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Refuting the Israeli Arguments
"Presence in a fighting area is against international custom."
This is yet another inexplicable excuse offered by Israel. Let's be clear about one fact: USS Liberty was not "in a fighting area." There were no hostilities taking place in international waters. USS Liberty was a substantial distance away from Israelis claimed territorial sea and outside of Egypt's claimed territorial sea.
What does Israel define as "a fighting area?" Would this be a finite, specified distance from the shore, or perhaps the entire Eastern Mediterranean Sea? In either case, there is no legal or customary justification for this unusual claim that international waters are somehow closed to neutrals if there is fighting within an unspecified distance.
In fact, there is legal justification supporting the right of Liberty to be in this area. From the Commander's Handbook on the Law of Naval Operations, Chapter 7:
7.9 EXCLUSION ZONES AND WAR ZONES
Belligerent control of an immediate area of naval operations is to be clearly distinguished from the belligerent practice during World Wars I and II of establishing broad ocean areas as "exclusion zones" or "war zones" in which neutral shipping was either barred or put at special risk. Operational war/exclusion zones established by the belligerents of both sides were based on the right of reprisal against alleged illegal behavior of the enemy and were used to justify the exercise of control over, or capture and destruction of, neutral vessels not otherwise permitted by the rules of naval warfare. Exclusion or war zones established by belligerents in the context of limited warfare that has characterized post-World War II belligerency at sea, have been justified, at least in part, as reasonable, albeit coercive, measures to contain the geographic area of the conflict or to keep neutral shipping at a safe distance from areas of actual or potential hostilities. To the extent that such zones serve to warn neutral vessels and aircraft away from belligerent activities and thereby reduce their exposure to collateral damage and incidental injury (see paragraph 8.1.2.1), and to the extent that they do not unreasonably interfere with legitimate neutral commerce, they are undoubtedly lawful. However, the establishment of such a zone does not relieve the proclaiming belligerent of the obligation under the law of armed conflict to refrain from attacking vessels and aircraft which do not constitute lawful targets. In short, an otherwise protected platform does not lose that protection by crossing an imaginary line drawn in the ocean by a belligerent.
The following was the legal opinion on this explanation of the Counsel for the Court of the U.S. Navy Court of Inquiry, Captain Ward Boston Jr., as written in Appendix VI to the Court's record:
Comment - The duties of a neutral under international law do not include a duty to ensure that its ships or personnel leave or refrain from entering an area of hostilities or an area adjacent to an area of hostilities. Nationals of a neutral country who may happen to be in belligerent territory nevertheless retain their right to protection by their neutral home state; and a belligerent must grant to neutral diplomatic envoys -- including those accredited to the enemy -- the right to quit the territory unmolested. A neutral nation, in this respect alone, thus has a legitimate reason and a legal right to dispatch a ship into international waters adjacent to an area of hostilities, in fulfillment of its obligation to protect its nationals and to evacuate those who desire evacuation. It was in fulfillment of such a mission that USS LIBERTY was engaged. Far from being contrary to international custom, the presence of neutral ships on just such missions as LIBERTY's is a common, if not a universal, incident of situations involving the outbreak of hostilities. So long as such a neutral ship maintains the impartial attitude of neutrality, each belligerent has a duty to refrain from attacking her. Action by such a neutral ship to repulse an unlawful belligerent attack by force, where the neutral has not first attacked the belligerent, does not constitute "hostilities" against the belligerent and does not constitute an abandonment or a violation of neutrality.