Deep flaws in the UN’s Mavi Marmara report

The Mavi Marmara incident caused a major rift between Turkey and Israel [EPA]

When the UN Secretary General announced on August 2, 2010 that a panel of inquiry had been established to investigate the May 31, 2010 Israeli attacks on the Mavi Marmara and five other ships carrying humanitarian aid to the beleaguered people of Gaza, there was widespread hope that international law would be vindicated and the Israelis would finally be held accountable.

With the release of the report this past week, these hopes have been largely dashed: The report failed to address the central international law issues in a credible and satisfactory manner. Turkey, not surprisingly, responded strongly that it was not prepared to live with the central finding of the 105-page report, which found that the Israeli blockade of the Gaza Strip is lawful and could legally be enforced by Israel against a humanitarian mission, even in international waters.

Perhaps this outcome should not be surprising. The panel was woefully ill-equipped to render an authoritative result. Former New Zealand Prime Minister and environmental law professor Geoffrey Palmer, the chair of the panel, was not particularly knowledgeable about either international maritime law or the law of war. And incredibly, the only other independent member of the panel was Alvaro Uribe, the former President of Colombia. Uribe has no professional credentials related to the issues under consideration. He is notorious both for his horrible human rights record while holding office, and for forging intimate ties with Israel through arms purchases and diplomatic cooperation. The fact that he received “The Light Unto The Nations” award from the American Jewish Committee should have been sufficient in itself to cast doubt on his suitability for this appointment. 

Alvaro Uribe’s presence on the panel compromised the integrity of the process, and made one wonder how such an appointment could be explained, let alone justified. The remaining two members were designated by the governments of Israel and Turkey. Not surprisingly, they appended partisan dissents to those portions of the report that criticised the position taken by their respective governments. Another limitation of the report was that the panel was constrained by its terms of reference, which prohibited reliance on any materials other than that presented in the two national reports submitted by the contending governments. With these considerations in mind, we can only wonder why the Secretary General would have established a framework so ill-equipped to reach findings that would put the controversy to rest, which it has certainly not done.

Incomplete endorsement

Even this ill-conceived panel did not altogether endorse Israeli behaviour on May 31. The panel found that Israel used excessive force and seemed responsible for the deaths of the nine passengers on the Mavi Marmara, instructed Israel to pay compensation, and issued a statement of regret. In other words, the Palmer Report seems to seriously fault the manner in which the Israeli enforced the blockade, but unfortunately upheld the underlying legality of both the blockade and the right of enforcement.

Turkish citizens have been outraged by Israel’s conduct regarding aid flotillas  [EPA]

And that is the rub. Such a conclusion contradicted the earlier finding of a more expert panel established by the Human Rights Council, and also rejected the overwhelming consensus that had been expressed by qualified international law specialists on these core issues. 

Although the panel delayed the report several times to give diplomacy a chance to resolve the contested issues, Israel and Turkey could never quite reach closure. There were intriguing reports along the way that unpublicised discussions between representatives of the two governments had reached a compromise agreement on the basis of Israel’s readiness to offer Turkey a formal apology and to compensate the families of those killed as well as those wounded during the attack.

But when the time for announcing such a resolution of this conflict, Israel backed away. Israeli Prime Minister Binyamin Netanyahu seemed particularly unwilling to take the last step, claiming that it would demoralise the citizenry of Israel and signal weakness to Israel’s enemies in the region. More cynical observers believed that the Israeli refusal to resolve the conflict was a reflection of domestic politics, especially Netanyahu’s rivalry with the extremist Foreign Minister Avigdor Lieberman, who continuously accuses Netanyahu of being a wimpy leader and does not hide his own ambition to be the next Israeli head of state.

Whatever the true mix of reasons, the diplomatic track failed, despite cheerleading from Washington that made no secret of its view that resolving this conflict had become a high priority for American foreign policy. And so the Palmer Report assumed a greater role than might have been anticipated. After the feverish diplomatic efforts failed, the Palmer panel seemed to offer the last chance for the parties to reach a mutually satisfactory resolution based on the application of international law and resulting recommendations, which would delimit what must be done to overcome any violations that had taken place during the attack.

Underlying issues

But to be satisfactory, the report had to interpret the legal issues in a reasonable and responsible manner. This meant, above all else, that the underlying blockade imposed more than four years ago on the 1.6 million Palestinians living in Gaza was unlawful, and should be immediately lifted. On this basis, the Israeli attack to enforce the blockade was unlawful, an offense aggravated by grossly interfering with freedom of navigation on the high seas, and further aggravated by resulting in the deaths of nine humanitarian workers and peace activists on the Mavi Marmara. Such conclusions should have been “no-brainers” for the panel, so obvious were these determinations from the perspective of international law.

But this was not to be. As written, the report is a step backward from international law’s effort to limit permissible uses of force to situations of established defensive necessity, and then, to ensure that the scale of force employed was proportional and respectful of civilian innocence. The report is a further step back to the extent that it purports to allow a state to enforce a blockade on the high seas, a blockade that has been condemned around the world for its cruelty and its damaging impact on civilian mental and physical health. The blockade has deliberately deprived the people of Gaza of the necessities of life, locking them into a crowded and impoverished space that has been mercilessly attacked with modern weaponry from time to time.

Given these stark realities, it is little wonder that the Turkish government reacted with anger and tried to proceed in a manner that expresses not only its sense of law and justice, but also reflects Turkish efforts in recent years to base regional relations on principles of fairness and mutual respect. The Turkish Foreign Minister, realising that the results reached by the Palmer Panel were unacceptable, formulated his own Plan B. This consisted of responses not only to the report, but to the failure of Israel to offer a formal apology and to set up adequate compensation arrangements.

Israel had more than a year to meet these minimal Turkish demands, and showed its unwillingness to do so. As Mr Davutoglu made clear, this Turkish response was not intended to produce an encounter with Israel, but to put the relations between the countries back on “the right track”. I believe that this is the correct approach under the circumstances because it takes international law seriously, and rests on issues of principle and prudence rather than geopolitical opportunism. As Davutoglu said plainly, “The time has come for Israel to pay a price for its illegal action. The price, first of all, is being deprived of Turkey’s friendship.”

Diplomatic downgrade

And this withdrawal of friendship is not just symbolic. Turkey has downgraded Israel’s diplomatic representation, expelling its ambassador and maintaining relations at the measly level of second secretary. Turkey also suspended all forms of military cooperation and indicated that it will strengthen its naval presence in the eastern Mediterranean. Finally, Turkey plans to initiate action within the UN General Assembly to seek an advisory opinion from the International Court of Justice about the legality of the blockade.

Israel’s Prime Minister Binyamin Netanyahu has refused to apoloise to Turkey for killing its citizens [EPA]

What is sadly evident is that Israeli domestic politics have become so belligerent and militarist that the country’s political leaders are hamstrung, unable to take a foreign policy initiative that is manifestly in their national interest. For Israel to lose Turkey’s friendship is second only to losing US support. Coupled with the more democratic-driven policies of the Arab Spring, this alienation of Ankara is a major setback for Israel’s future in the region.

What is more, the Turkish refusal to swallow the findings of the Palmer Report is an admirable posture that is bound to be popular throughout the Middle East and beyond. At a time when some of Turkey’s earlier diplomatic initiatives have run into difficulties, most evidently in Syria, this stand on behalf of the victimised population of Gaza represents a rare display of placing values above interests. The people of Gaza are weak, abused, and vulnerable. In contrast, Israel is a military powerhouse, prospering, a valuable trading partner for Turkey. In the background the United States is ready to pay a pretty penny to bring about a rapprochement, thereby avoiding the awkwardness of dealing with this breakdown between its two most significant strategic partners in the Middle East.

We should also keep in mind that the passengers on these flotilla ships were mainly idealists, seeking non-violently to overcome a humanitarian ordeal that the UN and the interplay of national governments had been unable and unwilling to address for several years. This initiative by civil society activists deserved the support and solidarity of the world, not the slap on the wrist given by the Palmer report.

Until now, Israel has managed to avoid paying the price for defying international law. For decades it has been building unlawful settlements in occupied West Bank and East Jerusalem. It has used excessive violence and relied on state terror on numerous occasions in dealing with Palestinian resistance. It has subjected the people of Gaza to sustained and extreme forms of collective punishment. It attacked Lebanese villages and Beirut neighbourhoods mercilessly in 2006, launched a massive campaign against a defenceless Gaza at the end of 2008, and then shocked world opinion with its violence against the Mavi Marmara during its nighttime attack in 2010. Israel should have been made to pay the price long ago for its pattern of defying international law, above all by the United Nations.

If Turkey sustains its position, it will finally send a message to Tel Aviv that the wellbeing and security of Israel in the future will depend on a change of course in its relations with both the Palestinians and its regional neighbors. For Israel, the days of flaunting international law and fundamental human rights are no longer policy options without a downside. Turkey is dramatically demonstrating that there can be a decided downside to flagrant Israeli lawlessness.

Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Research Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades. His most recent book is Achieving Human Rights (2009). 

He is currently serving his fourth year of a six year term as a United Nations Special Rapporteur on Palestinian human rights.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.