Fractured justice: the UN Secretary-General's Gaza flotilla enquiry

The UN Secretary General has promised to investigate the Gaza flotilla incident in a manner which is "prompt, impartial, credible and transparent" and "conforming to international standards". But it looks as if politics is triumphing over justice

In the dawn of 31 May 2010 Israeli soldiers rappelled down onto the deck of a former Istanbul passenger ferry called the Mavi Marmara, one of a small international flotilla aiming to penetrate the Israeli naval blockade of the Gaza strip. The flotilla had sailed from Turkey in the full glare of international publicity, leaving the Israelis with plenty of time to come up with an appropriate and measured response. Nine passengers died from Israeli gunshot wounds (8 Turks and one Turkish-American), while 24 were injured (one American), some severely. The flotilla of six vessels carried about 700 protesters from 38 countries. Ten Israeli commandos suffered relatively minor injuries.

The Israelis were stung by the instant and almost universal condemnation of their actions. Many of the governments objecting to Israel’s disproportionate use of force also called on it to immediately open Gaza’s border crossings. The Gaza flotilla incident, as it is known, has continued to be viewed in relation to Israel’s harsh restrictions on trade with the Gaza Strip, which have been somewhat watered down since then. Without the outcry generated by this incident, Gaza would be even more of a hell on earth than it is today.

Mass demonstrations in Ankara and Istanbul expressed solidarity with killed or wounded Turks and others. Turkish Prime Minister Recep Tayyip Erdogan described Israel’s actions as a “bloody massacre” deserving “every kind of curse.” He said, “This insolent, irresponsible, reckless, and unfair attack by the Israeli government which trampled on every kind of human value must be punished by all means.” Turkey, a long-standing member of NATO with US nuclear weapons on its soil, demanded an immediate meeting of the UN Security Council (UNSC), of which it is currently a member.

Turkey insisted on both an unconditional apology and an independent international investigation. Until recently Turkey and Israel enjoyed an exceptionally close diplomatic, military, and economic relationship. Because Turkey had been a critically important Middle Eastern powerbase for both Israel and the United States since their ejection from Iran in 1979, its protestations could not be overlooked. Moreover, an enduring rapprochement between Turkey and Iran would seriously undermine Western strategy in the Middle East.

Prime Minister Erdogan has thrown down the gauntlet to President Obama in words resonating throughout developing and Muslim worlds: “He can keep America embroiled in endless overseas conflicts and as the enabler of an illegal occupation, or become an historic peacemaker. Choosing to confront Israel and withdraw U.S. combat troops from Afghanistan might mean giving up a second term as president, but if he is willing to risk other people's lives in war he should surely be willing to risk his own political career for peace."

Even before Israeli troops boarded Turkish boats in international waters, arguably in breach of maritime law, Israel had used electronic means to impose a total blackout on communications with the outside world. The Israelis took command of the vessels and their occupants, who were incarcerated for several days without any opportunity to share their stories with international media when public interest was at its height. All their recording devices, cameras and so forth,were confiscated and have not seen the light of day since then – except for footage which, when taken out of context, appeared to support the Israeli point of view. The bodies of those who had been shot dead were eventually returned to Turkey, but only after they had been thoroughly washed, minimising the probability that any subsequent forensic examination will produce useful results. It has also been claimed that the vessels impounded by Israel for a considerable period of time, especially the Mavi Marmara, may have been tampered with to contaminate evidence.

While Israel was denying access to the many eyewitnesses to what had happened, the Israeli media machine embarked on a campaign of damage control. In essence the official Israeli story has not changed since then: unsuspecting, professional and well-armed Israeli commandos acting under cover of semi-darkness were unexpectedly set upon by a bunch of Islamic “thugs” and “terrorists” wielding an array of blunt instruments. In pure self-defence they had no option other than to kill nine and to wound many more, some apparently at close range, some from behind, and some with multiple shots. When Israel finally released the protesters to placate Turkey, Western media displayed little interest in their stories.

In the meantime an Israeli Arab woman MP who travelled with the Mavi Marmara and spoke out about her experiences has been demonized as a “terrorist” in a nationwide hate campaign, and has been threatened with death and the loss of her parliamentary seat. Even in the Knesset she has to be accompanied by a team of bodyguards.

Although Turkey insisted that it would be satisfied with nothing less than a prompt, impartial, credible and transparent investigation conforming to international standards, Israel would have absolutely nothing to do with this idea, which was in the meantime taken up by the UN Security Council.

The UN Secretary General then entered centre-stage by proposing to establish an international enquiry panel to be chaired by New Zealand’s former Prime Minister Geoffrey Palmer, now head of New Zealand’s Law Commission. Although Palmer is a big fish in the small pond of New Zealand - Palmer has taught at the Chicago Law School, the alma mater of President Obama - why did the UN Secretary General pull his name out of the hat, rather than that of someone with a higher international profile? New Zealand pundits have pointed the finger at former Prime Minister Helen Clark, now at the high end of the UN system, hob-nobbing almost daily with the Secretary General. Two very different publications have claimed that Palmer’s name was selected by the UN Secretary General from a short list submitted by Israel. Intriguingly, an Israeli newspaper recently claimed that the chair and vice chair of the UN panel were both known to be ‘even-handed’ towards Israel. This is Israeli code for ‘sympathetic to Israel’.

What is clear is that Geoffrey Palmer, widely perceived in New Zealand as a distinguished lawyer of integrity and acumen, has agreed to perform what may at first sight have appeared to be a standard legal task, albeit at a very high level and in a complex environment, of impartially reviewing conflicting evidence and arriving at just recommendations or findings. But he could be forgiven for feeling a little like the creatures of Animal Farm, who find that the pigs have written a new slogan on the wall each morning when they go to the barn.

After Palmer had agreed to be identified as chair of the UN panel, it became clear that the UN Secretary General was still haggling with Israel, Turkey, and the US over the membership, terms of reference, and mandate of the panel. No official record was kept of promises made in these conversations, as the Israelis, and perhaps others, were to discover, to their cost. UN Secretary General Ban Ki-moon does not emerge from all of this as a knight in shining armour. His announcement of the Gaza enquiry coincided with the publication of a damning condemnation of his management by outgoing Under-Secretary-General Inga-Britt Ahlenius. As head of the Office of Internal Oversight, Ahlenius was mandated by member states to audit the performance of the UN in terms of all the values which the UN pretends to embody – probity, honesty, consistency and so on. One quotation from her 51-page treatise will suffice: "It will take time to see the harm caused by the weak secretary-general because the process of decay and weakening of the Organisation and the Secretariat is a stealthy process".

From the outset Ban defined the goal of the enquiry in extraordinarily vague political terms, expressing the hope that it would make a “positive contribution to the broader peace process and more specifically to improving relations between Turkey and Israel”.

Some time after he appointed Palmer to chair the enquiry, Ban announced that the panel’s vice chairman would be outgoing Colombian President Alvaro Uribe, who, according to a reputable Israeli publication, is considered to be both pro-Israel and pro-United States. Although Aribe’s popularity in his own country is matched only by his unpopularity in neighbouring states, his administration has been beset by a series of damaging corruption and human rights abuse scandals. Israeli publications welcomed his appointment, but his controversial profile does not equip him well to function in what Palmer has called a “semi-judicial” capacity.

Even more damaging is the fact that the panel’s rules of procedure apparently require the chair and vice chair to reach consensus on any statement or report to go out under the name of the panel. Should Palmer be tempted into a display of judicial independence, he can be check-mated by Aribe. When challenged about Aribe at a press conference, Ban Ki-moon waffled on unconvincingly about how well they knew each other and how Aribe enjoyed his personal confidence.

Ban and Israel then became parties to a major diplomatic spat over the question of whether the panel would be empowered to question as witnesses Israeli soldiers who had boarded the Mavi Marmara (the Turks have indicated that their submission to the panel will include testimony from surviving passengers. They are not opposed to them being called before the panel, should it wish to do so.) Not one of the Israeli enquiries into the incident has heard testimony from Mavi Marmara survivors. The Israelis stated categorically that they would walk away from the enquiry if the panel insisted on hearing Israeli soldiers. This unresolved issue still hangs over the enquiry like a Damocles sword.

In this regard the following verbatim comment from Prime Minister Benjamin Netanyahu’s spokesman is telling: “Before Israel gave the green light to its participation in the panel we had discreet negotiations in order to ensure that this commission would not harm the vital interests of Israel.” Although the UNSC had insisted on the need for the enquiry to be “transparent”, Ban categorically refused to make public its mandate, saying that it was “confidential”. In the meantime, the US has increasingly been suggesting that the enquiry should not look into the past, but should look to the future.

Most importantly, relations between the US and Turkey are becoming increasingly strained. The US has just declined to participate in major military war games in Turkey, at least in part because Israel was not invited. There was apparently a “free and frank” exchange of views between Obama and Erdogan on the sidelines of a G-20 meeting in Canada in late June. Obama is under immense pressure from right wing Republicans who are up in arms at the fact that this long-standing US ally – a model of quiescence for decades – now has the effrontery to challenge US hegemony in its own region. With an anxious eye to the November mid-term elections in the US, Obama encouraged Turkey to reconsider the implications of the position it is adopting on the Palmer enquiry, including its request for Israeli soldiers to be heard.

Geoffrey Palmer’s enquiry is caught between the shifting and colliding tectonic plates of the US, Israel, and Turkey. If his “semi-judicial” panel is prevented, for any reason, from hearing testimony from Israeli soldiers in addition to testimony from protesters, and from requiring Israel to hand over material evidence such as confiscated videos and films, politics will surely triumph over justice.

The Secretary General’s panel has so far received a report reflecting the findings of Turkey’s government-appointed enquiry into the flotilla incident. According to Turkey’s Foreign Ministry, the panel is to examine documents from Turkey and Israel, and will deliver its first progress report in mid-September. It is important to avoid confusing the UN Secretary-General’s enquiry with yet another UN enquiry currently being conducted in the name of the UN Human Rights Council. The members of this panel have already travelled to the Middle East to interview eye witnesses and to gather evidence on the spot. All involved states have supported the work of this panel, with the exception of Israel, which has refused to recognise it.

Present indications suggest that the Palmer panel may have confined its work to reviewing reports from Israel and Turkey, thus side-stepping any independent gathering of evidence or hearing of testimony from eyewitnesses. However, because the UN Secretary General’s panel is not scheduled to submit its final report until early 2011, it is still possible that the panel may yet address this thorny question. 

About the author

Bob Rigg is former senior editor, Organisation for the Prohibition of Chemical Weapons and former chair, NZ National Consultative Committee on Disarmament. He is a freelance researcher and writer specialising in nuclear issues, the Middle East, Central Asia, and US foreign policy.