Legal Research

Turkel Commission Report Released

By Omar Ha-Redeye

The Israeli Ministry of Foreign Affairs announced the release today of the 300-page report by the Turkel Commission, Part 1 of The Public Commission to Examine the Maritime Incident of 31 May 2010.

The incident is more commonly known in the media as the flotila raid, where Israeli military forces intercepted six ships attempting to break the blockade on the Gaza strip.

This report addresses Article 4 of the 14.6.10 Cabinet decision:

4. The Commission will submit its conclusions on the question of whether the actions set out in paragraph 1 and their objectives, as well as additional matters involved therein, were in conformity with the rules of international law.

For this purpose, the Commission will address the following issues:

a) Examination of the security circumstances surrounding the imposition of the naval blockade on the Gaza Strip and the conformity of the naval blockade with the rules of international law.
b) The conformity of the actions taken by Israel to enforce the naval blockade in the incident of 31 May 2010 with the rules of international law.
c) Examination of the actions taken by the organizers of the flotilla and its participants, as well as their identity.

A second report will address in the future Article 5 of the same Cabinet decision:

5. In addition, the Commission will examine the question of whether the mechanism for examining and investigating complaints and claims raised in relation to violations of the laws of armed conflict, as conducted in Israel generally, and as implemented with regard to the present incident, conform with the obligations of the State of Israel under the rules of international law.

Today’s report concludes that the military’s actions were justified under international law, which starkly contrasts the findings of the United Nations Human Rights Council on September 27, 2010, which stated,

263. Israel seeks to justify the blockade on security grounds. The State of Israel is entitled to peace and security like any other. The firing of rockets and other munitions of war into Israeli territory from Gaza constitutes serious violations of international law and of international humanitarian law. But any action in response which constitutes collective punishment of the civilian population in Gaza is not lawful in
any circumstances.

264. The conduct of the Israeli military and other personnel towards the flotilla passengers was not only disproportionate to the occasion but demonstrated levels of totally unnecessary and incredible violence. It betrayed an unacceptable level of brutality. Such conduct cannot be justified or condoned on security or any other grounds. It constituted a grave violation of human rights law and international
humanitarian law.

Israel’s response the the U.N. inquiry was that it was biased, which is the same charge leveled against the Turkel Commission by other parties and some international observers.

The Turkel Report did present some criticisms towards military officers for their planning and preparation of the operation,

246. …In the present case, the risk was underappreciated and the limitations in the ROE with respect to the use of less-lethal weapons (range, areas of the body to be targeted, etc), while put in place to limit injury to civilians, proved very restrictive considering the situation faced by the soldiers that fast-roped to the Mavi Marmara. In this respect, the planning process has to account for possibilities that seem less likely, and include those scenarios in the preparation of the soldiers before the operation. While commanders rightly should be able to rely on the known capabilities of personnel under their command, it is evident that the soldiers were placed in a situation they were not completely prepared for and had not anticipated. The anticipation of and planning for ?worst case? scenarios could have better prepared the soldiers for the situation to which they were exposed. In preparing exclusively for less violent scenarios, the danger from a legal perspective is that the soldiers might overreact when confronted with such unanticipated threats. However, and this should be emphasized, looking at the operation as a whole, that appears not to have happened, as the soldiers acted continually to distinguish the types of threat posed in different situations, and they even switched back and forth between lethal and less-lethal weapons to address those threats. This occurred also after it had become clear that the IHH activists were using firearms.

However, the interpretation of these comments are strongly qualified in the same report,

248. While the Commission has commented on the planning and organization of the mission, this critique should not be interpreted to mean that the actual plan as developed by the Israeli military or the organization of the mission led to a systemic misapplication of force by the soldiers involved or a breach of international law.

Israel’s compliance with international law on naval blockades, discussed from page 61 on, relies heavily on:

• San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994 (the “San Remo manual”)
• Declaration concerning the Laws of Naval War, 208 Consol. T.S. 338 (1909) (“the London Declaration”), and
• customary international law

The U.N. inquiry applied these same sources of international law and noted,

51. …In particular a blockade is illegal if:
(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or
(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.

…

56. Thus, if there is no lawful blockade, the only lawful basis for intercepting the vessel would be a reasonable suspicion that it:

? was making an effective contribution to the opposing forces? war effort, such as by carrying weaponry or was otherwise closely integrated into the enemy war effort (belligerent right of capture); or
? posed an imminent and overwhelming threat to Israel and there was no alternative but to use force to prevent it (self-defence under Article 51 of the United Nations Charter).

In view of the information available, the Mission is satisfied that the interception of the flotilla and related preparatory planning by Israel was not purely motivated by concerns as to the vessels? contribution to the war effort. Evidence attributed to the Chief of General Staff, Gabi Ashkenazi, who testified that he did not believe that the Foundation for Human Rights and Freedoms and Humanitarian Relief (IHH), one of the coalition members organizing the flotilla, was a ?terrorist organization?. The evidence of Prime Minister Netanyahu to the Turkel Committee indicates that the decision to stop the flotilla was not taken because the vessels in themselves posed any immediate security threat. In any event, no such right of belligerent interdiction or wider claim of self-defence against the Flotilla has been asserted by Israel.

Such disparate conclusions from two legal entities examining the same incident raises more questions than it does answers. Specifically, there appears to be a need to resolve the analytic framework used to apply international law, especially as it relates to the principles of necessity and proportionality.

Without this type of resolution on principles of international law similar incidents will likely continue to be a flash-point between nations and a source of misunderstanding, leading to broader conflicts. The purpose of international law is supposed to provide viable diplomatic alternatives to armed conflict, and not the basis for starting wars.

Full post as published by Slaw.ca on January 23, 2011 (boomark / email).