JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says despite United Nations Human Rights Council findings that Israel clearly broke international law in its raid of the Gaza Strip Flotilla, the US has yet to condemn the action...
n May 31, the Israeli military attacked a flotilla of ships in International waters. The vessels were carrying humanitarian supplies to the people in the Gaza Strip, who suffer under a punishing blockade by Israel. The stated aims of the flotilla were to draw international attention to the situation in Gaza and the effect of the blockade; to break the blockade; and to deliver humanitarian assistance and supplies to Gaza.
During the attack, Israeli soldiers killed 9 people, seriously wounded more than 50, and detained 750. They also confiscated or destroyed equipment worth hundreds of thousands of dollars.
The United Nations Human Rights Council sent an independent fact finding mission to investigate violations of international law resulting from the Israeli attacks on the flotilla. The Mission, with Judge Karl T. Hudson-Philips, Q.C., retired Judge of the International Criminal Court presiding, interviewed 112 witnesses and examined forensic and other evidence, assisted by experts in forensic pathology, military issues, and firearms. Israel refused to cooperate with the independent investigation.
In a 56-page draft report [PDF], released on September 21, the Mission concluded that the Israeli military "demonstrated levels of totally unnecessary and incredible violence. It betrayed an unacceptable level of brutality. Such conduct," the report added, "cannot be justified or condoned on security or any others grounds. It constituted grave violations of human rights law and international humanitarian law."
The Mission made the following findings:
Passengers on the vessels and their luggage were subjected to "security checks similar to those found in airports before boarding, including body searches," to ensure that they were not carrying weapons. "At no stage was a request made by the Israeli Navy for the cargo to be inspected."
The Israelis fired live ammunition from an Israeli helicopter onto the top deck of the Turkish ship, Mavi Marmara, before soldiers boarded the vessel by descending from the aircraft. Although some of the passengers used chairs, sticks, a box of plates and other objects to
resist the soldiers, there was "no evidence to suggest that any of the passengers used firearms or that any firearms were taken on board the ship."
During the operation to secure control of the top deck, the Israeli forces landed soldiers from three helicopters in a 15-minute period. The use of live ammunition resulted in fatal injuries to four passengers and injuries to at least 19 others, 14 with gunshot wounds.
Israeli soldiers continued shooting at passengers who were already wounded, with live ammunition, soft baton charges and plastic bullets. "There was considerable live fire from Israeli soldiers on the top deck and a number of passengers were injured or killed whilst trying to take refuge inside the door or assisting others to do so."
Furkan Dogan, a 19-year old with dual Turkish and U.S. citizenship, was one of the people killed by the Israeli forces. He was hit with live fire while filming with a small video camera on the top deck. He received five bullet wounds. "All of the entry wounds were on the back of his body, except for the face wound, which was delivered at point blank range while he was lying on the ground on his back."
Many people were forced to kneel on the outer deck in harsh conditions for many hours and people were subjected to physical mistreatment and verbal abuse, unnecessarily tight handcuffing, and the denial of access to toilets and food.
Israeli authorities confiscated, withheld, and in some cases destroyed the private property of many hundreds of passengers on board the vessels.
There is a "severe humanitarian situation in Gaza, the destruction of the economy and the prevention of reconstruction." Israel's blockade was "inflicting disproportionate damage upon the civilian population" in Gaza, and is therefore illegal. Article 33 of the Fourth Geneva Convention prohibits collective punishment of civilians under occupation. One of the principal motives behind Israel's imposition of the blockade was "a desire to punish the people of the Gaza Strip for having elected Hamas" in the 2005 election. There is "no doubt that Israel's actions and policies amount to collective punishment." In this conclusion, the Mission explicitly supported the findings of Richard Falk, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, as well as those of the International Committee of the Red Cross.
The firing of rockets and other munitions of war into Israeli territory from Gaza "constitutes serious violations of international and international humanitarian law. But action in response which constitutes collective punishment of the civilian population of Gaza is not lawful in the present or in any circumstances."
Israel has continuously occupied Gaza despite its unilateral withdrawal of military forces in 2005. Since then, "abject poverty" among refugees has tripled. Israel determines the conditions of life within Gaza. Israel controls the border crossings and the territorial sea adjacent to Gaza, and it has declared a virtual blockade and limits to the fishing zone, thereby regulating economic activity in that zone. Israel maintains complete control of the airspace above Gaza through continuous surveillance, and it makes military incursions and from time to time hits targets within the Gaza Strip. Moreover, Israel regulates the local monetary market of Gaza based on the Israeli currency and controls taxes and customs duties.
The flotilla presented "no imminent threat but the interception was motivated by concerns about the possible propaganda victory that might be claimed by the organizers of the flotilla." There was no reasonable suspicion that the flotilla posed any military risk, and as a result "no case could be made to intercept the vessels in the exercise of belligerent rights or [UN Charter] Article 51 self-defence."
Not only was the Israeli interception of the flotilla unlawful, "the use of force by the Israeli forces in seizing control of the Mavi Marmara and other vessels was also prima facie unlawful since there was no legal basis for the Israeli forces to conduct an assault and interception in international waters."
Much of the force used by the Israeli soldiers onboard the Mavi Marmara and from the helicopters was "unnecessary, disproportionate, excessive and inappropriate and resulted in the wholly avoidable killing and maiming of a large number of civilian passengers." At least six of the killings, including that of Dogan, can be characterized as "extra-legal, arbitrary and summary executions," which amounted to violations of the right to life and to physical integrity under articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR).
During the period of detention on board the Mavi Marmara, the passengers were subjected to cruel and inhuman treatment, which "did not respect the inherent dignity of persons who have been deprived of their liberty."
The Israeli military's treatment of the passengers on board the Mavi Marmara and in certain instances on board the Challenger 1 amounted to torture and cruel, inhuman and degrading treatment and punishment, in violation of articles 7 and 10 of the ICCPR. The willful killing, torture or inhuman treatment and willfully causing great suffering or serious injury to body or health violated article 147 of the Fourth Geneva Convention.
Other violations included the arbitrary or illegal arrests or detentions, in violation of article 9 of the ICCPR and the parading of detainees at the quayside carrying "the hallmarks of a 'triumph'" which amounted to a "humiliating spectacle" in violation of article 13 of the Third Geneva Convention.
Serious incidents of physical violence perpetrated by the Israeli military and/or police officers at the Ben Gurion International Airport "clearly constituted grave violations" of the right to security of the person and to human dignity, in violation of article 9 of the ICCPR. In some instances, the treatment amounted to torture.
The confiscation of a large amount of video and photographic footage recorded on electronic and other media by passengers "represents a deliberate attempt by the Israeli authorities to suppress or destroy evidence and other information."
The ICCPR guarantees the victims judicial remedies and reparations proportionate to the gravity of the violations. Torture victims should be afforded medical and psychological care, and article 9 provides for a specific right to compensation.
"The perpetrators of the more serious crimes being masked cannot be identified without the assistance of the Israeli authorities," the Mission concluded, and urged the Israeli government to assist in their identification.
Israel's Ministry of Foreign Affairs called the UN Human Rights Council a biased commission because it issued the Goldstone Report [PDF] , a 575-page document under the direction of noted Zionist Richard Goldstone, which found Israel guilty of international law violations in its December 2008 - January 2009 war on Gaza. During that war, 1,400 Palestinians and 13 Israelis were killed.
Israel conducted its own investigation of the flotilla attack, known as the Turkel Commission. It refused to take testimony from any of the victims on the vessels.
UN Secretary General Ban Ki-moon also commissioned an investigation, which undertook no primary witness investigation, largely relying on evidence from Israeli officers.
There is no evidence that the United States played any direct role in the attack on the flotilla. However, U.S.-made and U.S.-financed Apache and Blackhawk helicopters, which Israel often employs, were likely used in the assault. Any use of those weapons would violate the Arms Export Control Act, which prohibits any recipient of U.S. arms exports from using U.S. weapons except for security within its own borders or for self-defense.
Israel could not maintain its illegal occupation of the Palestinian territories without the support of the United States. Three weeks after Israel's deadly attack on the flotilla, 329 out of 435 members of the House of Representatives and 87 out of 100 senators wrote letters to President Barack Obama supporting what they called Israel's right to "self-defense."
Obama has failed to condemn Israel's actions on May 31, notwithstanding overwhelming evidence of its illegality. If Iran had attacked a humanitarian flotilla in international waters and killed 9 people, there would be certain retaliation from Washington.
Until our government stands up to the powerful Israel lobby in the United States, the Palestinian people, and our own humanity, will continue to be held hostage.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and past president of the National Lawyers Guild. She is deputy secretary general of the International Association of Democratic Lawyers and a member of the Board of Directors of the U.S. Human Rights Network. See www.marjoriecohn.com.
Suggested citation: Marjorie Cohn, Israel Raid on Gaza Flotilla: US Failure to Condemn Despite UN Findings, JURIST - Forum, Oct. 13, 2010, http://jurist.org/forum/2010/10/israel-raid-on-gaza-flotilla-us-failure-to-condemn-despite-un-findings.php.