It is Not Piracy!
The International Law Framework
On Monday, May 31, 2010, an elite commando force of the Israeli Navy attacked and captured the six vessels constituting the Gaza Freedom Flotilla along with the ships’ more than 600 passengers on the high seas. The flotilla was carrying humanitarian aid destined for the 1.5 million people of Gaza who have been living under Israeli siege for three full years.
Since Monday’s attack a considerable number of commentators and activists alike have somewhat too glibly referred to the commandos as pirates and their attack as an act of piracy.
While that imagery might capture the headlines in the same manner the attack itself did, it serves both to detract from the seriousness of the attack and to prevent our understanding of the true nature of its criminality.
Article 101 of the United Nations Convention on the Law of the Sea (or UNCLOS, also known as the Law of the Sea Treaty) defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed, on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft.”
The Oxford English Dictionary shows that the noun pirate is derived from the Greek verb peiran, meaning “to attempt, attack, or assault,” with a pirate being “one who robs and plunders on the seas...or cruises about for that purpose; one who practices piracy; a sea robber.”
We know that the commandos were not private individuals carrying out a private enterprise. Rather they were members of the Israeli Navy, identifiable as such by their uniforms and insignia, and by the insignia on their helicopters, warships, and speedboats. They were not acting on their own but were sent by the State of Israel's political and military leadership to carry out a publicly declared state mission.
Nor did the Israeli commandos attack and board the Mavi Marmara or the other ships of the flotilla in order to rob the passengers or plunder the ships’ equipment. There is no disagreement that the reason for the attacks and subsequent capture of the vessels, followed by the detention and questioning of the passengers, had nothing to do with purposes and activities associated with piracy. The purpose, as publicly stated by the Israeli government, was to prevent the vessels arriving in Gaza, their passengers disembarking, and their humanitarian aid being distributed to the population.
Article 88 of the Law of the Sea Treaty affirms that the “high seas shall be reserved for peaceful purposes,” with Article 89 stating further that “no State may validly purport to subject any part of the high seas to its sovereignty.”
The crimes that Israel committed during its assault on the vessels and civilian passengers of the Gaza Freedom Flotilla fall firmly within the category of “high crimes.” (We have already written concerning the legal status of the actual attack in a paper that can be found here: HYPERLINK "http://www.scribd.com/doc/32579575/The-Legal-Framework" http://www.scribd.com/doc/32579575/The-Legal-Framework.) The assault, rather than an act of piracy, must be defined as a “crime against the peace” and a “crime against humanity” as Israel subjected “part of the high seas to its sovereignty” in a murderous attack on unarmed civilian vessels. The severity of these crimes is magnified precisely because the criminal actor is not an individual but a highly militarized state, the power of which is exponentially greater than that of any individual or group of individuals.
We have laid stress here on the specificity of terms and their meanings. Without a careful use of language, as we have seen in the myriad of articles referring to the attack as piracy, we are condemned to the very barbarity of which the Israeli attack is an example. When law is abused through the deliberate abuse of language, the only logical outcome is the abuse of human beings that law comes to protect. The abuse of law leads logically to barbarism.
Clarity of language is essential if we are to understand the reality in which we live. It is such understanding that is necessary if we are to enter the struggle to change the immorality in which the world is drowning, and to create, in contrast, a civilized and decent world.
Lynda Brayer is a human rights lawyer who specialized in the laws of war and international law in representing Palestinians. She lives in Haifa. She can be reached at HYPERLINK "mailto:email@example.com" firstname.lastname@example.org.
Andrew Wimmer has written about the use of torture by the United States and has been engaged in political organizing and direct action relating to the practice of extraordinary rendition. He lives in St. Louis, Missouri. He can be reached at HYPERLINK "mailto:email@example.com" firstname.lastname@example.org.