עמיחי כהן ויובל שני
הרשימה פורסמה ביום 28 בינואר 2011 בבלוג ejiltalk
Dr Amichai Cohen is a Senior Lecturer at the Ono Academic College in Israel; Prof. Yuval Shany is the Hersch Lauterpacht Chair of Public International Law at the Hebrew University of Jerusalem. Both Dr Cohen and Prof. Shany are senior researchers at the Israel Democracy Institute. The authors thank Prof. David Kretzmer, Mr. Gil Limon and Mr. Rotem Giladi for their comments to a previous draft. The usual disclaimers apply
A. Introduction
On January 23, 2011 The Public Commission to Examine the Maritime Incident of May 31, 2010 – The Turkel Commission published its partial report on the Flotilla incident. This partial report deals with the two main issues raised in the aftermath of the Flotilla incident – the legality of the naval blockade on Gaza, and the tragic results that ensued from the raid by Israel Defense Forces (IDF) commandos of the flotilla ships, which tried to run the blockade – the killing of 9 passengers on board one of the flotilla ships – the Mavi Marmara.
The Turkel Commission was set up by the Israeli government on June 14th 2010, and was headed by a former Justice of the Supreme Court, Yaakov Turkel. Its members included a retired diplomat (Ambassador Reuven Merhav), a former army general (Amos Horev) and a civil law professor (Miguel Deutch). Shabtai Rossene, the fifth member of the Commission, a renowned international law expert, died during deliberations. The Commission also included two international observers, Nobel laureate, Lord David Trimble, and the former Judge Advocate General of the Canadian Forces, Brig. General Kenneth Watkins. The Commission was further assisted by two notable international law experts – Professor Michael Schmitt and Prof. Dr. Wolff Heintschel von Heinegg. The report, which covers 240 pages (the English version is almost 300 pages long), exonerated the IDF and the Israeli government from any violation of international law connected with the flotilla incident and declared that the nine deaths which occurred on board the Mavi Marmara were a tragic result of a conflict which Israel did not seek, plan or even foresee. This conclusion is supported by extensive fact finding and legal analysis. Although the Commission conceded that it could not verify the entire body of evidence for each and every case of shooting or other form of violence employed on the Mavi Marmara during the takeover (the Commission identified 133 such incidents), it did not find Israel’s action to violate any applicable international law standard.
The purpose of this comment is to discuss some of the specific legal findings made by the Turkel Commission, which we believe to be problematic in nature.
As an introductory note, we would mention that in all the hundreds of pages of the partial report there is not even one mention of the report of the “International fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance” (the ‘Flotilla Report” issued by the “fact finding mission”), appointed by the Human Rights Council, and chaired by Judge Hudson Phillips. Though we do not find the legal analysis offered in the report of the Hudson Phillips Commission particularly convincing (and one of us has written a blog entry to this effect), it is still notable that the Turkel Commission saw no reason to discuss the legal assertions raised there; nor did it counter the evidence that was brought before the Hudson Phillips Commission, which painted a rather different factual picture. This latter omission is particularly regretful as, after all, the Hudson Phillips Commission heard the testimony of witnesses which were unwilling or unable to testify before the Turkel Commission.
B. The Naval Blockade
The Turkel Commission found that the naval blockade was legal, both in its very imposition and with regard to the observation of duties of care to civilians by Israel. It reached its decision by and large on the basis of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, (12 June 1994), most of the provisions of which it considered to reflect customary international law. Furthermore, even though many commentators have categorized the ongoing armed conflict between Israel and Hamas as a non-international armed conflict, the Commission leaned towards the view that the conflict is international in character, but assumed that the San Remo Manual would apply in all events.
While most of the discussion of the San Remo Manual by the Commission seems reasonable to us, there are two issues – relating to proportionality and collective punishment, where we find the analysis less than convincing.
Proportionality
The Commission declared that the principle of proportionality governs the lawfulness of naval blockades. (Article 102 of the San Remo Manual provides that: “The declaration or establishment of a blockade is prohibited 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”). In assessing proportionality, the Commission took the view, correctly we believe, that the legality of the naval blockade should be discussed in light of the other restrictions imposed by Israel, after Hamas took over the Gaza strip in 2007, on the importation of foodstuffs and other goods through land crossings into Gaza (para. 63).
With respect to article 102(a), the Commission held that the naval blockade and land restrictions were not intended to starve the Palestinian population, or to deny from it objects essential to its survival. As a result, the legal standard codified in that article was not violated. In reaching this conclusion, the Commission rejected numerous NGO reports which alleged that severe food insecurity persists in Gaza; it held instead that by allowing a constant supply of essential foodstuffs, medical equipment and other goods into Gaza, Israel has met its obligations under the Fourth Geneva Convention (and article 102(a) of the San Remo Manual).
Article 102(b) of the San Remo Manual poses, however, a more difficult problem. The principle of proportionality requires the blockading state to constantly assess the damage to civilian population against the concrete and direct military advantage attained by the blockade. There is no doubt that the naval blockade and the land restrictions on importation of goods to Gaza harmed the civilian population (even if they did not result in a full-fledged humanitarian crisis) – a harm that could only be justified through military considerations. At the same time, the Commission report suggests that Israel’s reasons for restricting access to Gaza were not purely military, in the traditional sense of the words – thus rendering it difficult to isolate the aforementioned military justifications for the humanitarian harm.
As the report notes, Israeli government officials declared, on a number of occasions, that the restrictions on passage of goods through the land crossings into Gaza were not only designed to prevent the smuggling of weapons and other potential military or dual-use equipment; they were also motivated by the desire to weaken the Hamas government by constricting the economy of the Gaza strip (without causing there a humanitarian crisis). Given the Commission’s approach that regarded the naval blockade and the land restrictions as inter-linked (a factual claim that was strongly disputed by the IDF Military Advocate General in his testimony before the Commission), it could only justify the former by defending the legality of the latter.
Thus, according to the Commission, the restrictions on passage of goods through the land crossings (and the blockaded sea) were a form of economic warfare undertaken by Israel against the Hamas in order to strategically weaken it, with a view to ultimately reducing thereby its military capabilities. Allegedly, the military advantage attendant to such economic warfare tactics – and the Commission cited the drop in the number of Kassam rockets fired on Israel during the period between 2007-2010 as supportive of the positive military effect of the economic warfare – rendered the harm incurred by the civilians of Gaza non-excessive.
This claim is troubling on a number of levels: First and foremost, the Commission fails to explain how economic warfare could meet the criteria of “concrete and direct military advantage” specified in article 102(b) of the San Remo Manual. Thus, while Israel may impose (proportional) economic sanctions against Hamas-controlled Gaza on the land, its ability to utilize a sea blockade to support such sanctions is limited to those restrictions which are needed to achieve a concrete and direct military advantage (for example, to prevent weapon smuggling into Gaza). It is difficult for us to see how some of the restrictions imposed by Israel in the land crossing (for example, on the importation of certain pasta and chocolate products, as well as spices and shaving cream), would meet the “concrete and direct military advantage” standard, and to the extent that the naval blockade was applied in manner that exceeded strict military requirements in order to support such broader economic restrictions, its proportionality is questionable.
Second, the reference by the Commission to the drop in the number of Kassam rockets as indicative of the military gains partly attained due to the economic warfare are, to put it mildly, counterfactual. The highest numbers of Kassam attack occurred in 2008, when the economic sanctions were in place; and the lowest numbers have occurred in 2010 – a period through which the economic sanctions were relaxed. Indeed, there is broad agreement among security experts that the drop in Kassam launches is attributed to operation “cast lead” (Dec. 2008 – Jan. 2009) and not to the economic warfare, which many consider ineffective if not counter-effective in the sense that it strengthened Hamas’ rule in Gaza not weakened it (the Commission itself does not dispute the significance of operation “cast lead” in this regard, but regards the economic pressure as a complementary explanation of the decreasing violence trend).
The difficulties encountered by the Commission, as a result of its attempt to defend the land restrictions, are also apparent in its discussion of the prohibition against “collective punishment”. Collective punishment is prohibited in all armed conflicts, and this norm is of course relevant also to the imposition of the blockade and to restrictions on passage of goods through land crossings. Although the Commission correctly noted that the prohibition encompasses the intentional imposition of sanctions directed against uninvolved civilians, it held that “[t]here is nothing in the evidence, including that found in the numerous humanitarian and human rights reports, that suggest that Israel is intentionally placing restrictions on goods for the sole or primary purpose of denying them to the population of Gaza” (para. 106).
This is, however, a dubious proposition. It rather appears to us that parts of the economic warfare introduced by Israel – in particular, the restriction on the importation of “non-essential” food items, can only be understood as directed against the civilian population of Gaza (in the hope that the population’s support of the Hamas will be eroded consequently). While it may be the case that the restrictions on land were not a form of collective punishment as Israel is not obliged to permit its territory to be used for trade with Gaza, which it regards as an enemy entity (subject to its obligations under article 23 of the Fourth Geneva Convention to allow humanitarian consignments), it is questionable whether such an argument could also extend to a maritime blockade which is imposed outside of the state’s territory and affects third states’ rights. So if indeed the maritime blockade and the land restrictions are interlinked, the latter’s collective harm features could affect the legality of the former – again, to the extent that the application of the blockade exceeded the requirements of strict military necessity in order to support the more problematic aspects of the land restrictions. (It is perhaps interesting to note that Israel lifted many of the restrictions on “non-essential” products after the flotilla incident – further underscoring thereby their limited military utility).
C. The status of the IHH activists on board the Mavi Marmara
The immediate reason for the establishment of the Commission was, of course, the violent incident in which nine passengers on board the Mavi Marmara were killed during the raid conducted by IDF commandos, who took control over the ship.
The main issue we would like to discuss with relation to the legal analysis of the raid offered by the Commission pertains to the status of the passengers who violently opposed the IDF’s takeover of the ship, and the legality of the use of lethal force against them. Most of the 9 individuals killed were member of the Turkish Humanitarian Relief Foundation (known by its acronym – IHH), and the Commission considered the nature of that organization to be relevant for the legal analysis of the force employed by the IDF commandos. When analyzing such use of force, the Commission took two alternative routes. The first was an analysis of the flotilla incident according to “law enforcement” norms – controlled by human rights standards (although the Commission was of the view that human rights norms did not, strictly speaking, govern the raid), and the second was to analyze the incident according to IHL.
Ultimately, the Commission declared that of the 133 IDF use of force cases it examined, 122 were clear cases in which even “law enforcement” norms would have allowed the use of lethal or less-than-lethal force; regarding six other cases the Commission had insufficient information, and with respect to the 5 remaining cases (two of which involved shooting incidents), the Commission held that they were lawful under IHL, without clearly deciding whether they were lawful under human rights standards.
We agree, in principle, with the Commission’s human rights-based analysis (lacking any information to the contrary, we accept as plausible the contention that IDF commandos acted in the vast majority of cases in self-defense; still, as noted above we believe it is regrettable that the Commission failed to discuss the relevant parallel findings of the Hudson Philips Commission, which could have thrown more light in those cases which the Turkel Commission could not definitively pronounce on). In fact, human rights law and the law enforcement norms it contains appear to us the more suitable body of norms to govern an incident of this type – which can be analogized to a particularly wild and out-of-control demonstration. While we acknowledge the lacuna under the existing jurisdictional provisions of human rights treaties (as understood by the European Court of Human Rights in the Bankovic line of cases), which may leave certain extra-territorial exercises of military and police powers under-regulated, we can envision a gradual movement of international human rights doctrine in the direction of encompassing within the concept of “effective control” situations where control is in the process of being established (in such cases, we believe human rights obligations should apply in a more limited manner than in situations of full control).
We are less persuaded, however, by the IHL analysis offered by the Turkel Commission. According to the Commission, since the flotilla ships were attempting to run a conflict-related blockade and resisted capture, they have become legitimate military targets (though proportionality concerns barred opening fire on the ships themselves). As for the passengers on the ships, the Commission held that they were civilians, and enjoyed the protection of their civilian’s status, unless and for the time in which they took a direct part in hostilities.
The most dramatic finding of the Commission in this regard is that the IHH group of passengers on the Mavi Marmara who violently resisted the IDF raid have become civilians taking a direct part in hostilities, and were thus legitimate military targets under article 51(3) to the First Additional Protocol to the Geneva Conventions.
While the proposition that article 51(3) applies to the armed conflict between Israel and the Hamas is not very controversial, it appears to us problematic to assert that every act of violence directed against the IDF by a Hamas supporter renders that individual as a civilian taking a direct part in the hostilities. Instead, we would argue that civilians situated on the battlefield or in close proximity thereto would not be regarded as taking direct part in the hostilities even if they act violently against soldiers belonging to one of the parties, as long as that their acts are not ostensibly part of the opposition’s military campaign and do not arise in themselves to the level of intensity characterizing armed conflicts (A comparable, though perhaps not identical approach insisting on a ‘belligerent nexus’ can be found in the ICRC Interpretive Guidance on Direct Participation in Hostilities (DPH)).
The Commission (para. 198-201) seems to conflate in its analysis a number of issues: It states that the flotilla was intended to support the Hamas and break the blockade on Gaza, and that IHH’s operations in this direction were undertaken in cooperation of the Hamas government. This is not fully convincing. While the flotilla and the IHH clearly intended to provide political support to the Hamas by running the blockade, it is hard to see this essentially demonstrative act as an integral part of the ongoing hostilities between Israel and the Hamas (especially, since there was no indication that the flotilla ships carried military equipment). In the same vein, there is little in the factual record discussed by the Commission which supports regarding the IHH as the ‘long arm’ of the Hamas’ military apparatus. Accepting the logic of the Commission, it may be argued that all political acts which embolden a party to a conflict, or signify solidarity with its cause (and may have indirect military implications given the interplay between political and military capabilities), might be viewed as hostile acts if they involve violence.
Absent such a ‘belligerent nexus’, the violence on board the Mavi Marmara should be regarded simply as criminal activity taking place in a conflict zone; under such circumstances, the civilians never lose their protected status, and all that is attached to it. This raid was, thus, in our view a “law enforcement” operation and should have been subject as a result to the general rules of law enforcement, i.e. human rights, criminal self defense etc.
Conclusion
The Turkel Commission report offers a long and comprehensive analysis of the factual record and the international law norms governing the flotilla incident. Some of its key findings appear to us to be plausible: In particular, we agree with the Commission that even if the legality of the blockade, as actually applied, was legally questionable , individual ships were not entitled to unilaterally breach it. The evidence produced in the report, also suggests that, in the vast majority of cases, IDF soldiers on the Mavi Marmara conducted themselves in accordance with the relevant legal standards. Our concerns are thus more of a doctrinal nature: Allowing naval blockades to be extended in order to sustain economic warfare appears to us to run contrary to existing legal standards and to represent an undesirable shift in the equilibrium between military necessity, humanitarian considerations and the rights of third parties – a balance which the San Remo Manual attempts to strike. In the same vein, the rush to designate the violence employed by the IHH members on board the Mavi Marmara as direct participation in hostilities, (without further evidence of their being the ‘long arm’ of the Hamas’ military apparatus) appears to us to represent an erroneous interpretation of the DPH status and to dangerously dilute the protection afforded to civilians – including criminal perpetrators, in and around the battlefield.
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