Israel’s Chief Military Advocate General Not Telling the truth

By Richard Lightbown

On 26 August the Turkel Committee took evidence from Israel’s Chief Military Advocate General, General Mandelblit. The morning session was open although a number of documents that the participants referred to do not appear on the website. In the afternoon the Advocate General apparently spoke amongst other matters on the intended IDF policy towards future flotillas. 

The result of the morning session is 144 pages of transcript which is at times interesting and at other times seems to have lost the plot as the participants spoke of ‘plausible commanders’ and ‘concrete ships’ and other items of jargon. This is not helped by the fact that apparently the Advocate General is speaking Israeli-English, although perhaps the standard of the transcript is also flawed in parts. The result is that occasionally he and some of the committee members are like very intimate friends or family talking in their own code.  This section for example on page 97 is still incomprehensible to this reviewer:

“Prof. Miguel Deutch: Do you have any precedents for implementing this fundamental that you are familiar with in other places?

“The Chief Military Advocate General, Avihai Mandelblit: Plenty of precedents exist.

“Prof. Miguel Deutch: But they dealt with this point of plausibility.

“The Chief Military Advocate General, Avihai Mandelblit: About what? Again I am asking, I, the question of the plausibility of the very decision to stop the ship?

“Prof. Miguel Deutch: No, the specific way,

“The Chief Military Advocate General, Avihai Mandelblit: Of the firing,

“Prof. Miguel Deutch: Of the activity here.

“The Chief Military Advocate General, Avihai Mandelblit: Of the firing that took place there?

“Prof. Miguel Deutch: Yes

“The Chief Military Advocate General, Avihai Mandelblit: This is really,

“Prof. Miguel Deutch: Totally circumstantial without any,

“The Chief Military Advocate General, Avihai Mandelblit: Yes, these are the facts. No there are not, there are many precedents of the Supreme Court at the time of fighting, and I will refer to this as well during the time of fighting some,

“Prof. Miguel Deutch: No, I mean in other countries.”

Worse still, the following 48 pages to the end of the document read like the Advocate General was trying to talk a Bill out of parliament. But fortunately before this there is some serious discussion, even if Mr Mandelblit is not telling the truth in places. (But more on this later.)

Early on Mr Mandelblit explained his remit in these terms:

“I have no commanders. On the contrary, every one of my officers, it does not matter where he is located irrespective of his rank, is subordinate […] to me. Even if he is a lieutenant who is in Central command, OC Central Command is not his commander. I am his commander, and through me he gets to the issue of implementing the rule of law where he is located.”

So now perhaps we know who to blame for the white phosphorus, depleted uranium, dime bombs and flechettes that where dropped on urban Gaza during Operation Cast Lead. 

The General Advocate continued:

To whom am I subordinate? I am subordinate to directives of the rule of law, in professional matters. In matters of principle, according to the High Court of Justice […], I am guided by the State Attorney General on matters of principle as he is in practice the senior legal advisor in the State of Israel and over me. […] Everyone understands that one must operate according to law.”

The theory then is that commanders work out their plans but in the final event if the Advocate General or his seniors rule that there is anything contrary to the obligations placed on Israel by international law the plan is altered or scrapped, with no exceptions.

In order to assess the practical validity of these statements it is appropriate to consider some of the other comments made by the same witness which were made after Judge Turkel had cautioned him that by law he was to state the truth.

1. On the maritime closure he told the committee no scholar in the world complained, and ‘Even today they think it is okay by the way’. Except one can exempt Princeton University professor of international law and UN special rapporteur in the Palestinian territories Richard Falk who has said:

“A blockade can only be validly declared, if at all, only in relation to an enemy state, and Gaza is not a state. This means that Gaza cannot be lawfully blockaded in relation to the navigational activities of other states or of the United Nations.” [1]

(It is not possible to believe that the Attorney General is unaware of the opinions of such a high profile witness who is well known to, if not exactly liked by the Israeli government.)

2. Of the MV Dignity he opined ‘It collided with some vessel of the Israeli Navy’. David Halpin who was on the vessel at the time subsequently reported that it was rammed three times at night by an Israeli gunboat without provocation or warning while 50 miles from land, in a 3m sea. The gunboat then threatened to shoot unless the stricken vessel turned back. Two of the passengers could not swim. The Mayday call was not answered by either of the gunboats in the very near vicinity. [2]

3. Of the San Remo Manual he said the IDF observed all the rules. In fact it is doubtful if any of the San Remo Manual was followed, but certainly ships can only be diverted with their consent. The forced abduction to Ashdod is nowhere covered by anything in the Manual. This despite Mr Mandelblit’s own assertion that most of the Manual ‘reflect[s] customary international law and therefore bind[s] us.’

4. The committee was told that everything in the cargoes was introduced to the Gaza Strip, ‘except of course for the night vision equipment’. (These personal items, and they may have been only one pair, have for some reason been talked up into a major piece of terrorist equipment.) In fact Al Manar reported on 12 June that more than one lorry load of flotilla cargo had gone to landfill in the Negev desert, one Israeli soldier is being prosecuted for the theft of brand new computers that were intended for educational use in Gaza, large sums of cash intended for aid projects in Gaza have all been stolen by state operatives and it is still unclear whether all or even any of the 3,500 tons of cement, which at one stage was languishing in Haifa harbour, has ever been delivered.

5. Digressing into Operation Cast Lead he told the committee that the flour mill in Gaza was attacked by armoured vehicles on the ground, ignoring evidence from a UN bomb disposal unit which more than nine months ago found the remains of a 500-pound MK-82 aircraft-dropped bomb among the ruins of the mill. (The Goldstone report considered this to be precision targeting which amounted to a possible war crime.) [3]

These are not stray oversights but the utterances of a man who has no respect for inconvenient truths and little concern about committing perjury. In a civilized country it would correctly be regard as conduct unbecoming someone of such high office. Regrettably none of the five member Committee nor any of the two observers questioned the Advocate General on any of these points, in open session at least. But clearly all other statements by Mr Mandelblit need to be treated with caution in the light of this miscreant behaviour.

So what does this unreliable and pejorative witness have to say about the Gaza Flotilla raid?

• In blockading Gaza Israel is allowing the obligations imposed on it, that is to prevent a humanitarian crisis. He said ‘there is simply no connection between the subject of economic warfare and the maritime closure.’

◦ The UNHRC’s Hudson-Phillips Mission dealt with this matter in detail and found after careful consideration that the blockade was ‘inflicting disproportionate civilian damage’, ‘constitute[d] collective punishment’ and was ‘illegal and contrary to article 33 of the Fourth Geneva Convention.’ As a result the Mission also found that the Israeli raid was totally unlawful.

◦ In answer to a question from the international observer General Kenneth Watkin about the public statement by the International Committee of the Red Cross on 14 June Mr Mandelblit referred to unspecified data that arose in sessions in which he was present and said that the Red Cross claim was incorrect. (This cheap ploy of referring to data which is never produced in evidence is an old Israeli trick that was recently used by Gen Eiland in a notorious BBC Panorama programme to justify the claim that passengers had used firearms against the commando raiders. Both assertions are contemptible because of their bogus nature and effrontery. The same trick was again used by Mr Mandelblit later in his presentation when he referred to ‘many problematic things’ being discovered on the Mavi Marmara. Having created the suspicion he did not give any details. Disappointingly no Committee member and no observer had the wit to ask for details.)

– Since 1967 Gaza has had no ports and all merchandise goes by land, and that there is ‘no connection between this matter and the sea’. This he elsewhere acknowledged has been part of the economic warfare against Hamas since 2007.

– Unloading 10,000 tons of aid would indeed have caused problems, and the UNHRC’s Hudson-Phillips Mission was also sceptical about this. This surely underestimates the resourcefulness of the Gazan people who have built tunnels under the border with Egypt through which they have brought cars and a lion. Hudson-Phillips also reported that the Turkish aid organization IHH had been preparing cranes at the port, the Committee’s Prof Deutch reported that he had read there were 100 Gazan boats prepared for the operation, and other media reported round-the-clock work in the port including deepening and widening operations in preparation for the flotilla. It should also be remembered that there would have been no pressure on turnaround times for the shipping. The Gazan people at least seemed to have few doubts that they would be capable of unloading the aid and seemed to be looking forward to the challenge.

– The damage to the Gazan economy was justified by the need to cause Hamas to submit and to stop firing rockets at Israel.

– Nothing was said about the ceasefire which had been negotiated between Israel and Hamas in 2008, and when had been very successful up until Israeli forces had broken the agreement.

– Much was said about the security risks posed by allowing vessels to pass, particularly in situations when intelligence was not available.

– The Attorney General revealed that Israeli politicians had never considered maritime closure before the foundation of the Free Gaza Movement and that this had been connected to what he called ‘matters of legitimacy’. Originally they had taken the internationally more acceptable step of declaring the area a combat zone, but during the period of relative calm there had been less excuse to interfere with neutral shipping. They had only started to talk about maritime closure in August 2008. (This would have been about the time that preparations were underway for Operation Cast Lead.)

– The flotilla vessels had been certified free of weapons before departure and this had been confirmed by Major David Elmaliach at Ashdod on 1 June. The flotilla offer to undergo inspection at sea under UN supervision was never considered by Israel, yet this could provide the basis for the legitimate passage of aid and merchandise to Gaza in future if Israel was genuine in its claims that security was the overriding reason for the blockade.

– The justification for blocking communications (termed ‘electronic warfare’) was given as a desire to minimise the danger that people could be hurt. Again the Attorney General was not asked to explain this far-fetched remark, nor was he asked if the action might in fact have been intended to hide the Israeli raid from the outside world.

– Having admitted that he had been familiarised with the entire operational plan the Attorney General then raised the issue of use of lethal weapons. In the report given to the Committee but not made available to the public he had written that it was possible to use this where there was an immediate threat to life (of the attacking forces). On two interesting points raised by Prof Deutch Mr Mandelblit avoided answering.

i. Despite being pressed quite strongly he never commented (in open session at least) on the hypothetical situation where the only way to stop the ship would be by the use of lethal weaponry.

[In reality this is probably the scenario that occurred after the original boarding attempt from the zodiacs was repelled by fire hoses and the second attempt from helicopters faced militants on the upper deck. At this stage as the Hudson-Phillips report has accepted live fire was used before any soldier descended to the deck. The same report is ambiguous as to whether this live fire resulted in any casualties although testimony from several witnesses stated that mortal injuries did result from this fire.]

ii. There was also no answer to the repeated question from the professor as to where this law had been taken from.

– On p.92 of the transcription Mr Mandelblit is quoted as saying:

“At a certain stage they proceeded to the use of lethal weaponry and the moment that it was possible they reverted to the use of less lethal weaponry.”

It is important to remember that at the point at which the shooting of live ammunition ceased there were nine dead or mortally wounded passengers and a further 55 were injured of whom 14 had serious injuries. Many of the casualties had been shot from above by soldiers on the upper deck down. None of these casualties posed any threat to the soldiers above them. Not only was Mr Mandelblit’s statement untrue but there is no legal basis anywhere for such murder and mayhem.

– Pressed by Prof Deutch whether it was possible under the rules of international law to sink a ship if this is the only way of stopping it Mr Mandelblit replied that he had cited at least one person in his written material who says that one can but that it would not have been proportional to sink the ship and no way was it permissible to kill 650 civilians. [In which case it might be reasonable to ask why the IDF had at least one submarine in the fleet which attacked the flotilla. It might also be reasonable to ask if there were any considerations beyond de-legitimization of Israel that would prevent such an event since international law seemed to be of such little importance on this occasion.]

On p.101 the Advocate General is reported to have said:

“The Israeli system does operate in a method that goes beyond its obligations under international criminal law and in a manner that possibly in many respects it also pretty much conforms to human rights law.”

As far as this reviewer is concerned, and based on the information available to him, this is simply a further example of the General not telling the truth as was required of him by law.

– 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.

Notes:

[1] Interview with Richard Falk by Elias Harb.  Flotilla Attack Reinforced the Campaign to De-legitimize Israel: Richard Falk. Countercurrents.org, 20 June 2010.
[2] David Halpin, 23 April 2009; Piracy off the Promised Land: The Ramming of the Dignity with Clear Lethal Intent. http://tinyurl.com/34senwq (Accessed 25 May 2010)
[3] This story was widely reported in the international media and featured in the Goldstone Report which Mr Mandelblit is certain to have read.

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