportionality apply equally to armed conflict at sea and require that the conduct of hostilities by a State should not exceed the degree and kind of force, not otherwise prohibited by the law of armed conflict, required to repel an armed attack against it and to restore its security” (Article 3).
“Parties to the conflict shall at all times distinguish between civilians or other protected persons and combatants and between civilian or exempt objects and military objectives” (Article 39).
“In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” (Article 40).
“Attacks shall be limited strictly to military objectives. Merchant vessels … are civilian objects unless they are military objectives in accordance with the principles and rules set forth in this document” (Article 41).
Moreover, “it is forbidden to employ methods or means of warfare which … are of a nature to cause superfluous injury or unnecessary suffering” or “are indiscriminate, in that … they are not, or cannot be, directed against a specific military objective” (Article 42).
Israel had an obligation to take “precautions” in its attack, such as “determining whether or not objects which are not military objectives are present in an area of attack”, to “do everything feasible to ensure that attacks are limited to military objectives”, and to “take all feasible precautions in the choice of methods and means in order to avoid or minimize collateral casualties or damage”. Additionally, “an attack shall not be launched if it may be expected to cause collateral casualties or damage which would be excessive in relation to the concrete and direct military advantage anticipated from the attack as a whole” (Article 46).
Lapidoth, in citing the San Remo Manual to support an argument that Israel’s attack on the Mavi Marmara was legal, neglects to point out that the Manual states explicitly that among the “classes of enemy vessels” that “are exempt from attack” are “vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations” and “passenger vessels when engaged only in carrying civilian passengers” (Article 47).
Furthermore, the San Remo Manual states that a prerequisite for any lawful blockade is a declaration that “shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline” (Article 94). Israel has never made a declaration meeting these requirements.
And to be lawful, “A blockade must be effective. The question whether a blockade is effective is a question of fact” (Article 95). Israel’s blockade is not effective towards any military objective whatsoever, having served only to deny humanitarian shipments into Gaza.
Even if Israel had made a proper declaration of its intent, the Manual notes that: “The declaration or establishment of a blockade is prohibited if … it has the sole purpose of starving the civilian population or denying it other objects essential for its survival” or if “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade” (Article 102).
Lapidoth also acknowledges that “there is the condition that a state may not starve the civilian population (San Remo, Article 102).” Lapidoth makes no further comments on this condition for the “legality” of a naval blockade, despite the fact that the blockade prevents food from entering Gaza.
Even if one could argue that blocking humanitarian supplies was not the sole purpose of Israel’s blockade, the fact remains that the continuing suffering of the civilian population was and is a predictable consequence of Israel’s actions, which are indiscriminate, disproportionate, and otherwise excessive in relation to any possible legitimate military objective.
snip
---------------------------------------------------------------------------------------
Finally, even if the naval blockade is found to be legal by the ICJ, the other parts of the total blockade are NOT:
Amnesty International - Palmer Report Did Not Find Gaza Blockade Legal, Despite Media Headlineshttp://blog.amnestyusa.org/justice/palmer-report-did-not-find-gaza-blockade-legal-despite-media-headlines/The media has gone crazy these past couple of days announcing that the UN-appointed panel of inquiry into the flotilla raid last summer, known as the Palmer Commission, found that the Israeli imposed blockade on Gaza is legal and that Israel used excessive force during the raid.
From the Jerusalem Post to the BBC, headlines scream that Israel’s blockade of the Gaza Strip is legal. This is not only completely false, it distracts from the main point of the inquiry which was to determine if excessive use of force was used by Israeli forces during the raid on the flotilla in international waters and how to avoid a similar incident like this from happening again.
The contents of the Palmer Report were made public Thursday by the New York Times. The report itself, which was completed last February, was being delayed at the UN while Turkey and Israel negotiated over language and played behind-the-scenes politics.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
