TWO DIFFERENT VIEWS PRESENTED

TURK VE AMERIKAN HUKUKCULARI N KONUYA BAKISLARI

Lynda Brayer( a human rights lawyer):  The Legal Framework of International Law

The Attack on the Gaza Freedom Flotilla by Israeli Navy Commandos on May 31, 2010

Crimes against the Peace and Crimes against Humanity

During the pre-dawn hours of May 31, 2010, the Israeli Navy attacked the six

civilian vessels of the Gaza Freedom Flotilla. The attack took place in

international waters against ships flying under national flags of countries with

which Israel is not at war, namely Turkey, Greece and the United States. The

ships were carrying civilians from more than sixteen countries.

Salient points:

Since no state of war existed at the time, the attack on these vessels

constitutes an act of war against those governments under whose flags the

vessels were sailing.

The attack falls within the purview of the ius ad bellum, those laws which

govern the resort to armed conflict. Israelís action does not fall into the

category of the ius in belloor the laws which govern the actual conduct of war.

Because this attack was carried out in international waters, the status of the

relationship between Hamas, or any other Palestinian body, and the state of

Israel is of no relevance whatsoever. Likewise, neither the blockade of Gaza nor

Israelís claims and legal interpretations regarding it has any bearing on its

acts of aggression in international waters.

This is not an act of piracy. Piracy is an act of aggression carried out in

international waters by individuals and not by states.

The following internationally binding treaties, charters, and agreements are

relevant to the attack by Israel:

1. Article 6 of the Charter Provisions of the Nuremburg Trials

(a) Crimes against Peace: namely, planning, preparation, initiation, or waging

of a war of aggression, or a war in violation of international treaties,

agreements or assurances, or participation in a common plan or conspiracy for

the accomplishment of any of the foregoing;

(3) Crimes against Humanity: namely murder, deportation, and any other inhumane

acts committed against any civilian population, before or during the war…in

execution of or in connection with any crime, whether or not in violation of the

domestic law of the country where perpetrated.

2. 1907 Hague Regulation Convention (XI) Relative to Certain Restrictions with

Regard to the Exercise of the Right of Capture in Naval War

Chapter II  The Exemption from Capture of Certain Vessels

Article 4. Vessels charged with religious, scientific, or philanthropic missions

are likewise exempt from capture.

Salient points:

The standard for judging the Israeli acts is objective and not subjective. It is

irrelevant what Israeli ministers, generals, admirals, or soldiers thought or

intended. The test is in what they did.

What they did was engage in acts of war using weapons of war in international

waters against vessels that are protected not only in peacetime but also in

times of war.

Israel has therefore committed both crimes against the peace and crimes against

humanity.

These are crimes that have international jurisdiction. Israeli political and

military personnel can be named in trials held in any and all countries of the

world. If the Israelis do not attend the trials, they can be tried in abstentia,

and those decisions in which the Israelis are found guilty can be executed

anywhere in the world.

Because unarmed civilians were murdered by a preplanned military attack, capital

crimes have been committed. While it would appear that the international

community no longer finds capital punishment civilized, the punishments for

these capital crimes can be multiple life sentences.

These crimes give rise to damage claims for huge sums of money and Israeli

accounts can be blocked using decisions finding them guilty.

The unarmed vessels were on a philanthropic mission, carrying civilians and

humanitarian supplies. Even if Israel were in a state of war with any of these

countries, it would be prohibited from capturing the vessels according to the

terms of the Hague Convention of 1907.

Conclusion:

It follows, therefore, that Israel was first of all not allowed to attack these

vessels militarily, and then not to board these vessels by force, capture these

vessels, attack the passengers, imprison them on the vessels, forcibly remove

them from the vessels, and steal their private property in the form of cameras,

computers, clothes, etc.

Every single act carried out by the Israeli military forces in international

waters no May 31, 2010, are unqualifiedly and absolutely violations of

international law.

============================================

FW: Deniz Som- Mavi Marmara-Hukuksal Durum
Subject: Deniz Som- Mavi Marmara-Hukuksal Durum

Cumhuriyet 06.06.2010
Kaos MARMARA Üniversitesi Hukuk Fakültesi Uluslararası Hukuk Anabilim Dalı öğretim elemanı Reşat Volkan Günel Mavi Marmara gemisinin Ortadoğu’da yarattığı kaosu değerlendiriyor:

1) Birleşmiş Milletler Deniz Hukuku Sözleşmesi’ne göre genel olarak üç tip gemi vardır; savaş gemisi, kamu hizmetine tahsis edilmiş devlet gemisi; ticari gemi. Mavi Marmara gemisi hiçbir tipe girmemektedir. İnsani yardım gemisi deniliyor. Bu hakkı ona kim vermiştir? BM Barış Gücü bile yardım sevklerinde devletlerden yetki almak için boşuna mı uğraşmaktadır?

2) Deniz Hukuku Sözleşmesi’ne göre geminin tabiiyetsiz olduğundan şüpheleniliyorsa barış zamanında dahi gemiye ziyaret hakkı doğar ve iki veya daha fazla devletin bayrağı altında seyreden ve bunları işine geldiği gibi kullanan bir gemi, bu tabiiyetlerden hiçbirini diğer devletlere karşı ileri süremez ve tabiiyetsiz bir gemi gibi işlem görür. Mavi Marmara Komor bandıralı ama Türk bayrağı çekmiş bir gemidir. Bu hileli durum İsrail’in gemiye çıkması için haklı bir sebep yaratır.

3) Haklı veya haksız, Gazze bölgesi fiilen İsrail devletinin kontrolünde bir savaş bölgesidir. Savaş bölgesine yönelen ve açıkça rotasını buraya kıran bir gemiye uluslararası sular da olsa, savaş hukukuna göre savaşan taraflar müdahalede bulunabilir.

4) Komor İslam Cumhuriyeti bayraklı Mavi Marmara üzerinde Türkiye’nin yetkisi yoktur. Türkiye, olaylarda vatandaşına karşı suç işlendiği iddiası ile Türk Ceza Kanunu’na göre sorumluların şahsı hakkında Türk mahkemelerinde yargılamaya gidebilir. Ancak sorumlu İsrail askerleri Türkiye’ye gelmediği sürece böylesi bir ceza yargılaması somut bir sonuç ifade etmez. Diğer yandan, devletler hukukuna göre devletlerin egemenlik amacı ile yaptığı fiillerden ötürü hiçbir devlet yabancı bir mahkemede yargılanamaz. Uluslararası Adalet Divanı’na gitmek ise her iki tarafın rızası ile kullanılabilecek bir seçenektir, şikâyet mercii değildir.

5) Savaş hukukunda sivilleri öldürmek kesinlikle yasaktır diye bir hüküm yoktur.

6) Hamas, Türkiye’nin da altına imza koyduğu uluslararası belgelere göre bir terör örgütüdür. Dalkavukları Fatih Sultan Recep’i umarız dünya gerçekleri konusunda dürüstçe bilgilendirir de Türkiye Ortadoğu bataklığına sürüklenmez!

Israel's navy couldn't get the “Freedom Flotilla” to do a U-turn in international waters last week. Now it's Israel's turn to change course — or risk drowning in a political tsunami of its own making. The Jewish state has badly confused strategy and tactics, international law and pragmatic diplomacy, vital interests and national hubris. Israelis have a long tradition of ignoring international conventions as a matter of sheer survival or existential angst. From defying British blockades on Zionist emigration to improperly acquiring nuclear weapons, Israel has never felt the need to play by the rules if the cause was just and the reward was worth the risk. That's why Mossad agents kidnapped Nazi war criminal Adolf Eichmann from Argentina without recrimination. That's why Israel launched the Six Day War when Arab war drums were beating. That's why it mounted an ambitious rescue mission at Entebbe and destroyed Saddam Hussein's nuclear reactors. Israel even got away with knocking out a mysterious Syrian nuclear installation in 2007 with barely a peep of protest. They all passed the “sniff test” — and were translated into diplomatic victories. Now, Israel faces near-universal opprobrium. Blinded by its own sense of infallibility, Israel stayed on a collision course with the Freedom Flotilla. The Turkish boat was blocked, but the embargo was effectively breached. How did Israel lose its way? Emboldened by past successes, it keeps fighting the last battle. Obsessing about a history of victimhood, it remains oblivious to long-term interests. Rather than picking its fights, Israel too often fights a losing battle. When I heard about the hapless naval commandos rappelling from a helicopter to be set upon by a boatload of hostile activists last week, I was reminded of another doomed mission in the late 1990s, during Benjamin Netanyahu's first stint as prime minister. Back then, 16 naval commandos were despatched to South Lebanon to ambush Hezbollah commanders. But before they could begin booby-trapping a dirt road, they walked into a trap laid down for them. The hunters became the hunted: Eleven commandos, including two doctors, were evacuated in body bags. One of the dead was left behind. A few weeks later I retraced their steps with a local translator, making the arduous trek uphill past ripening pomegranate trees and a citrus grove. Residents recalled the ghoulish celebration when an unidentified fighter had held aloft the decapitated head of the abandoned commando. The battleground soon became a shrine for the South Lebanese, who savoured the ignominious Israeli retreat. An ice cream vendor appeared nearby. Delegations of Iranians, Syrians and Sudanese paid official visits. What were the Israelis doing there? Trying to secure their fledgling 15-kilometre wide “security zone” — a military euphemism for occupied Lebanese territory — set up to ward off Hezbollah attacks. But it had become an albatross — with the Israelis hunkering down in isolated bases or huddling in convoys against roadside bombs. For Hezbollah, the ambush of commandos was seen as a turning point. For the Israelis, the withdrawal from South Lebanon was only a matter of time and in 2000 they pulled out. They reached the same conclusion about Gaza in 2005. But there is unfinished business in Gaza. While the Jewish settlers are long gone, the blockade that began three years ago endures. Whatever the rationale for choking off the supply of weapons and materials that Hamas could use to bombard civilian targets, this blockade is long past its best before date. The siege is a tactic that has been turned against the Jewish state. Israel has used it as a form of collective punishment in hopes of forcing regime change, or at least prompting the release of captured Israeli soldier Gilad Shalit. On the pretext of barring dual-use imports that could be used by Hamas, Israel continues to block not only cement, but chocolate and jam. It is a transparent ploy to give the sanctions extra bite — the goal being to sap the morale of 1.5 million Gazans who may not be starving but are surely wanting. The flotilla fiasco has ruptured historical alliances with Egypt and Turkey, and alienated supporters in Europe and the U.S. Long complicit in Israel's blockade of Gaza, Egypt has now declared it will let Palestinians through its Rafah crossing indefinitely. Jordan is disgusted, just as it was 15 years ago when the Mossad, on Netanyahu's orders, tried to assassinate Hamas leader Khaled Meshal on its territory. Israel should have eased the restrictions on Gaza long ago to focus on purely military materials. Instead of staring down the Freedom Flotilla, it could have looked the other way. But Netanyahu, who has never backed down from a fight he couldn't win, has bloodied his nose once again. How much longer until Israel cuts its losses? Martin Regg Cohn writes Tuesday.

DEBKAfile Special Report June 8, 2010, 5:19 PM (GMT+02:00)

Tags:  Ahmadinejad Gaza blockade Turkey

Ahmadinejad to Erdogan: Now it’s our turn to challenge Israel

An Iranian sea convoy will back up the Turkish campaign to break Israel’s blockade of Gaza.

Iranian president Mahmoud Ahmadinejad assured Turkish leaders whom he met in Istanbul Tuesday, Jan. 8 that the vessels due to enter the disputed waters within days will not shrink from a head-on clash with Israel’s Navy and Air Force exclusion forces. “We’ll breach the Gaza blockade,” the Iranian president vowed. The Iranian Red Crescent vessels will carry “volunteer marines” of the Revolutionary Guards “who will teach the Israelis a lesson.”
Tehran’s “humanitarian convoy” for Gaza will consist of three Iranian vessels flying Red Crescent flags.

debkafile’s intelligence sources report that he promised Turkish leaders to attach Iranian warships and submarines to the Red Crescent ships for their voyage through the Red Sea, the Suez Canal and into the Mediterranean. For some months, one or two Iranian submarines have been deployed in the Mediterranean using Syrian naval port facilities.

The showdown between Turkey and Israel, said Ahmadinejad, “will change many issues in the world and mark the final countdown for Israel’s existence. It shows that it has no room in the region and no one is ready to live alongside it.”

British Foreign Secretary William Hague condemned Iran’s plan to send aid boats to Gaza, warning that the move would deliberately aggravate an already tense situation. “It is not helpful, and probably it is not designed to be helpful, he said.
Russian Prime Pinister Vladimir Putin, for his part, promised to join Ankara in bringing the Israeli attack on the Turkish flotilla before the United Nations.
The Iranian and Turkish leaders meeting in Istanbul Monday and Tuesday  finalized a plan to synchronize the flotilla’s approach to Gaza’s shores with the UN Security Council vote on sanctions against Iran, whereupon Turkey, Brazil and Lebanon, who are SC members, will halt the procedure and turn the session around to the unfolding sea battle between Iran and Israel. The sanctions vote will be buried by the sounds of war.
Monday, June 7, US Secretary of State Hillary Clinton predicted “Iran would pull some stunt in the next couple of days” to divert attention from the unity within the Security Council.
According to our sources, the Iranian convoy will consist of a cargo ship loaded with food and other essentials, medicines and building materials; the second will carry the “volunteer” marines; and the third will be a floating hospital to be anchored permanently in Egyptian Mediterranean territorial waters opposite the divided Gaza-Egyptian town of Rafah. Small boats will ferry patients between Gaza and the hospital ship.

Tehran calculates that the Israeli navy will not attack boats carrying sick people and will be constrained from venturing into Egyptian territorial waters to hit the floating hospital. By this means, Tehran will dismantle Israel’s sea blockade while also gaining a military presence off the shores of Gaza.

AS details of this scheme are drawn up in Istanbul, Israeli leaders are spending hour of hour, day after day, quibbling over the format of an inquiry commission for studying the legal aspects of the hapless commando raid they ordered against the Mavi Marmara on May 31.
Have they formed any plans for countering the Iranian-Turkish scheme to drive Tehran’s flotilla through the Gaza blockade? And if so, where will the interception take place? On the Red Sea, where the Iranian Navy has a large presence, at the entrance to the Gulf of Suez or close to Gaza?
An Israel operation against Iranian vessels on any of these sea lanes would pose formidable difficulties.