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

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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

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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

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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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Trivia: International Lawyers in Senior State Positions

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Many thanks to those who suggested answers to my trivia question of earlier this week. I have put my responses as a comment to that post. I now have another question which relates to international lawyers who have held the highest offices of state.

There are quite a number of international lawyers who have gone on to hold cabinet level ministerial positions in national government. In the UK, we recently had the example of Dominic Raab who was Minister for Exiting the European Union in the second half of last year. He spent the early part of his career as a lawyer in the UK Foreign and Commonwealth office, including spending some time as Legal Adviser at the UK Embassy in The Hague. I do not know of another UK cabinet member who had authored articles in international law journals (the Leiden Journal of International Law and Journal of International Criminal Justice) en route to being in the Cabinet.

Elsewhere, there have been a number of Foreign Ministers who had previously been academic or practising international lawyers. A prominent example is Hans Blix, who went on to be Director of the International Atomic Agency, had a PhD in international law from Cambridge University, was an academic international lawyer at the University of Stockholm, before he became Foreign Minister of Sweden from 1978-79. Boutros Boutros-Ghali, who later became UN Secretary-General, had been Professor of International Law at Cairo University (and Visiting Professor in Paris) before becoming Acting Foreign Minister of Egypt also in the late 1970s. A couple of judges of the International Court of Justice have gone on to be Foreign Ministers of their countries. Nabil Elaraby, who had been a Judge at the ICJ (and before that member of the International Law Commission & Legal Adviser to the Egyptian Foreign Ministry) subsequently became Foreign Minister of Egypt for a brief period in 2011, before becoming Secretary-General of the Arab League that same year. Mohammed Bedjaoui, was President of the ICJ before becoming Foreign Minister of Algeria in 2005. Susana Ruiz Cerutti who was recently a candidate for election to the ICJ was briefly Foreign Minister of Argentina after (and before) spells as Legal Adviser to the Foreign Ministry.

These are all cabinet level government officials who previously had a career in international law. My question is whether there has been a head of state or head of government who before becoming such had been an academic or practising international lawyer. One has to define international lawyer though. My definition is that the person must either have published a book or article(s) on public international law; taught international law in a university; or practised public international law by holding a position that involves regularly advising on this branch of law.

To clarify, my question asks for people who were international lawyers before becoming head of state or government. I exclude those who turned to international law after holding these high offices. Sir Geoffrey Palmer QC who was Prime Minister of New Zealand from 1989 to 1990 later sat as an ad hoc Judge on the ICJ in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case (1995). After his political career, he wrote extensively on international law (see his SSRN page) on his return to academia, in addition to undertaking other international appointments that involved the application of international law. Though he had an academic career before going into the New Zealand Parliament, I do not think he had written on international law before his political career. One of the answers to my last set of trivia questions was Judge Mohamed Shahabuddeen who had a distinguished career in government in Guyana before embarking on his international judicial career. In addition to being Attorney General and Minister for Legal Affairs, he served as acting Foreign Minister from time to time and was also First Deputy Prime Minister and Vice-President of his country. However, as far as I can tell Judge Shahabuddeen only turned to international law after holding those senior positions in national government. So neither he nor Sir Geoffrey would be suitable answers to my question.

To repeat, the question is this:

Has there been a head of state or head of government who has been an academic or practising international lawyer before holding these high offices?

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Review: Jason Pobjoy’s Book, The Child in International Refugee Law

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Jason Pobjoy’s newly released book, The Child in International Refugee Law, represents a major contribution not only to the advancement of protection claims of children, but to refugee law more broadly, taking its place among such seminal works as J. Hathaway and M. Foster’s, The Law of Refugee Status (2d Edition 2014) and G.Goodwin-Gill and J.McAdam’s The Refugee in International Law (3d Edition, 2007).

The publication of Pobjoy’s treatise comes at an opportune time, when there is increasing sophistication among practitioners and scholars about the complex issues involved in conceptualizing children’s claims and providing effective representation to children refugees accounting for their unique needs and vulnerabilities as children. The body of law regarding children’s claims builds on earlier work regarding in particular refugee law’s treatment of women claimants that challenges refugee law’s dominant male paradigm. Similarly, the body of children’s refugee law challenges the dominant adult paradigm: As Pobjoy advocates and presents so comprehensively, in the case of children every criteria in the refugee definition must be interpreted in a child-centered manner, grounded in the specific structure of rights and obligations of the Convention on the Rights of the Child (CRC). This review focuses on Chapter 4 of Pobjoy’s book, “A Child-Rights Framework for Identifying Persecutory Harm.”

The publication of Pobjoy’s treatise also comes at a precipitous moment in the development of U.S. refugee law. There is growing sophistication among the American refugee bar and scholarly communities, especially evident over the past decade. Although in the past the U.S. has been, in some respects, an outlier, doggedly parochial and resistant to acknowledging the role that international human rights law should play in the interpretation of its domestic asylum provisions, there has been a shift: American lawyers have been urging a more internationalist approach; they have been including arguments about international human rights law in their advocacy; and, presenting the jurisprudence of other states parties to the UN Refugee Convention in support of their clients claims to protection. The U.S. Supreme Court has recognized the roots of U.S. law in the UN Refugee Convention and Protocol, has referenced the jurisprudence of other states parties, and federal courts have suggested at least implicitly a human rights standard. See Deborah E. Anker, Law of Asylum in the United States, Ch. 1 (2017). And as the American non-profit Opportunity Agenda points out, in other areas of law, the U.S. Supreme Court “has increasingly cited human rights law as persuasive authority for important constitutional decisions.” The Opportunity Agenda, Legal and Policy Analysis: Human Rights in State Courts: 2011, at 2. It may be unclear at this challenging moment in U.S. politics what long-term effect this new advocacy in refugee law will have, but the orientation is changing in an internationalist direction. (more…)

Curriculum vitae: A Prequel (Part II)

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This is the second part of the inaugural lecture of Roger O’Keefe, Professor of Public International Law at University College London (Part I is available here). In the lecture he teases out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet.

All characters depicted in this tale are fictional, sort of. Any resemblance to academics, judges or journals living or dead is intended in a jesting and friendly spirit. All legal actions should be directed in the usual way to Professor Joseph Weiler.

But it was not all beauty, truth, and miscellaneous high-mindedness. The international legal system, while its own reality, was predicated on the external reality—the real reality, as it were—of the practice of states. It was ultimately positivist, and as an international legal positivist D. H. G. H.-G. Salamander was necessarily a down-and-dirty empiricist. And what down-and-dirty data, what incident and idiosyncrasy with which to work! All human life was there! The agony and the ecstasy, the tragedy and farce, the stuff and nonsense of international affairs past and present, visibilium omnium et invisibilium! The human world, the bringer of plurabilities, its song be sung, its rill be run! Like the sea, it teemed with life. So too knew it death, the destroyer of worlds, Assyrian, wolf, and fold all kneeling before it and trembling. The divine comedy! The encyclopaedia satanica! He sang the corpus eclectic. Out of this Dionysian frenzy, out of the fury and the mire of human veins, it was not only the distinctive service but also a large part of the fun of the international lawyer to discern and to elaborate with Anzilottian clarity a normative logic.

*

As for whether at heart he was an international legal apologist or critic, Salamander took the view that he could rightly no more praise or condemn international law for justice or injustice than he could a language for a kind or hurtful word. There was no use indicting laws. They were no shoddier than what they peddled. Law, to quote again the immortal Austrian, was simply ‘a specific social technique for the achievement of ends determined by politics’ [Hans Kelsen, The Law of the United Nations. A Critical Analysis of Its Fundamental Problems, with Supplement (New York: Frederick A Praeger, 1950), xiii]. International law, as someone else would write somewhere, was no more than a vehicle for human values, a language of human self-ordering, a particular praxis of human willing. If the rules were warped, the blame lay with the crooked timber.

*

Yet for all her tender ministrations, Eunomia remained a demanding mistress. She also remained a demanding read, or at least her namesake did, although no-one—the London cabbie, the troika (or trinity) of sage, prophet, and poet, and least of all D. H. G. H.-G. Salamander—minded too much.

Yes, she was a demanding mistress alright. So much to write, so little time, to borrow from Wonka. The job involved so much drudgery. Tomorrow and tomorrow and tomorrow crept in this petty pace from day to day. Yet here were his friends pumping out publications as if by colonic irrigation! The pugnacious Georgian, the feisty Serb, the neotenous Nigerian, the bouffanted Belgian … Goddammit, did that well-coiffed Walloon never sleep? The productivity of these characters was demoralising! Just when he thought it was safe to go back in the water, out leapt another book, article, chapter or blog-post by one of these men possessed! (more…)

The role of legitimacy and proportionality in the (supposedly absolute) prohibition on inhuman and degrading treatment: the United Kingdom’s High Court decisions in DD v Secretary of State

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In the United Kingdom High Court (Administrative) decision of DD v Secretary of State for Home Department [2014] (‘DD’) Ouseley J was required to consider, on a preliminary basis, whether the imposition of a Terrorism Prevention and Investigation Measure (‘TPIM’) (the successor of control orders) had violated the appellant’s right to freedom from inhuman or degrading treatment under article 3 of the European Convention on Human Rights (‘ECHR’). The decision, and the subsequent appeal decision of Collins J (DD v Secretary of State for Home Department [2015] (‘DD (No 2)’), is significant for what it says about the role of the legitimacy and proportionality of measures when considering whether they are inhuman or degrading. More specifically, the first instance decision of Ouseley J appears to impermissibly balance ill-treatment against national security interests. In addition to this ostensible and impermissible conflation, both decisions rely on the European Court of Human Rights (‘ECtHR’) jurisprudence to support various findings without properly engaging with the very significant differences between such decisions and the facts of the instant case (especially the difference between detention following conviction and the imposing of TPIMs on individuals based on various degrees of ‘belief’ held by the Secretary of State). Similarly, neither decision considers the potential impact of the principle, regularly restated by the ECtHR, that the alleged conduct of an individual is irrelevant to a consideration of whether article 3 has been violated.

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Announcements: Pluralist Approaches to International Criminal Justice Conference; CEILA Inaugural Lecture; 3. Call for Papers: The Rapoport Center Human Rights Working Paper Series

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1. “Pluralist Approaches to International Criminal Justice” Conference. On 7-8 January 2016, the Center for International Criminal Justice (CICJ) and the Faculty of Law, Vrije Universiteit Amsterdam will host a conference on pluralism and international criminal law. The event is held with the financial support of the Royal Netherlands Academy of Arts and Sciences and concludes the research project “Dealing with Divergence? National Adjudication of International Crimes” funded by the Netherlands Organisation for Scientific Research (NWO). The conference provides a platform for an interdisciplinary and critical debate on the methodological, institutional and cultural diversity in international criminal justice (see further information). Speakers include Elies van Sliedregt, Kai Ambos, Robert Cryer, Megan Fairlie, Kevin Jon Heller, Charles Jalloh, Frédéric Mégret, Sarah Nouwen, Nicola Palmer, Darryl Robinson, Carsten Stahn, Sergey Vasiliev, Alex Whiting, Harmen van der Wilt and others (programme). The conference will take place in the Tinbergenzaal, Het Trippenhuis, Kloveniersburgwal 29, Amsterdam. Attendance is free but places are limited. Please register before 28 December.

2. CEILA Inaugural Lecture: ‘EU Law and International Law in the 21st Century: Is the Court of Justice afraid of other International Jurisdictions?’ This lecture – the inaugural lecture of the newly established Centre for European and International Legal Affairs (CEILA) at Queen Mary School of Law –  will be given by Professor Maciej Szpunar, Advocate General at the Court of Justice of the European Union on Friday 13 November 2015. See here for further details and to register. The lecture will be held at Arts2 Lecture Theatre, Arts2 Building, School of Law, Queen Mary University of London, Mile End Road, London E1 4NS. The lecture is being held to mark the start of the CEILA’s activity on the study and research of the relationship between International Law and EU Law. Professor Szpunar will be exploring the legal background surrounding the interaction between the Court of Justice and other regimes, addressing their frictions, synergies, and mutual impact, to offer a comprehensive account of their co-existence and point the way forward.

3. Call for Papers: The Rapoport Center Human Rights Working Paper Series. The Rapoport Center Human Rights Working Paper Series (WPS) is happy to announce a call for papers for the 2015 – 2016 academic year. The WPS seeks innovative papers of the highest quality by both researches and practitioners in the field of human rights. Acceptance to the WPS series provides authors with an opportunity to receive feedback on works in progress and stimulate a lively, productive conversation around the subject matter of their paper. This process is designed to prepare papers for publication in academic journals or other venues. This year we are particularly interested in papers exploring the relationship between human rights and inequality, natural resources governance, and the future of labor. Please see the submission guidelines here and  contact rcwps {at} law.utexas(.)edu with any inquiries.

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

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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?

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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…)