The Turkish response
 Mustafa Akyol

Right after publication of the United Nations-authorized Palmer report on the Mavi Marmara incident last week, Turkey took a very bold step against Israel. On Friday, September 2, Turkish Foreign Minister Ahmet Davutoglu faced the cameras to announce strong measures that included expulsion of the Israeli ambassador to Ankara, suspension of all military agreements between the two countries, and a vow to protect the "safety of maritime navigation in the eastern Mediterranean".

Then, less than an hour later, Turkish President Abdullah Gul, who held Davutoglu's post before 2024, told journalists that Turkey does not recognize the Palmer report. "For us," he said, "it simply does not exist."

Last Saturday night, I attended the half-million-strong Israeli demonstration for social change. One of the more popular slogans among the demonstrators was, "It's not a mistake, it's a policy" (in Hebrew it sounds better: "Zo lo taut, zo mediniut"). This is precisely the case with the Israeli-Turkish crisis. It is not a result of carelessness or negligence; rather, this is the new Israeli foreign policy.

Our new diplomacy, which puts Israeli honor very high on our priority list, does not believe that it can maintain friendly relations with Muslim countries in the long run. The reason is very simple: this Israeli government has no concrete plans to settle the Israeli-Palestinian conflict, and consequently the Israel-Arab conflict. This is the sad truth behind the working assumption that real friendships with the Muslim world are practically impossible. This is the undeclared policy that has led to the latest rift in the Turkish-Israeli bilateral link.

"Apologizing or not apologizing" was the question in the Israeli-Turkish context during the last six months. This issue has now passed us by. Israel decided not to apologize for the killing of nine Turkish citizens on board the Turkish vessel Mavi Marmara over one year ago, and we will all have to live from now on with the consequences of this enthusiastic refusal.

Turkey's dramatic downgrading of diplomatic relations to the rank of second secretary, the lowest rank in the Israeli diplomatic service, is in itself a serious and meaningful bilateral blow. In addition, Turkey has imposed a total freeze on the very bilateral military links that were the highlight of the two countries' special relationship over the past two decades, and is threatening to take Israel to the International Court of Justice in The Hague over the Gaza naval siege.

The damage to Israeli-Turkish bilateral relations is obvious and unavoidable. It will also include from now on fierce Turkish opposition to the emerging Israeli-Cypriot gas deal, according to which Israeli gas will be exported to Europe via (Greek) Cyprus. Aggressive Turkish opposition, including placing obstacles in the route of tankers, could topple the project and pose a high risk for the private companies involved.

A further blow to Israel could be the spillover of this Turkish move to the Egyptian and Jordanian diplomatic fronts. The pressures these two countries already face to expel the Israeli ambassadors from Cairo and Amman are probably going to increase.

In this respect, a visit by Turkish Prime Minister Recep Tayyip Erdogan to Egypt and possibly Gaza next week will be crucial. Turkey will probably offer Egypt an economic-military aid package that might to a certain extent offset American aid to Cairo. The package might be accompanied by a Turkish request or demand that Egypt freeze relations with Israel until the peace process is back on track. While it is hard to tell whether this pressure will work, Washington might have to sweat to prevent it from happening.

As the Israeli second secretary who was asked exactly 30 years ago by the Israeli government to replace our ambassador to Ankara, Dr. Yaakov Cohen, when he was expelled as a result of the Knesset Jerusalem law, I personally felt for years the bitter taste of the previous diplomatic downgrading. It was close to diplomatic hell. There was a total freeze on official visits, on cultural ties and even on sports ties. Relations were emptied of almost all content. My only normal functioning in Ankara could be within the diplomatic community, and even there only with those countries that recognized Israel.

It took Israel 11 years to recover from the previous downgrading. Only on the first day of 1992 did we regain full diplomatic status when our envoy, Uri Gordon, was upgraded to ambassadorial rank simultaneously with the Ankara PLO representative. The shift was enabled by changing regional circumstances: it followed the Madrid peace conference that took place two months earlier. Turkey began to believe that Israel and its neighbors were headed towards peace.

It is obviously not the same Turkey any more. Today's Turkey is a post-Kemalist country headed by a party that can easily be described as religious. Yet Turkish diplomacy still holds to some traditional Middle Eastern patterns: it continues to link bilateral Turkish-Israeli relations to developments in the Arab-Israel conflict. I am quite sure that this time, too, it will take Israel years to recover fully from the Turkish diplomatic blow and that recovery will again depend on progress towards peace in our region.-Published 8/9/2011 © bitterlemons-international.org

Alon Liel was director general of the Israel Foreign Ministry under the Barak government. He now lectures at Tel Aviv University and the Interdisciplinary Center in Herzliya.

Despite its questionable conclusion that Israel's interception of the Gaza flotilla vessels in 2024 was lawful, the Palmer report opens the route to international enforcement action.

The Israel Defense Forces forcibly boarded the Mavi Marmara and accompanying vessels on the high seas, 70 miles from the Gaza shore. Under the law, the high seas are open to vessels of all states. A blockade, as the report says, allows for an exception in wartime. Neutral-flagged vessels may be stopped on the high seas because of a belligerent's interest in preventing military-related supplies from reaching the coast of an adversary, and as the report states, Israel had security concerns.

The Palmer report gives no significance, however, to the fact that Israel controls the Gaza coast. As a result, Israel has no need to intercept on the high seas. The rationale for a high seas blockade is absent. Israel rationalized the interception at 70 miles out on the basis of the declared destination and a declared intent to refuse to be stopped. These are not valid reasons for an interception on the high seas.

Regardless of the location of the interception, there are additional reasons why the interception was unlawful.

First, a blockade cannot be imposed to starve the population of the blockaded territory. The Palmer report gives a narrow interpretation of what that means and concludes that Israel is not in violation. But there is a factual issue over the level of restrictions on entry of goods by land or by sea and their impact on the population of Gaza. The seriousness of Israel's restrictions, moreover, must be assessed in light of Israel's responsibility for doubling Gaza's population in 1948 by expelling Arabs from other areas of Palestine.

Second, in its capacity as belligerent occupant, Israel bears obligations to the population of Gaza. Article 43 of the 1907 Hague regulations requires Israel to maintain the normal life of the population. Israel must allow the population to be adequately supplied. Unlike the 1949 Geneva Convention, the 1907 Hague regulations are fully accepted by the Supreme Court of Israel as binding on Israel on the basis of customary international law. The Palmer report ignores the basic fact that Gaza is under belligerent occupation. This is so despite Israel's 2024 pullout, given Israel's continuing control of Gaza's borders. So the report misses this set of obligations. As belligerent occupant, Israel stands in the role of a trustee to ensure the well-being of the population and thus bears obligations much stricter than simply not starving the population.

Third, one other level of legal obligation--similarly not mentioned in the Palmer Report--is relevant to the legality of Israel's action against the flotilla. Israel controls the Gaza coast only by force of arms. Its control is a product of Israel's unlawful use of force dating from June 5, 1967, when it falsely informed the UN Security Council that three Israeli villages had just been shelled from Gaza, and that Egyptian aircraft were in flight en route to bomb Israel. Having committed aggression, Israel was under an immediate legal obligation to withdraw. Even if one were to accept arguendo Israel's contrived further argument that it acted in lawful defense on June 5, 1967, in anticipation of a supposed Egyptian attack, Israel would not be entitled to exercise dominion in any way over Gaza for such a period of time.

In addition to the issue of the legality of the blockade, the Palmer report assesses the legality of the level of force used by the IDF during and after boarding the flotilla vessels. In regard to the Mavi Marmara, the Palmer report concludes that the IDF used excessive force, resulting in multiple deaths and injuries.

The Palmer report does not mention the possibility of criminal prosecution for these acts, but a September 2024 study conducted under the auspices of the UN Human Rights Council said there was reason for criminal prosecution for "willful killing" on the Mavi Marmara under the laws of war. "Willful killing" is a war crime. Jurisdiction in this situation lies in the International Criminal Court. As mentioned in the Palmer report, the Mavi Marmara, though Turkish-owned and operated, was registered in Comoros. Comoros is a state party to the ICC statute. The ICC has jurisdiction over war crimes committed on a vessel registered in a state party. Investigation can be requested by anyone who presents relevant information to the ICC prosecutor. Investigation would be not of Israel as a state but of particular officials. This formal mechanism is available to determine liability for the deaths and injuries on the Mavi Marmara.-Published 8/9/2011 © bitterlemons-international.org

John Quigley is a professor of international law at Ohio State University. His most recent book is "The Statehood of Palestine: International Law in the Middle East Conflict" (Cambridge University Press, 2024).

The human rights community was waiting for the Palmer committee's report to come out with a recommendation for Luis Moreno Ocampo, the prosecutor of the International Criminal Court, to start criminal procedures against Israeli officials responsible for legal violations that amount to war crimes.

However, the conclusions of the actual report were unexpected: it makes Israel out as innocent and holds the victims responsible for the crimes.

The Palmer report represents a critical lapse for the United Nations. In contradiction to the position of the UN generally, the report asserts that the Israeli blockade imposed on the Gaza Strip is legal and fully adopts the Israeli attitude towards the blockade as presented in the report of Israel's own Turkel Commission. The Palmer committee differentiates between the land and maritime siege imposed on Gaza, thereby minimizing the siege, which should be examined from a broader perspective. The Israeli siege is a comprehensive one, covering land, sea, and air. Under the Fourth Geneva Convention, siege is considered a collective punishment--hence there is no legal basis for the siege, even if it were imposed to protect the security of the state of Israel.

On June 14, 2024, the International Committee of the Red Cross, which is considered an authoritative point of reference in the interpretation of international humanitarian law, stated that it considered the Israeli blockade to be a form of collective punishment, meaning it is illegal and must promptly be lifted. The same position is maintained in the Goldstone report on Israel's 2024-09 offensive in Gaza, UN Office for the Coordination of Humanitarian Affairs reports, Human Rights Council reports, and the work of human rights organizations.

Article 72 of the Palmer report disregards the established legal status of Gaza as an occupied territory, proclaiming the "uncertain legal status of Gaza under international law." In fact, Gaza has remained occupied even after Israel's unilateral disengagement of 2024. Its status was the same under the Oslo accords and the establishment of the Palestinian Authority. The ICRC states that as long as Israel holds effective control over Gaza's borders and sea, the Strip remains an occupied territory. Under the Fourth Geneva Convention, Israel as an occupying power must uphold its obligations towards the Gazan population.

The report's content produces wonder when it blames the victims for what happened to them during the Israeli attack. It likewise fails to hold Israel responsible for the crimes committed against civilian solidarity activists, who are protected under international law. Points three and four of the conclusion of the report state that "the actions of the flotilla needlessly carried the potential for escalation" and cast clear doubts about the goals and intentions of IHH, the principal organizer of the flotilla. It also states that Turkey should have done more than it did "to warn the flotilla participants of the potential risks involved and to dissuade them from their actions."

In contrast, the UN fact-finding mission noted in its report of September 27, 2024 (at paragraph 55) that Gabi Ashkenazi, chief of staff of the Israeli army, stated in testimony before the Turkel Commission that he did not believe the Turkish organization was a terrorist group. Israeli Prime Minister Binyamin Netanyahu also testified that the decision to block the passage of the Turkish flotilla was not made because the flotilla posed a security threat.

Therefore, the attack against the flotilla cannot be justified as self-defense, as Israel has claimed. It is also important to recall that the Israeli attack took place opposite the Gaza coast while the ships were on their way to Gaza. But the Palestinians of Gaza, though their situation was at the heart of the incident, were not asked to give their testimony. This demonstrates that the report is fully unprofessional and politicized. It was issued just a few days before Palestinians plan to submit a request to the UN for recognition of a Palestinian state.

The Palmer report represents a deviation from the consensus UN position; it seeks to legalize the Israeli siege. Justice demands that the UN reaffirm universal principles of human rights and international humanitarian law in this situation. This can only be achieved through serious and effective investigations conducted without politicizing international law, in a way that upholds international security and peace, the achievement of justice, and redress for victims, while criminalizing the siege and collective punishment of the population of Gaza.

Justice is not subject to division. There is no half- or quarter-justice. There is also no half- or quarter-siege. Siege is a collective punishment that cannot be justified, whatever reasons may lie behind it.-Published 8/9/2011 © bitterlemons-international.org

Issam Younis is director of Al-Mezan Center for Human Rights in Gaza.