By Richard Lightbown
Following Israel’s raid on the Gaza Freedom Flotilla on 31 May, the UN Human Rights Council elected to establish an independent international fact-finding mission to investigate violations of international law, including humanitarian and human rights law. On 23 July the three-person Mission was appointed. It consisted of Chairman Karl Hudson-Phillips, retired Judge of the International Criminal Court and former Attorney General of Trinidad and Tobago; Sir Desmond de Silva, former Chief Prosecutor of the UN-backed Special Court for Sierra Leone; and Ms Mary Shanthi Dairiam, a specialist on international women’s rights. They were assisted by a large team including external specialists in forensic pathology, military issues, firearms, the law of the sea and international humanitarian law. The Mission began work in Geneva on 9 August and an advanced unedited edition of its report was published just over six weeks later on 22 September.
Israel’s response so far has been a 138 word statement declaring that Israel has always known how to investigate itself, praising the standards of the Turkel Committee, lambasting the Human Rights Council and declaring that it sees no reason to cooperate with the ‘commission’ whose report it will nonetheless read and study.
The Mission began by jettisoning the assumptions in its remit. Instead of assuming that criminal activity had taken place it began with the general consensus that there had been an interception by Israeli forces of a flotilla of ships carrying cargos of a humanitarian nature. It next had to consider its continued existence in the context of the establishment of a Panel of Inquiry on the flotilla incident by the UN Secretary General, (to the accompaniment of calls from the U.S. Administration and the government of Israel for the Mission to be disbanded). However since the UN Panel was only to review reports of investigations by the governments of Israel and Turkey in order to recommend ways of avoiding similar incidents in the future, the Mission considered its remit to be different and declined to give way to calls from vested interests. On 18 August the government of Israel stated in writing its position of non-recognition and non-cooperation with the Mission.
In its assessments the Mission gave particular weight to direct evidence from eye witnesses amongst the passengers and crew, forensic evidence and interviews with government officials. Because of the very limited and selective disclosure from the large amount of photographic evidence held by Israel, the Mission had felt obliged to treat with extreme caution material released by Israeli authorities which did not correspond with evidence of eyewitnesses.
For its data collection the Mission had held interviews in London, Geneva, Istanbul and Amman with 112 flotilla veterans (a sample of more than 15%). Further written statements were received from several persons through attorneys. It had travelled to Iskenderun to visit the three ships (Mavi Marmara, Defney Y and Gazze I) which had been released by Israel, where it would have been able to see at first hand the bullet holes that Israeli authorities had filled and painted over. Members had visited the Ataturk hospital in Ankara, where many of the injured where taken on their arrival in Turkey (and where some still remain in a critical condition). There had also been meetings with NGOs in Geneva, Istanbul and Amman. Despite the Israeli stance the Mission had been able to secure some of transcripts of evidence given to the Turkel inquiry, although transcripts of evidence given in closed session were unavailable to it.
Of the four inquiries into the raid, (the others are an internal IDF inquiry led by General Eiland; Israel’s own commission of inquiry, the Turkel Commission; and the UN Panel) this is the most experienced in international law, the most independent and the only one to personally interview any of the flotilla members. (One can assume than Eiland had access to information from Shin Bet interrogations conducted at Ashdod and elsewhere, and that possibly some of this may have filtered through to the other two inquiries.) This then is probably the most comprehensive and authoritative account we are likely to get on this infamous event, and unless and until there is any prosecution in an international court, its legal findings will remain those most acceptable to independent observers. For this alone we should be very grateful that the Mission stayed the course and completed its remit. Turkel and the UN Panel are yet to report their findings and it will be interesting to see how they respond, if at all, to this authoritative information that is now in the public domain.
After an introduction the report begins a background section with an overview of the restrictions on maritime access to the Gaza Strip, including the naval blockade, Israel’s claims of a legal basis for the blockade and with mention of the closed areas arbitrarily imposed by Israel on 28 May in advance of the arrival of the flotilla. (The Mission received testimony that these latter closure orders were not gazetted.)
It then moves on to the humanitarian situation in the Gaza Strip, referring to UN Security Council Resolutions 1850 and 1860; a United Nations joint statement of 31 May 2010; the statement by the United States Ambassador to the United Nations on 1 June 2010; the public statement issued by the International Committee of the Red Cross (ICRC) on 14 June 2010; and the Human Rights Committee observations of July 2010. Particular attention is given to information on Gaza provided by UN Office for the Coordination of Humanitarian Affairs (OCHA) which described to the Mission:
• Deteriorating public services;
• Widespread poverty;
• Food insecurity;
• Greater than 40 percent unemployment;
• 80 percent aid dependence;
• A rise in the number of refugees experiencing abject poverty from 100,000 to 300,000 since the imposition of the blockade;
• 61 percent of households as being food insecure, with resulting concerns over mineral and vitamin deficiencies;
• The protracted energy crisis which causes scheduled power cuts of eight to twelve hours per day, with knock-on effects of partial food refrigeration;
• More than 40 percent water loss due to leakages;
• Eight million litres of untreated and partially treated sewage discharged per day;
• Only five to ten percent of extracted water considered potable because of sewage infiltration of the aquifer.
OCHA reported that despite Israel’s easing of restrictions announced on 20 June 2010, goods passing into Gaza during the week of 18 to 24 August 2010 amounted to only 37 percent of the weekly average of truckloads for the first five months of 2007. The Mission report also refers to the ICRC press release of 7 September 2010 highlighting the risk to people’s lives by the power cuts, citing dialysis patients.
(The Prime Minister of Israel, Mr Benjamin Netanyahu, testified to the Turkel Commission on 9 August that there was no humanitarian crisis in Gaza as a result of the blockade. It will be very interesting therefore to see how Turkel reports that situation.)
The section finishes with some data on recent hostilities in 2010 which record 120 rockets fired from Gaza (up until the end of July) killing one Vietnamese worker in Israel. During a similar period OCHA reported 27 Palestinian combatants killed and 24 injured, three Israeli soldiers killed and eight injured, while fourteen Palestinian civilians were killed and 154 injured. (These data do not mention the Maltese humanitarian worker injured this year by IDF fire in Gaza.)
In the section on applicable law and the blockade the Mission carefully reasons its way through the laws of armed conflict, while paying due regard to Article 51 of the UN Charter referring to self-defence. Having considered the severe humanitarian situation, the destruction of the economy and the prevention of reconstruction in Gaza it declared itself satisfied that the blockade was inflicting disproportionate damage upon the civilian population. Therefore the interception could not be justified and was illegal. With regard to the right to visit and inspect, and to control destinations of neutral vessels it took the view that a right of interference with a third State’s freedom of navigation should not lightly be presumed. With regard to belligerent rights it considered there to be no imminent threat and therefore on this point also the intervention was illegal. In concluding it declared the enforcement of an illegal blockade to be both a violation of the laws of war and of the laws of neutrality giving rise to State responsibility.
Under International Humanitarian Law the Mission declared that the flotilla passengers (and presumably also the crew who were not mentioned here) were civilians and therefore should have been regarded as protected persons. The Mission was also of the view that International Human Rights Law applied to the conduct of the IDF on board the Mavi Marmara as well as to the ensuing conduct of the authorities. Non-derogable rights include the right to life, and the right not to be subjugated to torture, cruel, inhumane or degrading treatment or punishment. Each State party is obliged to respect these rights even in this case where the event was not initially situated within the territory of the State party.
The main body of the report which deals with the raid and ensuing detention of passengers and crew, begins with a brief summation of the activities of the Free Gaza Movement. This is followed by a description of the composition of the flotilla and some comments on the preparations beginning with the commitment of all flotilla organizations to resist interception only by non-violent means, followed by reference to the stringent security employed to eliminate weapons on the ships. The report comments on the lack of consistency of the participating organizations in choosing prospective passengers.
Despite mentioning engine problems to the Challenger II and delays to the Rachel Corrie the report makes no reference to Israeli sabotage which is considered to have caused a broken steerage system on the former (along with a similar fault on Challenger I) which could have resulted in the wreck of both vessels. Sabotage to the propeller and exhaust of the Rachel Corrie is considered to have resulted in the need for £37,000 worth of repairs to the ship and delayed its passage towards Gaza.
The Mission considered the primary purpose of the flotilla to be political, mentioning in justification the rejection of the Irish Government’s proposal for the Rachel Corrie’s cargo to be transferred to Gaza via Ashdod, and the apparent lack of a clear logistical plan to unload the 10,000 tons of aid at the limited port facilities in Gaza. This conclusion is arrived at despite the testimony of two witnesses that IHH had been preparing cranes to off-load the cargo into smaller boats and the existence of a crane on the Eleftheri Mesogios. Nearly four months after the event the offer to unload all of the cargo of the Rachel Corrie at Ashdod for transhipment to Gaza in front of the world’s press while allowing the ship to depart seems a much better deal than having the ship illegally impounded at Haifa (including up until mid-July at least, all of its 3,500 tons of cement plus other construction materials). Five days after the murderous raid on the Mavi Marmara the Irish activists should not be blamed for mistrusting Israeli intentions and following their emotions. However the Mission does seem to have underestimated the resolve of the flotilla to get to Gaza and the initiative of the people there to find ways to unload the ships. Many individuals on the ships were carrying large sums of money because at the outset they had every expectation that because of the size of the fleet they would prevail and arrive in Gaza. Militants on the Mavi Marmara fought (and in some cases died) for the right of the ship to get to Gaza, not to achieve political fame. The Mission seems to be out of synch here in its understanding of activists who have at great personal cost put together this huge private aid package in defiance of one of the most influential states on the planet. That it gained worldwide attention was an obvious bonus, but it is an insult to the integrity of all of these people to in any way suggest that this was merely a publicity stunt.
Israeli plans for interception began to be formulated in mid-April. Passengers on the flotilla began to become aware of the full intentions on 30 May and plans to defend the ship began to be prepared at that time. The Mission reference to video evidence of a meeting of between 50 and 100 passengers on board the Mavi Marmara on 30 May presumably refers to a video first put out by the Israel Ministry of Foreign Affairs on 18 June. I had always assumed that this had in fact been filmed before the ship left Istanbul since the Yemeni MP Abdul-Khaliq Bin Shihon appears with his traditional Yemeni knife that has been used to such great effect in Israeli publicity. (He was later prevailed upon to pack it away in his luggage where it remained during the raid, but was later found when the soldiers searched all the baggage and has since featured prominently in all the photographs of so-called ‘weapons caches’.)
It is from this point on where the personal testimonies of the passengers give considerable detail to the account. Thus we learn that the disc cutter used to cut lengths of railings came from the ship’s workshop, which was not locked. (Israeli accounts have said it was brought on board at Istanbul.) The gas masks which have been graphically described as indicative of premeditated terrorism apparently were breathing apparatus that was part of the standard fire-fighting equipment of the ship. These desperate late efforts at defensive preparations on the night of the 30/31 May have convinced the Mission authors that no weapons had been brought on board the ship.
Prior to the raid the report notes that no request was made by the Israel Navy to inspect the cargo. Regarding the disputed racist audio recordings released by the Israel Navy, the Mission declares itself ‘not satisfied’ as to their authenticity.
The report found that the attack began shortly before 0430 hours by zodiacs approaching the Mavi Marmara from the stern firing smoke and stun grenades, tear-gas and paintballs. The Mission rejects claims that live ammunition was fired at all from the zodiacs, although significantly it has concluded that live ammunition was fired from the first helicopter onto the top deck prior to the descent of the soldiers. This removes all validity to claims of self-defence on the part of the commandos who can be regarded as the lethal aggressors. However the refutation of live fire from the zodiacs may still be an incorrect conclusion. Al Jazeera news producer Jamal Elshayyal has stated that tear gas and sound grenade fire from the sea became live fire moments after shooting occurred from the helicopter. It is difficult to reject the first hand testimony of such an experienced journalist and reasoning would corroborate his statement. Senior Israeli naval commanders, including Vice-Admiral Eliezer Marom were present in a fast vessel alongside the ship. It seems reasonable to assume that live fire was not initiated without a direct order from one of these officers, probably Mr Marom himself. It would also seem a fair assumption that the same order would be given to the zodiacs at the same time, which would correspond precisely with the first-hand testimony of Mr Elshayyal.
Also of important significance is the report’s rejection of Israeli claims that passengers either used firearms or brought them aboard the ship. The Mission had sought medical records or other substantiating information regarding firearm injuries sustained by soldiers from the Israeli authorities but had received nothing in reply. Israeli accounts on this matter given at various public hearings had proved to be inconsistent and contradictory, resulting in their rejection.
The report’s observation that the majority of gunshot wounds received by passengers were to their upper torsos is an important corroboration for the complainants to the BBC Panorama programme which portrayed the IDF as having shown restraint during the course of the raid. The report also describes in some detail how 41 soldiers were landed from three helicopters onto the top deck in a fifteen minute period during which, after taking control of that deck, they effectively ran amok with a variety of sophisticated weaponry amongst the civilians on the outside decks of the ship. The lethal results of this turkey shoot as given in considerable detail. Details are also given of the wounding of Uður Suleyman Söylemez who remains in a coma in Ankara hospital. No information was given on a second casualty described by Greta Berlin on 13 July as also not being expected to live. There is much general detail on the subsequent maltreatment of passengers thirteen of whom received first degree burns from being forced to kneel in the sun, and at least 55 of whom suffered injuries from over tightened handcuffs. Similar abuse is recorded from three of the other ships. The report mentions that a man (actually Dr Paul Larudee) jumped from the Sfendoni into the sea where he was later picked up by another boat. It does not record the testimony of Dr Hasan Nowrah that having given the soldiers the run around, the 64-year-old Dr Larudee was punched twice, pushed underwater, punched again, pushed back under the water, finally dragged onto the zodiac, punched again and his head slammed onto the deck before his wrists and ankles were tied. (Dr Larudee’s courageous resistance on concomitant beatings continued throughout his detention.)
On the legal analysis of the interception the reports states:
“…lethal force was employed by the Israeli soldiers in a widespread and arbitrary manner which caused an unnecessarily large number of persons to be killed or seriously injured.”
It considered that such a well-trained force should have been able to secure the ship under the prevailing circumstances without the loss of life or serious injury to either passengers or soldiers.
(It might be appropriate however to consider just how good this allegedly elite force actually is. A number of witnesses and reports have commented on the fear that was apparent amongst the young soldiers. In the words of Laura Stuart, which seem appropriate to a number of examples during the raid, it showed that:
‘if you take the gun from an Israeli soldier, he is just a coward hiding behind the gun’.
Joe Meadors in concurrence said,
“They’re purported to be the best in the world but when you go up against them they’re just a bunch of rag-tag people who think they can do no wrong.)”
The reality of the barbaric behaviour of this ‘rag-tag bunch of people’ is scattered through the report:
• no effort was made to minimise injuries at certain stages of the operation(paragraph 169);
• the use of live fire was done in an extensive and arbitrary manner (paragraph 169);
• the killing of at least six of the passengers were in a manner consistent with an extra-legal, arbitrary and summary execution (paragraph 170);
• It is apparent that a number of the passengers on the top deck were subjected to further mistreatment while lying injured (paragraph 171);
• The Mission is satisfied that much of the force used by the Israeli soldiers …was unnecessary, disproportionate, excessive and inappropriate (paragraph 172);
• During the period of detention… the passengers were subjected to treatment that was cruel and inhuman in nature… (paragraph 178).
(One word has been avoided throughout the report, which would cover many cases of deliberate infliction of pain and injury. For example where over tightened handcuffs were deliberately further tightened, or where police cadets who had brutally dragged a detainee down an escalator promptly indulged in swapping high fives. The word that covers enjoyment of cruelty to others is ‘sadistic’, and its use would not have been inappropriate in this report.)
The detention at Ashdod is considered by the Mission to be prima facie unlawful since there was no legal basis for the passengers and crew to have been transported there. Amongst the widespread gratuitous brutality and illegality discovered by the Mission it had found evidence of:
• unacceptable behaviour towards women,
• breaches of the Third Geneva Convention,
• grave violations of the required protection afforded to detainees,
• breaches of Codes of Conduct for Law Enforcement Officials,
• breaches of other detention rights,
• misinformation with regard to deportation papers,
• denial of legal counsel,
• denial of contact with families,
• denial of prompt medical attention.
The widespread theft of property and assets was considered contrary amongst other legislation to Article 17 of the Universal Declaration of Human Rights and Article 97 of the Fourth Geneva Convention. No details were given on the seizure and continuing illegal holding of four of the ships (along with Spirit of Humanity which was seized in 2008). However considerable detail was given of the extensive and widespread theft and vandalism to ship’s equipment which had occurred to the Mavi Marmara while it was held in Israeli control.
Commenting on accountability the Mission, perhaps naively, noted:
“It is hoped that on this occasion the Israeli authorities and those concerned will carry out prompt, independent and impartial judicial investigations of violations of international law, including international humanitarian law and human rights law, with a view to bringing the perpetrators to justice.”
In its concluding section the report refers to totally unnecessary and incredible violence and unacceptable level of brutality. Restricted by time constraints the Mission was unable to compile a comprehensive list of offences, but it considered that there is clear evidence to support prosecution for:
• wilful killing;
• torture or inhuman treatment;
• wilfully causing great suffering or serious injury to body or health.
This is an important report that has been prepared by people who believe in justice and human rights, against the wishes of people who indulge in the widespread denial of those same virtues. It is to be hoped that perhaps one day the international community of nations will find the integrity to support the prosecution called for here.
– Richard Lightbown has researched a review of media sources on the flotilla raid and a critique of BBC Panorama’s programme ‘Death in the Med’. He wrote this article for the Palestine Chronicle.