The Human Rights Council Investigation of the Flotilla Incident: Paying Attention to the Legal Conclusions Advanced in the Report
In the aftermath of the Israeli/Gaza "flotilla" incident, the U.N. Human Rights Council appointed a panel to investigate potential violations of both international humanitarian law and international human rights law. That panel has now issued its report, a 56-page document available here (this won't be the last word on the flotilla affair, of course; U.N.
Published by The Lawfare Institute
in Cooperation With
In the aftermath of the Israeli/Gaza "flotilla" incident, the U.N. Human Rights Council appointed a panel to investigate potential violations of both international humanitarian law and international human rights law. That panel has now issued its report, a 56-page document available here (this won't be the last word on the flotilla affair, of course; U.N. Secretary General Ban Ki-moon established a distinct investigative panel, and an Israeli civilian investigation is still underway as well).
American officials should take a careful look at the report's depictions of the law applicable to this incident, separate and apart from the report's factual conclusions. There are extensive discussions of freedom of navigation (and its exceptions); the legality of blockades in contexts involving the suffering of a civilian population; blockades as a form of collective punishment; the conditions precedent for invocation of Article 51 of the U.N. Charter; whether Israel still "occupies" Gaza for purposes of the Fourth Convention; whether the flotilla passengers constituted "protected persons" under the Fourth Convention; the interface of IHL and IHRL; extraterritorial application of the ICCPR; and much more besides.
Some of these positions are uncontroversial, others are the subject of long-standing debates (including debates in which the U.S. government has traditionally taken a contrary view, as with the territorial scope of the ICCPR). Some of them, in any event, have potential application to various U.S. activities (e.g., sanctions, the Proliferation Security Initiative, scope-of-conflict issues, and so forth). That's not to say that the there should be a formal U.S. government response to or commentary on this report, but it is to say that government officials should bear in mind that documents like this tend to be cited later on as evidence of the evolving state of the law.
American officials should take a careful look at the report's depictions of the law applicable to this incident, separate and apart from the report's factual conclusions. There are extensive discussions of freedom of navigation (and its exceptions); the legality of blockades in contexts involving the suffering of a civilian population; blockades as a form of collective punishment; the conditions precedent for invocation of Article 51 of the U.N. Charter; whether Israel still "occupies" Gaza for purposes of the Fourth Convention; whether the flotilla passengers constituted "protected persons" under the Fourth Convention; the interface of IHL and IHRL; extraterritorial application of the ICCPR; and much more besides.
Some of these positions are uncontroversial, others are the subject of long-standing debates (including debates in which the U.S. government has traditionally taken a contrary view, as with the territorial scope of the ICCPR). Some of them, in any event, have potential application to various U.S. activities (e.g., sanctions, the Proliferation Security Initiative, scope-of-conflict issues, and so forth). That's not to say that the there should be a formal U.S. government response to or commentary on this report, but it is to say that government officials should bear in mind that documents like this tend to be cited later on as evidence of the evolving state of the law.
Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.
.jpg?sfvrsn=25bed2a2_5)
.png?sfvrsn=a5b1204d_5)
