International Law

The UN Vindicates Israel

By Benjamin Wittes
Thursday, September 1, 2011, 2:06 PM

No, that's not an Onion headline--nor is today April 1. Nor is it entirely true.

Still, the New York Times has obtained a copy of the "Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident," an incident in which Israeli forces boarded the Turkish boat Mavi Marmara and killed nine people trying to break the naval blockade of the Gaza Strip. And the report, due to be released tomorrow, is surprisingly favorable to Israel--I say surprisingly not because the facts should lead to another conclusion here but because with respect to Israel, at the U.N., facts don't usually matter very much. In essence, the panel concluded that the Israeli blockade of Gaza is legitimate and that the flotilla was a reckless effort to run the blockade but faulted the Israeli forces for excessive force in boarding the ship.

Here is the report's factual summary and conclusions:

Facts, Circumstances and Context of the Incident

The Panel finds:

i. The events of 31 May 2010 should never have taken place as they did and strenuous efforts should be made to prevent the occurrence of such incidents in the future.

ii. The fundamental principle of the freedom of navigation on the high seas is subject to only certain limited exceptions under international law. Israel faces a real threat to its security from militant groups in Gaza. 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.

iii. The flotilla was a non-governmental endeavour, involving vessels and participants from a number of countries.

iv. Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade. The majority of the flotilla participants had no violent intentions, but there exist serious questions about the conduct, true nature and objectives of the flotilla organizers, particularly IHH. The actions of the flotilla needlessly carried the potential for escalation.

v. The incident and its outcomes were not intended by either Turkey or Israel. Both States took steps in an attempt to ensure that events did not occur in a manner that endangered individuals’ lives and international peace and security. Turkish officials also approached the organizers of the flotilla with the intention of persuading them to change course if necessary and avoid an encounter with Israeli forces. But more could have been done to warn the flotilla participants of the potential risks involved and to dissuade them from their actions.

vi. Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable:

a. Non-violent options should have been used in the first instance. In particular, clear prior warning that the vessels were to be boarded and a demonstration of dissuading force should have been given to avoid the type of confrontation that occurred;

b. The operation should have reassessed its options when the resistance to the initial boarding attempt became apparent.

vii. Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.

viii. The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable. Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the Panel by Israel for any of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel.

ix. There was significant mistreatment of passengers by Israeli authorities after the take-over of the vessels had been completed through until their deportation. This included physical mistreatment, harassment and intimidation, unjustified confiscation of belongings and the denial of timely consular assistance.

How to Avoid Similar Incidents in the Future

The Panel recommends:

With respect to the situation in Gaza

i. All relevant States should consult directly and make every effort to avoid a repetition of the incident.

ii. Bearing in mind its consequences and the fundamental importance of the freedom of navigation on the high seas, Israel should keep the naval blockade under regular review, in order to assess whether it continues to be necessary.

iii. Israel should continue with its efforts to ease its restrictions on movement of goods and persons to and from Gaza with a view to lifting its closure and to alleviate the unsustainable humanitarian and economic situation of the civilian population. These steps should be taken in accordance with Security Council resolution 1860, all aspects of which should be implemented.

iv. All humanitarian missions wishing to assist the Gaza population should do so through established procedures and the designated land crossings in consultation with the Government of Israel and the Palestinian Authority.

 

 

General

 

v. All States should act with prudence and caution in relation to the imposition and enforcement of a naval blockade. The established norms of customary international law must be respected and complied with by all relevant parties. The San Remo Manual provides a useful reference in identifying those rules.

 

vi. The imposition of a naval blockade as an action in self-defence should be reported to the Security Council under the procedures set out under Article 51 of the Charter. This will enable the Council to monitor any implications for international peace and security.

 

vii. States maintaining a naval blockade must abide by their obligations with respect to the provision of humanitarian assistance. Humanitarian missions must act in accordance with the principles of neutrality, impartiality and humanity and respect any security measures in place. Humanitarian vessels should allow inspection and stop or change course when requested.

 

viii. Attempts to breach a lawfully imposed naval blockade place the vessel and those on board at risk. Where a State becomes aware that its citizens or flag vessels intend to breach a naval blockade, it has a responsibility to take pro-active steps compatible with democratic rights and freedoms to warn them of the risks involved and to endeavour to dissuade them from doing so.

 

ix. States enforcing a naval blockade against non-military vessels, especially where large numbers of civilian passengers are involved, should be cautious in the use of force. Efforts should first be made to stop the vessels by non-violent means. In particular, they should not use force except when absolutely necessary and then should only use the minimum level of force necessary to achieve the lawful objective of maintaining the blockade. They must provide clear and express warnings so that the vessels are aware if force is to be used against them.

Rapprochement

x. An appropriate statement of regret should be made by Israel in respect of the incident in light of its consequences.

xi. Israel should offer payment for the benefit of the deceased and injured victims and their families, to be administered by the two governments through a joint trust fund of a sufficient amount to be decided by them.

xii. Turkey and Israel should resume full diplomatic relations, repairing their relationship in the interests of stability in the Middle East and international peace and security. The establishment of a political roundtable as a forum for exchanging views could assist to this end.

 

The statement of the investigative panel's Israeli representative, Joseph Ciechanover Itzhar, reads as follows:

 

As the Representative of Israel to this Panel, I join the Chairman and Vice Chairman in adopting this report. Israel appreciates the important work of the Panel and thanks Sir Geoffrey Palmer and Mr. Alvaro Uribe for their leadership. Their efforts should send a message to the international community about the need to engage with all sides to a dispute and to avoid prejudging an incident before all of the facts are known.

 

Israel has reservations to a few aspects of the report, which are expressed below, but appreciates that the report concurs with Israel’s view that the "naval blockade was legal," that it "was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea," that the blockade’s implementation "complied with the requirements of international law," and that Israel had a "right to visit and search the vessel and to capture it if found in breach of a blockade", including in international waters. The Report rightly finding serious questions about "the conduct, true nature and objectives of the flotilla organizers, particularly IHH," notes that they planned "in advance to violently resist any boarding attempt" and classifies the decision to breach the blockade of Gaza as a "dangerous and reckless act," which "needlessly carried the potential for escalation." Israel also notes the importance of the Panel’s support for Israel’s long-standing position that "all humanitarian missions wishing to assist the Gaza population should do so through established procedures and designated land crossings in consultation with the Government of Israel and the Palestinian Authority."

At the same time, Israel does not concur with the Panel’s characterization of Israel’s decision to board the vessels in the manner it did as "excessive and unreasonable." The Panel was provided evidence of the repeated warnings it gave the vessels regarding its intent to board them. Israel feels that the Panel gave insufficient consideration to the operational limitations which determined the manner and timing of the boarding of the vessels and to the operational need for a covert takeover in order to minimize the chances for resistance on board.

 

As to the actions of Israel’s soldiers, given the panel’s conclusions regarding the resistance that they encountered when boarding the Mavi Marmara, it is clear that the soldier’s lives were in immediate danger. For example, the Panel notes that

"Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara." The Panel confirmed that video footage showed that passengers were wearing "bullet proof vests, and carrying metal bars, slingshots, chains and staves" and that this information "supports the accounts of violence given by IDF personnel to the Israeli investigation." The Panel further confirms that "two soldiers received gunshot wounds," "three soldiers were captured, mistreated, and placed at risk" and that "seven soldiers were wounded by passengers, some seriously."

Given these circumstances, Israel’s soldiers clearly acted in self-defense and responded reasonably, proportionally and with restraint, including the use of less-lethal weapons where feasible. The Panel's characterization of the circumstances which led to the nine deaths on board the Mavi Marmara does not adequately take into account the complexities of what was clearly a chaotic combat situation. In such a situation, reconstructing the exact chains of events is extremely difficult, if not impossible. Given the close range combat that clearly took place aboard the vessel, wounds sustained at close range do not in themselves suggest wrongdoing by Israeli soldiers.

 

Israel’s treatment of the hundreds of participants following the takeover of the ships was reasonable and compatible with international standards. Reliance on some passenger statements presented in the Turkish National Report as evidence of wrongdoing was particularly problematic. Israel raised serious concerns regarding the veracity and credibility of some of these statements.

 

Still, Israel cherishes the shared history and centuries old ties of strong friendship and cooperation between the Jewish and Turkish peoples and hopes that the Panel's work over the past few months will assist Israel and Turkey in finding a path back to cooperation.

The statement by the panel's Turkish representative, Süleyman Özdem Sanberk, reads as follows:

I hereby register my disagreement with the Chairmanship on the following issues contained in the report:

  • The question of the legality of the blockade imposed on Gaza by Israel.
  • The actions of the flotilla
  • Naval blockades in general
  • Appendix: The applicable International legal principles.

This, for the following reasons:

  • On the legal aspect of the blockade, Turkey and Israel have submitted two opposing arguments. International legal authorities are divided on the matter since it is unprecedented, highly complex and the legal framework lacks codification. However, the Chairmanship and its report fully associated itself with Israel and categorically dismissed the views of the other, despite the fact that the legal arguments presented by Turkey have been supported by the vast majority of the international community. Common sense and conscience dictate that the blockade is unlawful.
  • Also the UN Human Rights Council concluded that the blockade was unlawful. The Report of the Human Rights Council Fact Finding Mission received widespread approval from the member states.
  • Freedom and safety of navigation on the high seas is a universally accepted rule of international law. There can be no exception from this long-standing principle unless there is a universal convergence of views.
  • The intentions of the participants in the international humanitarian convoy were humanitarian, reflecting the concerns of the vast majority of the international community. They came under attack in international waters. They resisted for their own protection. Nine civilians were killed and many others were injured by the Israeli soldiers. One of the victims is still in a coma. The evidence confirms that at least some of the victims had been killed deliberately.
  • The wording in the report is not satisfactory in describing the actual extent of the atrocities that the victims have been subjected to. This includes the scope of the maltreatment suffered by the passengers in the hands of Israeli soldiers and officials.

In view of the above, I reject and dissociate myself from the relevant parts and paragraphs of the report, as reflected in paragraphs ii, iv, v, vii of the findings contained in the summary of the report and paragraphs ii, iv, v, vii, viii and ix of the recommendations contained in the same text.