Turkey’s temper tantrum reached new heights with the harassment, Monday morning, of a group of 40 Israelis at Istanbul’s international airport, and the decision, Monday afternoon, to kick out every Israeli diplomat save the embassy spokesperson and consular services personnel by Wednesday.
Turkey has announced other steps – including challenging Israel’s blockade at the International Court of Justice and suing the IDF soldiers involved in the Mavi Marmara incident that triggered the latest crisis between the two countries.
Much of this may be venting frustration and anger at Turkey’s failure; after all, the general contours of the Palmer Report had been known since last June. Turkey tried to extort an apology from Israel – though the Palmer Report only recommends Israel expresses regret (Israel has already done so).
But there is an ominous threat in the Turkish list of steps against Israel, which Michael discussed here yesterday–Turkey’s announcement it is going to “take measures to ensure freedom of navigation in the eastern Mediterranean.” Michael did a great job collecting all the utterances on the subject made by Turkish officials.
If this is just a testosterone thing, so be it.
But if Turkey is serious about escalating its crisis with Jerusalem by forcing the blockade, Turkish Prime Minister Recep Tayyip Erdogan’s and his Foreign Minister Ahmet Davutoglu’s legal advisers might wish to carefully re-read several passages of the Palmer Report. For example, the Report’s findings state: “The fundamental principle of the freedom of navigation on the high seas is subject to only certain limited exceptions under international law. Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.”
Elsewhere, the Report notes that “Once a blockade has been lawfully established, it needs to be understood that the blockading power can attack any vessel breaching the blockade if after prior warning the vessel intentionally and clearly refuses to stop or intentionally and clearly resists visit, search or capture. There is no right within those rules to breach a lawful blockade as a right to protest. Breaching a blockade is therefore a serious step involving the risk of death or injury.” (Paragraph 158)
It adds that “The imposition of a blockade involves the use of force, which can only be employed in the exercise of a right of self-defense.” (Paragraph 160) It goes on to say that “The purpose of a blockade is thus to prevent all enemy and neutral ships from entering or leaving the blockaded territory.” (Appendix II, paragraph 16) and therefore “all neutral and belligerent shipping—including the blockading power’s own merchant vessels—is barred from entering or leaving the blockaded area unless otherwise authorized by the blockading power in specific, exceptional cases.” (Appendix II, Paragraph 31)
What does the Report say about a vessel trying to breach the blockade?
“Vessels suspected on reasonable grounds of breaching a blockade may be captured. Capture is the taking of such vessels as a prize for adjudication. It is “effected by securing possession of the vessel through the captor sending an officer and some of his own crew on board. In this context, it should be noted that a vessel’s motive for breaching the blockade is irrelevant. In particular, humanitarian vessels are not exempted from capture, unless they have entered into a prior agreement with the blockading power in line with the relevant provisions of the San Remo Manual.” (Appendix II, Paragraph 43 and 44)
Given the explicitly and cockily stated intention by Turkey to breach the blockade with warships, I think the above applies, as does what follows: “Intrinsically linked to the right of capture is the right of the blockading power to search and visit a vessel if ‘there are reasonable grounds for suspecting’ that the ship is breaching or attempting to breach the blockade. The right of search and visit therefore serves to address uncertainties about a vessel’s intended journey. Otherwise, belligerents would be unable effectively to control and enforce the . . . institution of a blockade. The right to visit and search may not be exercised arbitrarily. However, certainty about the breach or attempted breach is not required; it suffices that there are reasonable grounds to believe such activity occurs. If a vessel resists interception or capture, it may be attacked. At that moment, the vessel becomes a military object.” (Appendix II, Paragraphs 45 and 46).
Because the Palmer Report has recognized an on-going state of war exists between Israel and Hamas; that Israel has a right to self-defense in this context; that the blockade is a legitimate instrument to meet Israel’s security requirements; and that therefore Israel’s blockade is legal; any attempt by Turkish ships to breach the blockade would be an act of aggression. Israel, provided it follows the rules of engagement (prior warning, ascertainment of the vessels’ intentions, non-violent means, proportionality etc.) laid out in the Palmer Report, is entitled to board, capture or otherwise use force to prevent Turkish ships from getting to Gaza.
The law, as laid out in the Palmer Report, is on Israel’s side. Turkey can throw the Report in the bin – as it did – and threaten to challenge the blockade at the
International Court of Justice (which it can’t, unless Israel agrees to jointly seek a judgment on the matter). But saying the earth is flat does not make it less round.