Sunday, September 4, 2011

Turkey Announces Plan to Challenge Israel’s Gaza Blockade at the International Court of Justice

Turkey has recently announced its plan to challenge Israel’s blockade of Gaza at the International Court of Justice (ICJ). A forum that is potentially open to all states, the ICJ is the widest reaching court in the international arena. Yet will it have jurisdiction to hear Turkey’s case?
Turkey has not yet announced the claims that it will bring against Israel. Presumably, it will claim an illegal use of force on the raid of Turkey’s aid flotilla last year and for Israeli state responsibility for the deaths of nine foreign nationals (eight Turks and one American) that resulted from the raid. It is unlikely that Turkey could bring suit on a law of the sea theory, as it does not share territorial seas with southern Israel, where the naval blockade is imposed. Assuming Turkey challenged the legality of the flotilla raid and claimed Israeli state responsibility for the deaths, would the ICJ have jurisdiction?

Under the UN Charter, all UN members are ipso facto parties to the Statute of the ICJ and agree to comply with the decision of the ICJ in any case to which they are parties (art. 93 UN Charter). The fact that Israel is a UN member does not however mean that the ICJ has jurisdiction to hear any claim brought against Israel by any other UN member state. Before the ICJ is able to adjudicate a particular contentious dispute, its jurisdiction must be established through the consent of all of the parties to the conflict. This consent can take any one of the following forms:
  • Ad hoc basis jurisdiction. The parties to a conflict accept ICJ jurisdiction for the particular case;
  • Compromissory clause. The parties enter into a treaty providing for the settlement of disputes as to the application or interpretation of the treaty by the ICJ;
  • ICJ compulsory jurisdiction. The parties give general agreement to accept the ICJ’s jurisdiction for a particular category of cases in relation to other nations that have done the same; or
  • Carryover jurisdiction. Jurisdiction is granted from the Permanent Court of International Justice over certain disputes and this jurisdiction is carried over to the ICJ.
It is unlikely that the ICJ’s jurisdiction will be established under any of these forms. With respect to the Court’s ad hoc basis jurisdiction, Israel will most likely refuse the Court’s jurisdiction, since Israel has already stated that it considers the UN report written by Geoffrey Palmer and Alvaro Uribe to be the definitive statement on the legality of its naval blockade, and its use of force to have been necessary as a security measure for its self defense. Because there is no treaty that would grant jurisdiction to the ICJ for this particular case (the Gaza blockade is a unilateral act on the part of Israel that is not the subject any treaty), no compromissory clause applies. Moreover, Israel has not accepted the ICJ’s compulsory jurisdiction, and carryover jurisdiction from the Permanent Court of International Justice (PICJ) is inapplicable to Israel, which did not exist at the time of the PICJ.

Therefore, the biggest challenge that Turkey will face in bringing suit against Israel is not proving that the naval blockade or use of force by Israel violated international law, but rather, establishing the Court’s jurisdiction to hear its claims against Israel, if Israel does not consent to the same.

For more on international law, the legality of the use of force and state responsibility, see Principles of International Law.

No comments:

Post a Comment