By Dan Izenberg
On Monday, a group of lawyers including Avigdor Feldman, Yiftah Cohen, Itamar Mann and Omer Shatz petitioned the High Court, charging that Israel had violated the UN Convention on the Law of the Sea by capturing the boats in international waters.
The petitioners are demanding that the court rule that the sea operation was illegal, and that the passengers be released and allowed to return to their boats, which should be permitted to reach the Gaza Strip.
"To the degree that the State adheres to international law, including the UN Convention on the Law of the Seas, we see that this was an act of piracy, albeit by a state, but one which can be regarded as a robbery by sea of the passengers in the convoy, beginning with the takeover of the vessels, the seizing of the goods on board...and ending with the arrest and hijacking of the passengers and, apparently, the act of bringing them by force to Israeli territory."
Israel did not sign the convention.
The lawyers wrote that these acts constitute an international crime and that they establish the right to apply the principle of universal jurisdiction by any tribunal, especially by the courts of those countries whose flags were flown by the vessels that were attacked."
The petitioners also referred to other precedents in international law which, they argued, justified the demands of the petitioners. One was the so-called Lotus Case, in 1927, which involved a French ship which accidentally rammed a Turkish vessel in international waters, killing eight Turks. The French vessel was brought to Turkey and the captain was put on trial. France appealed the Turkish action, arguing that it (France) alone had jurisdiction on the high seas for its own vessels. However, the court ruled that sovereign states may act in anyway they please on the high seas as long as they do not violate an explicit prohibition.
The UN convention calls for freedom of navigation in international waters, states that the high seas shall be reserved for peaceful purposes and that no state my validly purport to subject any part of the high seas to its sovereignty.
The third source referred to by the petitioners, which they said was part of customary law and therefore binding on Israel, was the 1804 Murray vs. Charming Betsy case, in which the court ruled that even during wartime, the US army may not seize goods that are not for military use in international waters."
Robbie Sabel, the former legal adviser to the foreign ministry, told The Jerusalem Post that the state would almost certainly argue that the seizure of the vessels was an executive act with which the court was not authorized to intervene.
Sabel also said that Israel considered the Gaza Strip hostile territory which is engaged in armed conflict against it. The UN Convention on the Laws of the Sea did not deal with armed conflict.
Meanwhile, the laws of war recognized naval blockades as a legal and established part of the laws of armed conflict. There were many examples of countries that have maintained naval blockades in international waters and they have not been declared illegal, Sabel maintained.
He added that neither of the other arguments regarding the Lotus Case and Murray vs. Charming Betsy were relevant to the present situation.
