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Turkel: Flotilla raid in accordance with int'l law
By DAN IZENBERG
01/23/2011
First part of c'tee report says actions carried out by IDF to enforce Gaza naval blockade had regrettable consequences of loss of human life.
 
Israel’s blockade of the Gaza Strip and the IDF operation on May 31 to prevent foreign vessels from reaching it were completely in accordance with international law, members of the Turkel Commission said in a report published Sunday.

The four Israeli members and two international observers who comprised the Turkel Commission agreed that both the naval blockade and the closure of the overland crossings after Hamas took control of the Gaza Strip had been legal.

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“The naval blockade imposed on the Gaza Strip – in view of the security circumstances and Israel’s efforts to comply with its humanitarian obligations – was legal pursuant to the rules of international law,” the committee wrote in its concluding remarks.

“The actions carried out by Israel on May 31, 2010, to enforce the naval blockade had the regrettable consequences of the loss of human life and physical injuries,” the panel said, of the raid that resulted in the deaths of nine Turkish nationals aboard the Mavi Marmara.

“Nonetheless, and despite the limited number of uses of force for which we could not reach a conclusion, the actions taken were found to be legal pursuant to the rules of international law.”

The findings, however, were unlikely to put to rest the international controversy over the raid, which badly damaged its relations with Turkey. The condemnation that followed the raid forced Israel to ease the blockade on the Gaza Strip.

Turkey recalled its ambassador to Israel after the incident and ties between the countries have not recovered. Turkish Prime Minister Recep Tayyip Erdogan promptly dismissed the Turkel conclusions.

The commission, officially known as the Public Commission to Examine the Maritime Incident of May 31, 2010, released the first of two scheduled reports on Sunday. Commission spokesman Ofer Lefler explained that each report deals with separate questions that the government asked the members of the panel to investigate, and said that each of them would be final.

The first report addressed the following matters:

• The question of whether or not the naval blockade imposed on the Gaza Strip by Israel conformed with the rules of international law.

• An assessment of the actions taken by the IDF to enforce the naval blockade.

• An examination of the actions taken by the organizers of the flotilla and its participants and their identity.

The commission was established in accordance with a government decision handed down on June 14, 2010. The decision was made in response to worldwide demands for an international investigation into the May 31 incident, in which nine Turkish passengers were killed and dozens wounded, and nine Israeli soldiers were also wounded.

Israel’s critics also charged that the naval embargo and the restrictions imposed by Israel on the overland crossings between Israel and the Gaza Strip were also illegal.

As part of its general policy, Israel refused to allow anyone except the IDF to question soldiers regarding their activities and therefore refused all demands for an international investigation. However, because of US pressure, it agreed to conduct its own probe, headed by a retired Supreme Court justice.

It also agreed to add two international observers to the panel, who would have the right to hear and question witnesses and would be given full access to the written material presented to the commission members.

The Israeli members of the commission included Turkel, international law expert Shabtai Rosenne, Maj.-Gen. (Ret.) Amos Horev, Tel Aviv University law professor Miguel Deutch and retired Foreign Ministry director-general Reuven Merhav.

The two observers were Lord David Trimble of Ireland and Brig.-Gen. (Ret.) Kenneth Watkin of Canada.

Rosenne, who was 93, died in the midst of the hearings and was not replaced. However, the committee contracted the services of two foreign international law experts, Prof. Wolf Heintschel von Heinegg and Prof. Michael Schmitt.

The commission members divided the report into two sections, the first dealing with the naval blockade of the Gaza Strip and the second with the operation to capture the Mavi Marmara.

Regarding the first question, the commission found that: • The conflict between Israel and the Gaza Strip is an international armed conflict.

• Israel’s “effective control” of the Gaza Strip ended when the disengagement was completed.

• The purpose of the naval blockade imposed by Israel on the Gaza Strip was primarily a military- security one.

• The naval blockade was imposed on the Gaza Strip lawfully, with Israel complying with the conditions for imposing it.

• Israel is complying with the humanitarian obligations imposed on the blockading party, including the prohibition of starving the civilian population or preventing the supply of objects essential for the survival of the civilian population and medical supplies, and the requirement that the damage to the civilian population is not excessive in relation to the concrete and direct military advantage anticipated from the blockade.

• The imposition and enforcement of the naval blockade on the Gaza Strip does not constitute “collective punishment” of the population of the Gaza Strip.

• International law does not give individuals or groups the freedom to ignore the imposition of a naval blockade that satisfies the conditions for imposing it and that is enforced accordingly, especially where a blockade satisfies obligations to neutral parties, merely because in the opinion of those individuals or groups it violates the duties of the party imposing the blockade vis-à-vis the entity subject to the blockade.

Regarding the legality of the raid itself, the commission reached the following conclusions:

• A vessel that attempts to breach a blockade is subject to international law governing the conduct of hostilities, and international humanitarian law, including the rules governing the use of force.

• The Israeli armed forces’ interception and capture of the Gaza flotilla vessels – including having the Shayetet 13 naval commandoes board from the Morena speedboats and fastrope from a helicopter onto the roof of the vessels – was consistent with established international naval practice.

• The participants in the flotilla were predominantly an international group of civilians whose main goal was to bring publicity to the humanitarian situation in Gaza by attempting to breach the blockade imposed by Israel.

• On board the Mavi Marmara and the other flotilla vessels was a group of IHH and affiliated activists (the IHH activists) that violently opposed the Israeli boarding. The IHH activists who participated in that violence were civilians taking a direct part in hostilities.

• The force used against civilians on board the flotilla was governed by the principles of “necessity” and use of “proportionate force” associated with human rights-based law enforcement norms. The IHH activists lost the protection of their civilian status for such time as they directly participated in the hostilities. The use of force against these direct participants in hostilities is governed by the applicable rules of international humanitarian law.

• The Rules of Engagement for the operation provided an authority to use force that reflected the nature of a law- enforcement operation.

• The IHH activists carried out the violence on board the Mavi Marmara by arming themselves with a wide array of weapons, including iron bars, axes, clubs, slingshots, knives, and metal objects. These were weapons capable of causing death or serious injury. Further, the hostilities were conducted in an organized manner with IHH activists, inter alia, operating in groups when violently assaulting the IDF soldiers.

• The IHH activists used firearms against the IDF soldiers during the hostilities The Commission examined 133 incidents in which force was used. The majority of the uses of force involved warning or deterring fire and less-lethal weapons.

Overall, the IDF personnel acted professionally in the faces of extensive and unanticipated violence, the panel found. This included continuing to switch back and forth between less-lethal and lethal weapons in order to address the nature of the violence directed at them.

The commission concluded that in 127 cases, the use of force appeared to be in conformity with international law.

In six cases, the commission concluded that it had insufficient information to be able to make a determination.

Three out of those six cases involved the use of live fire and three cases involved physical force; two incidents of kicking and one strike with the butt of a gun.

In five out of the 127 incidents that appeared to be in conformity with international law, there was insufficient evidence to conclude that the use of force was also in accordance with law enforcement norms. However, in these cases, force appeared to be used against persons taking a direct part in hostilities and, as a consequence, was in conformity with international law.

The planning and organization of the IDF mission to enforce the blockade did not include anticipation that there would be a violent opposition to the boarding, which had a direct impact on the operational tactics, rules of engagement, and training before the operation.

However, the focus of the planning and organization of the operation on a lower level of resistance did not lead to a breach of international law, the commission said.

AP contributed to this report.
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