Report Vindicating Israel in Boarding of the Mavi Marmara Presents a Problem for U.N.’s Ban Ki-moon
World Body Awaits Word From Its Own Commission Investigating Raid in Which Nine Perished

By BENNY AVNI
 January 23, 2011
NY Sun
http://www.nysun.com/editorials/report-vindicating-israel-in-boarding-of-the-mavi/87215/

UNITED NATIONS — Today’s findings by Israel’s Turkel Commission present a problem for Secretary General Ban and also for Washington, which tacitly assisted him in forming, under United Nations auspices, a separate panel to probe last May’s deadly boarding of the Mavi Marmara.
The Israeli commission, headed by a former judge of the Supreme Court, Yaakov Turkel, issued a 250-page report saying that Israel’s blockade of Gaza was legal under international law, as were the actions of Israeli commandos who, facing violent assault during their successful takeover of the Marmara, used live ammunition to kill nine Turkish citizens.
These findings stand in stark contrast to an earlier, thinner report of an investigation committee established by Ankara, which found Israel guilty of killing the Islamists who were members of a Turkish government-backed flotilla that attempted to violate a naval blockade over Gaza. In Ankara, Prime Minister Erdogan dismissed the Israeli report hours after it was issued today, setting up a new outbreak of words between the two countries.
The U.N. panel, which has long been waiting for Israel to issue its report before it could start its work in earnest, has no authority to conduct vast investigations on its own. Rather, the four-man board — presided by Prime Minister Palmer, former prime minister of New Zealand, and including President Uribe, the former leader of Colombia, in addition to one representative from each Israel and Turkey – will have to rely on Turkish and Israeli investigations.
Mr. Ban’s investigation, long resisted by Israel, finally got Jerusalem’s grudging approval last August. One of the arguments that Mr. Ban used to justify its establishment was that “neutral” United Nations findings would help in easing tensions between Israel and Turkey.
But now Messrs. Palmer and Uribe will have to do a lot of circle squaring to reconcile opposing versions of events — and no conclusion, no matter how well glossed-over, is likely to satisfy both sides. Rather than smoothing relations, the end result will reopen the debate and heighten the diplomatic tensions between Jerusalem and Ankara.
Today’s Turkel report, which examined the legal aspects of the May 31 event, is the first volume of the Israeli commission’s findings. Its determination should not surprise anyone familiar with opinions of top international law scholars who have studied the high seas drama that ended in a violent clash between Israeli commandos and members of the Turkish Islamist group IHH aboard the Mavi Marmara.
The imposition of a naval blockade has been considered a legal instrument of war for generations. The question of whether Israel and Hamas, which controls Gaza, are in a formal state of war is largely moot as both sides agree that they are. Also immaterial is the argument that the Israeli elite naval commando unit, the Shayetet, stopped the flotilla in international waters: America legally stopped in international water any ship attempting to violate its naval blockade of Cuba in the 1960s.
The report, signed by the commission’s Israeli members as well as Canada’s former military prosecutor, Kenneth Watkin, and Northern Ireland’s peace Nobelist, David Trimble, concluded that although the incident had the “regrettable” consequence of the loss of life, Israel’s actions were nevertheless “legal, pursuant to the rules of international law.” It berated commanders for poor planning, but stated that the soldiers used live ammunition legally as their lives were in danger.
Neither the exhaustive nature of the report nor its reliance on evidential material is likely to convince a majority of Turks, or those in the Arab world, Europe, and America who consider the Israeli action a war crime against innocent activists who merely tried to bring humanitarian relief to a population under siege.
Such sentiments, widely held at Turtle Bay, led Mr. Ban to form his own panel. His legal reference for establishing it was a Security Council statement issued in the immediate aftermath of the event, which called for a credible and independent investigation that would be done “in accordance with international standards.”
The American deputy ambassador here at the time, Alejandro Wolff, negotiated that text for hours with Council colleagues, who included the Turkish foreign minister, Ahmet Davutoglu. Mr. Wolff emerged from the council to tell journalists that the statement does not call for outside investigations, as democratic Israel is perfectly capable of investigating itself under such guidelines.
Most other diplomats here read the statement to say that Turtle Bay must establish its own panel. Soon enough America changed its tune. Several U.N., American and other involved officials, told me that Ambassador Susan Rice has quietly encouraged Mr. Ban’s efforts to start a U.N. investigation.
Now the question is how a U.N. panel with a weak mandate will be able to solve a problem that is more political than judicial – rather than make it worse.