Israel Matzav

A word of caution on the Palmer Commission report

In reviewing the Palmer Commission's report on the Mavi Marmara incident, it's important to keep in mind the methodological limitations of the panel's work. This is from the report:

4. The manner in which the Panel was to carry out its task was set out in the Method of Work established by the Secretary-General. The Panel was to operate by consensus and the findings of the report and any recommendations it may contain were to be agreed by consensus. However, the Method of Work also provided that where, despite the best efforts of the Chair and Vice-Chair, it was not possible to achieve consensus among the members of the Panel, the Chair and Vice-Chair would agree. This report has been adopted on the agreement of the Chair and Vice-Chair under that procedure.

5. It needs to be understood from the outset that this Panel is unique. Its methods of inquiry are similarly unique. The Panel is not a court. It was not asked to make determinations of the legal issues or to adjudicate on liability.

6. In particular, the Panel’s means of obtaining information were through diplomatic channels. The Panel enjoyed no coercive powers to compel witnesses to provide evidence. It could not conduct criminal investigations. The Panel was required to obtain its information from the two nations primarily involved in its inquiry, Turkey and Israel, and other affected States. The position is thoroughly understandable in the context of the Panel’s inquiry but the limitation is important. It means that the Panel cannot make definitive findings either of fact or law. But it can give its view.

7. Nevertheless, the Panel had in front of it a range of material, including statements from 93 individuals that were appended to the Turkish report,1 and excerpts of statements by IDF personnel engaged in the incident that were included in the Israeli report. In this regard, we stress again that the Panel is not a court. We have not personally heard the witnesses whose statements we have read. Nor are we able to make definite findings on each statement’s reliability and credibility. They are more plausible on some aspects than others. But in certain areas, when viewed as a whole, we regard them as useful material for the purposes of the Inquiry.

...

10. After reviewing the reports of both national investigations, the Panel addressed a series of questions to each Point of Contact identifying further information or clarifications that it required. The Panel received written responses and additional material on 11 April 20115 and met with the Points of Contact for Turkey and Israel on 26 and 27 April 2011 respectively.6

11. It will be clear from the above that the essential logic of the Panel’s inquiry is that it is dependent upon the investigations conducted by Israel and Turkey. Those two countries have quite separate and distinct legal systems and different methods of conducting their domestic inquiries into the present subject matter. Turkey established a National Commission of Inquiry in accordance with its domestic procedures that operated within the Turkish governmental system with prosecutors, governmental officials, police and others bringing together the material that has been put in front of us. Israel established an independent Public Commission headed by a retired Supreme Court Judge, Justice Turkel, with three other members and two distinguished foreign observers. Both investigations sought advice from specialist legal consultants.

12. What the Panel has done is to review the two national reports and identify where the differences over what happened arise. Where possible, we have tried to set out what is accepted as established by both Israel and Turkey, and where the areas of dispute lie. We set out what the Panel considers happened as far as that can be done on the information with which the Panel has been provided.

13. In relation to the relevant legal principles of public international law the position is similar. The Chair and Vice-Chair in the Appendix to this report set out their own account of what they believe to be the state of public international law as it applies to the incident. Both national investigations did the same. They differ as widely on the applicable law as they do on what actually happened.

14. We observe that the legal views of Israel and Turkey are no more authoritative or definitive than our own. A Commission of Inquiry is not a court any more than the Panel is. The findings of a Commission of Inquiry bind no one, unlike those of a court. So the legal issues at large in this matter have not been authoritatively determined by the two States involved and neither can they be by the Panel.

15. The Panel will not add value for the United Nations by attempting to determine contested facts or by arguing endlessly about the applicable law. Too much legal analysis threatens to produce political paralysis. Whether what occurred here was legally defensible is important but in diplomatic terms it is not dispositive of what has become an important irritant not only in the relationship between two important nations but also in the Middle East generally. The Panel has been entrusted with some policy responsibilities and that was not the case with the domestic investigations whose reports we have received.

I presented this to you because I now want to look at one example from the report and see where the facts - which are in dispute - might lead to different conclusions. The incident I'd like to show is the description in the Palmer Commission report regarding Furkan Dogan, the 19-year old Turkish-American dual citizen, who was the only person to die on the boat who was not solely a Turk. I choose that incident because it highlighted a column which was written by Roger Cohen in Tuesday's New York Times, which I discussed here. I argued that Cohen is attempting to make the report seem to place Israel in the wrong, when the evidence overwhelmingly places Turkey in the wrong. Both of the parties see the report that way, which is shown by the fact that Israel has accepted the report with reservations, while Turkey has rejected it entirely.

Cohen quotes from the report.

“At least one of those killed, Furkan Dogan, was shot at extremely close range. Mr. Dogan sustained wounds to the face, back of the skull, back and left leg. That suggests he may already have been lying wounded when the fatal shot was delivered, as suggested by witness accounts to that effect.”

The Palmer Commission report (which I have put on my site here) says exactly what Cohen quoted it as saying. But it said much more.

127. The material before the Panel does not contest the fact that nine passengers were killed and many others seriously wounded by Israeli forces during the take-over of the Mavi Marmara. However, despite the investigation and conclusions reached in Israel’s report, no satisfactory explanation has been provided to the Panel for how the individual deaths occurred.404 The Israeli Point of Contact sought to explain to the Panel that the chaotic circumstances of the situation, made it “difficult to identify specific incidents described by soldiers as related to a specific casualty from among the nine activists who died during the takeover.”405 This is greatly to be regretted.

128.The information contained in the two reports largely coincides with respect to the wounds received by the nine deceased.406 In the Panel’s view the following facts are of particular concern and have not been adequately answered in the material provided by Israel. Although the Israeli Point of Contact provided a general response to these points,407 he was unable to provide the Panel with more detailed information, particularly with respect to the death of the passenger described below:408

...

At least one of those killed, Furkan Doğan, was shot at extremely close range.427 Mr. Doğan sustained wounds to the face, back of the skull, back and left leg. That suggests he may already have been lying wounded when the fatal shot was delivered, as suggested by witness accounts to that effect.428

If you read the report, and read the footnotes, it is clear that the Palmer Commission did not examine the bodies. All of the details relating to the bullet wounds suffered by those who were killed were provided by the Turkish investigation. Neither the Israeli Terkel commission nor the Palmer Commission actually saw the bodies - only the autopsy reports (if that). Could the Turks have lied about the bullet wounds? (I don't think I even need to answer that question).

Moreover, the Palmer Commission concludes that those killed - all nine of them - were part of an organized violent resistance to the Israeli attempt to board the ship. That fits with the video taken on the ship's own cameras which showed that the only people on the upper deck were people who were part of the IHH group - as all of those killed were. And that is a conclusion which is not dependent upon facts that were not placed directly in evidence before the commission. That conclusion is based on objective evidence - the videos - which could not have been altered by one side or the other without the Commission's knowledge.

123. It is clear to the Panel that preparations were made by some of the passengers on the Mavi Marmara well in advance to violently resist any boarding attempt.383 The description given in the Israeli report is consistent with passenger testimonies to the Turkish investigation that describe cutting iron bars from the guard rails of the ship, opening fire hoses, donning life or bullet proof vests and gas masks, and assuming pre-agreed positions in anticipation of an attack.384 Witness reports also describe doctors and medical personnel coordinating before the boarding in anticipation of casualties.385 Furthermore, video footage shows passengers wearing gas masks, life or bullet proof vests, and carrying metal bars, slingshots, chains and staves.386 That information supports the accounts of violence given by IDF personnel to the Israeli investigation.387

124. The Panel accepts, therefore, that soldiers landing from the first helicopter faced significant, organized and violent resistance from a group of passengers when they descended onto the Mavi Marmara. Material before the Panel confirms that this group was armed with iron bars, staves, chains, and slingshots,388 and there is some indication that they also used knives.389 Firearms were taken from IDF personnel and passengers disabled at least one by removing the ammunition from it.390 Two soldiers received gunshot wounds.391 There is some reason to believe that they may have been shot by passengers,392 although the Panel is not able to conclusively establish how the gunshot wounds were caused. Nevertheless, seven other soldiers were wounded by passengers, some seriously.393

125. Both reports concur that three soldiers were overpowered by the passengers as they descended from the first helicopter and were taken below the deck of the vessel.394 The Panel is not persuaded that claims that the three were taken below merely to receive medical assistance395 are plausible, although it accepts that once below deck other passengers intervened to protect them and ensure that assistance was provided.396 It is established to the Panel’s satisfaction that the three soldiers in question were captured, mistreated and placed at risk during the incident.397 In the face of such a response, the IDF personnel involved in the operation needed to take action for their own protection and that of the other soldiers.

So if those killed were combatants and not just innocent bystanders, how was Israel obligated to treat them?

I put that question to an international law expert, who told me the following:

[A]nyone who fought IDF soldiers as they boarded, whether the person thought he was engaging in self-defense or not, was —under the Geneva Conventions — either a civilian or an unlawful combatant taking direct part in hostilities. Either way, such persons were legitimate targets. They were engaged in a belligerent act (breaching a lawful blockade) and Israeli soldiers were entitled to use lethal force against them, even if less lethal means were available. When the Palmer Report says that excessive forces was used, it is clearly making a political judgment rather than a legal one.

Were the IDF soldiers allowed to shoot someone in the head who was attacking them? It sure sounds like it. And even if Dogan was already wounded, you don't know whether - for example - there was a gun lying on the floor six inches away or whether Dogan had another soldier by the leg and it was necessary to shoot him at close range. You can't tell that from the report. Even if you're Roger Cohen. Because Palmer and Uribe couldn't tell it either. But what we do know is that once Dogan attacked those IDF soldiers, he didn't have a whole lot of rights.

Read the report. Read it carefully. But read it with a critical eye. The panelists were completely dependent upon the two sides for their facts. Sometimes things aren't as they appear to be.

Labels: Mavi Marmara, Palmer Commission

posted by Carl in Jerusalem @ 4:47 PM