To be fair this did occur in international waters didn't it? In which case without the ships captains permission any boarding is considered piracy isn't it?
Best Multi-Role Warship?
- Thread starter gforce
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Actually the event happened in Israel''s 200 mile Economic zone. Its legal for a nation's navy, coast guard, and customs to board any ship within its Economic zone for any reason...
While enforcing a embargo against another nation may be considered warllike, its not so when you are embargoing technically your own territory or nation... Keep in mind Gaza is not Egyptian sovereignty...
While enforcing a embargo against another nation may be considered warllike, its not so when you are embargoing technically your own territory or nation... Keep in mind Gaza is not Egyptian sovereignty...
Juramentado
New Member
A properly declared Maritime Blockade states where the blockade is in effect - that will include coordinates or navigational references so mariners will know where the zone becomes effective; a.k.a., Notice to Mariners. The Israeli blockade was declared from a International Martime perspective as of January 2009.
NO. 1/2009 Blockade of Gaza Strip
There are some arguments in the San Remo Law that state intent is equally important even though a blockade runner may not have violated the stated zone. If the runner is headed full-bore into the zone, then action can be considered. The question to ask is this - if the radio excerpts from the incident are reliable, then the intent of the flotilla was well established prior to the boarding. One could argue that the intention was established well before any of the six ships raised anchor off Cyprus, but at that time, it's a statement, not a fact.
From a practical perspective,. the issue of where the interception occurred is overshadowed by the actual boarding and the subsequent events.
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Dunno which law you're reading, but the UN Convention on Law at Sea says otherwise.
1. The convention does not extent local law to the high seas, it only gives the state jurisdiction over the exploitation of the maritime zone defined by the EEZ.
2. Israel does not have an internationally declared EEZ. An EEZ can't be unilaterally declared but has to be filed with the proper UN authorities. Most coastal states do not have a declared EEZ.
3. States are allowed to inspect ships within their declared EEZ (see 2.) only if ships are under suspicion of illegally exploiting the EEZ (see 1.).
Israel could reference the San Remo Manual which would give it the right to maintain a blockade, and search inbound ships for contraband - except Israel isn't party to the San Remo Manual, and therefore not entitled to its provisions.
Why is this discussion in this thread, btw?
No. It's legal in limited circumstances, for limited reasons, not any ship for any reason.
I don't think you can make such a determination without more factual information and legal reasoning. Please provide relevant laws, conventions and applicable section for your legal reasoning. I'll be interested to know more.
If you are interested in more information, read this link from 'Ocean Development & International Law, 33:317–341, 2002' for the legal definitions of piracy and armed robbery at sea.
You do realise that the Sayeret 13 naval commandos boarded the ship, Mavi Marmara on the orders of a state. If you want to accuse a state of piracy, in this case, don't cry the other states (like N. Korea or some other state) by analogous reasoning accuse the Australian or American troops of piracy when they board a ship in support of the PSI initiative.
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The 1982 UN Convention on Law at Sea is not applicable in the latest case and is being brandied about in a few forums without a proper explanation of the basis.Dunno which law you're reading, but the UN Convention on Law at Sea says otherwise.
1. The convention does not extent local law to the high seas, it only gives the state jurisdiction over the exploitation of the maritime zone defined by the EEZ.
2. Israel does not have an internationally declared EEZ. An EEZ can't be unilaterally declared but has to be filed with the proper UN authorities. Most coastal states do not have a declared EEZ.
3. States are allowed to inspect ships within their declared EEZ (see 2.) only if ships are under suspicion of illegally exploiting the EEZ (see 1.).
Israel could reference the San Remo Manual which would give it the right to maintain a blockade, and search inbound ships for contraband - except Israel isn't party to the San Remo Manual, and therefore not entitled to its provisions.
Why is this discussion in this thread, btw?
BTW, I also agree that if a state is not a party to a convention/manual, it is not entitled to its provisions.
Sure. I actually leave the Law At Sea aside usually, since Israel doesn't derive any rights from it anyway. In these I usually instead use:
- - the San Remo Manual on Application of International Law to Naval Warfare
- - the Second Geneva Convention
- - the Thirteenth Hague Convention
- - the NATO charter (important in connection with San Remo; any armed attack on a NATO-flagged ship in any mediterranean waters, including foreign territorial waters, nominally constitutes a possible entry into collective defense under Article 5 and 6!)
And just to mess with people, sometimes the Nyon Agreement
San Remo gives some solid background, including legal background for boarding in case of blockades. The problem is that Israel isn't party to most of the above; however in any impartial judgement on the case, it'd be highly likely that any court would work its away along the baseline for blockades set forth by the San Remo Manual.
Edit: On a side note, the list tag still doesn't work.
For common law systems, I would assume that one can try the idea of 'customary laws' (ie. binding precedent), when a belligerent is not a party to a convention/manual. How does a civil law system handle such a situation? I'm a bit confused on what would be a German frame of legal reference, given that your country follows the BGB (sorry can't spell long German words from memory)? Or would you treat the BGB as unrelated to the San Remo Manual and the other conventions you referenced? Civil law systems must have a means of incorporating conventions into your domestic legal framework. I'm just not sure how it works.
To make matters worse, the Israeli legal system, belongs neither to the Common Law nor to the Civil Law families of legal systems. Rather it is characterized as belonging to the family of mixed jurisdictions (see link). Therefore, I'm really unsure of how to understand/apply the correct analytical framework to understand the latest developments.
I'm sure the Israeli Government and their navy would have taken legal advice before embarking on their present course of action.
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San Remo would probably be used as a guidebook for "customary law", since all it does is pretty much lay out the rules that have been followed in naval warfare in the past 100 years (for the most part).
The German frame of reference... depends. For which side?
Most extreme would be §316c of the StGB, meaning the criminal law code:
Whoever uses violence or coercion to gain command of a civilian ship or uses firearms, explosives or arson to damage or destroy such a ship or its load shall be punished with no less than five years imprisonment; in less serious cases, the perpetrator shall be punished with between one and ten years imprisonment; whoever at least frivolously causes the death of another person in such an incident shall be punished with no less than ten years imprisonment; whoever aids a person in such an incident by providing or producing firearms, explosives or incendiaries for this act shall be punished by six months to five years imprisonment.
Generally though our reference would be San Remo, since Germany is a party to the treaty, and international treaties have law rank in Germany.
The German frame of reference... depends. For which side?
Most extreme would be §316c of the StGB, meaning the criminal law code:
Whoever uses violence or coercion to gain command of a civilian ship or uses firearms, explosives or arson to damage or destroy such a ship or its load shall be punished with no less than five years imprisonment; in less serious cases, the perpetrator shall be punished with between one and ten years imprisonment; whoever at least frivolously causes the death of another person in such an incident shall be punished with no less than ten years imprisonment; whoever aids a person in such an incident by providing or producing firearms, explosives or incendiaries for this act shall be punished by six months to five years imprisonment.
Generally though our reference would be San Remo, since Germany is a party to the treaty, and international treaties have law rank in Germany.
Aplogies, didn't intend to make any determinations - just questions really. When I posted this I had not researched the issue extensively, hense my clumsy attemp to get more info. From the news I had heard this intercept had occurred a significant distance from the shore - I was under the impression that due to the crowded nature of the Med, that EEZ's would need to be by nature small or non existant, and that this incident occurred outside of the Territorial waters - hence my question about international waters.
My initial thoughts on piracy seem to be supported by the intent behind the UN Convention Law on the Sea, and IMB - piracy being defined as:
UNCLOS Article 101: Definition
In the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, "maritime piracy" consists of:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).[105]
[edit] IMB Definition
The International Maritime Bureau (IMB) defines piracy as:
the act of boarding any vessel with an intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act.[106]
Now, as I am not legally trained nor have sufficient time to read all however many pages the subclauses would come to, I note two things: That this definition of piracy doesn't seem to exclude state sponsored events (could this be interpreted as state sponsored terrorism?), and it does include acts of violence. I also note the Israel is not a signatory to that convention - does that abrogate the state of its UN responsibilities? It kinda seems convenient if that is the case - I'm wondering how it would stack up if I committed a crime such as murder on a fellow Australian, then said to the judge, you cannot try me for this, I have not signed any agreement that I would obey any laws in this regard. Israel is a 'citizen' of the earth and a member of the UN
- how is it that nations get to decide which laws apply to them and which do not?
The Israeli acts are legal and there are two reasons, why you are wrong:
One, an act of a state is not an act for 'private ends', therefore ergo NOT an act of piracy. Even within the convention you cite, the convention does not allow such a suit. Another attorney and retired Navy Reserve Captain USN, who blogs on 'Eagle Speak' also takes the same position.
Two, there is also an issue of jurisdiction (or rather the lack of jurisdiction) by a relevant court of law. For example, in cases brought before the ICJ for between states (eg. between Turkey and Israel), both states involved in the case adjudicated must consent to submit to the ICJ's jurisdiction. And that is NOT going to happen.
It is normal for non-lawyers tend to read only a part of a clause that suits them rather than the whole clause. Forum members who would want to be better informed may want to read this post by Alan M. Dershowitz, a professor of law at Harvard, on the issue of legality in enforcing a naval blockade against another belligerent (Hamas). Likewise, Leslie Gelb, President emeritus of the Council on Foreign Relations, agrees in this article. Given that there is quite a bit of misinformed ranting in a few forums about the legality of these actions, I think providing these links here is of value (however, this is off topic). These links provided above explains why these actions are legal and is designed to put the matter to rest.
There is a post at STRATFOR by George Friedman called 'Flotillas and the Wars of Public Opinion' that discusses the information war of the Gaza flotilla incident. The STRATFOR analysis, shows that many people, despite living in an information age, easily fall for lies by a Turkish NGO, sympathetic to the objectives of a terrorist organization.
I do not intend to further discuss this issue and please also accept my apologies in advance for not being able to respond promptly to any replies for the next 3 weeks or so.
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Hoisted on one's own petard - you are of course correct about the piracy - I need to have my eyes checked as I missed that obvious point "private ends".
I'll read the links, thanks.
On a side note, Germany does apply this particular paragraph in international waters for German ships, if the damaged party applies for persecution - there are currently 10 Somalis awaiting a trial in Hamburg for violating it.
sheldon101
New Member
Israel could reference the San Remo Manual which would give it the right to maintain a blockade, and search inbound ships for contraband - except Israel isn't party to the San Remo Manual, and therefore not entitled to its provisions.
I'm new. I dropped in because I came across to the reference that Israel wasn't a party to San Remo. That didn't make sense, because San Remo has the flavor of being partly a codification of existing customary international law. - I know there's an earlier convention.
I can't post links, so you'll have to find them at the ICRC web site. San Remo doesn't say anything about parites and theirs a pdf file with a list of humanitarian treaties with the parties to them. San Remo isn't included.
I'm new. I dropped in because I came across to the reference that Israel wasn't a party to San Remo. That didn't make sense, because San Remo has the flavor of being partly a codification of existing customary international law. - I know there's an earlier convention.
I can't post links, so you'll have to find them at the ICRC web site. San Remo doesn't say anything about parites and theirs a pdf file with a list of humanitarian treaties with the parties to them. San Remo isn't included.
San Remo isn't a treaty - it's a codification on the application of certain pre-existing treaties, in particular the Second Geneva Convention, the Thirteenth Hague Convention and the 1977 Additional Protocol I to the Second Geneva Convention. San Remo is in essence a modern version of the 1913 Oxford Manual on the Laws of Naval War, but differs from this in integrating the above conventions.
As Israel isn't party to any of these treaties, it's not affected in any way by a codification derived from them either.
There are btw also parts of San Remo that Israel would not want to apply as it already violated them. Among them failing to properly classify and treat the arrested people as prisoners of war, and among them the fact that San Remo classifies the action taken as an act of war (against a NATO member). And of course there's the fine print of Article 103; it does allow search, but the problem is that this search is a technical arrangement for passage - since Israel doesn't allow passage in any case (violating Article 103), it can't prescribe search either.
As Israel isn't party to any of these treaties, it's not affected in any way by a codification derived from them either.
There are btw also parts of San Remo that Israel would not want to apply as it already violated them. Among them failing to properly classify and treat the arrested people as prisoners of war, and among them the fact that San Remo classifies the action taken as an act of war (against a NATO member). And of course there's the fine print of Article 103; it does allow search, but the problem is that this search is a technical arrangement for passage - since Israel doesn't allow passage in any case (violating Article 103), it can't prescribe search either.
sheldon101
New Member
The sea blockade is legal if you view the international law as reflecting the practicalities and there are a lot of experts who do so. If you believe the sea blockade is governed by all the issues of the status of Israel and Gaza and international conflict and you accept a common interpretation, the blockade is illegal.
San Remo isn't a treaty, it isn't a codification, its an actual manual put together by experts over n a number of years. It isn't about the legality of the blockade in that sense. Even before I read much of San Remo , I knew that if the blockade was legal, all of Israel's actions were in compliance. They had to be, otherwise a sea blockade against a ship intended to breach the blockade would be a joke. It helped a bit that I once took a course in international law.
It is written as a manual. "The Manual is not a binding document. In view of the extent of uncertainty in the law, the experts decided that it was premature to embark on diplomatic negotiations to draft a treaty on the subject."
But what had happened is so typical that it had to be covered. And it is a manual that's trying to move international law towards what they want. So the less gentle parts are either from the older treaties and customary international law. And Israel was very gentle.
Here we go s.98 can be captured if they intend to breach blockade. If they resist they can be attacked (which is a lot more than visit and search)
This would apply to any neutral ship heading into the blockade zone. If they can be attacked, then they can be captured. This point is repeated in s.67(a) Once captured they can be taken into a port for adjudication (keep the ship)
and s.146 says they can be captured if s.67 applies (it does) or under s.146(f)
You capture a ship by bringing to your port
s.149 does not apply -- because of the intention to breach the blockade.
s.150(c) means that cement doesn't get a free pass because it can either be used to build fortifications (which given the nature of Gaza is just about everything) or civilians receiving cement allows Hamas to keep and use cement that might otherwise go to civilians.
s.166 (a)means that those who didn't resist are to be released . Those who "personally committed acts of hostility against the captor" may be treated as prisoners of war.
s.166(c) says that if s.67 applies (which it does) or they personally.. etc. they can be treated as prisoners of war.
In capturing the ship, they are to be judged as a military force capturing the ship. From a 'legal' point of view, Israel's actions were pretty mild. If you capture 4 soldiers and take them below (and have gas masks) and Israel or the US or Russian doesn't lay down fire from the helicopter killing everyone in the way to getting below and you're getting off likely.
That's how it is supposed to work out. from a 'legal' point of view. But it is more intended as a guide to what is the minimum behavior we would like (all not yet customary international law).
But it means very little because public doesn't know rules or care =-- just as in 1947 with Exodus.
But it will be useful for Israel in the future. Turkey decides to escort a Turkish ship to Gaza. Israel asks Turkey, what's on the ship? Turkey is going to have to answer. And as long as there isn't military weapons, Israel can say Ok,.let them do what they want. When they leave, the blockade is in force. And there are enough other aspects, that Israel can dipsy doodle and still end up, if it wants to, with a blockade it can tell its citizens and tell the world.
San Remo isn't a treaty, it isn't a codification, its an actual manual put together by experts over n a number of years. It isn't about the legality of the blockade in that sense. Even before I read much of San Remo , I knew that if the blockade was legal, all of Israel's actions were in compliance. They had to be, otherwise a sea blockade against a ship intended to breach the blockade would be a joke. It helped a bit that I once took a course in international law.
It is written as a manual. "The Manual is not a binding document. In view of the extent of uncertainty in the law, the experts decided that it was premature to embark on diplomatic negotiations to draft a treaty on the subject."
But what had happened is so typical that it had to be covered. And it is a manual that's trying to move international law towards what they want. So the less gentle parts are either from the older treaties and customary international law. And Israel was very gentle.
Here we go s.98 can be captured if they intend to breach blockade. If they resist they can be attacked (which is a lot more than visit and search)
This would apply to any neutral ship heading into the blockade zone. If they can be attacked, then they can be captured. This point is repeated in s.67(a) Once captured they can be taken into a port for adjudication (keep the ship)
and s.146 says they can be captured if s.67 applies (it does) or under s.146(f)
You capture a ship by bringing to your port
s.149 does not apply -- because of the intention to breach the blockade.
s.150(c) means that cement doesn't get a free pass because it can either be used to build fortifications (which given the nature of Gaza is just about everything) or civilians receiving cement allows Hamas to keep and use cement that might otherwise go to civilians.
s.166 (a)means that those who didn't resist are to be released . Those who "personally committed acts of hostility against the captor" may be treated as prisoners of war.
s.166(c) says that if s.67 applies (which it does) or they personally.. etc. they can be treated as prisoners of war.
In capturing the ship, they are to be judged as a military force capturing the ship. From a 'legal' point of view, Israel's actions were pretty mild. If you capture 4 soldiers and take them below (and have gas masks) and Israel or the US or Russian doesn't lay down fire from the helicopter killing everyone in the way to getting below and you're getting off likely.
That's how it is supposed to work out. from a 'legal' point of view. But it is more intended as a guide to what is the minimum behavior we would like (all not yet customary international law).
But it means very little because public doesn't know rules or care =-- just as in 1947 with Exodus.
But it will be useful for Israel in the future. Turkey decides to escort a Turkish ship to Gaza. Israel asks Turkey, what's on the ship? Turkey is going to have to answer. And as long as there isn't military weapons, Israel can say Ok,.let them do what they want. When they leave, the blockade is in force. And there are enough other aspects, that Israel can dipsy doodle and still end up, if it wants to, with a blockade it can tell its citizens and tell the world.
Back on the original topic,
wouldnt a modernized Kiev class fit to this multi mission requirement?
From one of the later armaments: 12 SSMs, 192 SAMs, 2 x 100mm dual purpose, 8 CIWS, 10 torps, some jets and some helis
although the "jack of all trades, ..." comes to mind, this is really multi purpose
Of course it does not fulfill the "current warship" requirement, but that would only indicate that so much multi mission is maybe too much of it
The best multi-role warship would be a rock island of sufficient size. Can't be sunk, you can dig bunkers, you can base bombers with global reach on it, you can put anti-ballistic missile systems and any number of SAMs on it, you can fire ICBMs from it. Doesn't really matter that it doesn't move.
That said... gotta say, the most multi-mission warship around is still a generic aircraft carrier. Adaptable to anything you want to do with it just by basing the right aircraft and helicopters on it.
That said... gotta say, the most multi-mission warship around is still a generic aircraft carrier. Adaptable to anything you want to do with it just by basing the right aircraft and helicopters on it.