The UN Secretary General's Panel of Inquiry on the May 31, 2010 Flotilla Incident was a committee chaired by Sir Geoffrey Palmer that was tasked with investigating the facts, circumstances and context that surrounded the conflagration. The committee was asked to submit findings on the question of whether the actions undertaken by Israel to prevent the arrival of ships to the coast of Gaza and their purposes were compatible with the rules of international law.
Introduction: Facts, Circumstances and Context of the Incident
The Panel finds:
- The events of 31 May 2010 should never have taken place as they did and strenuous efforts should be made to prevent the occurrence of such incidents in the future.
- The fundamental principle of the freedom of navigation on the high seas is subject to only certain limited exceptions under international law. Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.
- The flotilla was a non-governmental endeavour, involving vessels and participants from a number of countries.
- Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade. The majority of the flotilla participants had no violent intentions, but there exist serious questions about the conduct, true nature and objectives of the flotilla organizers, particularly IHH. The actions of the flotilla needlessly carried the potential for escalation.
- The incident and its outcomes were not intended by either Turkey or Israel. Both States took steps in an attempt to ensure that events did not occur in a manner that endangered individuals’ lives and international peace and security. Turkish officials also approached the organizers of the flotilla with the intention of persuading them to change course if necessary and avoid an encounter with Israeli forces. But more could have been done to warn the flotilla participants of the potential risks involved and to dissuade them from their actions.
- Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable:
- Non-violent options should have been used in the first instance. In particular, clear prior warning that the vessels were to be boarded and a demonstration of dissuading force should have been given to avoid the type of confrontation that occurred;
- The operation should have reassessed its options when the resistance to the initial boarding attempt became apparent.
- Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.
- The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable. Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the Panel by Israel for any of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel.
- There was significant mistreatment of passengers by Israeli authorities after the take-over of the vessels had been completed through until their deportation. This included physical mistreatment, harassment and intimidation, unjustified confiscation of belongings and the denial of timely consular assistance.
- There is nothing in international customary law, or in the United Nations Convention on the Law of the Sea (UNCLOS), that would generally prohibit the use of force on the high seas, as long as force is only used in self-defence, in line with Articles 2(4) and 51 of the U.N. Charter and Articles 88 and 301 UNCLOS (ius ad bellum). Moreover, once an armed conflict has commenced, the traditional laws of naval warfare apply (ius in bello). Those rules would apply in place of the general provisions of the law of the sea otherwise applicable in peacetime. They include provision for the imposition of a blockade.
- A blockade as a method of naval warfare aims at preventing any access to and from a blockaded area, regardless of the type of cargo. A blockade must be declared and notified to all States. The blockading power is required to maintain an effective and impartial blockade. Free access to neutral ports and coasts must be granted. The blockade is illegal if imposed with the sole aim to starve a civilian population or if its effects on the civilian population are in excess of the achieved military advantage. If necessary, the civilian population must be allowed to receive food and other objects essential to its survival. Such humanitarian missions must respect the security arrangements put in place by the blockading power.
- The blockading power is entitled to board a neutral merchant vessel if there are reasonable grounds to suspect that it is breaching a blockade. The blockading power has the right to visit and search the vessel and to capture it if found in breach of a blockade. Breach could occur outside the blockade zone, including on the high seas where there is evidence of the vessel’s intention. If there is clear resistance to the interception or capture, the blockading power may attack the vessel, after giving a prior warning. The level of force used to enforce the above-mentioned rights must be proportionate; in particular, it must be limited to the level necessary to achieve the military objective.
- Individuals detained in the enforcement of a blockade are protected by the provisions of international humanitarian law. At the same time, they have complementary protection under human rights law. This is regardless of their location on the high seas, outside the detaining State’s territory.