The first section of the Turkel Commission’s report deals with several legal
issues regarding Israel’s policies vis-à-vis the Gaza Strip that predate the
seizure of the Gaza flotilla on May 31 and have been a focus of international
controversy for many years.
The commission’s opinion on these matters
obviously has no more authority in the international sphere than any other body,
be it that of academics, human rights organizations or even the Supreme Court of
It should also be kept in mind that the members of the commission
were chosen by the Israeli government and therefore it can by no means be
considered a disinterested body. If this statement needs to be qualified in any
way, it is by virtue of the fact that the commission hired two outstanding legal
experts, Dr. Wolff Neitschel von Heinegg and Prof. Michael Schmitt, to provide
expertise on matters of international law after the death of Prof. Shabtai
Be that as it may, the following are the commission’s
conclusions on some of the key issues that are in dispute regarding Israel’s
relations with the Gaza Strip.Is Gaza occupied territory?
concluded that Israel stopped occupying the Gaza Strip after its unilateral
withdrawal in 2005. This despite the fact that it controls all but one of the
land crossings to Gaza and is in full control of its airspace and territorial
Those who maintain that Israel still occupies Gaza argue that it
has “effective control” over the territory for various reasons, including those
noted above. But the members of the commission maintained that one would have to
have “an unjustifiably flexible and novel interpretation of the term ‘effective
control” in order to maintain that position. It would have to be based on
acceptance of the fact that two different and opposing powers can exercise
effective control simultaneously.”
It would also, the commission
continued, need to be assessed against “the currently accepted approach in
international law that occupation does not merely require military forces to be
stationed in a certain territory, but also that the occupying power performs the
functions of an existing government.”
The commission also argued that
Israel does not maintain total control over land access to Gaza, and that
neither control of airspace nor the imposition of a naval blockade amount to
“effective control” over the territory.Has Israel violated its
humanitarian obligations toward the civilian population of Gaza?
Israel does not have the responsibilities of an occupying power towards the
civilian population of Gaza, it nevertheless has the same humanitarian
obligations that all states do, including towards other states or entities with
which they are at war.
Many accuse Israel of violating these fundamental
obligations. The commission disagrees.
For one thing, it justifies
Israel’s restrictions on imports to Gaza via the overland border
“The land crossings policy sought to achieve two goals,” it
wrote. “A security goal of preventing the entry of weapons, ammunition and
military supplies into the Gaza Strip in order to reduce the Hamas attacks on
Israel and its citizens, and a broader strategic goal of ‘indirect economic
warfare,’ whose purpose is to restrict the Hamas’s economic ability, as the body
in control of the Gaza Strip, to take military action against
The commission found that Israel was not in violation of the San
Remo Manual, one of the key legal documents setting down what is permissible or
forbidden in the application of a naval blockade. For example, a blockade is
forbidden if its sole purpose is to starve the civilian population or deny it
other objects essential for its survival.
The commission concluded that
the IDF was working in close collaboration with the Palestinian Authority, human
rights organizations and the international community to prevent
It also accepted Israel’s position that “the restrictions
imposed by Israel considered this humanitarian obligation and were planned
precisely in order to prevent a situation of starvation.”
also addressed the San Remo provision which bars a blockade from denying objects
essential for the survival of the civilian population. It specifically examined
the question of the supply of fuel and diesel oil to Gaza and found that Israel
does not restrict the supply of electricity.
Even if Israel limits the
amount of diesel oil, which is needed to operate the power plant in Gaza, Israel
is still in compliance with its humanitarian obligations since, as the Supreme
Court wrote, Palestinian authorities have made it clear they can carry out load
reductions if limits are placed on the power lines.Is Israel guilty of
collective punishment in Gaza?
The commission found that it was clear that by
applying a naval blockade and land import restrictions, the civilian population
of Gaza would suffer. But this did not mean the blockade and import restrictions
were necessarily illegal.
On the contrary, the commission found that they
Therefore, the fact that the civilian population is bound to
suffer from such a blockade does not mean that the blockade automatically
constitutes collective punishment.
“Since one of the purposes of imposing
a naval blockade is to use coercion against a hostile entity or state that is a
party to an armed conflict, the affected population will generally feel the
effects of this pressure,” the commission wrote.
“The issue is not that
there is coercive action which impacts the population collaterally, but rather
what the impact is and what mitigating humanitarian measure are put in place…
“Thus, the fact that the fabric of economic life of the civilian population is
adversely affected as a result of economic warfare does not, in itself, amount
to collective punishment.”
Since Israel monitors and coordinates
humanitarian aid, and since the restrictions are imposed for security reasons,
Israel is not guilty of collective punishment, the commission concluded.