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A Tale of Two Closures: Comments on the Palmer Report Concerning the May 2010 Flotilla Incident

Tamar Feldman is an attorney and director of the Legal Department at Gisha – Legal Center for Freedom of Movement. She would like to convey her deepest gratitude to Sari Bashi and Yoni Eshpar for their insightful comments on an earlier version of this note and to Leora Garton for her excellent and timely edits.

On September 1, 2011, after months of repeated postponements, the Palmer Report was leaked to the media, obliging the UN Secretary-General to present the report officially the following day. The publication of the report was intended to calm the row surrounding its conclusions, but paradoxically served only to exacerbate the diplomatic crisis between Israel and Turkey. The bout of political arm wrestling that followed may one day be studied in faculties of international relations and conflict resolution as a classic example of bad diplomacy.

This wrangling is not only foolish, it is also dangerous. The principal danger is that it could lead to a regional conflagration that would certainly be of no benefit to the residents of Gaza, who are supposedly the subject of the dispute. However the row is also dangerous since it prevents serious discussion of the contents and conclusions of the Palmer Report.

As the committee itself notes at the beginning of the report, its recommendations are not legally binding and it is clear that the committee’s main goal was to resolve the diplomatic crisis between Israel and Turkey, rather than to draw conclusions on weighty legal issues. Nevertheless, of the five committees that have examined the events surrounding the Gaza Flotilla (the Eiland Committee, the Turkel Committee, the Turkish committee, the Committee of the UN Human Rights Council, and the Committee of the UN Secretary-General), the Palmer Committee is the most senior, and also the most balanced in its composition, since its members include representatives of both Israel and Turkey.

The comprehensive report submitted by the committee presents legal determinations, as well as detailed recommendations based on these determinations. A significant portion of the report (26 pages out of a total of 105) is devoted to a description of the legal framework applied by the committee in examining the legality of the naval blockade and the flotilla incident of May 31, 2010. Accordingly, the report’s conclusions and recommendations merit more serious examination. The present essay does not claim to provide a full analysis of the report, but rather to offer some comments and to highlight a number of aspects that have been sidelined by the power struggle waged by Israel and Turkey since the flotilla.

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The Palmer Report on the Mavi Marmara Incident and the Legality of Israel’s Blockade of the Gaza Strip

Overall, the Palmer Report is of high quality and merits close attention. I would strongly urge those interested to read, at the least, the very concise summary of its findings at pages 1-6, where the conduct of Israel, the Mavi Marmara protestors and Turkey all come in for criticism.  Israel in particular is found to have used “excessive and unreasonable” measures in boarding the Mavi Marmara resulting in “unacceptable” loss of life; and to have subsequently engaged in “significant mistreatment” of those detained (pages 4-5). There is also an excellent summary of the essential steps in the legal logic of both the Turkish and Israeli national inquiry reports (at paras. 23 and paras. 46-47). The Palmer Report itself, however, concludes the blockade of Gaza to be legal. On this essential point, I consider there to be serious gaps in the Report’s logic. Before turning to this, a few points should be noted.

First, the inquiry had no direct mandate to examine legal issues or render an opinion on the applicable law (as the report notes inter alia at paras 3, 5, 6, 14 and 15). Its task was to review the reports and findings of two widely divergent national inquiries into the incident, and 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.” It was not asked, for example, to render an opinion on the applicable law to the Secretary-General. The key legal analysis is thus contained in an appendix and represents only the views of the Chairman and Vice-Chairman; indeed, the whole report predominantly reflects the conclusion of the Chairman and Vice-Chairman, with the Israeli and Turkish panel members appending a partial concurrence and a dissent, respectively.

My own analysis of the blockade is available in the current pre-publication British Yearbook of International Law. I only sketch the path of my analysis here, but to my mind these are the questions that any balanced assessment of the legality of the blockade must address. Starting from the proposition that blockade is ordinarily only available in an international armed conflict (IAC), the relevant questions are:

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Palmer Committee Report on the Mavi Marmara Incident

Yesterday the report of the UN Palmer Committee on the Mavi Marmara incident was leaded to the New York Times - the whole thing is available here. We hope to have more commentary on the report in the coming days; on the whole, it seems more favourable to Israel than the earlier Human Rights Council report. For now, however, I want to make two quick comments, and refer readers for background to Douglas Guilfoyle’s excellent recent piece in the British Yearbook.

First, although a very important finding in the report – a finding that Israel appreciates – is that the blockade of Gaza was legal as a matter of international law, that finding is based on a prior one that Israel most certainly will not like. Namely, as readers will recall, we discussed both on this blog and extensively in these two posts by Kevin Heller at OJ and the comments thereto that Israel’s blockade runs into a fundamental difficulty – that a maritime blockade, which involves the interdiction of the shipping on third states on the high seas, can only be effected in an IAC; it traditionally took place only in wars, and it necessarily involves a relinquishment by third states of their rights to the belligerents.

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Court between A Rock and a Hard Place: Comoros Refers Israel’s Raid on Gaza Flotilla to the ICC

Comoros has referred the action of Israeli troops in boarding the flotilla headed to Gaza on 31 May 2010 to the International Criminal Court. The ICC Prosecutor has announced that she is opening a preliminary examination of the situation and it now remains to be seen whether this will lead to a proper investigation and perhaps even charges being brought by the ICC against Israeli troops or officials. Israel, of course, is not a party to the Statute of the ICC, but this does not itself mean that the ICC cannot exercise jurisdiction over Israeli nationals or officials (see my 2003 article on this issue). Comoros is a party to the Statute and the main vessel on which the Israeli actions took place, the Mavi Marmara, was registered in Comoros. Under Article 12(2) of the ICC Statute, the Court may exercise jurisdiction not only to nationals of State’s party to the ICC statute but also, crucially, where:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft [is a party to the Statute];

Since the Israeli action took place on a vessel that is registered in a State party to the ICC Statute, the action is within the jurisdiction of the ICC. Comoros also points out that a second of the six vessels in the Gaza flotilla boarded on 31 May 2010 – the M.V. Eleflheri Mesogios or Sofia - is registered in Greece which is also a party to the ICC. In addition, Comoros says that a further vessel boarded by Israel a week later – the MV Rachel Corrie- is registered in Cambodia, which is also an ICC State party. It must also be taken as referring the incident regarding those other vessels to the ICC (assuming there were any incidents committed on board those vessels that would amount to crimes within the jurisdiction of the ICC). It is worth noting that a State party is entitled to refer any situation involving crimes within the jurisdiction of the Court to the prosecutor. Thus Comoros is entitled to refer a matter that did not occur within its territory to the ICC.

Israel’s actions with regard to the flotilla have already been the subject of investigations by Israel, Turkey and by two UN bodies. The allegations that actions on board the vessels were contrary to international law finds support in the reports by the UN commissions  (see Yuval Shany’s discussion of Human Rights Council’s Fact Finding Commission here,  and Douglas Guilfoyle , Tamar Feldman and Marko’s discussion of the Palmer Report here, here here). However Israel’s Turkel Report comes to the opposite conclusion (see discussion by Amichai Cohen and Yuval Shany here). It is to be noted that the referral by Comoros comes just days after it was announced that Israel and Turkey were close to reaching an agreement on compensation for the Turkish victims of the incident.

The referral by Comoros is significant for the ICC for a number of reasons and as outlined below is likely to test political support for the Court. While action by the Court against Israel is likely to prove unpopular in some circles, failure by the Court to act in a situation involving Israel, and perhaps more importantly failure to act on a referral by an African State against a non-African State, will perhaps prove even more unpopular in a constituency crucial to the ICC.

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International Commissions of Inquiry: A New Form of Adjudication?

Dr Hannah Tonkin is a Legal Officer in the Appeals Chamber of the Special Court for Sierra Leone. She previously worked at the ICTR and ICTY and taught international law at the University of Oxford. She is the author of State Control over Private Military and Security Companies in Armed Conflict, 2011 (ISBN 9781107008014)

In March the International Commission of Inquiry on Libya, created by the United Nations Human Rights Council (HRC), presented its report, finding that “international crimes, specifically crimes against humanity and war crimes, were committed by Qadhafi forces.” The report found that “acts of murder, enforced disappearance, and torture were perpetrated within the context of a widespread or systematic attack against a civilian population.” The report further found that anti-Qadhafi forces also “committed serious violations, including war crimes and breaches of international human rights law.” The Libya Report followed the delivery to the HRC in February of a report by the International Commission of Inquiry on Syria. That Commission found that Syrian government forces “committed widespread, systematic and gross human rights violations, amounting to crimes against humanity, with the apparent knowledge and consent of the highest levels of the State.” [para 126]

The Commissions on Libya and Syria are just the latest in a series of high-profile international fact-finding missions and commissions of inquiry in recent years. These include the 2004 International Commission of Inquiry on Darfur, the 2009 UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report), the 2009 Fact Finding Mission on the Georgian Conflict (discussed here, here and here on EJIL:Talk), the 2010 and 2011 UN Fact Finding Mission and Committee inquiring into the Israeli blockade on Gaza (the HRC Fact Finding Mission and the Palmer Report) (see previous posts here), the 2011 Panel of Experts on Accountability in Sri Lanka (see previous EJIL:Talk! Post here) and the 2011 Bahrain Independent Commission of Inquiry. Most of these commissions had terms of reference that called on them to investigate alleged violations of human rights and international humanitarian law, though others, like the Georgia Commission, have been called to decide on other inter-State issues, such as the use of force.

These commissions of inquiry appear to have become a new mechanism for determining the responsibility of both states and individuals for violations of human rights and IHL. In the absence of universal compulsory jurisdiction by international judicial bodies, these commissions of inquiry are a way in which the international community can obtain an authoritative determination of whether these violations have taken place and who is responsible. These commissions have not replaced, and are not replacing, adjudication. In fact, they will often enhance adjudicative mechanisms where those exist. However, these commissions do seem to be an additional form of resolving, and obtaining authoritative pronouncements on, contested facts and issues of international law.

While many of these commissions are termed “fact-finding missions” or given the mandate to engage in fact-finding, in reality they tend to do much more than this and will often make quite detailed determinations on points of international law. (more…)

Know Your Rights! The Flotilla Report and International Law Governing Naval Blockades

Yuval Shany is the Hersch Lauterpacht Chair in Public International Law at the Law Faculty at the Hebrew University of Jerusalem. The author thanks Prof. David Kretzmer, Adv. Gil Limon and Adv. Rotem Giladi for useful comments to an earlier draft. The usual disclaimers apply.

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”), which was published on 22 September 2010, is a troubling document.

Of course, the Report is troubling in that it suggests that Israel has committed serious violations of human rights and humanitarian law: The Report alleges that the Israeli blockade violated the laws of war, that the interception of the flotilla was therefore unlawful, that excessive force was used during the interception resulting in loss of lives, and that the individuals on board the flotilla ships were mistreated while in Israeli custody.

Still, at a different level, the Report is troubling in its many substantive weaknesses, which cast serious doubts on its potential impact, as well as on the desirability of engaging in such fact-finding exercises in the future. I will deal hereby with one set of problems I find in the Report: the poor quality of the legal analysis leading to identification of the law governing the Israeli interception operation and the application of such law to the facts at hand. I would note however that other problems in the Report exist: For example, one ought to be troubled by the mission’s rush to issue judgment on questions of fact, notwithstanding the unavailability to it of the full Israeli version of events, and without awaiting the outcome of investigations conducted in Israel (the Turkel Committee) and on behalf of the UN Secretary General (the Palmer Committee), which could throw light on some of the events that transpired on board of the flotilla ships and in detention facilities inside in Israel.

 

Documents such as the Flotilla Report touch upon sensitive and difficult matters and are inevitably bound to generate controversy. However, by failing to acknowledge many of the legal complexities and challenges presented by the circumstances of the flotilla incident, and through committing some serious error of law, I believe that the fact finding mission significantly eroded the Report’s credibility and undermined its potential impact.

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A Human Right to Water? The South African Constitutional Court’s Decision in the Mazibuko Case

Peter Danchin is Associate Professor of Law at The University of Maryland Law School.  His recent articles have been published in the Journal of Law and Religion, the Yale Journal of International Law, and the Harvard International Law Journal. His most recent book United Nations Reform and the New Collective Security (with Horst Fischer) has just been published by Cambridge University Press.  In 1999, he served as a foreign law clerk to Chief Justice Arthur Chaskalson of the Constitutional Court of South Africa.

Is there a human right to sufficient or adequate water?  If so, what is the right’s normative basis, its scope and content, and how might this differ in international law, constitutional law, and the domestic law and policy of States?  These were the questions recently before South Africa’s Constitutional Court in Mazibuko v. City of Johannesburg (also known as “the Phiri case”) decided on 8 October 2009, the country’s first test case on the right to water.

The case is of interest for a number of reasons.  First, it is the most recent precedent in South Africa’s closely watched economic and social rights jurisprudence following in the wake of such decisions as Soobramoney (1998), Grootboom (2001), Treatment Action Campaign (TAC) (2002), Modderklip (2005) and Olivia Road (2008).  Second, it sheds critical light on the debate over whether economic and social rights have minimum legal content or a “minimum core” as posited by the UN Committee on Economic, Social and Cultural Rights in its 1990 General Comment No. 3 on the Nature of States Parties’ Obligations.  And third, it provides a useful case study of both the potential and limits of strategic public interest litigation and the justiciability and enforcement of economic and social rights in the national sphere.

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