Was Israel right to board the Mavi Marmara and defend her sailors?
The measures required by the Security Council have been taken by no state except Israel, which has the right and duty to maintain her interceptions and searches
The lawfulness of Israel's interception of the Free Gaza Flotilla
David Lewis, 11 June 2010
Commentators have alleged that Israel's interception of the Free Gaza flotilla on 31 May 2010 was illegal.
For example Francis Boyle, professor of international law at the University of Illinois College of Law, is reported to have said: "The Israeli attack on the Gaza flotilla violated the 1988 SUA Convention [Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation], to which Israel, Turkey, Ireland and the USA are all parties. This convention was pushed by the USA in reaction to the Achille Lauro hijacking and the murder of Leon Klinghoffer."
Examination of the Convention itself makes it clear that this opinion is highly suspect, if not plainly wrong.
Certainly, the Convention makes it an offence unlawfully and intentionally to seize or exercise control over a ship by force or threat of force or any other form of intimidation, or to perform an act of violence against a person on board a ship if that act is likely to endanger its safe navigation, or to injure or kill anyone in connection with those offences; or to attempt, abet or threaten those offences (article 3).
As against those clear words it is equally clear that the seizure or exercise of control must be done unlawfully to be an offence; I deal below with that key point. Moreover, the preamble to the Convention makes it clear that its purpose is to combat terrorism (as Professor Boyle reminds us by his reference to the Achille Lauro hijacking and the murder of Mr Klinghoffer). Finally, nothing in the Convention affects in any way the rules of international law as to the competence of states to exercise investigative or enforcement jurisdiction on board ships not flying their flag (article 9).
Israel's interception of the Free Gaza Flotilla was done lawfully: (a) in the exercise of her inherent right of self-defence under article 51 of the UN Charter, and (b) by way of implementation of UN Security Council Resolution 1860, passed in 2009.
UNSCR 1860 requires "unimpeded provision and distribution throughout Gaza of humanitarian assistance ..." (article 2). It also calls upon member states "to prevent illicit trafficking in arms and ammunition" (paragraph 6).
Israel is so far the only member state which has taken and is taking effective action to prevent the illicit trafficking in arms and ammunition. These measures include the interception of boats and trucks carrying or purporting to carry humanitarian aid to Gaza.
In any case, no UN Security Council resolution can impair Israel's inherent right of self-defence; and certainly cannot do so before "the Security Council has taken measures necessary to maintain international peace and security" (article 51). As I've mentioned, the measures required by UNSCR 1860 have been taken by no state except Israel, and until effective "arrangements and guarantees [emphasis supplied]" (paragraph 6) are in place Israel has the right - and indeed duty - to maintain her interceptions and searches, and of course to allow her armed forces to defend themselves against attacks of the kind that occurred on 31 May.