Supreme Court rules against major state initiative to deter Gaza flotillas

The ruling was noteworthy in light of ongoing pressure to drop the Gaza blockade, imposed in 2007, after Hamas took over from Fatah.

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August 8, 2016 08:53
3 minute read.
Gaza flotilla

Gaza flotilla. (photo credit: MAHMUD HAMS / AFP)

 
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The state cannot confiscate the Estelle, the Swedish Ship used in a 2012 flotilla aimed at breaking Israel’s blockade of Gaza, the Supreme Court ruled on Sunday.

At the same time, the three justices – Supreme Court President Miriam Naor, Hanan Melcer and Salim Joubran – left some opening for future state efforts to try reinstating its confiscation policy.

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The decision is a major blow to one of the state’s broader strategies used to discourage foreigners from organizing flotillas to break its Gaza blockade.

That strategy placed flotilla participants at the same risk of large monetary losses as those of other sea vessels and cargo.

The justification for confiscating the Estelle and other boats is embodied by England’s Naval Prize Act of 1864, often referred to as the international law of the sea.

The state tried applying the old laws to the Estelle, which sailed from Finland on May 28, 2012, with the announced intention of breaking the Gaza blockade.

Instead, the navy boarded and commandeered the ship on October 20, 2012.

The boat was owned by a company controlled by far-left Israeli activist Dror Feiler, who had been living outside of Israel for several years at the time.

The state filed the petition to confiscate the boat in August 2013, after a delay of around 10 months.

The state said various diplomatic and security considerations caused the delay.

The court did not agree, thereby sinking the state’s sea law confiscation strategy.

Naor wrote that the state needed to declare its intention to confiscate a ship within days, or at most weeks of seizure.


Failure to do so was unreasonable under international law and Israeli administrative law expectations.

The ruling was noteworthy in light of ongoing pressure to drop the Gaza blockade, imposed in 2007, after Hamas took over from Fatah.

The ruling affirmed a September 2014 decision by Haifa District Court Judge Ron Sokol. That ruling blocked the state from legalizing confiscation of vessels and their cargo under international law, saying England’s Naval Prize Act of 1864 was too esoteric and too infrequently used.

Citing global near abandonment of the law after World war II, Sokol called it too vague for an Israeli court. He also rejected the state’s position on the basis of extreme delay.

If the state appealed to the Supreme Court hoping a victory would help it move forward with its new policy, the ruling was a disaster. However, if the state hoped to extricate itself from this case while keeping the policy alive for possible use another day, it succeeded.

The Supreme Court ruling did not endorse the lower court’s rejection of confiscation, only confiscation in this specific case, and only because of the extreme delay.

Further, both Naor and lower court Judge Sokol said they would have been likely to rule differently if the Knesset passed a law on the issue.

Justice Melcer agreed with Naor’s opinion, but added his own view that Israeli courts did have authority to consider the possibility of confiscation.

“This is a precedent-setting case because since the establishment of the state, this is the first decision regarding confiscation prize law,” said Lawyer Gaby Lasky, representing the owner of the Estelle.

“The Supreme Court accepted our position that the state had delayed coming to the court and therefore should return the Estelle to its owner.”

The Supreme Court also ordered the state to pay NIS 40,000 to the owner of the Estelle to cover court costs.

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