SETA Policy Brief SETA | Foundation for Political, Economic and Social Research | September, 2011 | www.setav.org | Brief No: 55 A Raid from the Sea: The Gaza Flotilla Attack and Blockade under Legal Scrutiny Ufuk Ulutaş S E TA POLICY BRIEF ABSTRACT The publication of the Palmer report written by the panel of inquiry established by the UN Secretary-General Ban Ki-Moon once again brought the 31 May 2010 Gaza Flotilla incident and the blockade of Gaza back to world’s attention. On May 31, 2010, Israeli commandos stormed a passenger ship, the Mavi Marmara, the largest boat of a flotilla of six boats which were carrying 10000 tons of humanitarian aid to besieged Gaza, in international high waters. The operation left 9 activists dead and over 30 activists wounded. The Israeli military assault against the Mavi Marmara immediately ignited worldwide protests and condemnation. Turkey, whose citizens were attacked by Israeli soldiers in international high waters, 72 miles away from the Gazan coast, took the lead in protests and condemnation. Israel, however, claimed that the demonstrators on the Mavi Marmara were aiming to break the blockade of Gaza and the Israeli commandos were forced onboard to react in an act of self-defense. During more than a year past since the Mavi Marmara attack, Israel has committed a chain of errors which started with the illegal blockade of Gaza. Using the blockade as a pretext, Israel intercepted the Mavi Marmara and used excessive force killing 9 civilians on board. Israel’s violations of international law were documented thoroughly in the UNHRC report, while the Palmer Commission penned a report with political rather than legal and humanitarian priorities. Ironically, as a country which has so far ignored myriad of UN resolutions, Israel has welcomed the Palmer report focusing on its mention of the blockade of Gaza as a legitimate security measure against Hamas, but totally ignoring the parts which stated that Israel used excessive force on board and maltreated the detainees after the takeover. This paper briefly summarizes the work done with the mandate given by the UN, and attempts to put the blockade of Gaza in its legal context first, demonstrate that Israel’s use of the blockade as a pretext for its belligerent act on board the Mavi Marmara has no legal ground, and consequently discuss Israel’s violations of international law on the board of the Mavi Marmara. September, 2011 | Brief No: 55 AA, Erhan Sevenler A RAID FROM THE SEA: THE GAZA FLOTILLA ATTACK AND BLOCKADE UNDER LEGAL SCRUTINY Ufuk Ulutaş CONTENTS I. INTRODUCTION | 3 II. THE UNHRC REPORT | 4 III. THE PALMER REPORT | 5 IV. IS THE GAZA BLOCKADE LEGAL? | 7 V. THE MAVI MARMARA INCIDENT IN ITS LEGAL CONTEXT | 9 VI. CONCLUSION | 12 2 2011©All Rights Reserved SETA | Nenehatun Cd. No: 66 Gaziosmanpaşa / Çankaya 06700 ANKARA TÜRKİYE Phone:+90 312.405 61 51 | Fax :+90 312.551 21 90 | www.setav.org | [email protected] A RAID FROM THE SEA: THE GAZA FLOTILLA ATTACK AND BLOCKADE UNDER LEGAL SCRUTINY A RAID FROM THE SEA: THE GAZA FLOTILLA ATTACK AND BLOCKADE UNDER LEGAL SCRUTINY Ufuk Ulutaş* I. INTRODUCTION The publication of the Palmer report written by the panel of inquiry established by the UN Secretary-General Ban Ki-Moon once again brought the 31 May 2010 Gaza Flotilla incident and the blockade of Gaza back to world’s attention. The panel was established to inquire on that specific incident relying on the documents and information provided by the governments of Israel and Turkey. Not acting as a court and not being asked to adjudicate on legal liability, the Panel “hoped” that its report may resolve the issues surrounding the incident and bring the matter to an end.1Albeit being designed as a panel for reconciliation, it has furthered the rift between the two countries whose bilateral relations suffered greatly because of the Israeli attack on the Gaza Flotilla. On May 31, 2010, Israeli commandos stormed a passenger ship, the Mavi Marmara, the largest boat of a flotilla of six boats which were carrying 10000 tons of humanitarian aid to besieged Gaza, in international high waters. The operation left 9 activists dead and over 30 activists wounded. The flotilla was carrying citizens from thirty-two countries, and among the passengers on the flotilla were European legislators, a Swedish best- selling author, Henning Mankell and Nobel peace laureate Mairead Corrigan-Maguire. The Mavi Marmara is owned by a Turkish charity, IHH (Foundation for Human Rights and Freedom and Humanitarian Relief), and was carrying around six hundred passengers most of whom are Turkish citizens. Following the military operation on the Mavi Marmara, the flotilla was docked at Ashdod port. The unarmed activists on board were detained; however, due to international pressure Israel released the passengers after a couple days of detention. * Researcher, Foreign Policy Research, SETA Foundation. e-mail: [email protected] 3 1. “Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident”, p.3. http://www.un.org/ News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf S E TA POLICY BRIEF The Israeli military assault against the Mavi Marmara immediately ignited worldwide protests and condemnation. Turkey, whose citizens were attacked by Israeli soldiers in international high waters, 72 miles away from the Gazan coast, took the lead in protests and condemnation, and called for emergency meetings of the UN, NATO, and the OIC. Ankara strongly condemned Israeli aggression, calling it “state terrorism”2 and “an act which must be duly punished.”3 Ankara also called for an immediate release of its detained citizens, return of the dead and wounded passengers, an official apology from Israel, and an international and transparent investigation of the assault. During more Israel, however, claimed that the demonstrators on the Mavi Marmara attacked the than a year past Israeli Defense Forces Naval commandos with light weaponry, such as knives and clubs, and the Israeli commandos were forced to react in an act of self-defense.4 Immediately since the Mavi after the assault, the Israeli Defense Forces (IDF) started a PR campaign and posted Marmara attack, heavily edited short video clips, showing the clashes between the activists and IDF political aspect of commandos, rappelling down to the Mavi Marmara. Tel Aviv argued that the flotilla was the incident has a deliberate provocation against Israel and was not organized with the sole purpose of taken over its legal humanitarian relief.5 aspect and the During more than a year past since the Mavi Marmara attack, political aspect of the deliberate violation incident has taken over its legal aspect and the deliberate violation of international of international law by the State of Israel has been often neglected. The report prepared by the United law by the State Nations Human Rights Council has so far put forward the firmest legal arguments of Israel has been about the incident, and the Palmer Panel later established by the UN Secretary-General often neglected. Ban Ki-Moon attempted to create a document that would help creating a point of understanding between Israel and Turkey. This paper briefly summarizes the work done with the mandate given by the UN, and attempts to put the blockade of Gaza in its legal context first, demonstrate that Israel’s use of the blockade as a pretext for its belligerent act on board the Mavi Marmara has no legal ground, and consequently discuss Israel’s violations of international law on the board of the Mavi Marmara. II. THE UNHRC REPORT In response to the incident the United Nations Human Rights Council established a fact-finding mission based on resolution 14/1 of 2 June 2010 to investigate violations of international law, including international humanitarian law and human rights law. The UN fact-finding mission’s report concluded that “a series of violations of international law, including international humanitarian and human rights law, were committed by the Israeli forces during the interception of the flotilla and during the detention of passengers in Israel prior to deportation.”6 2. http://www.cnnturk.com/2010/dunya/05/31/erdogandan.sert.tepki.devlet.teroru/578393.0/index.html 3. http://www.bbc.co.uk/turkce/haberler/2010/06/100601_turkey_gaza.shtml 4. http://www.haaretz.com/news/diplomacy-defense/israel-navy-commandos-gaza-flotilla-activists-tried-to- 4 lynch-us-1.293089 5. http://www.nrg.co.il/online/1/ART2/114/049.html 6. http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.21_en.pdf A RAID FROM THE SEA: THE GAZA FLOTILLA ATTACK AND BLOCKADE UNDER LEGAL SCRUTINY The report observed that the conduct of the Israeli military and other personnel towards the flotilla passengers was not only disproportionate to the occasion but demonstrated levels of totally unnecessary and incredible violence. It betrayed an unacceptable level of brutality. Such conduct cannot be justified or condoned on security or any other grounds. It constituted a grave violation of human rights law and international humanitarian law. The mission found clear evidence to support prosecutions of the following crimes within the terms of article 147 of the Fourth Geneva Convention: willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health.7It also considers that a series of violations of Israel’s obligations Establishing under international human rights law have taken place, including: right to life (art. 6, such substantial International Covenant on Civil and Political Rights), torture and other cruel, inhuman arguments on the or degrading treatment or punishment (art. 7, International Covenant; Convention events predating against Torture), right to liberty and security of the person and freedom from arbitrary the Mavi Marmara arrest or detention (art.