written by Ibrahim Kaya printable version send your friend

Monday, 19 September 2011

With the announcement of the Palmer report regarding the Mavi Marmara incident, a possible application to the International Court of Justice at The Hague was brought to the agenda. The United Nations Secretary General’s Panel of Inquiry named the Palmer Commission constituted of four members, two being impartial members. While the Turkish and Israeli members did not join the report, the report was compiled by the other two members and presented to the UN Secretary General. Whilst not being legally binding, the report carried political significance and was met with a serious reaction by Turkey. Whilst the President expressed that the report was legally non-existent in the eyes of Turkey, the Foreign Minister listed the five-point plan of action to be implemented henceforth. During these events, the application to the ICJ has been underway. From what can be gathered, the appeal to the ICJ will be based on the Gaza blockade. The most important international court in resolving legal disputes through judicial remedies, the ICJ is one of the central organs of the UN. According to Article 38 of the ICJ Founding Treaty annexed to the UN Charter, the court delivers its judgments based on international law. The Court’s jurisdiction over interstate disputes is not automatic. Put another way, the court has not been granted mandatory jurisdiction and therefore requires the approval of the states involved in order to initiate an action. This means that it is not possible for Turkey to unilaterally file a claim and for the Court to evaluate such a claim without Israel’s approval. Although it should be a logical conclusion that Israel, which claims it is right, should not escape trial, it is possible to conclude that Israel would not want to participate in such a trial. Apart from evaluating cases, the ICJ’s second function is to deliver advisory opinions. As per Article 96 of the UN Charter, the UN General Assembly, Security Council, and other UN organs and their specialist organizations can apply to the ICJ to receive an advisory opinion regarding matters within their own scope of interest. It is not expected that the Security Council will refer the matter to the Court due to its veto power. An application can be submitted with the UN General Assembly taking action. From what can be gathered from the press, it is understood that Turkey will opt for this method. The fact that the UN General Assembly’s 66th Session will be underway on September 13 in New York presents an opportunity for this.  Although the advisory opinion is seemingly at a lower status than actual judgments delivered by the court, in practice there isn’t a significant difference between the two. Hence, the judgments made at the courts different from domestic laws can only be implemented by the states themselves without an enforcement mechanism at the UN level. While an application is made to the Court to become party to an action, a submission on which the parties can negotiate is prepared. When an advisory opinion is being asked, only the body filing the application presents a submission unilaterally if it wishes to do so. In this regard, content wise, it’s possible to put forth the idea that it is more favorable to obtain an advisory opinion.

Both the Court ruling and the advisory opinion carry similar political weight. The advisory opinions delivered in recent years with regard to the nuclear weapons that have been given, the wall that Israel has built inside the West Bank, and Kosovo’s declaration of independence have been taken into consideration by judicial bodies in addition to having occupied the world political agenda. The ICJ advisory opinion, delivered subsequent to a UN General Assembly submission regarding the wall built by Israel in the Occupied Territories, has especially documented the illegality of this wall. A similar decision regarding the blockade can result in Israel no longer being able to implement the blockade. As for the issue of the contents of the ICJ application, as per the rules governing state responsibility in international law, the actions of the armed forces during the Mavi Marmara raid have brought about the responsibility and culpability of the Israeli state. Separately from the legality of the blockade, an obligation to file an official apology and provide compensation is in question. There is no need to further bring this issue in front of the Court. It can be gathered from the FM’s statements that, as a suitable approach, the issue of the blockade will be carried to the ICJ. Three main arguments regarding the legality of the blockade can be developed at the UN General Assembly with Turkey’s initiative. First, it could be contended that although traditional international law regards a blockade as a wartime precaution, in the contemporary period, it is no longer appropriate according to international law to construe a blockade as it used to be construed. The prevention of all enemy and neutral ships from all nations entering into and exiting from enemy soil is implied with a blockade. Subsequent to declarations of war, belligerent states announced their decision to implement blockades and attacked all ships that did not conform to the blockade. The 1856 Paris Declaration and the 1907 Hague Convention include regulations regarding this. Blockades had been imposed during the First and Second World Wars. War has been prohibited with the acceptance of the UN Charter. Countries can only employ force through a UN Security Council resolution or as a tool of self-defense. Therefore, the instrument of a blockade, which belonged the pre-UN era and is only regarded as valid in a state of war, has lost its legality as it is traditionally understood. It is no longer possible to subject civilian ships which are not carrying military equipment, especially ships which are also not a party to the armed conflict, to the rules of a blockade. Therefore, the attack that was conducted toward the Mavi Marmara, for which there was no evidence that it carried military equipment, is not in accordance with the law.

The second argument is that, whilst accepting that traditional blockade rules could be applicable, Israel’s blockade on Gaza, being in breach of the laws of implementing a blockade, is therefore still illegal. According to this, a blockade can only be applied toward a belligerent state which is party to the armed conflict. Because Israel does not recognize Palestine as a state, it cannot implement a blockade. According to UN decisions, Palestine is occupied territory, with the occupier being Israel. It is not possible to implement a blockade on occupied territories.

Lastly, whilst accepting that traditional blockade rules apply, it could be argued that Israel’s blockade is in breach of the law due to it violating the conditions of implementing a blockade. As a matter of fact, a 2009 UN Human Rights Council report has found the blockade in breach of the law in this regard. Unlike the Palmer report, which became a UN document and was prepared by a commission which constituted entirely of legal experts, this report found the Israeli blockade to be illegal as per the Fourth Geneva Convention of 1949 due to the damage it inflicted on the civilian population and the economy. As a result, this incident, which Israel could reasonably resolve by apologizing for the extravagant actions of some members of its armed forces and by paying compensation to the victims, has changed its dimension and become a very important subject of international law, coming between Turkey-Israel relations. There exist very serious arguments that Turkey could produce evidence proving that the blockade is illegal and it is very appropriate, both legally and politically, that the ICJ was chosen as the venue for this debate.  



*Prof. Dr. Ibrahim Kaya, ILA-International Law Association Directorate of Turkey.