Applicable Law

In order to place the facts you are going to hear into their proper context, a quick review of the applicable law is in order.

That body of international law known as "the law of war" or "the law of armed conflict" is recognized by nations as the minimum standard of conduct expected of belligerents involved in any conflict. The United States Navy Judge Advocate General has explained the purpose of the law of armed conflict in plain terms as follows:

"The law of armed conflict seeks to prevent unnecessary suffering and destruction by controlling and mitigating the harmful effects of hostilities through minimum standards of protection to be accorded to "combatants" and to "noncombatants" and their property. To that end, the law of armed conflict provides that:

1. Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied.

2. The employment of any kind or degree of force not required for the purpose of the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources, is prohibited.

3. Dishonorable (treacherous) means, dishonorable expedients, and dishonorable conduct during armed conflict are forbidden.

The law of armed conflict is not intended to impede the waging of hostilities. Its purpose is to ensure that the violence of hostilities is directed toward the enemy's forces and is not used to cause purposeless, unnecessary human misery and physical destruction."

The applicable provisions of the "the law of war" or "the law of armed conflict" can be found in the international treaties ratified by the United States and Israel.

The 1907 Hague Convention Concerning The Rights And Duties Of Neutral Powers In Naval War provides, in Article I:

"Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality"

The Hague Convention was incorporated into the 1949 Geneva Convention, which states in its Preamble:

"The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Xth Hague Convention of October 18, 1907, for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906, have agreed as follows:"

Thus, the Hague Convention's prohibition against acts that would violate the rights of neutral vessels on the high seas have been incorporated directly into the Geneva Convention. The Geneva Convention further provides, in relevant part:

Article 50

"The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defense, which shall not be less favorable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949."

Article 51

"Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."

Article 52

"No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article."

Both Israel and the United States are signatories to the Geneva Convention (and were so on June 8, 1967).

The essence of the Israeli defense is "mistake". That is, they argue that they are in no way culpable because they made an honest, good faith mistake when they attacked U.S.S. Liberty. Even if the evidence suggested that this was the case - which it most definitely does not - the defense of "mistake" or "accident" when attacking a neutral vessel has been rejected in its entirety by international war crimes tribunals. (See Raeder and Doenitz Verdicts of the Nuremburg War Crimes Tribunal.)

In 1958, the Convention on the High Seas was negotiated at the United Nations. Again, both Israel and the United States were signatories to that treaty prior to June 8, 1967. Article 22 of that treaty severely circumscribes the rights of warships with respect to neutral vessels on the high seas:

"1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:

(a) That the ship is engaged in piracy; or

(b) That the ship is engaged in the slave trade; or

(c) That though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in sub-paragraphs (a), (b) and (c) above, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained."

It is clear that both the United States and Israel were bound be these provisions on June 8, 1967. We may infer reasonably from the treaty provisions quoted immediately above that on June 8, 1967:

In addition to the penalties imposed by international law, United States domestic law provides for criminal sanctions against those who commit homicides against certain U.S. personnel abroad. The homicide provisions of the United States Criminal Code (Title 18, United States Code) are given extraterritorial applicability, in this case, by virtue of provisions for the "special maritime jurisdiction of the United States." Even if this were not the case, the special coverage provided by 18 U.S.C. § 1114 ("Protection of officers and employees of the United States") affords protection to U.S. military personnel serving abroad.

Please keep these legal standards in mind as we proceed to examine the facts of this case.

For more applicable law, click here.