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.
Israel’s blockade could thus be said to have been illegal. Alternatively, both the imposition of the blockade by Israel and any acquiescence by third states in it may be interpreted as recognitions of Hamas’ belligerent status,accordingly transforming a prima facie cross-border NIAC between Israel and Hamas into an IAC. From the Israeli perspective, the problem here would be that the principle of equal application of IHL would grant Hamas the equal right to blockade Israel, if it had the factual ability to do so, not to mention that from a political standpoint its legitimacy may be perceived as having been accepted by Israel, which is at least one of the reasons why Israel argues that it is engaged in an ‘armed conflict’ with Hamas while studiously avoiding to qualify this conflict.
In addressing this difficulty, the Palmer report now seems to have implicitly taken the recognition of belligerency route, at 41, para. 73:
The Panel now turns to consider whether the other components of a lawful blockade under international law are met. Traditionally, naval blockades have most commonly been imposed in situations where there is an international armed conflict. While it is uncontested that there has been protracted violence taking the form of an armed conflict between Israel and armed groups in Hamas-controlled Gaza, the characterization of this conflict as international is disputed. The conclusion of the Panel in this regard rests upon the facts as they exist on the ground. The specific circumstances of Gaza are unique and are not replicated anywhere in the world. Nor are they likely to be. Gaza and Israel are both distinct territorial and political areas. Hamas is is the de facto political and administrative authority in Gaza and to a large extent has control over events on the ground there. It is Hamas that is firing the projectiles into Israel or is permitting others to do so. The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outside its territory. In this context, the debate on Gaza’s status, in particular its relationship to Israel, should not obscure the realities. The law does not operate in a political vacuum, and it is implausible to deny that the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict. This conclusion goes no further than is necessary for the Panel to carry out its mandate. What other implications may or may not flow from it are not before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others.
It’s the last italicized sentence which is crucial here – if this is indeed an IAC, than Hamas fighters are presumptively combatants. This is not, again, not, a conclusion that Israel will like, or indeed is likely to accept, as it upgrades, as it were, the status of Hamas from that of a terrorist organization to that of a government.
The second point that I wish to make is that the report at times perceptibly shifts from a legal (or legalistic) analysis to a more political one. Even with the issue of conflict qualification, as we have seen, the panel made an essentially political argument, but its continued discussion on the lawfulness of the blockade is very legalistic. However, its analysis of the Mavi Marmara operation itself, which it found to have been poorly planned and executed and involved an excessive use of force, does not articulate the legal standards it is applying. In doing so, the panel seems to deliberately avoid two preliminary questions: (1) does the ICCPR apply extraterritorially to the capture of a ship on the high seas, and (2) if so, how does the ICCPR interact with applicable IHL. These questions are however dealt with in the legal annex to the report, whose analysis is of high quality. But, simply put, what is missing is the application of the law to the facts.
In any event, there is plenty of material to digest here. I’m sure the report will provoke much discussion in the days to come.