The Turkish flotilla and conciliation

Saying sorry via a mediator: International law could provide the key to restoring damaged relations with Turkey.

By ROBBIE SABEL
Mavi Marmara 311 (photo credit: Associated Press)
Mavi Marmara 311
(photo credit: Associated Press)
In accordance with the laws of armed conflict, a state is entitled to stop and search all ships destined for enemy territory. During the incident with the Turkish flotilla, Israel gave appropriate notice to all maritime states and repeatedly ordered the Turkish owned ship Mavi Marmara to stop for inspection. Interestingly, the Mavi Marmara was registered not in Turkey but in the state of Comoros. The ship was flying the flag of Comoros, a tiny African country which has no diplomatic relations with Israel and is a member of the Arab League.
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The ship refused to stop and so in accordance with international procedures, the ship was boarded by soldiers. When the soldiers were attacked with lethal weapons by militant passengers, they defended themselves and in the ensuing fight seven Israeli navy commandos were injured and nine of the passengers were killed. Israel has set up an independent commission of inquiry led by a retired Supreme Court justice and with the participation of eminent international observers.
However, the Turkish narrative of the incident is very different. The Turkish press relayed that a group of Turkish and other peace activists were on a Turkish ship bound for Gaza. There were bringing civilian supplies to the Gazans who were being subjected to an “illegal siege.” Unprovoked, Israel attacked the ship and executed nine of the activists in cold blood.
The narratives are clearly worlds apart. However, Israel has a national interest in preserving its relations with Turkey for a number of reasons: Turkey is the only Muslim member of NATO; it is in a vital strategic position bordering Europe, Iran, Syria and Iraq. Turkey is also an emerging economic giant and perhaps the dominant economic power in Western Asia. While it is unlikely that the warm relations Israel had in the past with Turkey will be restored, it might still be possible to prevent further deterioration.
Given the very different narratives, ending the dispute will prove extremely difficult. International law however provides a mechanism of conciliation that may well be the key. International conciliation is a nonbinding procedure whereby an international commission is appointed by the parties to a dispute. The conciliation commission usually consists of a panel of five, one appointed by each of the parties and three neutral conciliators that are agreed upon by both sides.
The commission investigates the facts and then draws up a report in which it recommends a solution that would likely be acceptable to both sides. The recommendation is not binding but nevertheless, in many cases disputing parties will accept because it came from a neutral third party. Many treaties provide for settlement of disputes by conciliation, including the 1982 Law of the Sea Convention. Israel's peace treaties with Egypt and Jordan and the Oslo agreements with the PLO also recommend conciliation.
A recommendation for Israel could include an expression of regret at the loss of life, an ex gratia payment and perhaps an iteration of the steps that Israel is taking to mitigate the Gazans’ hardships.
The United States is a logical candidate to serve as the neutral conciliator and it is to be hoped that the Obama administration will pick up the gauntlet this time and prevent further deterioration of the relations between two of its major allies.
The writer teaches international law at the Hebrew University and is the former legal adviser to the Ministry of Foreign Affairs.