Wednesday, February 16, 2011

A lawyer destroys the Turkey flotilla conclusions

I posted last week about the published conclusions of the Turkey flotilla report, but did not look at the legal issues they brought up. A well-known expert on international law emailed me and wrote his first impressions of the report conclusions:

The report appears not to have been carefully proofread because it not only contradicts itself, it also indicates possible war crimes by the passengers. For example:

19. Israeli soldiers fast-roped down to the Mavi Marmara from helicopters. Three were subdued by the passengers. They were taken to the lower decks where they were treated for their non-lethal injuries.

21. The shooting spree of the Israeli soldiers continued in spite of the white flags waved by the passengers and multilingual surrender announcements made over the ship’s PA system.

#21 says passengers waved white flags, while #19 acknowledges that passengers attacked Israeli soldiers as they boarded (“Israeli soldiers … were subdued by the passengers). If these were the same passengers, and the white flags came before or during the attacks on soldiers, the passengers committed the war crime of perfidy.

#40 also demonstrates extreme sloppiness:
40. Israel’s ultimate objective through its "blockade" has been to punish the people of the Gaza Strip for supporting Hamas. This is why Israel chose in 2007 to impose a "blockade" although there were other options, and to persistently maintain it even though it did not yield its purported military objectives.

The naval blockade was declared and imposed in January 2009, not 2007. Plainly, since the Turks do not even know when the blockade was imposed, they have no knowledge about its motives, and have no basis for their false claim that “Israel’s ultimate objective through its "blockade" has been to punish the people of the Gaza Strip for supporting Hamas.” Indeed, from #40, it appears that the only “evidence” the Turks have in support of the claim is the (false) “fact” that Israel imposed the blockade in 2007.

The report’s legal conclusions are contradictory as well as being wrong in several places.

E.g., the report says that blockades are only lawful in international conflict (not true – blockades have been imposed in non-international conflicts, see e.g., http://online.wsj.com/article/SB10001424052748704025304575284210429984110.html); the report says that hamas-israel is a non-international conflict (probably true); and that Israel belligerently occupies Gaza. Now, not only is this last statement obviously wrong (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577324), if it were true it would mean that Hamas-Israel is an international conflict, because there can be no belligerent occupation without an international conflict or the occupation of a foreign state’s territory.

35. The "blockade" was also unlawful in its implementation and practice.

36. The "blockade"s "open-ended" nature did not comply with mandatory notification requirements under customary international law, particularly those relating to duration and extent.

37. The "blockade" was unlawful as it was not reasonable, proportional or necessary.

38. The "blockade" was excessive in the damage it inflicted on the population of the Gaza Strip in comparison to the expected military advantage.

39. The "blockade" was unlawful as it constituted collective punishment of the entire civilian population of the Gaza Strip.
The conclusions in 35-39 are simply wrong, but to argue it would be necessary to see more of the report.
42. Under customary international law, vessels carrying humanitarian aid cannot be lawfully attacked.
#42 is wrong no matter what the report says. The carrying of “humanitarian aid” does not render a vessel immune from boarding or inspection, or give it a right to run a blockade. Even if the ship’s content were properly understood as humanitarian, the ship still had the duty to allow itself to be boarded, and its refusal to cooperate with Israeli forces made it a legitimate belligerent target.

There are other bits of legal puffery, like 43-45.

The same kinds of errors and inconsistencies plague the factual findings and the mixed law-fact findings.

For example, #4 states that "Prior to the convoy’s departure, an understanding was reached among Turkish, Israeli and American officials that the convoy would eventually steer towards the Egyptian port of Al-Arish, when faced with compelling opposition. Events demonstrated that Israel did not abide by this understanding." If there was an understanding that the convoy would steer toward El Arish, it clearly was not honored, but the failure to abide by the understanding was obviously the convoy's and not Israel.

#5 states that "No attempt was made by the Israeli forces to visit and search the vessels before taking any other action." Israel was not under any obligation to visit and search the vessels once it determined their aim was to violate the blockade. What is more, it did demand a tow to port for inspection, which the Mavi Marmara resisted.

13. Prior to their attack, the Israeli forces did not proceed with standard warning practices, i.e. firing across the bow, to indicate an imminent use of force.

17. The Israeli forces opened fire with live ammunition from the zodiacs and helicopters onto the passengers on deck, resulting in the first casualties.

20. Israeli soldiers shot indiscriminately, killing and wounding passengers, once on the upper deck.
#13 is plainly a lie. So is #17. And so is #20. The Turks should be challenged to provide evidence for this slander.

16. The Israeli military did not at any time pause to re-assess the situation with a view to consider the least violent options in face of the passengers’ self-defence.
#16 is a mixture of lie and faulty legal analysis. The passengers did not engage in self-defense as they had no legal right to use force to repel Israelis boarding the ship. Once the passengers used force, they ceased to be protected civilians and became legitimate targets against which Israeli soldiers had a right of self-defense. Israel had no obligation to give the passengers time to continue their attack on the soldiers.

19. Israeli soldiers fast-roped down to the Mavi Marmara from helicopters. Three were subdued by the passengers. They were taken to the lower decks where they were treated for their non-lethal injuries.
#19 demonstrates that in fact the passengers did take a direct part in hostilities (they “subdued” Israeli soldiers) making those doing the “subduing” legitimate targets.