As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
During the apartheid era all South Africans – even white South Africans – who possessed even an iota of scepticism and common sense, became all too familiar with the lies and propaganda of the apartheid state. When an anti-apartheid activist died after being tortured and then murdered by security police members, we were told in a solemn voice by by Cliff Saunders – the National Party propagandist who pretended to be an SABC journalist – that the victim had “slipped on a banana peel” or had been killed after slipping on soap in the shower or had mysteriously managed to jump through a small window from the eighteenth floor of John Vorster Square.
This, Cliff Saunders would assure us, was done by the now dead “terrorist” as part of a devious plot to try and embarrass the National Party government by trying to implicate “our security forces” when all they did was to invite the terrorist for cake and tea and to ask him or her a few questions.
Nelson Mandela was described as “a self-confessed communist and terrorist”, white opposition leaders like Frederik Van Zyl Slabbert who wanted to talk to the ANC were described as Stalin’s “useful idiots” doing the bidding of “terrorists agitators” and reports that South Africa had invaded Angola (which were all true) were dismissed as the lies of the terrorist propaganda machine and disinformation fabricated in Moscow.
And when South African army commando’s attacked safe houses in neighbouring states (killing scores of women and children) we were told of this “great victory” for the security forces (as if killing of ten women and children in cold blood could be described as a victory by anyone except the most deranged person) and assured that the “security operation” had been legal in terms of international law because of the (non-existent) international law principle of “pre-emptive hot pursuit”. This term is as well known and well-regarded in international law as that of “enemy combatants” – in other words it is a creation of a rogue state trying to justify its illegal criminal actions.
So, I was not surprised when I read this morning that Israel is justifying its assault on a flotilla of relief boats in international waters on the basis that this was necessary to protect the sovereignty of that state and to protect its citizens from attack. Armed commandos boarded the vessel, which were carrying supplies for a besieged civilian population in Gaza, and killed more than 10 peace activists on board after some activists reportedly resisted the unprovoked attack. They then illegally arrested all the activists and detained the ships.
Israel immediately imposed a communications blackout on the detained activists – some were taken by bus to Beersheva prison in the south of Israel – while simultaneously launching a sophisticated public relations operation to ensure its version of events was dominant. In this version put out by various Israeli spokespersons, the Israeli soldiers who had illegally stormed the ships and were armed with machine guns were the victims of a vicious attack by violent terrorists armed with sticks and even knives.
This ludicrous assertion beggars belief, but because the media needs to be”fair and even handed”, many media outlets are treating this version as credible and morally defensible. It would be equivalent to the media reporting as perfectly credible and morally defensible a claim by Al-Qaeda that their fighters who hijacked flight 253 on September 11 and were intending to crash the plane into the White House were the innocent victims of a group of vicious infidels who had stormed the cockpit of flight 253 with all kinds of weapons, including baseball bats.
In terms of the Convention on the Laws of the Sea a state is never ever allowed to interfere with a ship in international waters.
Section 87 of that Convention states that “the high seas are open to all States, whether coastal or land-locked” and comprises, inter alia, freedom of navigation. To emphasise how clear this right is, article 95 states that “warships on the high seas have complete immunity from the jurisdiction of any State other than the State” to whom the ship belongs. Section 97(3) of the Convention states that “no arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities” other than those authorities under whose flag the ship is sailing.
Article 110 of the Convention is even more clear and states that “except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship” is not justified in boarding it “unless there is reasonable ground for suspecting that: the ship is engaged in piracy; the ship is engaged in the slave trade; the ship is engaged in unauthorized broadcasting: the ship is without nationality; or though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.”
Not even the Israeli’s are claiming that the flotilla ships involved in a humanitarian mission were engaged in the slave trade or were engaged in any of the other activities that would trigger the provisions of section 110 of the Convention.
In other words the actions by heavily armed Israeli forces who boarded the flotilla ships in international waters and then killed at least ten of the passengers was nothing less than an act of state sponsored terrorism in contravention of every rule of international law. The ships were on a humanitarian mission to deliver aid to the people of Gaza in order to alleviate the hardships in that territory which had been caused by the illegal blockade of Gaza by Israel.
To justify this outrageously unlawful action on the basis that the unlawful aggressors were attacked by passengers armed with sticks and knifes is beyond the pale and shows a complete disregard for international law. But as Justice Goldstone had long since discovered, the Israeli government believes it is above the law – much like the apartheid government who justified its unlawful invasion of neighbouring countries on the ground of its right to engage in “pre-emptive hot pursuit”.
Of course, defenders of Israel’s action (because as is the case with the DA and the ANC, some supporters of Israel will defend that government no matter what it does) will pretend this egregious breach of international law never occured or that it could be justified. But the murder of the 10 passengers cannot be legally justified – no matter how you spin it. The event is a human tragedy as wel as a public relations disaster for Israel. But it is more than that: it is a wake up call to remind us all that the government of Israel, who is presently dominated by far-right wing parties, is a deeply immoral one.
The South African government should expell the Israeli ambassador in protest and should recall the South African ambassador from Jerusalem. But I am, once again, not holding my breath because South Africa’s foreign policy has long since stopped pretending to be based on principles of human rights, respect for the rule of law or any other principle except cowardliness and naked self-interest. If the Israeli government were clever it would donate a few million Rand to the ANC (or to President Zuma’s private bank account) to ensure it remains that way.BACK TO TOP