J.A. Myerson: The New York Times is reporting that it has obtained a copy of a United Nations review, which comes out tomorrow, regarding Israel’s raid on the Mavi Marmara, when Israel killed nine people, including an American. The primary findings of the review appear to be a) that Israel used excessive force when it boarded the flotilla but that some force was apparently justified, given the hostility that Israeli commandos encountered upon boarding, and b) That Israel’s blockade of Gaza, which the flotilla was trying to break, is justified and appropriate. Among opponents of the blockade of Gaza, of which you and I are two, it’s an accepted truism that one reason to oppose the blockade is its illegality. What is the argument that the blockade is illegal, if that is indeed what you believe, and what is your response to the UN review contesting that description?
Alex Kane: The full naval-land-air blockade that the Gaza Strip is under was instituted first following the 2006 elections in the Palestinian territories when Hamas won what were widely acknowledged to be democratic elections. One justification for the blockade that Israel cites is that Hamas is holding Gilad Shalit, the Israeli soldier, in captivity. Israel also contends that the blockade exists for security reasons.
But what’s clear under international law, under the Geneva Conventions, is that collective punishment is illegal, and the blockade of Gaza is illegal because it constitutes collective punishment. Israel is punishing every single person in the Gaza strip, roughly half of whom are under the age of 18, for having voted in democratic elections and for the political positions that Hamas espouses.
The blockade is also, as Yousef Munayyer of the Palestine Center pointed out last June, in violation of Part V Section II (102) of the San Remo Manual on International Law, which prohibits blockades a) that have the sole purpose of starving the civilian population or denying it other objects essential to its survival; or b) under which the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.
Numerous UN reports and bodies have deemed the blockade illegal as collective punishment. The International Committee of the Red Cross has said so, Richard Goldstone in the Goldstone Report said so, the independent Human Rights Council report on the raid on the Mavi Marmara said so, and the UN High Commissioner for Human Rights, Navi Pillay, has said so. So we can play a numbers game, in that there are far more instances of respected international bodies as well as respected human rights organizations such as Human Rights Watch and Amnesty International that have deemed the blockade illegal, and now we have this one panel saying that it is legal.
The other thing is that you have to look at the makeup of the panel tasked with this investigation of the Israeli raid on the Mavi Marmara and the five other ships that were part of the first Freedom Flotilla. The big red flag that people should focus on is the fact that Álvaro Uribe of Colombia was one of the two supposedly independent observers on this committee. Uribe cannot plausibly be thought of as impartial on issues of human rights. He has himself been implicated in numerous human rights abuses as president of Colombia and he is also an outspoken supporter of the state of Israel. So that also calls into question the impartiality of this panel, which was the one panel of inquiry that the UN set up that Israel agreed to cooperate with.
JAM: If this panel is reputed by its commissioning body to have been impartial and the makeup of the body indicts is as being impartial, that suggests that it was commissioned in order not to be impartial, in other words that it was commissioned in order to deliver these results. How do you account for that?
AK: Yes. That’s an accurate assessment.
You have to go back to right after the flotilla incident in 2010. After this happened, when nine people ended up dead and dozens injured, Israel came under a huge amount of pressure in a variety of ways, both from states and from global civil society in the form of the BDS Movement. My reading is that, in order to deflect this pressure, and after some prodding by the Obama Administration, Israel finally agreed to cooperate with this panel. This is a first for Israel. Israel does not often cooperate with the UN, so you have to wonder what was going on behind closed doors and what was said to Israel to make it suddenly cooperate with the UN, especially about an issue as politically charged as its raid on the flotilla.
Another important thing to note is that the mandate of the panel coming out with this report did not give the panel much power. It did not call witnesses, it did not collect documents. It was called a fact finding mission. And it seems like the panel has collected the Israeli side and the Turkish side and kind of plopped it in this report. That’s what I gather the report was. The point of it was not to be an independent investigation that was designed to get to the bottom of who was at fault, who was wrong, what should happen.