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.
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“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.
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.
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
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
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
“I found the committee very responsive to our comments,” he
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
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
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
This was difficult enough, said Schmitt.
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.
dialogue between the commission and the consultants took many
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,”
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
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.”