The Legal Position
on the Israeli Attack

Craig Murray
May 31, 2010

I think that anybody with any fairness is bound to admit that the statement
William Hague came out with is much better than anything on Israel which
New Labour ever came out with, especially this bit:

“This news underlines the need to lift the restrictions on access to Gaza,
in line with UNSCR 1860. The closure is unacceptable and counter-
productive. There can be no better response from the international
community to this tragedy than to achieve urgently a durable resolution
to the Gaza crisis.

I call on the Government of Israel to open the crossings to allow
unfettered access for aid to Gaza, and address the serious concerns
about the deterioration in the humanitarian and economic situation and
about the effect on a generation of young Palestinians? .”
http://www.fco. news/latest- news/?view= News&id=22300485

But as I told this afternoon’s tremendous spontaneous demonstration on
Whitehall, fine words are not enough and we must now see the kind of
sanctions regime we saw against apartheid South Africa.

A word on the legal position, which is very plain. To attack a foreign
flagged vessel in international waters is illegal. It is not piracy, as the Israeli
vessels carried a military commission. It is rather an act of illegal warfare.

Because the incident took place on the high seas does not mean however
that international law is the only applicable law. The Law of the Sea is quite
plain that, when an incident takes place on a ship on the high seas (outside
anybody’s territorial waters) the applicable law is that of the flag state
of the ship on which the incident occurred. In legal terms, the Turkish ship
was Turkish territory.

There are therefore two clear legal possibilities.

Possibility one is that the Israeli commandos were acting on behalf of the
government of Israel in killing the activists on the ships. In that case Israel is
in a position of war with Turkey, and the act falls under international
jurisdiction as a war crime.

Possibility two is that, if the killings were not authorised Israeli military
action, they were acts of murder under Turkish jurisdiction. If Israel does not
consider itself in a position of war with Turkey, then it must hand over the
commandos involved for trial in Turkey under Turkish law.

In brief, if Israel and Turkey are not at war, then it is Turkish law which is
applicable to what happened on the ship. It is for Turkey, not Israel, to carry
out any inquiry or investigation into events and to initiate any prosecutions.
Israel is obliged to hand over indicted personnel for prosecution.

Craig Murray is a human rights activist, writer, former British Ambassador,
one time Foreign Office specialist on maritime law and an Honorary Research
Fellow at the University of Lancaster School of Law.