Updates on legal status of 2018 Gaza Freedom Flotilla boats stolen by the Israeli Occupation Forces

2 boats with caption freedom flotilla updates on legal status of boats

 

An Israeli court has ruled that the two ships, the Al Awda and Freedom, who both sailed this summer and were captured by the Israeli Navy, cannot be sold to compensate families of ‘terrorism’ victims. This decision overturns a ruling made by the Jerusalem District Court and ensures that the hearing will proceed in the Haifa Maritime court, applying Maritime law. We are hopeful that international law will be upheld. The Freedom Flotilla Coalition maintains that Israel must accept our demand that both ships be given as a gift to the Union of Agricultural Work Committees (UAWC), a non profit organization representing fishers in Gaza.

The next hearing in this matter will take place on February 5, 2019.

 

The Maritime Court in Haifa Claim in rem 26966-08-18

Claim in rem 26933-08-18

Before His Honour Judge R. Sokol

 

On the matter of:

The State of Israel

Through Prosecutor, Civil District of Haifa

15A Pal Yam Boulevard, Haifa

Tel: 04-8634006, Fax: 04-8634011

– v –  

The ship KARSTEIN

The ship FREEDOM

Through representative Attorney Gaby Lasky and/or Karin Torn Hibler and/or Hayya Abu Warda

From 18 Ben Avigdor St., POB 57092, Tel Aviv-Yafo 61570

Tel: 03-6243215, Fax 03-6244987

 

The Respondent

 

23/11/2018 Decision

File 18-08-26966

The prosecution will reply to the claims regarding the seizure of property and medical supplies by 15/12/2018

 

The Respondent’s reply

 

In accordance with decision of the honourable court from 07/10/18, the representative of the Respondent has the honour of submitting the Respondent’s reply to the application for confiscation. The position of the Respondent is that the application should be dismissed due to delay in its submission, and alternatively essentially due to the illegality of the maritime blockade on Gaza and its being counter to the rules of international and administrative law, due to the lack of grounds for confiscation and the disproportionality of confiscation as a measure.

 

  1. Since the State of Israel imposed a general closure on the Gaza Strip several years ago as part of its war on the Hamas administration, the civilian population of Gaza have been suffering in all areas of their lives from the destructive effects of the closure, and they are subject to abysmal hardship to the point of a real humanitarian crisis, the present dimensions and likely future ramifications of which are difficult to fathom and describe.

 

  1. In recent years there has been a tangible deterioration in the condition of the civilian population in Gaza, the electricity shortage has reached new levels, which have nearly paralyzed the health services, the cumulative results of the economic crisis that arises from the restrictions on commerce as well as the import and export of merchandise from Gaza and to it have produced new heights of grievous poverty and hunger.

 

  1. These base conditions of life and the daily routine of struggle for survival have brought the residents of the Strip to a condition of grave frustration and the desire to make their appeal against the hunger and the poverty in which they are living heard worldwide. In consequence of this, we have been seeing, over the past half year, starting in the month of March, the holding of demonstrations at the Gaza Strip fence, calling for the lifting of the illegal siege on Gaza and to permit the residents of the Strip to sustain their lives. The fact that there are those who are negatively exploiting the hardship of the residents by carrying out attacks and endangering the lives of Israeli residents by throwing Molotov cocktails and trying to damage the fence should not be taken lightly, and at the same time, so far 205 Gaza residents have been killed by gunfire of the security forces.

 

  1. Moreover, it is important to point out that only last Thursday, 8.11.18, the government of Israel transferred 15 million dollars from Qatar to employees of the Hamas administration in the Strip.

 

  1. In order to raise a clear voice against the outrageous injustice that the policy of the blockade visits on the innocent residents of the Strip, several women human-rights activists set sail on board small vessels in a non-violent symbolic protest flotilla, in the hope that their protest would stimulate public discussion within the international community and bring about a change in the desperate situation in which the residents of the Strip have been living for so long. For that protest action the State now wants to order the confiscation of the Respondent.

 

  1. It will be emphasized that when the boats were seized by the navy, the vessels were carrying humanitarian supplies composed of 116 crates of medical supplies that were intended to be transferred to Gaza. Those supplies were seized when the boats were seized, despite the commitment made by the State at the time of the proceedings regarding the ship Marianne to transfer to their destinations by land all humanitarian aid that was seized on the boats.

 

  1. On 31.07.18, about two days after the seizure of Respondent 1, the first application was submitted by the Respondent to the District Coordination and Liaison for the Gaza Strip, but it was received without any reply from the DCL.

A copy of the first application of 31.07.18 is attached, and marked as Appendix 1

 

  1. In view of the fact that no reply was received, that same application was submitted a second time on 08.08.18. In reply we were told by the Public Inquiries Officer of the Gaza DCL that the application had been received at their office, but no reply beyond that has been received and the Respondent’s application remains unprocessed.  

A copy of the second correspondence is attached, and marked as Appendix 2

 

  1. On 12.09.18 an additional application was submitted to the Legal Advisor of the Defence Ministry with a copy to the Land Crossings Authority, in which we requested information on the status of our requests for the transfer of the medical supplies that had been seized on the boat to Gaza, but we have received no reply at all to this request either.

A copy of the third application, from 12.09.18 is attached, and marked as Appendix 3

 

  1. At the same time, negotiations were conducted between the representative for the Respondents and the Applicant on the need for the return of the supplies that were seized from two Israeli activists who were present on the boats when they were seized, Mr. Yonatan Shapira and Ms Zohar Regev. From the outset it was clear to the representative of the Respondents that there was no reason not to return to the activists their possessions. On the same day Mr. Shapira presented himself at the entrance to the Ashdod base, but to his surprise he was forced to wait for hours, while none of those present on the premises, not even the Military Prosecutor’s liaison officer, replied to his request and he was forced to go back without his belongings being given back to him. As of the writing of these lines the seized items have still not been returned to their owners.

A copy of the correspondence with the representative of the Applicant, of 28.08.18, is attached, and marked as Appendix 4

 

  1. The proceedings in question do not raise the question of whether it is permitted for Israel to defend the peace of its citizens and its sovereignty, indeed there is no disagreement that that question must be answered in the affirmative. The questions that the that the proceedings raise are whether the prolonged closure of the Strip is proportional and legal and if legitimate political protest against it constitutes a threat that requires the seizure of the boat and justifies its confiscation.

 

Delay:

 

  1. In in rem 26861-08-13 State of Israel v the ship Estelle, the honourable court ruled that when the State seizes a vessel as booty, international law imposes on it a duty to apply immediately to a court for instructions on how to dispose of the vessel and to rule on the legality of its seizure. The honourable court emphasized in its ruling that this was not a mere technical duty, but an essential duty the purpose of which is to ensure the correctness of the procedure and the procedural and essential rights of the parties liable to be harmed by it. Therefore it was decided that the violation of the said duty could justify the dismissal of the application. In the State’s appeal of the said ruling, Civil Appeal 7307/14, the Supreme Court ratified the clear rule that had been established.

 

  1. However, despite these unequivocal decisions, and despite the fact that Respondent 1 was already seized on 29.07.18 and Respondent 2 was seized on 03.08.18, the Applicant refrained for over a week from seeking instructions from the court. Only on 13.08.18 was a declaration submitted by the Applicant of its intention to submit an application for confiscation, and the present proceedings only on 22.08.18, without any explanation for the delay in applying to the court.

 

  1. Under these circumstances, the violation of the duty of immediate recourse to the court, in violation of the law and the established ruling is grave and in itself justifies the dismissal of the application.

 

The illegality of the blockade

 

  1. The Respondent will argue that the declaration of the maritime blockade on the Gaza Strip is illegal due to the fact that in the announcement to mariners of 06.01.09 it was indicated that the blockade would be imposed “until further notice”, despite the fact that international law requires that the declaration indicate in detail the period of time in which the blockade will be in effect (See Art. 94 of the San Remo Manual).

 

  1. Even though it is a formal requirement, it is based on an essential rationale, which is the setting of a defined period of time for the conduct of periodic and systematic examination of the necessity and effectiveness of the blockade, in order to ensure control over what is done, and an examination from time to time of the justification for this extreme measure. There is no disagreement that the imposition of a maritime blockade on a territory that has a civilian population causes substantial harm to the rights of civilians, hence it is of supreme importance that it be limited in time and that it be re-examined prior to its renewal.

 

  1. Accordingly, to the extent that it is determined that the declaration was in force and legal at the beginning of the year 2009 and also in the subsequent period, that does not establish the legality of the blockade after the passage of nearly eight and a half years from the date of its declaration.

 

  1. International and humanitarian law and international human-rights law impose on Israel essential duties towards the civilian population in the Gaza Strip. The imposition of the blockade and its enforcement rise to the level of a violation of Israel’s duties under international law and also constitute forbidden collective punishment.

 

  1. The maritime blockade and the actions to enforce it must hold to the principle of proportionality, which is a central principle both in international law and Israeli administrative law. Thus does Art. 102 (b) of the San Remo Manual stipulate that a declaration of a blockade or its enforcement are forbidden where the harm caused to the civilian population is disproportionate in relation to the concrete and direct military advantage that is expected to accrue from the blockade. The Respondent will argue that on the date of the seizure the enforcement of the blockade did not meet the requirement of proportionality, for the gravity of the harm done to the civilian population in the Gaza Strip immeasurably exceeded the military advantage.  

 

Lack of justification for confiscation, and its disproportionality

 

  1. The Respondent will argue that in any case, the action for which the confiscation of the Respondent is requested does not constitute a violation of the blockade, nor should it be seen as an attempt at its violation, but as a legal and legitimate act of protest which from the outset did not justify the seizure of the boat, much less a justification for its confiscation, such that the actions of the State constitute a case of ultra vires.

 

  1. The Respondent will further argue that the action of seizure and confiscation do not serve any reasonable purpose, they are clearly disproportional and unreasonable in view of the harm they cause to fundamental rights and protected interests, both under customary international law and under the constitutional and administrative law of the State of Israel, such that the State’s application should be dismissed in any case.

 

  1. It is clear that to the extent that whereas there was no authority to seize, there are no grounds for the confiscation of the Respondent. But even if it is determined that the seizure of the Respondent was carried out legally, that in itself does not lead to its confiscation. For that purpose a separate and independent rationale and essential justification are required. An application for confiscation, like all actions of the Applicant, must be examined not only in light of the rules of international law as the Applicant tries to argue, but also on the basis of standards and grounds for audit under Israeli administrative law.

 

  1. According to the Applicant, there is no need to prove that the action of confiscation is necessary for any purpose, and given the existence of the necessary previous conditions for the seizure of a vessel, the court must order its confiscation. However, that is not in fact the case. The court is not a rubberstamp that is restricted to giving a legal seal of approval to the actions of the Applicant, unless under the circumstances at hand there exists fundamental justification for the confiscation of the vessel. The words of the learned Robert Tucker are fitting in on this matter:

 

At the same time, seizure need not lead to the condemnation of the vessel or of her cargo. The lawfulness of the act of seizure is not dependent up on later condemnation by a prize court. It may well be that the circumstances held to justify seizure will not be regarded by a prize court as sufficient to justify condemnation

 

The determination of title remains the sole responsibility of the prize court, which is charged with the task of investigating the circumstances attending seizure and deciding whether there is sufficient cause for confiscating vessel or cargo – or both.” (The Law of War and Neutralitiy at Sea, Robert W. Tucker 1955, (346-348) (Emphasis added – G.L.)

 

  1. The rights of the owners of the Respondent to the boat are property rights protected by the Basic Law: Human Dignity and Liberty. As is known, those constitutional rights cannot be transgressed except by law or according to law, for a reasonable purpose and to the extent that that it does not exceed necessity. The Respondent will argue that the confiscation of the Respondent does not meet those conditions and that it is an arbitrary act that does not serve any purpose, much less any purpose that is reasonable as required.

 

  1. The confiscation of the Respondent was carried out in response to symbolic and non-violent protest against the policy of blockade of the Gaza Strip. On board the Respondent were a small number of peace activists who declaredly embrace absolute non-violence. The only objective of the activists was to express legitimate criticism against the policy of blockade. At no point did any of them present any danger to the security of the State of Israel, they did not resist the security forces’ capture of the boat and they undertook no violent action.

 

  1. In addition, there were no weapons or dangerous or forbidden materials whatsoever on board the Respondent, nor has the Applicant claimed otherwise.

 

  1. On the contrary, not only was the seizure of the Respondent not necessary for the realization of the security objective that was the basis of the imposition of the blockade, but the Applicant’s attempt to apply the laws of armed conflict at sea to a clear act of non-violence and symbolic protest that did not take place during a time of combat is out of place and undermines the objectives that those laws were intended to promote.

 

  1. There is no doubt that it was possible from the outset to suffice with inspecting the cargo that was on board the Respondent and immediately to free it upon completion of the inspection. Therefore there is no doubt that the confiscation of the Respondent constitutes an extreme measure that disproportionately violates the constitutional rights of the owners of the Respondent in disregard of appropriate balance between the relevant interests and moreover is extremely unreasonable.

 

  1. In view of all the above, the honourable court is asked to dismiss the Applicant’s application and to order the release of the Respondent.

 

  1. Moreover, the honourable court is asked to require the Applicant to pay the expenses of the Respondent and the lawyers’ fees along with the Value Added Tax as required by law.

 

[Signature]

Gaby Lasky

Representative of the Respondent

 

*** *** ***

Appendix 1

Gaby Lasky & Partners, Law Offices

18 Ben Avigdor St., P.O. Box 57092, Tel-Aviv-Jaffa, 61570

Fax: 03-6244387, Tel: 03-6243215

E-mail: laskylaw@yahoo.com

Gaby Lasky, Adv.

Karin Torn Hibler, Adv.

Haya Abu Warda, Adv.

31.07.2018

To the Coordination and Liaison Administration in the Gaza Strip

E-mail: kapatz@cogatmtkgaza.gov.il

Greetings,

The subject: Application to bring medical supplies on the boat “Awda” to the port of Gaza

The below-signed represents the ship “Awda” as well as part of the team of organizers of the flotilla.

Following the seizure of the ship “Awda” which was brought to the port of Ashdod by the navy on 29.07.2018, I hereby inform you that the boat is carrying humanitarian supplies composed of 116 crates of medical supplies.

These supplies have been brought as humanitarian aid for the healthcare system in the Gaza Strip, according to the attached list.

Accordingly, we request that these humanitarian supplies that were brought on the boat be transferred to their declared destination in the port of Gaza.

Moreover, it is known to us that some of the personal effects of the participants in the flotilla have not yet been returned to them. We will be grateful if instructions will be published for the return of those seized effects, in order to prevent a situation in which the personal effects of the flotilla participants be lost as has happened in previous cases.

Respectfully,

[Signature]

Gaby Lasky, Advocate

 

*** *** ***

Appendix 2

Haya Abu Warda haya@lasky-law.com

To: Kapatz@cogatmtkgaza.gov.il

Attached again is a request for the transfer of humanitarian and medical supplies on the “Awda” flotilla.

Regards,

Haya Abu Warda, Adv.

(2 electronic attachments: “Final Inventory of Medical Supplies on Boats to Gaza” and בקשה להעברת ציוד  הומניטרי 310718 [translation of 2nd file name : Request for transfer of humanitarian supplies 310718])

 

*** *** ***

Request for transfer of humanitarian supplies on the boat “Awda” to the port of Gaza

8 August 2018, 15:21 hours

Coordination and Liaison Administration Gaza/Office/Public Inquiries Officer/Roni Vaknin kapatz@cogatmtkgaza.gov.il

To Haya Abu Warda haya@lasky-law.com

Greetings,

Contact details:

Telephone: 08-6741469

E-mail: Kapatz@cogatmtkgaza.gov.il

Call centre hours:

Sunday: 10:00-12:00 13:00-15:00

Monday-Wednesday: 09:00-12:00 13:00-15:00

Thursday: 09:00-12:00

Greetings,

 

Roni Vaknin

Public Inquiries Officer

Coordination and Liaison Administration Gaza

[Quoted text concealed]

 

*** *** ***

 

Appendix 3

 

Gaby Lasky Law Offices

12.09.2018

To the Legal Advisor for the Ministry of Defence

Ministry of Defence, Hakirya

Tel Aviv 61909

Fax: 03-6976746

Greetings,

The subject: Follow-up on the transfer of medical supplies from the boats “FREEDOM” and “Awda” to the Gaza Strip

  1. The below-signed represents the boats “FREEDOM” and “Awda” (below: the vessels) as well as part of the staff of the flotilla.
  2. On 29.07.18 the boat “Awda” was seized by the navy and taken to the port of Ashdod.
  3. On 03.08.18 the boat “FREEDOM” was seized by the navy and taken to the port of Ashdod.
  4. On 26.08.18 the State of Israel, through the Haifa District Prosecutor, submitted an application for an order for confiscation of the two vessels.
  5. I hereby inform you that the two vessels were carrying humanitarian supplies composed of 116 crates of medical supplies.

A detailed list of humanitarian supplies per vessel is attached as Appendix A

 

  1. We note that the State itself agreed, in previous proceedings at the Maritime Court in Haifa, that humanitarian supplies that were seized on boats on their way to Gaza would be transferred to their destination by land (In rem 7961-07-15 State of Israel v the ship Mariane).
  2. In order to facilitate following up on the transfer of the supplies to their destination, we request to receive a detailed list regarding the supplies that have been transferred to the Gaza Strip, the date of their transfer and the parties to whom the supplies were transferred.
  3. Insofar as as the State decides not to transfer part of the supplies, I would request to receive a detailing in that regard as well.
  4. Since much time has passed since the vessels were seized, I would be grateful to receive the report promptly.

[Signature]

Regards,

Gaby Lasky, Adv.

Copy:

The Land Crossings Authority

Fax: 03-9381053

 

*** *** ***

 

Appendix 4

Query regarding the return of property from the Ashdod base

28 August 2018, 17:23 hours.

Haya Abu Warda haya@lasky-law.com

To: hadarm@justice.gov.il

Copy: Gaby Lasky laskylaw@yahoo.com

Greetings Hadar,

Further to your correspondence with Gaby, I would request to receive an update on the return of the seized property of Zohar Regev and Yonatan Shapira. The items seized from Zohar Regev:

A black bag, cash in the amount of NIS 50 and foreign currency, reading glasses, keys, an Israeli driving licence, a cloth bag containing a fiction book, a backpack, washing supplies, a fiction book, a head light, and clothes.

The items seized from Yonatan Shapira:

A small pink backpack, a large black backpack, a black wallet, money in euros and shekels, two credit cards, a driver’s licence, a boat licence, additional cards and documents, a harmonica, flashlights, a small bag with medicines and washing supplies, clothes, two jackets, a storm suit, a book, a personal notebook, two pairs of sunglasses, a sleeping-bag.

Thanking you in advance,

Haya

 

*** *** ***

 

Haya Abu Warda haya@lasky-law.com

To: Amnon Brownfield Stein amnon@lasky-law.com

3 September 2018, 13:19 hours

 

Haya Abu Warda, Adv.

Message that was transmitted

From: Haya Abu Warda haya@lastky-law.com

Date 28 August 2018, 17:23 hours

Subject: Query regarding the return of possessions from the Ashdod base

To hadarm@justice.gov.il

Copy: Gaby Lasky laskylaw@yahoo.com

[Quoted text concealed]

 

 

 

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