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In September 2010, the UN General Assembly’s Human Rights Council issued a report on the Israeli attack on the Mavi Marmara. It concluded that the blockade of the Gaza Strip was unlawful; that the blockade constituted collective punishment of the civilian population of Gaza; that the interception of the Mavi Marmara “cannot be justified even under Article 51 [self defence] of the UN Charter”; that the attack involved violations of human rights law and international humanitarian law; and that the flotilla posed no threat to Israeli security.
Out of the secretary-general’s office has now come a report that turns all these earlier findings upside down. Ban Ki Moon’s Panel of Inquiry finds that the naval blockade was imposed “as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law”. This is extraordinary, first of all, seeing that the Panel of Inquiry had already conceded that “the panel is not a court” and was not asked to determine legal issues “or to adjudicate on liability”.
On the question of legality, no-one on the panel spoke with authority on maritime law or the laws of war. Geoffrey Palmer, the chairman of the panel of four, is a professor of international environmental law. He has no known experience of the Middle East and the background which might help him understand why Israel feels itself entitled to attack ships on the high seas, the Mavi Marmara being not the first or the only one. Alvaro Uribe, the vice-chair and a strong supporter of Israel, is a former president of Colombia. His tenure in office was marked by widespread abuse of human rights, including torture and murder. Both he and Palmer were chosen to sit on the panel from a list of names approved by Israel.
The report goes on to say that “whether what occurred here was legally defensible is important, but in diplomatic terms is not dispositive of what has become an important irritant not only in the relationship between two important nations but also in the Middle East generally.” Nine Turks (one a Turkish American) were shot dead on the Mavi Marmara. Most of them were shot at close range in what the Human Rights Council report described as summary executions. More plainly they might be more accurately described as murders. Furkan Dogan, a young man of 19, was shot from behind, and apparently finished off at point blank range by being shot in the face as he lay wounded on the deck. A video circulating on the Internet showed an Israeli soldier standing over someone lying on the deck — apparently Furkan Dogan — and kicking him repeatedly before aiming a gun at his face. To reduce all of this to an irritant spoiling relations between Israel and Turkey and the smooth flow of international relations is surely offensive, insensitive and grossly insulting to the families of the dead.
The Panel of Inquiry, while describing the violence as disproportionate, avoided the issue of culpability at the command or individual level. It noted that “no satisfactory explanation has been provided to the panel by Israel for any of the nine deaths.” The panel apparently did not feel itself obliged to come up with explanations of its own. While emphasising the need to find solutions “that will allow Israel, Turkey and the international community to put the incident behind them”, it clearly did not regard the allocation of responsibility as the best way to reach this point. As Turkish Prime Minister Recep Tayyip Erdogan has observed, the attack on the Mavi Marmara was “grounds for war”. If any of the actors acted recklessly it was Israel; if any acted with restraint it was Turkey and in asking for an apology Turkey was staking out a minimal position. By refusing to issue an apology, Israel has allowed no one to put the incident behind them.
While running through the findings of the Turkish commission of inquiry and Israel’s Turkel committee — a whitewash of the entire Israeli operation from start to finish — the panel made no independent attempt to reconcile the contradictions between the two reports or come up with its own conclusions about what actually happened. All of its findings flowed on logically from its judgment that the blockade was legal and that the Israelis were justified in enforcing it. Thus the passengers had no right to defend themselves against armed attack. Thus the Israelis did have the right to subdue them even if the level of force they used was “disproportionate”. Evidence placed before the Human Rights Council suggests that the Israelis had already shot two passengers dead from helicopters before the boarding party landed on the upper deck of the Mavi Marmara. The panel offered no opinion on this crucial point. The attack took place on the high seas, 72 miles from land and 64 nautical miles from the blockade zone. The panel concluded that the boarding of the Mavi Marmara so far from the blockade zone was “excessive and unreasonable” but had nothing to say about its possible illegality even within the context of the laws of war and naval blockades.
Without producing any evidence the panel implied that some of the Mavi Marmara passengers may have been carrying guns. It also casts doubts on the motives of the flotilla organisers and suggested that had they been more concerned with getting aid to the Palestinians rather than provoking a confrontation with Israel and drawing attention to themselves, in its view, the ship could have docked at Ashdod so that the aid could have been taken to Gaza by land. In other words, the aid should have been placed in the hands of the blockading power for it to decide what should be sent to Gaza and what should be withheld.
The panel claimed that Israel’s effective control over the Gaza Strip ended when disengagement “was completed” in 2005. Here the Panel of Inquiry admitted that it was relying on a decision of the Supreme Court of Israel. It made no independent judgment of its own. In fact, although Israel withdrew from Gaza, it has never disengaged. The territory has been fenced off and is blockaded on land and from the air and sea. Its population lives under the constant threat of Israeli military attack from sea, land and air. The onslaught of 2008-09 took the lives of 1400 people, most of them civilians. Massive destruction was caused to civilian and government infrastructure. Israel tightly controls the flow of goods into Gaza through the land gates and has repeatedly bombed the tunnels through which Gazans have been able to obtain the necessities of life from Egypt. Taking the view that Gaza and Israel “are both distinct political and territorial entities”, the panel said the conflict between the Hamas government and Israel should be treated as an international one. In fact, Gaza, historically, culturally and politically, is an inseparable part of the territory of Palestine. The conflict is not between the Hamas government and Israel but between the Palestinian people and Israel. It does not have the “trappings of an international armed conflict” because Palestine is not a state and has no army, navy or air force. Whether in Gaza or the West Bank the Palestinians have virtually no means of defending themselves against Israeli assaults.
The Panel declared that the naval blockade would only be illegal if its imposition was to starve or collectively punish the civilian population of Gaza. Attempting to split the naval blockade from the land blockade, the panel says that “there is no evidence before the Panel that would permit a finding confirming the allegations that Israel had either of those intentions [starvation and collective punishment] or that the naval blockade was imposed in retaliation for the takeover of Hamas in Gaza or otherwise. On the contrary, it is evident that Israel had a military objective.” In fact, again, the two Israeli blockades (along with control of air space) constitute an integrated strategy designed to impose Israeli control over everything going into Gaza, including arms, food, medicine and so on, as well as anything going out, including fishing boats. The land blockade was imposed immediately after the election of the Hamas government in January 2006. The naval blockade was a logical extension of this policy, and cannot be separated from it. The dominant view internationally is that the blockade of Gaza, with no division being made between the land blockade and the sea blockade, violates international law in several respects.
The panel claimed that Israel has faced and is facing a threat to its security from militant groups within Gaza. Of course, this is true even if the threat is minimal compared to the threat Israel poses to the security of Palestinians in the West Bank or Gaza. The panel argues that Israel has the right to self defence against armed attack from outside its territory. As Israel is the only state in the world which has never defined its borders, and as the territory falling within the 1949 armistice lines includes more than 20 per cent of Palestine set aside for the Arab state in the partition resolution of 1947, but seized by Zionist militias in 1948, what constitutes Israeli territory remains an interesting but unresolved point.
Furthermore, most Gazans are refugees (or the children of refugees) from somewhere else in Palestine. They were driven into Gaza during the ethnic cleansing of 1948. Not far from the fence penning them in, settlements have been built on their land and the ruins of their villages. Their right of return to the place of their birth has been affirmed in numerous UN resolutions specific to Palestine as well as conventions dealing with universal human rights. Israel has never complied with any of these resolutions. Yet it is Israel and not its victims to which Ban Ki Moon’s panel grants the right of self-defence.
Turkey has rejected this biased report out of hand. It has sent the Israeli ambassador home and will now ask the International Court of Justice to issue a legal opinion on the blockade of Gaza and thus the attack on the Mavi Marmara. If Israel is now friendless in the region it only has itself to blame. Protected by the US from ever having to face up to the consequences of its actions, it is now waking up to the cold light of a new day.
Jeremy Salt is associate professor in Middle Eastern history and politics at Bilkent University in Ankara, Turkey.