Diplomatic protection in freedom flotilla incident
I interviewed an Indonesian government official about the Flotilla incident. As you might have been aware, around 12 Indonesian journalists and volunteers are on board the vessels, which makes this issue even more emotive for the Indonesian.
The key question is what diplomatic avenues are available to protect our citizens there and as a follow-up to that, what mechanisms of redress is available under International Law. It is unfortunate that he refuse his name to be mentioned. The analysis he provides is very interesting. Enjoy the interview.
Why is there no "international law" when it comes to Israel?
Not necessarily the case. There are many areas in international law that must be followed by Israel. Take for example in area of diplomatic relations. The fact that Israel has embassies worldwide and official mission in the UN shows that Israel bound to international law. Failure to follow international law thereof will bring consequences.
The latest consequences or "slap in the face" for Israel in diplomatic relations was when UK and Australia expelled or "persona non grata" Israel diplomats from their embassies in relation to passport frauds done by Mossad in the recent Hamas' leader assassination.
In the context of freedom flotilla, one of the main issues of international law is the legality of unilateral interdiction in high seas, including among others, compensation.
Can Indonesian government provide diplomatic protection to its citizens on board Flotilla -- notwithstanding that there is no preexisting diplomatic ties between the two nations?
Indonesian Government can provide protection for its nationals aboard freedom flotilla. As a matter of fact, it is required by indonesian law and international law acknowledges the existence of such obligation.
Is it possible to ask for reparation for injuries?
Of course, in the context of Israel, the United Nations, in particular via the UNGA or UNSC may serve as a media to ask for reparation of injuries. What needs to be underlined though, both UNGA and UNSC are not law tribunals rather they are political bodies.
Is there any way to charge the perpetrators under war-crime?
Charging is less difficult compared to find the means and enforcement to do so. Once there was an attempt to charge former US President Bush for war crimes in Iraq, but because neither the means and enforcement are sufficient, the attempt was useless.
Netanyahu claimed that it was an act of self-defense. What is your comment?
This incident reminds me of a self defence character policy announced by the US in 2004 called Proliferation Security Initiative or PSI, which basically allows interdiction of vessels on high seas assumed to carry WMD for terrorists.
In this case, both PSI and Israel's interdiction share similar motive; threat of terrorists attack (Netanyahu statement in BBC in responding to the interdiction). A clear difference between the two, however, is in the methods: the PSI requires a consent from the vessel's flag states before attempting to board the vessel to begin with whilst the Israelis clearly does not.
Surely, there is a valid reason why International law governs strict requirements when it comes to self defence and use of force, that is to maintain peace, not otherwise.
How compelling (or binding -- as lawyer's often put it) is the law on interdiction under international law? Boarding a foreign vessel on an international water is a clear violation of international law, no? What can Turkey does to redress this internationally wrongful act of the Israeli state?
International law governs interdiction of ships both by customs and treaty laws. Israel is bound to follow; it if not by treaty law then by ways of customs. Because vessel is an extension of a state's territory being the flag state or the owner state, it can be considered as an act of war to board a foreign vessel without valid justification and procedures. Prima facie, such act violates that particular state sovereignty. Article 2 (4) of the UN Charter is crystal clear when it comes to territorial integrity, let alone ICJ decisions.
Bilaterally, Turkey can seek compensation from Israel via its diplomatic channels. Multilaterally Turkey or any other nations for that matter that have been effected by this incident may ask UNGA to exercise Article 96 (b) of the UN Charter that is to seek ICJ's advisory opinion on the legality of Israel's interdiction on freedom flotilla as it did in 2004 on the legal consequences of the construction of a wall in the occupied Palestinian territory, which was decided as contrary to international law.
In a more concrete terms, what can we do provided that no diplomatic relation exist? Can we use the diplomatic arm of a third country to facilitate protection? Can we pursue international enforcement through ICJ, i.e. that states victim collectively demand reparation for its citizens on board Flotilla (that includes Turkey as the ship's flag-state) through ICJ mechanism?
I see several scenarios with regard to protection of Indonesian nationals, among others first, all or one Indonesian nationals are taken as hostages or worst prisoners and second possible compensations. For the first scenario, Indonesia via its permanent representative in the UN can demand a release or deportation of its nationals from Israel or use a third state having diplomatic relations to Israel to do so. The second scenario, however, is rather difficult because the Israel has to be found responsible first.
Enforcement through ICJ is unlikely to result in actual reparation. Unless Israel accepts ICJ's compulsory jurisdiction for contentious case, the only available means in ICJ is by advisory opinion under Article 96 (b) as I have mentioned earlier.
As part of procedures in advisory opinion, Indonesia can submit its official views to the ICJ on the case as it did in the advisory opinion case on legal consequences of the construction of a wall in the occupied Palestinian territory.
And, a gentle reminder:
An online discussion on consumers rights in the Indonesian water services sector will be held on Wednesday, 2nd of June 2010 at 19.00 (GMT+0) in here. More detail.
Nice Sir!
It seems that bringing the case to ICJ would be the viable option. Yet, it can be hard to pinpoint the standard of assessment and quantification of loss. I assume that the compensation might go beyond a simple international law matters, but may well extend to natural persons abroad (as this matter would be the primary issue for Indonesia), the owner and the bareboat charter.
Can't wait for the ICJ advisory opinion....
I wish to applaud the author for this assessment. It is indeed an interesting one, and very familiar.
Well, although taking this matter to ICJ would be a viable option, but I doubt that Israel would accept its compulsory jurisdiction. An advisory opinion would also be a waste of time (I'm sorry to say). One may recall the Eichmann Case and the Palestinian Wall Case and saw how that resulted. Nothing.
It seems that international law doesn't apply very well when it comes to Israel, and it has never been, or at least they never made it as one.
I think every legal scholar won't deny there's a violation of international law in this particular issue (interesting what Israel's defense would be?). Even Israel's existence could also be challenged through international law, yet it never stopped Israel from being very assertive.
Why? Because it's more of a political issue than a legal one (I say natural law is more applicable - I bet Bentham would agree with me). Israel's struggle to avoid extinction for more than 4000 years is already a strong message to all of us. So I suggest that we stop worrying about the small portraits and begin to portray the big picture: unite the Arabs, assure Israel's existence, create balance of power in the region, then enforce international law (that way they would start to consider any legal consequences resulting therein).
How can we achieve that? I say we wait for the author of this interview to reveal his/herself to the international stage.