Well Emma, here's another editorial from the same newspaper which, according to your criteria, is dismissible due to lack of cedibility.

They Shouldn't Have Been There

Israel's soldiers may have acted in self-defence, but boarding a flotilla of aid ships on the high seas violated international law

By Michael Byers, Citizen Special June 3, 2010 Comments (3)


Israel probably regrets its decision to interdict a flotilla of six ships from NATO countries. But instead of apologizing unconditionally, it argues that its soldiers were justified in using lethal force to defend themselves after they had boarded the Turkish-registered Mavi Marmara.

By focusing on this narrow issue, Israel is distracting attention away from the necessary, preliminary question of whether the soldiers had any right to be there in the first place, the answer to which turns on two different strands of international law.

Is the blockade legal?

The interdiction was intended to enforce the three-year long blockade of Gaza, a policy of questionable legality under international humanitarian law -- the so-called jus in bello governing the conduct of armed conflict.

The issue here is not whether blockades in general are legal, but whether this particular blockade -- which extends to most civilian goods and thus has serious affects on non-belligerents --goes too far.

Last year, the UN Human Rights Council asked Justice Richard Goldstone, the former chief prosecutor of the UN International Criminal Tribunals for the former Yugoslavia and for Rwanda, to investigate the matter.

Goldstone found that the blockade was a form of collective punishment directed against the population of Gaza, and thus a violation of the Fourth Geneva Convention which Israel ratified in 1951.

Collective punishment is also prohibited under customary international law which applies even if, as Israel argues, it is no longer an occupying power in Gaza and therefore not constrained by the Fourth Geneva Convention.

Last November, UN Secretary General Ban Ki-moon issued his own report, which also focused on the indiscriminate nature of the blockade and called for it to be lifted. He wrote: "In particular, the Government of Israel should allow unimpeded access to Gaza for humanitarian aid and the non-humanitarian goods needed for the reconstruction of properties and infrastructure."

If Goldstone and Ban are right, the Israeli blockade itself is illegal, and so, too, is any attempt to enforce it against ships carrying nothing more than humanitarian aid.

Does self-defence stretch this far?

Regardless of the legality of the blockade, Israel -- like all other countries -- has an inherent right of self-defence that is codified in Article 51 of the UN Charter. But the existence of this right does not mean that it extends to the use of force against foreign-flagged vessels in international waters when not carrying military supplies destined for a belligerent party.

Self-defence is an exception to the UN Charter's prohibition on the use or threat of force against the "territorial integrity or political independence" of nation-states. As an exception, the right of self-defence must be narrowly construed -- especially when it runs up against other, fundamental rights.

In international law, ships are treated as an extension of the territory of their state of registry. Beyond 12 nautical miles from shore, they exercise one of the oldest rights in international law, namely the freedom of navigation on the high seas.

Self defence is also limited by requirements of necessity and proportionality. For this reason, we must ask whether the Israel Defence Forces acted in a necessary and proportionate way in boarding the vessels -- before they came into contact with the passengers.

Israel has indicted ships in international waters before. In 2002, it seized the Karine A, a freighter in the Red Sea laden with 50 tons of Iranian-made weaponry. But Monday's incident was different, since nobody is suggesting that the ships were carrying munitions to Hamas.

Israeli officials have claimed that the flotilla was opening the floodgates for further blockade-breaking. But although there is legitimate debate about whether the right of self-defence extends to pre-emption, the causal links here are tenuous at best.

The threat was not "instant, overwhelming, leaving no choice of means, and no moment of deliberation" -- which is the centuries-old test for necessity.

Israeli Prime Minister Benjamin Netanyahu says the Israeli soldiers boarded the ship to check it for weapons, but you do not board for this purpose by surprise in the dark of night.

The true motive for the interdiction was revealed by Israeli Foreign Minister Avigdor Lieberman last Friday, when he said that the aid mission was a "violent provocation" that his country was ready to stop "at any cost."

There were other options. Israel could have diplomatically engaged Turkey, arranged for a third party to verify the absence of munitions, and then peacefully escorted the flotilla to Gaza. Such an approach would have done more for its long-term security than this illegal action in support of an indiscriminate and therefore illegitimate blockade.

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. In 2004, he was a visiting professor of law at the University of Tel Aviv.
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