Legal expert: Turkel panel interpreted laws correctly

By DAN IZENBERG
January 26, 2011 03:09

Law professor says the commission found the relevant laws applying to the situations with which the IDF had to cope on board the "Mavi Marmara."

4 minute read.



TURKEL. Probing the flotilla fiasco.

Turkel Committee 311. (photo credit: GPO)

The Turkel Commission Report was sound and its conclusions were correct, one of two experts in international law with whom the commission consulted told The Jerusalem Post on Tuesday.

“The commission applied the correct legal standards in dealing with the flotilla,” Prof. Michael Schmitt told The Post in a telephone interview from England, where he holds the Chair of Public International Law at Durham Law School.

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Schmitt said the commission found the relevant laws applying to the situations with which the IDF had to cope on board the Mavi Marmara, and interpreted those laws correctly.

The report on the blockade of Gaza and the capture of the Mavi Marmara on May 31, 2010, was released on Sunday.

It should not be surprising that Schmitt came to this conclusion since he and another colleague, Prof. Wolff Heintschel Von Heinegg, served as consultants to the commission after its expert on international law, Prof. Shabtai Rosenne, died in the middle of the investigation.

Nevertheless, the fact that these experts, who were not chosen by the government, gave their stamp of approval to the report has made an impression even on some Israeli academics, who may have been skeptical about the commission’s objectivity, given that its members were chosen by the government. Some of these skeptics have acknowledged the high caliber of the two international consultants.

Schmitt said his and Von Heinegg’s work amounted to reading over successive drafts of the report prepared by the commission, and making comments or suggesting corrections to its legal aspects.

“I found the committee very responsive to our comments,” he said.

Schmitt, who specializes in facets of international law involving the use of force and targeting, focused on the second section of the report. This part deals with the military operation to capture the Mavi Marmara and the fighting in which nine Turks were killed and dozens of activists and nine IDF soldiers were wounded.

Von Heinegg, who is perhaps the world’s foremost expert in maritime law, including naval blockades, focused more on the first section of the report, dealing with the legality of Israel’s naval blockade of Gaza and its tight control over the type and quantity of goods permitted to enter the Strip.

Although out of personal and professional interest, both consultants knew a great deal about the flotilla affair, they did not know enough, nor were they asked, to investigate the facts themselves, Schmitt said.

On the other hand, he continued, “we didn’t accept all of the commission’s facts uncritically. We would tell them we needed to know more about this or that incident in order to determine what law applies. In some sense, we played devil’s advocate to the account presented by the commission. Nevertheless, our role was restricted to the application of the law to the facts themselves.”

This was difficult enough, said Schmitt.

For example, the commission and the consultants had to decide whether a distinction should be made between passengers who actively resisted the forceful takeover of the vessel by Israel troops, and those who were aboard the ship, and had therefore violated the lawful naval boycott, but did not actively resist.

The dialogue between the commission and the consultants took many months.

Altogether, the members of the Turkel Commission spent about six months writing the report. During that time, its members traded corrected drafts from the consultants for updated drafts from the commission members. “We saw several drafts and worked hard to make sure they were correct about the law,” Schmitt said.

In general, he continued, Israel’s legal experts in the army and the Foreign Ministry “are exceptionally well-trained and experienced and come from very good universities. They were well qualified and well-educated and issued legal reports of a high caliber. “Generally, Israel gets the law right and applies it as it is meant to be applied,” he said.

He said he had just published a paper in the online Harvard National Security Journal in which he examined many legal assessments of Operation Cast Lead and found that Israel “gets the law right and applies it as it is meant to be applied.”

He said his paper dealt primarily with the question of how conflicts should be investigated in the context of international law, a topic that will also be the subject of the second and final report due to be issued by the Turkel Commission in the next few months.

Schmitt added that although he was not asked to examine the facts presented in the report, he trusted their accuracy, adding that he knew the Canadian observer, Brig.-Gen. Ken Watkins, personally and professionally, and “it is hard to find anyone with greater integrity than him.”


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