Mideast Briefing: From the Turkel Report to the Palmer Commission

June 14th, 2011

Ed Rettig, Acting Director, AJC-Jerusalem

The commission of inquiry that the Israeli government established to probe the Turkish flotilla incident released the first of two reports. It deals with the legality of the blockade of Gaza and actions taken against the attempt to run the blockade, and also reports on the conduct of the flotilla’s participants. The second report, expected shortly, will address how Israel handles allegations that its troops violate the rules of war, in order to determine if the mechanisms in place rise to the level demanded by international law. It will also deal with what were described as “questions of Israeli internal affairs.”

The commissioners are a distinguished group. Alongside retired Supreme Court Justice Jacob Turkel, the panel included law professor Miguel Deutch of Tel Aviv University; former chief scientist of the IDF and President of the Technion Amos Horev; and Ambassador Reuven Merhav, former Director General of the Ministry of Foreign Affairs. Two international observers participated: Lord David Trimble, a Nobel Prize laureate and former First Minister for Northern Ireland, and Brigadier-General Kenneth Watkin, former Judge Advocate General of the Canadian Army. The international observers were full participants in all aspects of the investigation (which was conducted in both English and Hebrew).

The report addressed two key legal questions that are crucial for the determination of a number of further issues.

First is the legal status of the blockade. The Turkel Commission found that the purpose was primarily to prevent weapons from reaching Hamas by sea, which, it determined, was a legitimate goal under international law. The commissioners rejected the allegation that the blockade is illegal because of the allegedly disproportionate harm it causes to the Gazan civilian population.

Second, and related, is the status of Gaza as “occupied territory.” This is particularly important for determining the level of responsibility that Israelis have for the Gazan civilian population. The Turkel Commission decided that the Israeli withdrawal of all its troops from Gaza ended the occupation. Thus the area now is a hostile entity of hard-to-determine legal status: not a state, not occupied territory, but a geographically defined and violently hostile place run by an aggressive political party that acquired absolute control in a coup. Since the occupation has ended, the commission reasoned, Israel need apply only international humanitarian law, not the higher level of responsibility for the civilian population that the law of occupation would entail. Recognizing that international humanitarian law does require Israel to supply sufficient food, energy and healthcare to meet the needs of the civilian population of Gaza, the commission found that Israel is in compliance, although it called for constant efforts to maintain the appropriate levels.

In short, the commission ruled the blockade proportionate both to the threat to Israel and to the relative damage done to the civilian population. As a result, the commission found that Israel had a legal right to interdict the flotilla in international waters. It also examined the threat to the soldiers who boarded the vessel in question and determined that they acted appropriately in defending themselves against violent, premeditated attack.

International responses have been few. One exception was Turkish Prime Minister Recep Tayyip Erdogan, who did not mince words. He immediately declared the report “not believable.” His government declared itself “appalled.”

Meanwhile, the Israeli media report interesting and characteristically high-decibel debate. Former Israeli Justice Minister Yossi Beilin suggested on Israeli TV that the Turkel Commission was a wasted effort because an Israeli commission that exonerates Israel of wrongdoing “is not of interest to anyone.” Other commentators are a bit more circumspect, supporting the report’s conclusions but agreeing that since they are so clearly exculpatory they may be hard to defend.

Both reports will be turned over to the UN Commission of Inquiry appointed by Secretary General Ban Ki-moon. Chaired by former New Zealand Prime Minister Geoffrey Palmer and vice-chaired by former President Alvaro Uribe of Columbia, it includes two former directors-general of their respective foreign ministries, one from Turkey and the other from Israel, and is expected to issue its report in the coming months.

Will the Turkel Commission Report help Israel make its case to the world? If the Palmer Commission endorses its fundamental findings, that the occupation is over and the blockade is necessary, proportionate and legal, Israel’s actions enforcing it will be vindicated in the eyes of many. However, if the Palmer Commission finds that the occupation continues despite the absence of Israeli troops on the ground, and that the blockade is therefore illegal, efforts to enforce it would likely also be declared illegal, and so Israel would be seen as having no right to interdict ships in international waters and no right to use force in defense of its troops engaged in that interdiction.

But the ramifications could go far beyond the Israel/Hamas conflict. If Israel is condemned in the international arena, the nations of the world may have to deal with a situation in which international law makes it very difficult to blockade weapons-smuggling into territory dominated by non-state military combatants anywhere.