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, be 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?
Daniel Machover is chair of Lawyers for Palestinian Human Rights and a partner at London law firm Hickman Rose. This article was first published in the Guardian on 2 June 2010; it is reproduced here for non-profit educational purposes. See, also, Craig Murray, “The Legal Position on the Israeli Attack”; Lawyers for Palestinian Human Rights, “The Attack on the Gaza Freedom Flotilla and International Law”; Sevim Songün, “Israel Military Ties Threaten AKP Support as Islamists Call for Stronger Reaction”; Sendika, “İsrail saldırısına karşı tüm Türkiye ayakta”; Sendika, “İsrail’le ikili ilişkiler kesilsin”; Sendika, “İsrail saldırısına karşı eylemler sürüyor”; Sendika, “AKP İsrail’le ilişkileri kesmek istemiyor.”