Letter to Stephen Smith re: Israeli Action Against Aid flotilla

June 5, 2010

The Honourable Stephen Smith MP
Minister for Foreign Affairs and Trade
PO Box 6022
House of Representatives
Parliament House
Canberra ACT 2600

Dear Minister,

Israeli Action against Aid Flotilla

I write to express the strong concern held by Australian Lawyers for Human Rights (ALHR) in respect of the recent events in international waters in which members of the Israeli Defence Force (IDF) forcibly boarded individual ships of a flotilla attempting to deliver humanitarian aid to the Palestinian communities in the Gaza strip. (I note also that, amongst the passengers on the flotilla were a number of Australians and that one Australian was among the persons injured.) Taking such action in international waters is contrary to international law; a breach which cannot be overcome in this case by the exception of self-defence. It does not appear reasonable to describe this flotilla as a military threat to Israel.

ALHR is very concerned that the actions of the IDF have resulted in at least nine of the persons on the ships having been killed and a large number of others including some members of the IDF having been injured.

ALHR requests that you, in your capacity as Minister for Foreign Affairs, and the Australian government press strongly in international forums for a respected and independent international inquiry to be established to conduct inquiries and ascertain the facts of the incident and also to inquire as to whether the actions of the IDF complied with their obligations under international law, including international humanitarian law.

In this respect, we note that a number of commentators have raised possible provisions that, depending on the circumstances pertaining at the time of the incident, may be applicable to the incident and the actions of the IDF. These include the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea.
The Fourth Geneva Convention constrains the conduct of the military in armed conflicts not of an international character and proscribes in this context “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” It also requires that relief societies be permitted to continue their humanitarian activities.

The San Remo Manual is, in many respects, a modern equivalent to the Oxford Manual on the Laws of Naval War Governing the Relations Between Belligerents adopted by the Institute of International Law in 1913. The Manual makes provision for a state to declare and defend a blockade. However, in doing so, that state is obliged to implement the blockade impartially, issue warnings, and distinguish between civilians or other protected persons and combatants. It also requires them to ensure that methods or means of warfare are not indiscriminate and do not cause superfluous injury or unnecessary suffering.

We would also refer you to a more detailed analysis of the international law issues that arise, including issues going to the lawfulness or otherwise of Israel?s blockade of Gaza, published by Associate Professor Ben Saul on the web site of the Australian Broadcasting Commission.

It is important that the international community acts strongly to ensure that the facts as to what happened in the incident are established with a satisfactory degree of certainty. If a breach of international law has occurred, the international community should act to make the perpetrator accountable.

If countries are repeatedly allowed to flout international law, both the provisions of that law and the international community lose status and respect. Rogue behaviour is encouraged.

I trust that you will take all reasonably available steps to ensure, as far as possible, that that the rule of law, at an international level, is applied to the circumstances of this incident.

Best regards,

Stephen Keim
Australian Lawyers for Human Rights
5 June 2010
Mobile: 0433 846 518
Email: s.keim@higginschambers.com.au