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.
It seems as if the main legal framework applied by the fact-finding mission to assess the lawfulness of the Israeli interception operation is the law governing naval blockades. This is certainly consistent with the main legal justification presented by Israel for the interception operation. What is less clear, however, is the interplay between this legal framework and the occupied status of Gaza, which the Report never bothers to explain. Note, that Israel has claimed a right to impose a naval blockade in connection with ongoing hostilities between Israel and the Hamas-controlled Gaza; but, significantly, Israel has also claimed in parallel that the occupation of the Gaza Strip has ended with the withdrawal of Israeli forces from the area in 2005.
The relationship between these two legal assertions is important: An occupier does not need to invoke the institution of naval blockade in order to bar access by foreign vessels into the occupied territory it controls (the imposition of a naval blockade may, however, allow the blockading party to enforce some access restrictions outside the territorial sea of the occupied area; at the same time, the imposition of the blockade is generally subject to more restrictive conditions than those attendant to the occupier’s general power to control access to the occupied area). More importantly, states do not need to resort to a naval blockade of a territory they effectively control . The Report assumes that Israel remains the occupier in Gaza and thus in effective control thereof (an assertion which is, at least, controversial given Israel’s inability to make its authority present inside the Gaza Strip). It does not explain, however, the legal basis upon which the flotilla was entitled to seek to access Gaza in the first place, if indeed the area is still under occupation; nor does it explain how the right of the occupier to control access to the occupied area affects the proportionality of a blockade it introduces.
To be sure, the First Additional Protocol of 1977 does require occupiers to admit humanitarian consignments into the occupied territory under certain conditions (article 69); but the Report never discusses this legal standard; nor does it discuss the right of private parties to “self-enforce” the duty to introduce consignments into occupied territories against the occupier, in breach of the latter’s entitlement to insist on inspecting and regulating the delivery of the said consignments.
Another basic problem with the legal framework canvassed by the fact-finding mission pertains to the application of the Fourth Geneva Convention and human rights law to the events surrounding the interception of the flotilla. Now, even if we were to assume that the laws of occupation apply to the Gaza Strip (as the fact finding mission did), these laws cannot apply on the high seas – that is, outside the territorial seas of the occupied area (at no stage did the flotilla ships enter Gaza’s waters – i.e., enter the occupied territory). While it may be argued that those passengers holding the nationality of countries not having normal diplomatic representation at Israel “who found themselves” in its hands in the course of an armed conflict (occurring outside the occupied territory) should nonetheless be deemed ‘protected persons’ pursuant to article 4 of the Geneva Convention, few if any of the victims of the Israeli military operation appear to have met this legal criteria (the nine passengers killed in the operation all held the nationality of states having diplomatic relations with Israel). Again, the Report is completely silent on this important point of law and fails to explain the application of the Fourth Geneva Convention to the interception operation.
The question of the applicability of human rights law to the interception operation also receives a ‘light treatment’ from the fact finding mission. The interception occurred in international waters on board non-Israeli ships. I would certainly agree that once resistance on the flotilla ships has ended and Israeli troops took full and effective control over them, the conditions for application of article 2(1) of the ICCPR have been met. However, a key question in this regard is whether the Covenant applied in the interim stage – between the commencement of the interception and the completion of the take-over – the period of time in which the most serious violations found by the fact finding mission have occurred. There is little in the case law of international human rights bodies – especially in the case law of the European Court of Human Rights dealing with extra-territorial military operations (which applies analogous legal standards to those appearing in the ICCPR)– that supports the liberal construction of the jurisdictional provisions of human rights treaties proposed by the fact finding mission. Furthermore, no legal analysis is offered by the fact finding mission on this point. The Report simply makes a laconic reference to General Comment 31 of the Human Rights Committee, which affirms that individuals subject to the “power” of a contracting state are protected by the Covenant; but it does not delineate the beginning and end of such power relationships. Note, the question at hand is hardly technical in nature, as it is precisely the very existence or absence of effective control, which facilitates the application of the protections specified in the Covenant and determines their scope of application. A state cannot be expected to fully implement human rights standards in situations it does not yet control.
Application of legal standards
The next stage in the fact finding mission’s analysis involves the application of the legal standards it identified to the interception operation. A key legal finding reached by the fact-finding mission in this respect has been that the blockade was disproportional and thus unlawful. The crux of the analysis offered by fact finding mission is found in paragraph 53 of the Report:
The Mission is satisfied that the blockade was inflicting disproportionate damage upon the civilian population in the Gaza strip and as such the interception could not be justified and therefore has to be considered illegal.
Two conspicuous elements are missing, however, from the fact finding mission’s analysis on this point. First, no weight whatsoever is given to Israel’s security concerns or military necessity claims that have led to the imposition of the blockade. Instead, the mission takes the view that the very existence of a humanitarian crisis in Gaza justifies the nullification of the blockade regardless of its consequences for Israel (e.g., an increased risk of weapon smuggling and the introduction of militants into the Gaza Strip). Para. 261 of the Report contains an explicit statement to this effect:
The Mission has come to the firm conclusion that a humanitarian crisis existed on the 31 May 2010 in Gaza. The preponderance of evidence from impeccable sources is far too overwhelming to come to a contrary opinion. Any denial that this is so cannot be supported on any rational grounds. One of the consequences flowing from this is that for this reason alone the blockade is unlawful and cannot be sustained in law. This is so regardless of the grounds on which it is sought to justify the legality of the blockade.
However, Para. 103 of the San Remo Manual – never mentioned in the Flotilla Report – appears to contradict this very legal position, as it clearly contemplates a lawful blockade with dire humanitarian implications:
If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:
(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.
In other words, the San Remo Manual supports the proposition that even in the face of a humanitarian crisis in the blockaded area, the blockade is not unlawful per se (and would be subject to proportionality analysis). In addition, Para. 103 acknowledges the right of the blockading party to insist even in such dramatic circumstances on searching humanitarian vessels and on regulating the delivery of supplies to the under-supplied area – precisely the two requirements imposed by Israel in the present case. So, a humanitarian crisis could limit the blockading force’s options and prevent it from denying the introduction of humanitarian supplies into the area in question, but it does not totally negate its ability to impose a naval blockade, to inspect the cargo and to regulate the method of supply.
Second, the analysis employed by fact-finding mission does not distinguish the naval blockade from the broader restrictions on the introduction of goods into the Gaza Strip imposed by Israel and Egypt (incidentally, the latter’s legal responsibility for the situation in Gaza is never considered in the Report). Instead, the Report views the naval blockade and the broader closure regime as components in a single disproportional policy. It may be the case – and the present author subscribes to this view – that the overall closure or siege imposed on Gaza by Israel and Egypt may be unlawful: whereas Israel is entitled to impose import restrictions as a form of legitimate economic sanctions in response to rocket attacks on its territory originating from Gaza, the extent of the sanctions imposed and their duration raises to my mind serious proportionality concerns. Still, I believe that the naval blockade can and should be analyzed separately from the general closure or siege, as there may unique security justifications for imposing a naval blockade – thus preventing the importation of uninspected goods into the Gaza from the sea – which would not support restrictions on importation of inspected goods through land crossings. The attribution of the humanitarian crisis in Gaza to the naval blockade is particularly odd, given the fact finding mission’s acknowledgement that Gaza lacks any port facilities. Thus, in terms of proportionality analysis – the humanitarian implications of the naval blockade are much more negligible than those caused by the land siege – since only land routes constitute a meaningful life-line for Gaza that can serve for the introduction of humanitarian supplies in significant quantities.
The analysis performed with regard to the question of proportionality is troubling at another level as well: The fact-finding mission accepted that Israel offered to the flotilla organizers to divert the cargo it carried to the Israeli port of Ashdod, and has undertaken that it would be transferred there from, after inspection, into Gaza. As a result, the mission found that the dominant goal of the flotilla was political, not humanitarian in nature. Under these circumstances, it is unclear why the interception of this particular flotilla has been disproportional – arguably, Israel’s offer to facilitate the supply of the goods on board the flotilla ships struck a reasonable balance between its security concerns (insistence on inspection) and the humanitarian interests of Gaza’s residents (delivery of the supplies to Gaza). Perhaps, the mission was of the view that Israel’s general closure policy colors in illegality every act taken in its context; but, this is not generally the approach taken by laws of armed conflict, which tends to analyze separately the proportionality of every specific measure taken by the parties to the conflict.
After reaching the conclusion that the naval blockade is deemed unlawful as such, the fact finding mission asserted that that only vessels effectively contributing to the enemy’s war effort or posing an imminent threat may be intercepted (citing in this regard paragraphs 67 and 147 of the San Remo Manual). This is, however, also a dubious legal proposition: Para. 67 of the San Remo Manual discusses an attack on a neutral ship – and does not deal at all with the right of interception. While Para. 147 does deal with the right of capture (which may follow a refusal to submit the vessel in question to search), it should be read in light of 118-121 of the San Remo Manual that govern the prior-in-time right to visit and search neutral vessels. The key legal tests under these legal provisions is not whether the vessel in question actively participates in hostilities, but whether it violates a blockade or, alternatively, if there exists a reasonable suspicion that it carries contraband goods. This standard represents a much lower legal threshold for justifying interception than the one identified by the fact finding mission, and even if we were to accept that the blockade is null and void, it is at least arguable that some of the cargo on board the flotilla ships fell under the definition of suspected contraband (this was the case, in particular, with the cement carried, since cement is a dual-use object that could be used for constructing military fortification; Israel offered to allow the entry of the cement in question into Gaza under international supervision guaranteeing its non-military use).
Fact finding exercises, such as that undertaken in the Flotilla Report, fulfill an increasingly important role in international life, and in the work of human rights bodies. Still, in the absence of formal enforcement mechanisms, the impact of fact finding reports depend to a large extent on their perceived legitimacy. As Thomas Franck noted, legitimacy may depend on procedural fairness (and drawing definite conclusion on the basis of one party’s version of events stretches this concepts to a considerable degree); but it may also depend on the perceived professionalism of relevant adjudicative body.
The sloppy legal analysis offered in the Flotilla Report with respect to the right to intercept the flotilla is thus regrettable: It suffers from inconsistencies (failing to explain the relationship between the blockade and the occupation), loose tests for application of legal standards (extending beyond acceptable boundaries the scope of application of the international humanitarian law and human rights law) and is characterized by the application of legal standards to the facts of the case in a manner that appears to be under-explained, selective and unconvincing. Such an unsatisfactory legal effort detracts from the credibility of the fact finding mission’s conclusions on factual matters, such as on the application of excessive force by the Israeli soldiers who raided the Mavi Marmara or the maltreatment of the flotilla passengers inside Israel. It also raises the question of whether human rights bodies are well qualified to address issues whose legality is heavily dependent on other bodies of law, in particular – the laws of armed conflict.
Ultimately, one cannot avoid feeling that the Flotilla Report rendered Israel’s prior concerns about the tendentiousness of the fact-finding process a self-fulfilling prophecy. Such a disappointing outcome is unlikely to encourage states like Israel to cooperate with future fact-finding missions sponsored by the Human Rights Council, nor to comply with any recommendations the process may entail.