From the Editors
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The UN released its report, "Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident" on Friday, 2 September 2011. The report addressed issues relating to Israel’s attack on the Mavi Marmara – which left 9 Turkish civilians dead, and some 55 others wounded – and concluded, amongst other things, that Israel’s blockade of the Gaza Strip is lawful and that Israel’s attack on the Mavi Marmara was justified, but involved excessive force. The panel then recommended that Israel issue an “appropriate statement of regret," and offer compensation.
The report generated a swift response. Turkey promptly expelled Israeli diplomats, suspended military cooperation between the two countries, and announced that it is preparing to take the issue to the International Court of Justice. In a move that could potentially lead to military confrontation, Ankara further declared that its navy would act to ensure freedom of navigation in the Mediterranean and would escort future aid shipments to Gaza.
This article examines two of the principal issues dealt with in the report: first, whether Israel had a right to intercept the Mavi Marmara, and second, given that Israel did in fact intercept the ship, the resulting legal consequences. Finally, I question the utility and validity of such reports, and their broader impact with respect to the rule of international law and the credibility of the United Nations.
The legality of the Mavi Marmara’s interception
The Palmer Panel discussed the legality of Israel’s blockade as a justifying factor in the interception of the Mavi Marmara, on the basis of submissions by Israel and Turkey.
In its submission to the panel, Turkey argued that Israel is the Occupying Power in the Gaza Strip, and that the blockade – considered in terms of Israel’s overall closure policy – is (a) neither reasonable, necessary, or proportional, and (b) amounts to the collective punishment of Gaza’s civilian population. On this basis Turkey considered the blockade itself to be illegal.
Israel, in its own submission, took virtually the opposite approach. It argued that it was no longer the Occupying Power in the Gaza Strip (following disengagement in 2005), and insisted that the blockade is distinct from its land closure. Israel grounded the legality of the blockade in the existence of an international armed conflict "between Israel and the Gaza Strip." The right to enact a blockade is a component of the law specific to international armed conflict.
The panel agreed with Israel’s analysis and distinguished the blockade from Israel’s overall closure policy. In doing so, it bifurcated the legal regime and found that, independently, the blockade did not cause undue harm to Gaza’s civilian population, and thus was not unlawful on the basis of collective punishment. It also found that an international armed conflict existed and that the blockade was justified on this basis. Significantly, the panel did not deliberate the legal merits of this conclusion but instead summarily held that, “the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters.” The panel also cited Israel’s right to self-defense as a factor legitimizing the imposition of a blockade.
The panel’s ill-founded conclusion that Israel had a right to self-defense in this instance reflects confusion between two separate and distinct bodies of law: jus ad bellum, which regulates the initial resort to force, and jus in bello which regulates the actual conduct of hostilities once armed conflict occurs. Self-defense, in the sense discussed by the panel, is a matter of jus ad bellum – whether a state can legitimately commence an armed conflict – whereas the imposition of a blockade is regarded as a means of warfare regulated by jus in bello. The two bodies of law are completely distinct and – whether or not the conflict was legitimate or not in terms of the jus ad bellum – jus in bello regulates the actual hostilities. From this perspective, the panel’s discussion of self-defense is irrelevant since such self-defense can only apply to events relating to the commencement of the overall armed conflict. In other words, and in this case, long before the attack on the Mavi Marmara.
Turkey considers Israel to be the Occupying Power in the Gaza Strip, and therefore recognises its authority to stop and search all boats. Accordingly, Turkey’s reasoning held that Israel had the right to stop the Mavi Marmara, irrespective of the legality of the blockade. However, pursuant to occupation law this right only existed within the maritime boundary of the Gaza Strip, and not in international waters, thereby rendering Israel’s actual attack on the boat illegal, regardless of the means used.
Israel’s argument, accepted by the panel, raises a legal conundrum. If an international armed conflict is to exist with a non-state actor outside of the context of occupation, Israel must grant that actor, in this case Hamas, belligerent status. By granting recognition of belligerency, the state elevates the conflict to the level of an international armed conflict – effectively treating the opposing party on a similar level to that of a state – thereby bringing the entire spectrum of the law of international armed conflict into play. This recognition may be granted implicitly through the imposition of a blockade outside of traditional international armed conflict; this was the case with respect to the United State’s blockade of Confederate ports during the American civil war, which elevated the civil war to the status of what is today termed an international armed conflict.
A number of legal consequences arise from this implicit grant of belligerent status. In layman’s terms, Israel is required to treat Hamas as a state with whom it is engaged in armed conflict. This means that members of Hamas’ armed forces, the Izzidin al-Qassam Brigades, must be considered lawful combatants. Israel must therefore grant members of the brigades immunity from prosecution for legitimate acts of war (such as attacks on soldiers, or military installations) and if captured, Qassam fighters must be granted POW status. This legal framework advanced by Israel would also grant Hamas the right to detain Gilad Shalit as a POW until the end of the conflict.
The panel appeared to endorse the position advanced by Israel, but noted that “under the law of armed conflict a state can hardly rely on some of its provisions but not pay heed to others.” This is perhaps the pertinent point; Israel’s position with respect to the blockade, if genuine, has pervasive implications for its conduct and its relationship with the Hamas movement. This new legal reality would mark a dramatic departure from previous political policy and more ambiguous legal reasoning, prompting one to question whether it has been thought through, or merely proffered in an attempt to calm a diplomatic crisis. For example, in its reports published in the aftermath of Operation Cast Lead, Israel claimed the existence of an "armed conflict," but deliberately avoided classifying it as either international or non-international, thereby avoiding the type of consequences addressed in the previous paragraph.
The consequences arising from the attack on the Mavi Marmara
Strangely, given the attention paid to the issue of the blockade, the panel did not apply a legal analysis to the actual takeover of the Mavi Marmara, contenting itself with the conclusion that “Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable.”
Regardless of the underlying legal regime, the manner in which Israel intercepted the flotilla raises pressing legal questions. The civilian status of the ship and its passengers imposes on Israel a duty to act within a law enforcement – as opposed to military force – framework. Accordingly, peaceful or less violent means, similar to those usually associated with civilian police activities, must first be attempted. As the panel noted, such methods have been used successfully in other similar incidents. Lethal force may indeed be used, but only as a last resort, e.g. when the life of a specific soldier was under direct threat from a specific individual.
The panel concluded:
Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the panel by Israel for any of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel.
Coupled with the figures on the type of ammunition used – 308 live rounds compared to only 87 bean bags and 264 paint ball rounds – and the fact that no less violent means were attempted before the launching of a full military assault, the panel was faced with clear prima facie evidence of criminal acts, including illegal killing (murder) and the indiscriminate use of lethal force.
In the face of such evidence, both the law of armed conflict and international human rights law are unambiguous: States are under a binding obligation to launch a criminal investigation, and if appropriate, to prosecute those responsible. Yet the panel completely ignored the only appropriate consequences of its own findings, and instead recommended that an "appropriate statement of regret should be made by Israel in respect of the incident in light of its consequences."
The utility and validity of such reports
It is evident that Israel’s attack on the Mavi Marmara took place within a complex legal framework and resulted in specific legal consequences. Clearly the matter necessitates legal adjudication. The UN Secretary-General, however, opted for a political approach. The Palmer Inquiry was mandated to:
(a) examine and identify the facts, circumstances and context of the incident; and
(b) consider and recommend ways of avoiding similar incidents in the future.
The panel explicitly stated that it “was not asked to make determinations of the legal issues or to adjudicate on liability.” Indeed, the political bias of the panel is evident in its claim that it “will not add value for the United Nations by attempting to determine contested facts [...] Too much legal analysis threatens to produce political paralysis.” The panel’s purpose was thus diplomatic, to “search for solutions that will allow Israel, Turkey and the international community to put the incident behind them.” Such reasoning ignores both the law’s obligations and the widely held belief that accountability may act as a deterrent with respect to future violations.
It appears that Secretary-General Ban Ki-Moon has explicitly prioritised political considerations, or "diplomatic progress," at the expense of international law. This decision stands in conflict with Article 1 of the UN Charter, which holds that the purpose of the UN is to "maintain international peace and security in conformity with the principles of justice and international law." This is not the first time that the Secretary-General has chosen such a course of action with respect to events in the Gaza Strip. In May 2009, he refused to contemplate criminal investigations in response to a UN Board of Inquiry’s findings concerning Israeli attacks on UN facilities during its 27 December 2008 – 18 January 2009 offensive on the Gaza Strip; no reason was given for this inaction. More broadly, therefore, one must question the implications of such reports vis-à-vis respect for both the United Nations, and international law.
The Palmer Report has generated far more questions than answers. The legal issues have been left firmly unresolved, accountability for prima facie criminal acts has not been addressed, and Israel’s submission – if taken at face value – has added a new and unexpected spin with respect to its relationship with the Hamas movement.
The Secretary-General’s political approach has failed. It must now be clear that legal issues demand legal solutions, and that incidents such as these are more appropriately discussed in the courtroom than the back corridors of power.
There is a significant amount of confusion regarding what exactly constitutes a blockade. The International Committee of the Red Cross defines a blockade as an “operation involving naval and air forces, by which a belligerent completely prevents movement by sea from or to a port or coast belonging to or occupied by an enemy belligerent.” A blockade thus exclusively applies to maritime waters. As such, Israel’s blockade of the Gaza Strip’s coast – which was declared in January 2009 – may be distinguished from its overall closure policy, which has sealed Gaza’s land and air crossings since June 2007 and – according to the ICRC – constitutes a form of collective punishment prohibited by international law.
 International law defines two categories of armed conflict: international armed conflict, regulated by the full corpus of the law of armed conflict, and non-international armed conflict, regulated by a reduced subset of this law. The law of international armed conflict typically regulates hostilities between states, but it may also apply between a state and a non-state group (such as Hamas) in the context of an occupation, while all other scenarios are regulated by the law of non-international armed conflict. The right to enact a blockade is a component of the law specific to international armed conflict
 The panel discussed self-defense in public international law terms, as reflected in Article 51 of the UN Charter. This is to be distinguished from common-place self-defense. Essentially, common-place self-defense may permit an individual to use lethal force against an attacker, whereas public international law legitimises a state’s resort to war.
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