Ha'aretz, an Israeli newspaper, has published two articles here and here.
These, if true, shed some light on the discussions as to how an investigation of the flotilla fiasco may proceed, and require some careful thought.
I think this is a farce, and it would be a mistake for the US to participate in it in any way if it is as described in these articles. If this is a test balloon to see how it flies, that balloon should be shot down.
I have a series of concerns about the investigation laid out as this newspaper has done so.
First, the rules of the panel are being written by Mr. Netanyahu and seem to be quite peculiar.
According to the articles, he and his ministers will have the right to testify, although they are not witnesses.
Second, the Israeli participants will not testify, and instead the panel will have to accept the results of an internal Israeli investigation already underway.
Third, the panel will not be an official investatory panel under the Basic Law of Israel and may not be one which has any official legal consequences or legal weight in its findings.
Fourth, all of the panel members will be Israeli and it sounds like they will be either judges or governmental officials, past or present, or ambassadors. Several names including past ambassadors are mentioned in the article. Second the panel members will be subject to challenges for conflict of interest, which may or may not be a way of referring to a test of loyalty to the government in their past conduct which may limit their neutrality, given the way neutrality is challenged in other similar contexts in this matter.
Fifth, there will be no non-Israeli participation in the panel, and the only two observers mentioned thusfar are one from the US and one "European" which is probably meant to be understood as excluding Turkey. The stated purpose is to respond to the concern of Western governments.
What the panel will supposedly investigate is the legality of the blockade, the legality of stopping and boarding the flotilla and the events that occurred surrounding that boarding.
The articles indicate that matters are not settled as the US is pushing for more international participation.
There also appears a discussion of whether this format is being given as a quid pro quo for loosening Israeli land access restrictions to goods and services going into Gaza, with the Israeli government denying it.
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After a break to kick wastebaskets, I have the following thoughts.
First, the control of the political arm of this entire panel process is so blatant that there can be no reasonable anticipation at this stage that its proceedings will be treated as anything but a whitewash or even a justification for even more punitive steps against Gazan civilians and/or Hamas. The reporting is that Mr. Netanyahu and his cabinet have written all the rules for the panel, and already agreed them, without outside participation. There can be no guarantee, given the two rules announced, that they would allow any sort of meaningful or independent evidence gathering or analysis.
The touchstone of that for me is the refusal to allow the panel to hear actual witnesses to the boarding and what happened surrounding that boarding by any actual Israeli participant. One cannot get to the bottom of any such event in the complete absence of such testimony. I am particularly concerned in view of the number of deaths and wounded among the passengers of the Marmara, the wild discrepancies in existing reporting about the amount of force and the weapons used by the S-13 from paintballs to full long weapons, gas and tasers, and events which sound, with less than fully investigated information, of uses of excessive force against passengers on other ships, and the confiscation of cargo, electronic devices and even clothing of passengers and crew, and a phony deportion of what I desperately hope is all of them for illegally entering a country to which they were brought against their will and by force, and the apparently vanished passports, credit cards and documentation. Israel's dealings with the passengers and their documentation, electronics and goods, and the cargo, and the reported appearance of doctored tapes and recordings, are at the heart of what most upsets many people internationally, and the rules of the tribunal appear to me to bar its shedding any light whatever on those matters if the Israeli government and its other investigation elects not to examine and report on those. Without that, there is no point to the panel.
The guarantee that politicians in the cabinet will have the right to testify is a sign that this is strictly a political exercise, probably principally to make the government's public argument as to why the blockade is legal and the boarding and seizure and seizure of the cargo and the possessions of the passengers, and their deportation were also legal. It does not help that some of the S-13s have appeared on television and announced that they have killed, and been saluted for it as heroes. Once so publicly anointed, the likelihood that their conduct would thereafter be crticized is at the very least highly unlikely. Press access to a Seal-type unit is usually not available at all, no singling out of members or even partial identification of them, and that happening in this case suggests to me that the political forces that be are signalling that they approve everything that happened, when such a secretive force's actual doings are publicized in this way.
The provision that this is not an official investigation under the Basic Law indicates that, therefore, there will be no legal consequences that flow from it. It is only a staged drama not intended to shed light on any independent or neutrally determined matter, but a showpiece for Israel's own argument only.
The hash which will result if they try to use the panel to investigate Turkish or other parties but do not similarly interview and investigate Israeli participants will be horrific, as it smacks of using the form as one to find out only information about the other side which can be used for political or 'other' purposes, when the Israeli participants in the raid are protected from the panel, assuming they have any interest as a panel under Bibi's rules in determining what actually happened when the flotilla was boarded at all.
Second, the selection of only governmental Israelis, and the ability to use a conflict of interest analysis to challenge them sets up a series of predictable disputes which will arise to discredit any results which appear because of a claim that a certain panel member may have an unacceptable sympathy for a certain matter or a past relationship to a matter which should disqualify him, such as prior contact with Turkey or IHH or dealings with Hamas other than adversarial, or . . . . In effect a loyalty test to Likud policy is possible as a sine qua non of appointment to the panel at all.
The presence of judges does not assist this panel. Israeli judges function under Israeli law and custom. While they occasionally oppose the government, it is not the norm, and my recall of their performance when chips are down is that it is at best uneven. There is also no guarantee that the judges to be appointed will be international law specialists, rather than domestic law judges, who will be forced into considering possible conflicts between the law they work with every day and the individual legal system that supports them, and international law which does not particularly give special credence to particular national laws, especially as to matters occurring outside national waters.
Third, Turkey is excluded from this unless they are the European referred to, which is unlikely if Britain is trying to act as a broker. The likelihood that Turkey will accept any action of a panel affecting its rights and the citizens killed or wounded, from which it is excluded from participation is unlikely, although it may provoke Turkey to convene its own panel with better international bona fides. Two conflicting panels with discrepant results may be worse than no panel at all.
Fourth, the participation of the US in this panel would be at the very least ill advised, since this panel is so plainly not independent and neutral and lacks real international participation. Particularly offensive should be the notion that one can purport to investigate an event when access to the actual participants in it is denied ab initio.
The only gleam of an upside is the suggestion of the quid pro quo, an easing of land restrictions to goods travelling to Gaza.
It's only a gleam, because its inclusion as to 'land' access seems to indicate a prejudgment that the sea blockade will continue in any event, and that Gaza will still not be able to have independent sea, or air, communications with the rest of the world, save as Israel may decide on a Tuesday to permit it, revocable on the next Wednesday.
My only hope is that the US position may be that it will observe this one, but that its observer status will not result in its cessation of a demand for a proper, full international investigation of these matters which is preceded by proper evidence gathering and testimony taking, in a manner which satisfies usual international legal norms in such matters. I am not a hopeful soul.