Australia/Israel & Jewish Affairs Council

Israel's Gaza Flotilla Inquiry

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Update from AIJAC

June 16, 2010
Number 06/10 #05

This Update focuses on some of the details of the Israeli decision to appoint an independent public Commission of Inquiry to look into the events of May 31, when 9 Turkish citizens were killed in a clash at sea as Israeli forces attempted to halt six ships running the Israeli blockade of Gaza.

First up, we include the Israeli cabinet announcement of the Commission, which sets out not only the commission members but also the specific questions the inquiry is supposed to answer, as well as the powers the Commission will have. As has been widely reported the Commission will consist of three full members and two international observers, under the chairmanship of retired Israeli Supreme Court Judge Jacob Turkel (and will therefore be known as the Turkel Commission). The terms of reference include the legality of the blockade, the legality and details of Israel's action on May 31 and the actions of the organisers of the Gaza Flotilla. It is also made clear that while the Commission does not have the power to compel testimony, all government officials and bodies are required to fully cooperate with it, including through testimony when requested. For all the details about how the commission will work and what it will do, CLICK HERE. It is reported that the new Turkel Commission is already preparing to meet today, Israel time. It is also being reported that Israel's powerful State Comptroller is also launching his own investigation of the flotilla raid, which comes in addition to the Turkel Commission and the military investigations led by retired General Giora Eiland.

Next up is a detailed look at the members of the commission and the international observers. In addition to Turkel, there is Shabtai Rosen, a distinguished scholar of international law who also served as an Israeli diplomat, and Amos Horev a former General who later became head of Israel's famous Institute of Science, the Technion. As observers with complete access to all processes, they are joined by Nobel Peace Laureate David Trimble from Northern Ireland, and Brig. Ken Watkin, the former head of Canada's military judiciary and counsel assisting the international investigations of the Rwandan genocide. For more biographical details on all of the five, CLICK HERE. Barry Rubin had some quick comments on the make-up and nature of the committee, here .

Finally, this Update offers a good general background analysis of the larger problem of Gaza from BICOM, the British-Israel Communications and Research Centre. It looks at the background to the blockade, the debate about its effectiveness, and the likely effects of lifting it. It also points out that the underlying problems are likely to remain no matter what is done in the short-term, namely Hamas refusal to renounce violence, and the international community's inability to prevent smuggling. For this important analysis of all the issues surrounding the Gaza situation, CLICK HERE. Meanwhile, as the BICOM backgrounder suggests, Israel is reportedly about to announce a major easing of restrictions of goods coming into Gaza. Furthermore, reports says PA President Mahmoud Abbas made it clear to US President Obama that he does not want the Gaza blockade lifted.

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Government to Confirm Appointment of Independent Public Commission to Examine the Events at Sea

Office of the Prime Minister of Israel
13/06/2010       

Prime Minister Benjamin Netanyahu today  instructed Cabinet Secretary Tzvi Hauser to submit for Cabinet approval tomorrow (Monday), 14.6.10, a proposal to appoint a special, independent public Commission to inquire into the aspects – to be detailed below – of the actions taken by the State of Israel to prevent the arrival of ships to Gaza on 31.5.10.

Retired Supreme Court Judge Jacob Turkel will chair the Commissions, the other members of which will be international law Prof. Shabtai Rosenne, winner of the Israel Prize for jurisprudence and the Hague Prize for International Law; and former Technion President, Maj.-Gen. (ret.) Amos Horev.

In light of the unique international aspects of the event, it was decided to appoint to the committee two foreign observers of the highest standing, with vast experience in the fields of military law and human rights.  The two are Nobel Peace Prize laureate Lord William David Trimble from Northern Ireland and international jurist Ken Watkin, former Judge Advocate General of the Canadian Armed Forces.

The Commission will submit conclusions on the question of whether the actions that the state of Israel took to prevent the arrival of ships to Gaza and their goals, as well as other related matters, were in accordance with the rules of international law.  To this end, the Commission will relate to the following issues:

1) Consideration of the security circumstances for imposing a naval blockade on the Gaza Strip and the conformity of the naval blockade with the rules of international law;

2) Conformity of the actions taken by Israel to enforce the naval blockade on 31.5.10 to the principles of international law;

3) Consideration of the actions taken by those who organized – and participated in – the flotilla, and their identities.

The Commission will also consider the question of whether the inquiry and investigation mechanisms vis-à-vis complaints and claims regarding violations of the laws of armed conflict, as followed by Israel in general and as implemented with regard to the event in question, conform with the State of Israel's obligations under the rules of international law.

The Commission will be able to request any individual or entity to testify before it or provide information in another way, on matters that the Commission believes are relevant to its discussions.

All relevant Government bodies will fully cooperate with the Commission and place at its disposal information and documents that it requires to fulfill its duties, including through testimony before the Commission.

The Commission will be entitled to request any information from the Prime Minister, the Defense Minister, other ministers and the IDF Chief-of-Staff, including through testimony before the Commission.

However, in checking Israel's military actions, the Commission will operate in regard to military personnel and personnel from the other security forces only as follows: It will receive for study the documents that it requires and will be able to request from the head of the investigating team of experts authorized by the IDF Chief-of-Staff, Maj.-Gen. Giora Eiland, to transfer to it summaries of the operational investigations carried out in wake of the event.  Should the Commission believe, following its study of the aforesaid summaries, that there is a need for deeper or expanded investigations, it will be able to request Maj.-Gen. (ret.) Eiland to direct that this be done.

The Commission will set its own schedule and its modus operandi.  Commission meetings will be either public or closed as it sees fit.  However, the Commission will not hold a public discussion if such would endanger the security of the state or its foreign relations, or if the Commission believes that there is some other justification.

At the end of its work, the Commission will submit its report to the cabinet, via the Prime Minister.  Shortly thereafter, it will be made public.

The Attorney General states that in light of the vital public interest in allowing the Commission to reach the truth, the law enforcement authorities will not use testimonies delivered before the Commission as evidence in any legal proceeding.

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Who's who on Israel's committee on the Gaza flotilla raid

A Canadian jurist, a Northern Irish Nobel peace prize laureate, a professor of international law, a military expert, and a former Supreme Court justice will make up the 3-man commission plus two international observers.

By Reuters

Haaretz Published 13:17 14.06.10

Israel on Monday announced the establishment of an independent public commission of inquiry into its actions when intercepting a Gaza-bound flotilla of ships last month. These are brief profiles of the members of the three-man commission and its two international observers:

Chairman, Jacob Turkel, 75 - Former Israeli Supreme Court justice, born in Tel Aviv in 1935, an expert in civil law retired from the bench in 2005. Described by Israeli pundits as a conservative jurist, who also say he has little experience in inquiry commissions. He still sits on a military court appeals panel.

Member, Shabtai Rosen, 93 - British-born professor of international law at Bar Ilan University near Tel Aviv. A former diplomat who served as Israel's deputy head of mission to the United Nations between 1967-71 and ambassador to the UN in Geneva 1971-74. An Israel Prize laureate for jurisprudence (1960), he won the Hague Prize for International Law in 2004.

Member, Amos Horev, 86 - A retired major-general in the Israeli army and former president of the Haifa Technion, Israel Institute of Technology. Also formerly chief scientist of Israel's defense establishment and a leading proponent in Israeli industry.

Observer, David Trimble, 65 (Northern Ireland) - The first minister of Northern Ireland. A Nobel Peace Prize laureate, he was instrumental in securing the Ulster power-sharing agreement between Protestants whom he represented and Catholics known as the Good Friday Agreement that was brokered by U.S. mediator George Mitchell, currently a mediator between Israel and the Palestinians.

Observer, Ken Watkin (Canada) - The former head of the Canadian military's judiciary holding the rank of brigadier-general, Watkin was legal adviser to a Canadian military/civilian board of inquiry investigating the activities of the Canadian Airborne Regiment Battle Group in Somalia. From 1995-2005 he was counsel in respect of various investigations and inquiries arising from the 1994 genocide in Rwanda. He has also served as legal adviser to the Canadian navy and to Canadian commanders in Bosnia.

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BICOM FOCUS: WHAT NOW FOR POLICY IN GAZA?

BICOM, 10/06/2010
   
Key Points


  • The Gaza flotilla incident has renewed and invigorated international calls for a change in Israel's policies with regard to the Gaza Strip, in order to improve the situation there.
  • The security threat of Hamas, its arms build up, and refusal to renounce violence is the source of Israel's policies on limiting access and trade to the Gaza Strip.
  •  Israel's policies come alongside international demands on Hamas to renounce violence, accept previous peace agreements, and recognise Israel, and an effort to support President Mahmoud Abbas and his engagement in the peace process.
  •  Some easing of the restrictions is being considered in Israel. However, a complete lifting of the closure on Gaza would have far reaching ramifications, possibly entrenching Hamas's rule and the separation of Gaza and the West Bank, weakening Abbas.
  •  The underlying problems remain unchanged, and reflect not only Israel's policies, but Hamas's failure to renounce violence, and international failure to tackle smuggling, as called for in UN Security Council Resolution 1860.

What is the current policy and why is it in place?

Since Hamas violently took sole control of the Gaza Strip in 2007, ousting forces loyal to PA President Mahmoud Abbas, Israel has considered Gaza to be a hostile entity. This is because of the thousands of rockets fired by Hamas into Israel, Hamas's ongoing refusal to renounce violence, and the ongoing captivity of Israeli soldier Gilad Shalit. Israel restricts maritime and aerial access to Gaza and limits what passes through its land border, (though this has not prevented smuggling of weapons, along with other goods, under the Gaza-Egypt border). However, Israel's judicial system recognises an underlying residual responsibility on Israel to ensure the humanitarian needs of Gaza are met. Israel therefore allows basic goods through its border.

At the same time, the Quartet seeks to bring Hamas to renounce violence, accept previous peace agreements and recognise Israel. Western leaders have largely maintained a policy of non-contact with Hamas, pending its acceptance of these principles. In addition, Egypt has until now largely kept its border with the Gaza Strip closed, and demanded Hamas sign a Palestinian national unity agreement as a condition for opening the border.

By contrast, both Israel and the international community have worked with the Palestinian Authority under Mahmoud Abbas and Salam Fayyad in the West Bank, to remove restrictions on access and support economic development. The hope has been that this will provide a positive model that reinforces non-violence. Israel, Egypt, the Palestinian Authority and Western powers ultimately want to see the Palestinians reunited under a leadership that is committed to non-violence and a two-state solution.

Is the current policy working?


In analysing the impact of the current policy, it is firstly important to note the undoubted human cost of the situation on the residents of Gaza.  Whilst there is wide availability of food and goods, due in considerable part to smuggling from Egypt, normal economic life and opportunities for the population have been severely curtailed. UN agencies report that the majority of Gazans live in poverty and are dependent on aid. Has this helped in weakening Hamas?

The accuracy of polls is difficult to gauge, and the situation varies, but surveys consistently show that Hamas has lost support since winning parliamentary elections in 2006. In a March poll, Fatah receive 42% support and Hamas 28%. However, it is difficult to determine the extent to which this loss of support is due to Hamas's inability to lift the blockade, their internal repression, or refusal to sign a Palestinian unity agreement.

It is also worth noting the difficulties faced by Hamas in governing the strip. It was reported as recently as 20 May 2010 that Hamas was unable to pay salaries. Hamas lawmaker Jamal Nassar said last month, "The government is facing a crisis... The siege on the [Hamas-run] Palestinian government has been tightened recently and because of this it has been unable to bring in funds from abroad." Hamas's crisis was linked to increased scrutiny by Egypt of currency transfers to Gaza. The currency situation has reportedly been eased by Egypt opening of the Rafah crossing this week in response to the flotilla incident.

Until the flotilla incident, Egypt's policy had been getting stricter on Hamas, especially after repeated Hamas refusals to sign the Egyptian brokered unity agreement. In November 2009 it was revealed that Egypt was building an underground steel barrier to prevent tunnelling. The Palestinian Authority has also played its role in encouraging Western policy makers not to relax their position towards Hamas.

However, the policy does not so far appear to have led to a weakening of Hamas's security and overall control of the Gaza Strip. One of the negative consequences of the border restrictions has been the development of a black economy, whereby goods not acquired from Israel are smuggled under the Gaza-Egypt border, over which Hamas has control. Smuggling provides Hamas with a source of income, as well as weapons. Israel's maritime blockade has made it far more difficult for Hamas to bring in weapons. However, Head of Israeli military intelligence Amos Yadlin told the a Knesset committee in November 2009, that Hamas had test fired a rocket capable of hitting Tel Aviv, as part of its efforts to rebuild its arsenal after Operation Cast Lead.

The policy has also been damaging for Israel's public relations. A lack of clarity about how Israel determines what enters Gaza has led Israel's critics to brand its policy as arbitrary and cruel collective punishment, whilst paying little heed to Hamas's responsibility for the current situation.

Where now for the Gaza policy?


The ill-fated storming of the flotilla has refocused international attention on Gaza. In reality, the strategic dynamics have not changed since the passing of UN Security Council Resolution 1860 prior to the end of Operation Cast Lead. This resolution called on states to prevent arms smuggling, as well as calling for the reopening of crossing points and Palestinian reconciliation. In the absence of Palestinian reconciliation, Western powers have been promoting negotiations between Israel and PA President Mahmoud Abbas, and have left the Gaza situation, including the question of smuggling to Hamas, on the relative back-burner. However, the events of last week, their potential for repetition, and the role of Turkey in challenging the policy, is forcing Western governments and Israel to reassess the position.

There are mixed reports in Israel, but some indicate that Prime Minister Netanyahu may be ready to change the restrictions on the Israel-Gaza border to focus only on security related criteria. There is pressure from the United States  to move in this direction. There have been reports of a British proposal for Israel to ease restrictions on what enters Gaza through its border, possibly in return for international acceptance of an Israeli led inquiry into the flotilla incident. Defence Minister Ehud Barak told the Knesset on Monday that the government would examine "additional ways to achieve the same goals of the blockade, by reducing as far as possible the potential for friction."

If Israel were to relax restrictions to focus only on security related items, this still leaves open the question of dual use materials, like concrete and steel. So far these materials have only been allowed in for specific UN projects. It may be that Israel will be more open to UN requests in the future, but is likely to remain cautious on the import of materials that can easily be used by Hamas for military purposes such as bunkers and fortifications.

Another proposal raised in a joint press conference between Foreign Secretary William Hague and French Foreign Minister Bernard Kouchner is that Europe could play a role in checking shiploads of goods that enter Gaza, or perhaps reprise its role overseeing the Egypt-Gaza border crossing. However, no detailed proposals have yet emerged as to how the maritime proposal might work in practice. As for the Egypt-Gaza crossing at Rafah, EU monitors withdrew after the Hamas takeover in 2007 citing security reasons, and made the return of the Mahmoud Abbas's Presidential Guard a condition for resuming the mission.

There are those arguing for a much bolder change, based on the belief that the international and Israeli policy of supporting Mahmoud Abbas and isolating Hamas has failed. The global conflict think tank, International Crisis Group has made this case, and called for "normal commercial traffic with adequate international end-use monitoring." This would mean some international role in checking the use of materials entering Gaza to ensure they are not misused by Hamas.

However, many questions remain unanswered about this proposal. Israel has a poor experience of international monitors put in place to stop arms build ups on its borders. The UN force put in place to stop Hezbollah rearming following UN Security Council Resolution 1701 has proven to be completely ineffective. It has demonstrated the paucity of tools available to multilateral institutions in contributing to regional security.

It is not clear whether the ICG's call for "normal commercial traffic", or indeed President Obama's recent call for "economic development" in Gaza, implies a mechanism for exports. Since the Hamas takeover, Israel has allowed only relatively small quantities of flowers and strawberries to leave Gaza. There may be room to expand on these kinds of exports. However, the 2005 Agreement on Movement and Access which was supposed to govern exports from Gaza, was signed before Hamas came to power, and presupposes some level of working relationship and trust on security issues between the Palestinian Authority controlling the Gaza Strip and Israel. Furthermore, PA President Mahmoud Abbas has insisted that implementation of the agreement should only be with forces loyal to him reinserted into the Gaza Strip under a Palestinian unity agreement. It is hard to see, therefore, how this agreement can be fully implemented in the current circumstances.

A radical alternative would be new routes for Gazan trade, through Egypt and via the coast, that did not involve Israel. However, the establishment of an independent trade facility for Gaza would have major implications for the status of the Gaza Strip. It would potentially remove Gaza from the Israeli customs envelope as determined by the Oslo Accords, and thereby upgrade the level of de facto international recognition of Hamas's rule in Gaza. This would further entrench the political division between Gaza and the West Bank.

There are voices in Israel who advocate such a development. Giora Eiland, the IDF reserve General who has been put in charge of the commission to investigate the flawed interception of the Marmara, is among them. He has argued that Israel should accept that Gaza is a de facto state. He has advocated maintaining strong military deterrence against Gaza, whilst allowing the opening of the Egypt-Gaza border and the establishment of commercial shipping, as long as the ships are run by trusted organisations that Israel can check. It is argued that this change would allow Israel to effectively divest itself of its responsibility for the Gaza Strip.

However, there are few in Israel, and in the international community, who are currently ready to accept the creation of a virtual Hamas mini-state and to cement the Palestinian division. Among the most fervent objectors to any move that solidifies Hamas's position in Gaza are Egypt and the Palestinian Authority in the West Bank. Egypt considers Hamas a threat to its own security. Whilst Egypt has periodically opened its border to relieve the pressure, and has not acted fully against smuggling tunnels, it is against formalising the Gaza-Egypt trade route because it is overwhelmingly concerned that Gaza not become its responsibility. Ultimately, the problem cannot be addressed without Egyptian cooperation.

Potential pitfalls of a policy change


In considering how to improve the situation inside Gaza, the challenges remain to stop smuggling, to support Mahmoud Abbas, to prevent Hamas from making political gains that make them less likely meet the Quartet conditions, and to bring about the release of Gilad Shalit. Any relaxation of the current situation will be spun by Hamas as an endorsement for their path of violent ‘resistance'. Furthermore, given the complete control Hamas enjoys over the Strip, it will be difficult for any increased reconstruction materials and aid to bypass the Hamas authorities.

More significant policy changes that move towards normal commercial trade could be interpreted as a de facto recognition of Hamas's rule. Normalisation of Hamas's rule in Gaza will entrench the separation between the PA-controlled West Bank and the Gaza Strip, making Palestinian reconciliation even less likely.

Any concessions that Israel makes at this stage, under international pressure, will also be difficult domestically because of the ongoing captivity of Gilad Shalit, which remains an issue of great concern in Israel.

Conclusion 
      

The manner in which Israel determines what enters Gaza through its borders has exposed it to widespread criticism, whilst Hamas has benefitted from the underground trade route on the Gaza-Egypt border. This is a situation that could be improved by Israel relaxing the restrictions on what it allows in to be based only on security criteria. It now seems that Israel is in the process of reconsidering its approach.

At the same time, whilst working to improve the situation in Gaza, it is important not to exacerbate the underlying problems of Hamas's rule, its ongoing arms smuggling, and its refusal to renounce violence. Palestinian moderates will be looking with great concern on any measure that appears to be rewarding Hamas and its extremism. The international community will have to consider how to avoid harm to Palestinian moderates through its actions.

Furthermore, significant changes, such as allowing Gaza to resume normal commercial trade, either through Israel, Egypt or by sea, have major ramifications. The paramount issue is to prevent Hamas in Gaza becoming even more heavily armed. A further key concern for Israel, Western powers, and pro-Western Arab states is the entrenchment of Hamas rule in Gaza, and by extension the division between Gaza and the West Bank to the detriment of Mahmoud Abbas and the prospects of a negotiated two state solution. These are the dilemmas both Israel and the international community will have to consider in reassessing their policies with regard to the Gaza Strip.

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