Abstract
The Mavi Marmara incident is a cornerstone in Turkish-Israeli relations’ history. In terms of its consequences, it has both a political and an international law aspect. The Gaza Naval Blockade imposed by Israel after Operation Cast Lead is one of the most significant factors in turning into a crisis. The international reports after the incident are worth examining in terms of contradictions they caused. The legitimacy of the blockade and the intervention are discussed in the international public. For all these reasons, the incident is investigated as a whole with its political and legal aspects.
Keywords: Naval Blockade, Mavi Marmara, Gaza Strip, Turkish-Israeli Relations, International Law.
Introduction
The Mavi Marmara incident is the most severe and unpleasant incident between the two countries since the beginning of Turkish-Israeli relations in 1949 due to its direct element of violence (Efron, 2018, pp. 9-10). The Mavi Marmara accident incident stands out both in terms of its political background and international law aspect. As a result of this incident’s consequences, it was described as Turkey’s 9/11 by Ahmet Davutoglu, Turkey’s Foreign Minister at the time (Milliyet, 2010).
Due to the reasons mentioned above in the Mavi Marmara incident, it is crucial to examine it both with its political background and international law aspect. Looking at the Mavi Marmara incident’s political background, Israel’s Operation Cast Lead against Gaza at the end of 2008 constitutes a turning point. Until the operation, relations between Turkey and Israel continued on the axis of the Palestinian issue as they have throughout its history, but Turkey also played a mediation role by hosting indirect talks between Israel and Syria at the time. In other words, the outlook for Turkish-Israeli relations and expectations for the Middle East’s future was very positive. However, with Israel’s announcement that it had declared a blockade in Gaza after Operation Cast Lead, a line of crises occurred between them. Several crises, first between Turkish Prime Minister Recep Tayyip Erdogan and Israeli President Shimon Peres at the Davos Economic Forum, followed by the effects of the results of the 2009 elections in Israel on bilateral relations, the cancellation by Turkey of the international part of the Anatolian Eagle Exercise, the broadcast of scenes against Israel in some Turkish television series, and the lower chair crisis caused by this, strained bilateral relations before the Mavi Marmara incident. Therefore, explaining the impact of the two countries’ political crises before examining the international law aspect of the Mavi Marmara incident will form the first part of this study.
Israel, which refused to accept the Hamas government coming to power, carried out ‘Operation Cast Lead’ into the Gaza Strip. As a result of the operation, Israel applied a naval blockade to Gaza. The Gaza Blockade is against international law in terms of the conditions applied. At this point, it is necessary to consider the concept of the blockade in international law and the conditions of applying a legitimate blockade. And then, international organizations took action because Gaza’s civilian population could not meet their basic needs. A humanitarian aid flotilla has been set up to deliver aid to Gaza. Israel disapproved of the aid flotilla idea and the aid flotilla moving in the high sea. The death of nine people resulted from the Mavi Marmara incident and the fact that such an incident in the high seas caused reactions in the international arena. Therefore, this intervention of Israel is an issue that needs to be addressed in terms of the Law of the Sea. Besides, the need to address the demands of Turkey as a result of the Mavi Marmara incident. How the State of Israel responds to these demands is one of the issues that need to be addressed. Additionally, after this event also how to progress in Turkey-Israel relations is another topic of discussion.
Due to intervention in the flotilla in international waters, it is vital to examine international conventions. Regulations on this subject were made in the 1958 Geneva Conventions on The Law of The Sea and the 1982 United Nations Convention on the Law of the Sea. This article will examine the related articles of these two conventions. As it is known, after the Mavi Marmara incident, two reports were prepared by bodies within the United Nations (UN). These reports are diametrically opposed to each other. (Aksar, 2012, p. 25). The finding of these two reports and the highly referenced UN Charter are also considered in this article. The relevant two articles of the UN Charter were especially evaluated due to the reports prepared and the countries’ frequent application. In this three-part of this article, the flotilla and Israel activities are evaluated in terms of international law.
Political Background Until the Mavi Marmara Incident
1.1. Turkish-Israeli Relations From the 2006 Palestinian Elections to Operation Cast Lead
After Hamas won the Palestinian elections in January 2006, Hamas’ exiled leader Khaled Mashal paid an informal visit to Ankara in February 2006, which was met with a backlash by Israel (Hale, 2013, p.229). While Turkey says Hamas’ election victory must be respected, Israel’s description of Hamas as a radical Islamist terrorist organization has created a new crisis in bilateral relations (Hale, 2013; Yeşilyurt, 2017, p. 441). Turkey’s recognition of Hamas and its election victory caused a huge backlash on the Israeli side, while Turkey also broke away from its Western allies, such as the European Union and the United States, which recognized Hamas as a terrorist organization (Sever & Almog, 2019, p. 67-68).
Although the idea of Turkey being an intermediary in the negotiations between Syria and Israel dates back to 2004, it was only possible at the beginning of 2008 that this idea became concrete action, which continued until the launch of Operation Cast Lead by Israel (Tür, 2012, pp.55-56). Turkey had hosted four of the indirect talks between Israel and Syria, and a positive result was now expected in the fifth meeting. However, after completing this indirect meeting, Israeli Prime Minister Ehud Olmert returned to his country to get his government’s opinion. After Olmert’s return, the talks’ positive outlook changed in a moment, and Israel launched Operation Cast Lead for Gaza. Following this operation, Turkish Prime Minister Erdogan said Israel had deceived Turkey and was preparing operations while conducting peace talks, and bilateral relations have entered a new crisis (Tür, 2012, p. 55).
1.2. Crisis in Bilateral Relations From Cast Lead Operation to Mavi Marmara Incident
The first crisis stemming from the Israeli Operation Cast Lead was the end of peace talks between Syria and Israel brokered by Turkey (Ulutaş, 2010, p. 6). In January 2009, after Prime Minister Erdogan’s statement that Israel’s membership in the UN should be questioned, there was a harsh polemic between Prime Minister Erdogan and Israeli President Shimon Peres at the Davos Economic Forum, and Erdogan left the hall where the panel was held (Yeşilyurt, 2017, p. 442). At the root of the harsh polemic on the panel was Israeli President Peres’s defense on the attacks in Gaza as Israel’s legitimate self-defense (Ulutaş, 2010). Following this crisis, a new crisis emerged after the Israeli elections in 2009. After Israel’s 2009 elections, a coalition government formed in which Benyamin Netanyahu became prime minister, with far-right elements forming a majority, exacerbated the tensions between the two countries (Yeşilyurt, 2017).
In October 2009, Israel was blocked from participating in the Anatolian Eagle Exercise on Erdogan’s orders, after which the United States and Italy announced that they were withdrawing from the exercise to demonstrate their protests against Turkey’s decision, and the international part of the exercise was cancelled (Efron, 2018: 9; Yeşilyurt, 2017, pp. 442-443). Meanwhile, the two countries’ relations were marked by tv-series crises (Yeşilyurt, 2017, p. 443). The broadcast of some scenes against Israel in the Turkish television series Ayrılık and the publication of similar scenes in the series Kurtlar Vadisi before this crisis was resolved raised Israel’s ire, and thus another crisis emerged (Yeşilyurt, 2017; Tür, 2012, p. 56). This crisis led to another crisis, and a diplomatic scandal or crisis called a ‘lower chair’ crisis occurred (Tür, 2012). Danny Ayalon, Israel’s Deputy Foreign Minister and a member of the anti-Arab Israel Beitanu Party, summoned Turkey’s Ambassador to Tel Aviv, Oguz Celikkol, to his office, during which he made statements in Hebrew (which the ambassador does not know) in front of the cameras, placing only the Israeli flag on the table and placing the Turkish Ambassador in a lower seat (Hale, 2013, p. 230). Following Israeli Deputy Foreign Minister Ayalon’s humiliating stance against the Turkish ambassador to Tel Aviv, Turkish President Abdullah Gul demanded a formal apology from Israel, and tension between the two countries softened slightly after Israel met that demand (Yeşilyurt, 2017, p. 443).
After the previous consecutive crises, the harshest crisis in the history of the two countries’ relations occurred with the Mavi Marmara incident (Sever & Almog, 2019, p. 73). The Humanitarian Relief Organization (IHH), which stands out with its Islamist identity, set out with a flotilla loaded with humanitarian aid and 700 participants from various countries around the world to break Israel’s blockade in Gaza (Hale, 2013, p. 230). On May 31, 2010, Israeli soldiers intervened in the Gaza Freedom Flotilla, spearheaded by the Turkish non-governmental organization IHH, which resulted in the deaths of 9 Turkish citizens on board (Sever & Almog, 2019, p. 73). After the Mavi Marmara intervention, Israel accused the Turkish government of not warning the activists on board of the dangers they may face (Sever & Almog, 2019). Turkey’s reaction to the intervention on the Mavi Marmara was strong, and Turkey, with the international public’s support, considered Israel’s intervention as an act of terrorism and piracy (Yeşilyurt, 2017, p. 443). Israel, on the other hand, has claimed that the purpose of the flotilla is not only to deliver humanitarian supplies to Gaza, but to have a political purpose in favor of Hamas, which Israel considers a security threat to its existence, and for these reasons Israel’s intervention on the Mavi Marmara is its legitimate right (Sever & Almog, 2019). Following this crisis, Turkey summoned Tel Aviv Ambassador Oguz Celikkol to Ankara, and relations were reduced to the level of chargé d’affaires (Yeşilyurt, 2017).
Following this reaction, Turkey made five requests for the normalization of relations, including an apology from Israel, compensation payment, lifting of the blockade on Gaza, the establishment of an international commission of inquiry into the incident, and the extradition of confiscated vessels and arrested activists (Yeşilyurt, 2017). After that, two of those requests were accepted by Israel under pressure from the United States, and Israel agreed to join the UN panel investigating the incident and extradited the vessels seized after the incident in August 2010 (Yeşilyurt, 2017; Özcan, 2010, p. 36). Although the UN Human Rights Council report found that the intervention of Israeli forces violated international law, quite the contrary, the Palmer report found that Israel’s intervention on the Mavi Marmara had been excessive and unreasonable, while Israel’s naval blockade of Gaza was legitimate under international law (Hale, 2013, pp. 231-232). After the Palmer report found that the Gaza blockade was in accordance with international law, Turkey said it had ignored the report and asked the Israeli Ambassador to Ankara Gaby Levin to leave Turkey (Yeşilyurt, 2017, p. 444). In addition to its move, Turkey announced five sanctions, including reducing diplomatic representation with Israel to the Second Secretary level, suspending all military agreements between the two countries, taking the necessary measures for the release of navigation in the Eastern Mediterranean, ensuring that the Gaza blockade is examined at the International Court of Justice, and supporting attempts to search for the rights of all victims (Yeşilyurt, 2017, p. 445).
The Blockade
According to international law, states have the right to cut off the enemy state’s connection with the external world in an armed conflict. In this context, a blockade under international law means surrounds the ports and coasts of the enemy state and a method of war that controls the entry and exit of all ships and aircraft into the blockade area (Topal, 2012, p. 110). The blockade aims to render the enemy state economically ineffective. There are certain conditions necessary for the blockade to comply with international law. For the blockade to become binding, the state implementing the blockade must fulfil the obligatory blockade conditions and execute the blockade effectively. An effective blockade can block access to the blockade area and means protecting the territory with a naval force (Duman, 2016, p. 2). The blockade can be applied unilaterally between states. Besides, as the UN Security Council is responsible for protecting international peace and security, it has the right to impose a blockade when it deems necessary. According to some thinkers, with the development of war and weapon technology, the naval blockade has become unnecessary. However, the Gaza Blockade proves that this situation is a strategic military move today (Topal, 2012, p. 111). According to some reports prepared in consequence of the blockade in Gaza, the blockade and terms of the blockade imposed by Israel on Gaza are against international law (Yücel, 2018, p. 52).
The Gaza Blockade is against international law concerning the blockade conditions applied. Accordingly, the Gaza Blockade has determined which legal requirements must be followed to implement the naval blockade. Although the concept of the blockade has been a method used in wars since ancient times, there was no international agreement regarding the application principles and legitimacy of this method. In the 19th century, the first regulation regarding the blockade was the Paris Declaration, known as ‘The 1856 Paris Declaration Respecting Maritime Law’. This declaration mentioned that the blockade should be implemented effectively (Topal, 2012). Another treaty affecting the Naval Blockade process is the London Declaration Concerning the Laws of Naval War on February 26, 1909. This declaration consists of 71 articles and is prepared to determine the high seas’ legal status in times of war. However, it is not legally binding as it does not receive sufficient approval from states (Duman, 2018: 3). Finally, in the regulations made on Naval Blockade, ‘The San Remo Manual on International Law Applicable to Armed Conflict at Sea / SRM’ appears. SRM is the most comprehensive international agreement on the naval blockade. San Remo has determined the legal conditions that must be applied to prevent humanitarian crises in the areas under blockade. According to these conditions, the blockade decision should be declared, and the blockade should be implemented effectively, the blockade should not create impediment on the coastline or ports of neutral states and should be applied to the ships of all state, should not deprive the blockade area of basic needs that would cause a humanitarian crisis, and should not be applied to punish the civilian population (Duman, 2018, p. 4). Besides, if the blockade prevents the civilian population from reaching their basic needs, the party implementing the blockade should allow campaigns to deliver humanitarian aid to the civilian population. The point to be considered is that the distribution of aid should be under the supervision of a protective force or a neutral international organization such as the International Committee of the Red Cross.
Gaza Blockade
After the Arab-Israeli wars in 1948, the 1949 Armistice Agreement was signed, and the United Nations determined the official borders of the Gaza Strip (Güleryüz, 2013, p. 31). The Arab-Israeli wars between 1964-1967 became the Six-Day War in 1967. However, Israel gained supremacy in the war, and Israel occupied the West Bank, Golan Heights, and the Gaza Strip, thus winning the war. These occupied territories continued under Israel’s rule until 2005. The peace negotiations that continued until 2005 concluded. In this way, Israel decided to withdraw its soldiers and civilian elements from Gaza. Although Israel withdrew its soldiers from the Gaza Strip, Israel continued to control the Gaza Strip’s airspace, territorial waters, and entry and exit. (Güleryüz, 2013). The Gaza Strip occupation, which started in 1967, ended with Israel’s withdrawal from the region in 2005 (Topal, 2012, p. 104).
On January 25, 2006, after Israel withdrew from the Gaza Strip, political elections were held in the Gaza Strip, and Hamas won the elections. The Hamas government won the election and established its government under the Palestinian National Authority (Topal, 2012, p. 105). Israel did not recognize the Hamas government, which won the elections democratically, and did not see it as a political actor. However, Israel declared the Hamas government a terrorist group, and the U.S. State Department determined Hamas as a Foreign Terrorist Organization (FTO) (Migdalovitz, 2010: 1). Moreover, Israel did not acknowledge Hamas’ political success and applied many policies and sanctions to destroy its government (Güleryüz, 2013, p. 32). Israel organized attacks on the Gaza Strip from time to time and banned the entry of basic needs into the region. Israel succeeded in the wake of these sanctions, and the Hamas government lost its power. As a result of the political vacuum that emerged, the ‘Palestinian National Unity Government’ consisting of independent members came to power (Topal, 2012). Hamas did not accept the new power and gained supremacy in the Palestinian territories by taking exact control of the Gaza Strip. After the Hamas government took control, Israel did not remain unresponsive. Israel applied stricter political and economic sanctions on the Gaza Strip and declared the Gaza Strip “hostile territory.” The Hamas government did not remain unresponsive to these policies, and it caused material damage by firing mortar shells in the southern regions of Israel (Güleryüz, 2013).
When the Gaza Strip caused material damage in Israel, Israel found an excuse to attack and intervened in the Gaza Strip. In doing so, Israel used disproportionate force, and it left the people living in the Gaza Strip in a difficult situation. Then, there was a ceasefire between the states, but before long, Israel broke the ceasefire and attacked the Gaza Strip. The Hamas government responded to these attacks. Thus, Israel organized “Operation Cast Lead” on December 27, 2008 (Topal, 2012: 106). With this operation, Israel took the Gaza Strip naval blockade on January 3, 2009. Thus, it prevented the entry of weapons and military ammunition into the Gaza Strip. The blockades imposed by Israel and the closing of the border crossing by Egypt affected the people living in the Gaza Strip very badly, and the people there could not even find their basic needs (Güleryüz, 2013). However, there was a humanitarian crisis in issues such as the economy, health, and education; then, the international arena, with the support of many non-governmental organizations, campaigns organized to deliver aid to the Gaza Strip.
The Mavi Marmara Incident
After the blockade applied by Israel on the Gaza Strip, the Egyptian state closed the Rafah border gate to Gaza, and the sanctions imposed by Israel in Gaza Strip caused a humanitarian crisis.[4] The people of Gaza could not meet their basic needs due to the blockade applied by Israel. This situation established an impact on the international system, and the poor conditions of the people of Gaza mobilized international societies and organizations (Güleryüz, 2013, p. 32). Thus, the UN Relief and Works Agency (UNRWA) and the Director of UNRWA operations in Gaza made a call to bring aid to Gaza, and then many non-governmental organizations took action. The free Gaza Movement created a humanitarian aid flotilla with more than 700 volunteers from 36 different countries (Topal, 2012, p. 107). The Turkey Foundation for Human Rights and Freedoms and Humanitarian Relief (IHH), founded in 1995, wanted to bring aid to Gaza (Migdalovitz, 2010: 3). IHH and the Free Gaza Movement reacted to Israel’s blockade in Gaza because the blockade created a humanitarian crisis; therefore, these organizations thought the blockade imposed by Israel was unlawful (Ulutaş, 2010, p. 4). For this reason, these organizations created an aid flotilla to attract the attention of the international system and to bring aid to Gaza by breaking the blockade. The IHH aimed to bring aid to the people living in Gaza by breaking the blockade and said that if Israel stops them, they will not back down.
Mavi Marmara was one of the six ships that formed the aid flotilla, and it belonged to Turkey. On May 22, 2010, the humanitarian flotilla with six ships moved to bring 10,000 tons of aid to the Gaza Strip. The aid flotilla wanted to deliver basic needs to the people living in Gaza, such as medicine, medical supplies, clothing, toys, and building supplies. The aid flotilla did not carry weapons or military vehicles that caused the conflict. Thus, first, when the ships arrived in Antalya Port, these ships were widely checked. And then, the ships that came together in the high seas moved towards Gaza (Migdalovitz, 2010, p. 2). Israel opposed the aid flotilla movement and did not allow the ships to go to Gaza. Therefore, Israel called the ships to the port of Ashdod to check, but the aid ships did not accept this proposal (Ulutaş, 2010, p. 4). Therefore, Israel intervened the Mavi Marmara ship, using its right to navigate in international high seas, 72 miles from the nearest coast point and 64 miles from the blockade area. Israel surrounded the flotilla with around 30 zodiacs and four warships. Later, Israel Defence Forces (IDF) landed on Mavi Marmara by helicopter and violated the principle of proportionality. The IDF used disproportionate force on the people on board Mavi Marmara. As a result, nine people died, and many were injured (Güleryüz, 2013, p. 35). After the intervention, Israel took aid ships and aid flotillas to the port of Ashdod and confiscated them. The term ‘High Sea’ in international law refers to the sea areas that all states can use. Every state has the right to navigate on high seas without any distinction between states (Topal, 2012, p. 143). In case of piracy, slave trade, drug trafficking, unauthorized broadcasting from high seas through audio or video, the right to navigation may be limited. The Israeli state’s intervention on the Mavi Marmara can be considered as an act against the law of the sea because this intervention occurred on the high seas.
Intervention in International Waters
As known, the Mavi Marmara incident took place on the high seas. It is a crucial point to consider the incident rightfully. High seas express the international waters that belong to every country. This definition was made in both the 1958 Geneva Conventions on The Law of The Sea and the 1982 United Nations Convention on the Law of the Sea. According to the Article 86 of the UNCLOS, these areas include inland waters, territorial waters, waters of the archipelago states, and sea waters outside the exclusive economic zone. As stated by Güleryüz, Article 87 of the UNCLOS stresses the point that every state, whether coastal or land-locked, has some freedoms in the high seas (Güleryüz, 2013: 16). These freedoms can be listed as follows:
- Freedom of navigation,
- Freedom of overflight,
- Freedom to lay submarine cables and pipelines,
- Freedom to construct artificial islands and other installations permitted under international law,
- Freedom of fishing,
- Freedom of scientific research (1982, UNCLOS, Art. 87).
Another point that should be known before the examination of the Mavi Marmara incident is the flag state. The flag state is a term that defines States where ships fly their flag on the high seas (Aksar, 2012, p. 27). On the high seas, ships can only sail under the flag of one state (Usanmaz, 2012, p. 8), and they are under the exclusive jurisdiction of the state of the flag they are carrying (Güleryüz, 2013, p. 19). With a few exceptions, only the flag states have the right to intervene in vessels in the high seas (Güleryüz, 2013, p. 27). In accordance with the UNCLOS, Article 110 has identified these exceptions, such as the ship is engaged in piracy, in the slave trade, in unauthorized broadcasting, or the ship is without nationality (1982, UNCLOS art. 110). In any situation where these exceptions exist, a foreign state also has the right to intervene in the ship in question (Aksar, 2012, p. 27).
For the examination of Israel’s intervention in Mavi Marmara, the intervention took place while the ship was 72 nautical miles from the coast and 64 nautical miles from the blockade area of Israel, that is, while it was in the high sea (Report of Turkish National Commission of Inquiry, 2010). Since Israel is not the flag state of the Mavi Marmara, it cannot be considered rightful under the international sea law. If the exceptions are taken into account, it is seen that the Mavi Marmara does not create any security problems that may justify the intervention. Therefore, it can be concluded that Israel’s intervention in the Mavi Marmara in the high sea is unfair, and this restricts the freedom of navigation of this ship.
Reports Prepared Regarding the Mavi Marmara Incident
After the incident, The United Nations Commission on Human Rights set up a fact-finding mission to investigate international law violations, including international humanitarian and human rights law (Aksar, 2012, p. 25). The report was completed in September 2010 and considered the blockade unlawful and cannot be sustained in law (Human Rights Council, 2010, para. 261). Also, it considers the Israeli military’s conduct towards the flotilla passengers is disproportionate, totally unnecessary, and incredible violence (Human Rights Council, 2010: para. 264). Moreover, the mission thinks that several violations and offences have been committed, such as wilful killing, torture, or inhuman treatment and wilfully causing great suffering or serious injury to body or health (Human Rights Council, 2010, para. 265). In the end, the mission advice to Israel that people who suffer damage as a result of the unlawful actions of the Israeli army be compensated immediately (Human Rights Council, 2010, para. 278).
The Secretary-General of the United Nations prepared the second report on the Gaza Flotilla Intervention. The UN Secretary-General has set up a four-person panel of inquiry headed by former New Zealand Prime Minister Geoffrey Palmer. In the Palmer Report, it was investigated that Turkey and Israel prepared both reports, and after that, the conclusion reached by the delegation was presented. The issues evaluated in the report are as follows: the naval blockade, the actions of the flotilla, diplomatic efforts, the Israeli boarding, and take-over operation, the use of force on the Mavi Marmara, treatment of the passengers after the take-over was completed (Report of the Secretary-General’s Panel of Inquiry, 2011).
Firstly, about the naval blockade, the Palmer Report gave the place the Turkish thesis. Turkish Commission argues that the naval blockade was illegal, so the intervention to the flotilla vessels on the high seas was also illegal, and it should be considered as a breach of freedom of navigation (Report of the Secretary-General’s Panel of Inquiry, 2011, para. 69). One of the allegations made here was that Israel could not base this blockade on the San Remo arrangements since it never recognized Palestine as a state and never described its conflict with Hamas as international (2011: para. 23(a)). Also, it was among the claims of the Turkish Commission that the duration and scope of the blockade were not specified sufficiently, that Israel was an occupying power in Gaza, and that the blockade was punishing the civilians in Gaza (2011, para. 21, 23(b), 23(d), 23(e)). On the other hand, the deaths of Israeli citizens by missiles coming from Gaza and the material damage caused by these missiles have been sufficient reasons for the blockade for the Palmer commission and Israel (2011, para. 70, 71). In contrast to Turkey’s allegation, the Panel is not persuaded about the disproportionation of the naval blockade (2011, para. 72). As for the claims that the blockade did not comply with San Remo regulations, the Panel found the report prepared by the Israeli delegation more convincing and found the blockade in accordance with international law (2011, para. 81, 82).
The flotilla’s actions are considered harmful by Israel because they are associated with Hamas, while Turkey appears to be utterly humanitarian (2011). Regarding Hamas’ association, the Panel thinks that there is no sufficient information to assess that claim (2011, para. 86). But still, the Panel considered the flotilla’s aim not just humanitarian but to generate publicity (2011, para. 89). The Panel reinforces its idea with the number of vessels. The report claims that there was no need for six vessels for a purely humanitarian mission and this much journalist to deliver the humanitarian supplies (2011, para. 89). The Panel also considered the public statements by the flotilla organizers, which include one of the aims is the breach of the naval blockade (2011, para. 87, 88). In conclusion, according to the Panel, the flotilla has been reckless in attempting to breach the naval blockade, and even if the majority of the flotilla had no violent intentions, there is a serious question about IHH’s nature and objectives (2011, para. 95).
On the assessment of diplomatic efforts, considering the steps taken by both countries before and during the incident with at least twelve diplomatic discussions (2011, para. 100), the Panel considers this outcome undesirable for both countries (2011, para. 103). Despite these contacts still, there is a problem even the Panel cannot reach evidence to resolve it. Turkey’s argument is there was an agreement between the Turkish side and flotilla to divert their course to Al-Arish (an Egypt port) if necessary. On the other hand, Israel denies such an agreement (2011, para. 102). Consequently, it considers that more can be done to alert the flotilla participants to possible risks and deter them from their actions (2011, para. 103).
Under the fourth headline, the Report criticises the Israeli boarding and take-over operation. According to both national reports, it is verified that Israel has no right to stop or order the flotilla on the international waters (2011, para. 105). As reported by the Turkish National Commission, between 10.58 p.m. and 11.58 p.m., the Mavi Marmara changed its course. According to Turkey, this change means to change the course to Al-Arish, Israel argues that this means to divert the course directly to Gaza and perceive it as a threat of the naval blockade (2011, para. 107). One of the essential questions of the Panel is about Israel’s boarding whether it is reasonable. The Panel finds it unreasonable because before boarding, the vessels were never asked to stop or any permit to come on board. Even if there were four warnings, there must be a final warning that ‘the navy’ [was] obliged to take all necessary measures,’ and after that, the ship should have been boarding. (2011, para. 110, 111). The Panel’s conclusion is that Israel’s intervention in the flotilla on the high seas was unreasonable. There must be a clear prior warning that the vessels were to be boarded, and to minimize the causalities, the operation should have reassessed its options (2011, para. 117)
For the examination of the use of power, the Turkish report argues that before any Israel Defence Forces personnel had landed on the vessel, live-fire was used. Israeli report argues the right opposite. (2011, para. 120). The Panel examined the photos and videos about the incident. While photographs show the bullet marks on the funnel of the vessels consistent with the Turkish report, the Panel cannot find it persuasive and conclude that the live-fire used after the IDF personnel landed the vessels (2011, para. 122). Boarding the vessels has concluded the unacceptable nine deaths of nine passengers. Even ill-treatment of three soldiers does not cause this disproportionate use of force. This is also unacceptable to many people wounded by the IDF using disproportionate force (2011, para. 125-134).
Lastly, the Palmer Report investigates the treatment of the passengers after the take-over was completed. Based on passengers’ testimonies, the report concludes that there was significant mistreatment to them, including physical mistreatment, harassment, and intimidation, unjustified confiscation of belongings, and the denial of timely consular assistance (2011, para. 145). Passengers were subjected to overly tight handcuffing. Also, their bathroom access, access to medication denied, and their food and drink access were limited by the IDF personnel according to many testimonies and witnesses (2011, para. 139). The Panel finds these testimonies persuasive and accepts the mistreatment of Israel.
The next part of the report contains the Panel’s reminders and recommendations on avoiding similar events by considering the legal rules, possible situations, and San Remo rules mentioned so far. The recommendations are as follows:
- Israel must make an appropriate declaration of repentance regarding the incident in light of the consequences of the incident,
- Israel must offer payment for the benefit of the deceased and injured victims and their families, to be managed by the two governments through a joint trust fund in sufficient amount to be decided by them,
- Turkey and Israel, the Middle East, and stability in repairing their relationship to international peace and security should continue to full diplomatic relations. Establishing a political roundtable as a forum for the exchange of views can help this end (2011, para. 169).
The Mavi Marmara Incident According to the United Nations Charter
Israel and the Palmer report base Israel’s right of self-defense in this incident on Article 51 of the United Nations Charter. In that point, it will be useful to examine Article 2(4) of the UN Charter first. This article, in essence, summarizes the aim of the United Nations. Article 2 regulates the peaceful resolution of disputes, and in Article 2(4), states have prohibited the threat or use of force against each other (Aksar, 2012, p. 31, p. 32). According to this:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” (UN Charter, Art. 2(4)).
According to this article, the prohibition of using force is considered as jus cogens (peremptory norm) (Aksar, 2012: 32). According to today’s international law rules, any state’s use of force to solve disputes unilaterally means a clear violation of international law.
The only exception to this rule is the Article 51 of the UN Charter. This article:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary to maintain or restore international peace and security.” (UN Charter, Art. 51)
It is obvious that this article only allows the use of force if any state has been subjected to an armed attack. But still, there is a different and more broad interpretation of this article, and it’s called pre-emptive self-defense (Aksar, 2012, p. 33). In accordance with this interpretation, even if the main reason for using force is very different, for example, the protection of economic interests, the legal reason for using force is explained as the exercise of the right of self-defense (2012, p. 33).
This interpretation is contrary to Article 2(4) since the armed attack requirement is specifically stated in Article 51. Since Israel bases its thesis on this article, it can be concluded that Israel’s intervention in Mavi Marmara is against the UN Charter.
Turkish-Israeli Relations after the Mavi Marmara Incident
Israel’s intervention on the Mavi Marmara ship received a great reaction in the international system in a short time. Israel’s intervention on the Mavi Marmara and across the killing of Turkish citizens, Turkey did not remain silent. Turkey has found Israel’s behavior unlawful, and with international organizations, disapprove of this behaviour have organized meetings (Ulutaş, 2010, p. 8). As a result of meetings held by Turkey, the United Nations Security Council has condemned the intervention. Also, the UN asked for an impartial and transparent investigation of the incident with international standards. After the Israeli intervention, people on the flotilla were taken to the Israeli harbour of Ashdod and arrested. Against this background, the release of Turkey’s arrested citizens was asked to be delivered to Turkey of the dead and injured passengers. Also, Turkey has requested a formal apology from Israel (Ulutaş, 2010). However, Israel claimed that volunteers in Mavi Marmara attacked IDF Navy commandos with light weapons such as knives and sticks. Thus, Israel tried to legitimize its behaviour by claiming that the IDF was self-defense. Turkey began negotiations with the United States in response to the attitude of Israel and told their demands. With the intervention of the United States, Turkish nationals who were arrested in Israel were delivered to Turkey. However, Israel did not accept an international investigation file. Israel will not apologize to Turkey was clear statements. However, Israel has said it will ease the blockade of Gaza. The people of Gaza’s situation was discussed in the US-Israel relations that developed as a result of the events. Many good activities took place in this regard. The Egyptian state opened the Rafah border gate indefinitely (Migdalovitz, 2010, p. 12).
All these events had an impact on Turkey-Israel relations. Turkey’s Middle East policy that supports peace and the policies of Israel did not agree. In the Gaza Blockade of Turkey-Israel relations, it has become possible to say that this is a turning point (Ulutaş, 2010, p. 9). Turkey, the policies that Israel implements were found false. As a result, good leading Turkey-Israeli relations after 1990 deteriorated after the Mavi Marmara incident. It is complicated to guess the bilateral relations of these states that implement opposite foreign policies. However, the current intervention has created a break in bilateral relations.
Conclusion
The Gaza Naval Blockade imposed by Israel caused lots of crises in Turkish-Israeli relations. After Operation Cast Lead, Turkey’s mediation role between Syria and Israel ended, and many political crises emerged between the two countries. These crises include diplomatic and military components. After the incident, bilateral relations reduced to the lowest level and tension between them continued.
In terms of its consequences, The Gaza Naval Blockade is controversial in both political and legal aspects. In terms of legal aspects, the blockade’s implementation conditions and legitimacy are discussed in international law. Also, the intervention is considered according to international sea law. The intervention in international waters is considered against the 1982 UNCLOS and the UN Charter. The international reports, including the UN Human Rights Council report and the Palmer report, are examined, and their findings have been transferred. As a result of this sequence of developments with the US’s efforts, Israel discharged its responsibilities that stemmed from international reports about the incident.
Yaprak AKKAYA
Kübra AYHAN
Gökalp BADAK
Uluslararası Hukuk Staj Programı
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