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Home EJIL Analysis Know Your Rights! The Flotilla Report and International Law Governing Naval Blockades

Know Your Rights! The Flotilla Report and International Law Governing Naval Blockades

Published on October 12, 2010        Author: 

Yuval Shany is the Hersch Lauterpacht Chair in Public International Law at the Law Faculty at the Hebrew University of Jerusalem. The author thanks Prof. David Kretzmer, Adv. Gil Limon and Adv. Rotem Giladi for useful comments to an earlier draft. The usual disclaimers apply.

The Report of the “international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance” (the ‘Flotilla Report” issued by the “fact finding mission”), which was published on 22 September 2010, is a troubling document.

Of course, the Report is troubling in that it suggests that Israel has committed serious violations of human rights and humanitarian law: The Report alleges that the Israeli blockade violated the laws of war, that the interception of the flotilla was therefore unlawful, that excessive force was used during the interception resulting in loss of lives, and that the individuals on board the flotilla ships were mistreated while in Israeli custody.

Still, at a different level, the Report is troubling in its many substantive weaknesses, which cast serious doubts on its potential impact, as well as on the desirability of engaging in such fact-finding exercises in the future. I will deal hereby with one set of problems I find in the Report: the poor quality of the legal analysis leading to identification of the law governing the Israeli interception operation and the application of such law to the facts at hand. I would note however that other problems in the Report exist: For example, one ought to be troubled by the mission’s rush to issue judgment on questions of fact, notwithstanding the unavailability to it of the full Israeli version of events, and without awaiting the outcome of investigations conducted in Israel (the Turkel Committee) and on behalf of the UN Secretary General (the Palmer Committee), which could throw light on some of the events that transpired on board of the flotilla ships and in detention facilities inside in Israel.

 

Documents such as the Flotilla Report touch upon sensitive and difficult matters and are inevitably bound to generate controversy. However, by failing to acknowledge many of the legal complexities and challenges presented by the circumstances of the flotilla incident, and through committing some serious error of law, I believe that the fact finding mission significantly eroded the Report’s credibility and undermined its potential impact.


Legal Framework

It seems as if the main legal framework applied by the fact-finding mission to assess the lawfulness of the Israeli interception operation is the law governing naval blockades. This is certainly consistent with the main legal justification presented by Israel for the interception operation. What is less clear, however, is the interplay between this legal framework and the occupied status of Gaza, which the Report never bothers to explain. Note, that Israel has claimed a right to impose a naval blockade in connection with ongoing hostilities between Israel and the Hamas-controlled Gaza; but, significantly, Israel has also claimed in parallel that the occupation of the Gaza Strip has ended with the withdrawal of Israeli forces from the area in 2005.

The relationship between these two legal assertions is important: An occupier does not need to invoke the institution of naval blockade in order to bar access by foreign vessels into the occupied territory it controls (the imposition of a naval blockade may, however, allow the blockading party to enforce some access restrictions outside the territorial sea of the occupied area; at the same time, the imposition of the blockade is generally subject to more restrictive conditions than those attendant to the occupier’s general power to control access to the occupied area). More importantly, states do not need to resort to a naval blockade of a territory they effectively control . The Report assumes that Israel remains the occupier in Gaza and thus in effective control thereof (an assertion which is, at least, controversial given Israel’s inability to make its authority present inside the Gaza Strip). It does not explain, however, the legal basis upon which the flotilla was entitled to seek to access Gaza in the first place, if indeed the area is still under occupation; nor does it explain how the right of the occupier to control access to the occupied area affects the proportionality of a blockade it introduces.

To be sure, the First Additional Protocol of 1977 does require occupiers to admit humanitarian consignments into the occupied territory under certain conditions (article 69); but the Report never discusses this legal standard; nor does it discuss the right of private parties to “self-enforce” the duty to introduce consignments into occupied territories against the occupier, in breach of the latter’s entitlement to insist on inspecting and regulating the delivery of the said consignments.

Another basic problem with the legal framework canvassed by the fact-finding mission pertains to the application of the Fourth Geneva Convention and human rights law to the events surrounding the interception of the flotilla. Now, even if we were to assume that the laws of occupation apply to the Gaza Strip (as the fact finding mission did), these laws cannot apply on the high seas – that is, outside the territorial seas of the occupied area (at no stage did the flotilla ships enter Gaza’s waters – i.e., enter the occupied territory). While it may be argued that those passengers holding the nationality of countries not having normal diplomatic representation at Israel “who found themselves” in its hands in the course of an armed conflict (occurring outside the occupied territory) should nonetheless be deemed ‘protected persons’ pursuant to article 4 of the Geneva Convention, few if any of the victims of the Israeli military operation appear to have met this legal criteria (the nine passengers killed in the operation all held the nationality of states having diplomatic relations with Israel). Again, the Report is completely silent on this important point of law and fails to explain the application of the Fourth Geneva Convention to the interception operation.

The question of the applicability of human rights law to the interception operation also receives a ‘light treatment’ from the fact finding mission. The interception occurred in international waters on board non-Israeli ships. I would certainly agree that once resistance on the flotilla ships has ended and Israeli troops took full and effective control over them, the conditions for application of article 2(1) of the ICCPR have been met. However, a key question in this regard is whether the Covenant applied in the interim stage – between the commencement of the interception and the completion of the take-over – the period of time in which the most serious violations found by the fact finding mission have occurred. There is little in the case law of international human rights bodies – especially in the case law of the European Court of Human Rights dealing with extra-territorial military operations (which applies analogous legal standards to those appearing in the ICCPR)– that supports the liberal construction of the jurisdictional provisions of human rights treaties proposed by the fact finding mission.  Furthermore, no legal analysis is offered by the fact finding mission on this point. The Report simply makes a laconic reference to General Comment 31 of the Human Rights Committee, which affirms that individuals subject to the “power” of a contracting state are protected by the Covenant; but it does not delineate the beginning and end of such power relationships. Note, the question at hand is hardly technical in nature, as it is precisely the very existence or absence of effective control, which facilitates the application of the protections specified in the Covenant and determines their scope of application. A state cannot be expected to fully implement human rights standards in situations it does not yet control.

Application of legal standards

The next stage in the fact finding mission’s analysis involves the application of the legal standards it identified to the interception operation. A key legal finding reached by the fact-finding mission in this respect has been that the blockade was disproportional and thus unlawful. The crux of the analysis offered by fact finding mission is found in paragraph 53 of the Report:

The Mission is satisfied that the blockade was inflicting disproportionate damage upon the civilian population in the Gaza strip and as such the interception could not be justified and therefore has to be considered illegal.

Two conspicuous elements are missing, however, from the fact finding mission’s analysis on this point. First, no weight whatsoever is given to Israel’s security concerns or military necessity claims that have led to the imposition of the blockade. Instead, the mission takes the view that the very existence of a humanitarian crisis in Gaza justifies the nullification of the blockade regardless of its consequences for Israel (e.g., an increased risk of weapon smuggling and the introduction of militants into the Gaza Strip). Para. 261 of the Report contains an explicit statement to this effect:

The Mission has come to the firm conclusion that a humanitarian crisis existed on the 31 May 2010 in Gaza. The preponderance of evidence from impeccable sources is far too overwhelming to come to a contrary opinion. Any denial that this is so cannot be supported on any rational grounds. One of the consequences flowing from this is that for this reason alone the blockade is unlawful and cannot be sustained in law. This is so regardless of the grounds on which it is sought to justify the legality of the blockade.

However, Para. 103 of the San Remo Manual – never mentioned in the Flotilla Report – appears to contradict this very legal position, as it clearly contemplates a lawful blockade with dire humanitarian implications:

If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:
(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.

In other words, the San Remo Manual supports the proposition that even in the face of a humanitarian crisis in the blockaded area, the blockade is not unlawful per se (and would be subject to proportionality analysis). In addition, Para. 103 acknowledges the right of the blockading party to insist even in such dramatic circumstances on searching humanitarian vessels and on regulating the delivery of supplies to the under-supplied area – precisely the two requirements imposed by Israel in the present case. So, a humanitarian crisis could limit the blockading force’s options and prevent it from denying the introduction of humanitarian supplies into the area in question, but it does not totally negate its ability to impose a naval blockade, to inspect the cargo and to regulate the method of supply.

Second, the analysis employed by fact-finding mission does not distinguish the naval blockade from the broader restrictions on the introduction of goods into the Gaza Strip imposed by Israel and Egypt (incidentally, the latter’s legal responsibility for the situation in Gaza is never considered in the Report). Instead, the Report views the naval blockade and the broader closure regime as components in a single disproportional policy. It may be the case – and the present author subscribes to this view – that the overall closure or siege imposed on Gaza by Israel and Egypt may be unlawful: whereas Israel is entitled to impose import restrictions as a form of legitimate economic sanctions in response to rocket attacks on its territory originating from Gaza, the extent of the sanctions imposed and their duration raises to my mind serious proportionality concerns. Still, I believe that the naval blockade can and should be analyzed separately from the general closure or siege, as there may unique security justifications for imposing a naval blockade – thus preventing the importation of uninspected goods into the Gaza from the sea – which would not support restrictions on importation of inspected goods through land crossings. The attribution of the humanitarian crisis in Gaza to the naval blockade is particularly odd, given the fact finding mission’s acknowledgement that Gaza lacks any port facilities. Thus, in terms of proportionality analysis – the humanitarian implications of the naval blockade are much more negligible than those caused by the land siege – since only land routes constitute a meaningful life-line for Gaza that can serve for the introduction of humanitarian supplies in significant quantities.

The analysis performed with regard to the question of proportionality is troubling at another level as well: The fact-finding mission accepted that Israel offered to the flotilla organizers to divert the cargo it carried to the Israeli port of Ashdod, and has undertaken that it would be transferred there from, after inspection, into Gaza. As a result, the mission found that the dominant goal of the flotilla was political, not humanitarian in nature. Under these circumstances, it is unclear why the interception of this particular flotilla has been disproportional – arguably, Israel’s offer to facilitate the supply of the goods on board the flotilla ships struck a reasonable balance between its security concerns (insistence on inspection) and the humanitarian interests of Gaza’s residents (delivery of the supplies to Gaza). Perhaps, the mission was of the view that Israel’s general closure policy colors in illegality every act taken in its context; but, this is not generally the approach taken by laws of armed conflict, which tends to analyze separately the proportionality of every specific measure taken by the parties to the conflict.

After reaching the conclusion that the naval blockade is deemed unlawful as such, the fact finding mission asserted that that only vessels effectively contributing to the enemy’s war effort or posing an imminent threat may be intercepted (citing in this regard paragraphs 67 and 147 of the San Remo Manual). This is, however, also a dubious legal proposition: Para. 67 of the San Remo Manual discusses an attack on a neutral ship – and does not deal at all with the right of interception. While Para. 147 does deal with the right of capture (which may follow a refusal to submit the vessel in question to search), it should be read in light of 118-121 of the San Remo Manual that govern the prior-in-time right to visit and search neutral vessels. The key legal tests under these legal provisions is not whether the vessel in question actively participates in hostilities, but whether it violates a blockade or, alternatively, if there exists a reasonable suspicion that it carries contraband goods. This standard represents a much lower legal threshold for justifying interception than the one identified by the fact finding mission, and even if we were to accept that the blockade is null and void, it is at least arguable that some of the cargo on board the flotilla ships fell under the definition of suspected contraband (this was the case, in particular, with the cement carried, since cement is a dual-use object that could be used for constructing military fortification; Israel offered to allow the entry of the cement in question into Gaza under international supervision guaranteeing its non-military use).

Conclusion

Fact finding exercises, such as that undertaken in the Flotilla Report, fulfill an increasingly important role in international life, and in the work of human rights bodies. Still, in the absence of formal enforcement mechanisms, the impact of fact finding reports depend to a large extent on their perceived legitimacy. As Thomas Franck noted, legitimacy may depend on procedural fairness (and drawing definite conclusion on the basis of one party’s version of events stretches this concepts to a considerable degree); but it may also depend on the perceived professionalism of relevant adjudicative body.

The sloppy legal analysis offered in the Flotilla Report with respect to the right to intercept the flotilla is thus regrettable: It suffers from inconsistencies (failing to explain the relationship between the blockade and the occupation), loose tests for application of legal standards (extending beyond acceptable boundaries the scope of application of the international humanitarian law and human rights law) and is characterized by the application of legal standards to the facts of the case in a manner that appears to be under-explained, selective and  unconvincing. Such an unsatisfactory legal effort detracts from the credibility of the fact finding mission’s conclusions on factual matters, such as on the application of excessive force by the Israeli soldiers who raided the Mavi Marmara or the maltreatment of the flotilla passengers inside Israel. It also raises the question of whether human rights bodies are well qualified to address issues whose legality is heavily dependent on other bodies of law, in particular – the laws of armed conflict.

Ultimately, one cannot avoid feeling that the Flotilla Report rendered Israel’s prior concerns about the tendentiousness of the fact-finding process a self-fulfilling prophecy. Such a disappointing outcome is unlikely to encourage states like Israel to cooperate with future fact-finding missions sponsored by the Human Rights Council, nor to comply with any recommendations the process may entail.

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8 Responses

  1. Umberto

    I found this post particularly enlightening.
    When I read the report, in fact, I was also unconvinced on the methods of analysis used by the mission. Yet, I cannot agree with the concluding statement, because Israel non-cooperation with the mission was ex ante.
    In addition, saying that “an unsatisfactory legal effort detracts from the credibility of the fact finding mission’s conclusions on factual matters, such as on the application of excessive force by the Israeli soldiers who raided the Mavi Marmara or the maltreatment of the flotilla passengers inside Israel” is tantamount to drawing a conclusion which does not follow from the premise as the unsatisfactory legal effort does not imply that their fact-finding mission was as bad.

  2. Barak

    “tantamount to drawing a conclusion which does not follow from the premise as the unsatisfactory legal effort does not imply that their fact-finding mission was as bad. ”

    The curiously poor quality of the legal analysis leads to a rational finding of confirmation bias.
    Therefore, the accuracy of the factual analysis is also called into question.

  3. Mario Prost

    Dear Yuval (if I may),

    Your post is very interesting and raises a number of important questions about the flotilla report. Whilst I agree that the fact-finding mission largely eludes the legal complexities surrounding the flotilla incident, I wonder whether this cannot to some extent be explained by the mission’s ambiguous mandate: ‘finding’ the facts, whilst also ‘investigating violations of international law resulting from the Israeli attack’. The report itself – in its introduction – shows some unease with this rather odd formulation (see para. 4-6).

    Your post, however, doesn’t simply pick on the report’s ambiguities and weaknesses. It also makes a number of important claims or counter-claims of its own, some of which, I think, are debatable:

    - First, and as a preamble to your legal analysis, you criticize the mission’s “rush to judgment” on questions of fact. You seem to make two (implicit) points here: A) the mission should have awaited the outcome of the Palmer inquiry; and B) it was never really in a position to objectively ascertain the facts, given the unavailability of the full Israeli version of events. On point A, I am not sure why the Secretary General’ commission should have priority or precedence over the Human Rights Council’s. If anything, the fact-finding mission was established on 2 June 2010, more than two months before the Palmer Commission (August 6th). Of course, one can have a debate about the respective legitimacy of these investigations, or about the relevance of having competing UN inquiries running concurrently on the same incident. But this is an entirely different question. I am more inclined to agree with you on point B, although not without some qualification. The fact-finding mission did not get Israel’s full version of events because Israel itself refused to recognize and collaborate with the inquiry. Israel may have had good reasons to do so. Still, in these circumstances, I’m not sure the mission itself is to blame for not hearing Israel’s full side of the story. What I do find questionable, however, is the mission’s position that it was ‘obliged to treat with extreme caution the versions released by the Israeli authorities’ in so far as these versions did not coincide with the witnesses’ testimonies (para. 20). Surely, the fact finding mission should treat all evidence with caution, not just the one coming from Israel. This statement is clumsy to say the least and casts some doubt on the mission’s methodology. At the same time, I note that the report does make abundant reference to statements, testimonies and evidence produced before the Turkel Committee. So all in all, whilst I agree that the mission’s approach to questions of fact is debatable, I don’t think one should exaggerate the problem and call into question the whole factual analysis (as one of your commentators – Barak – seems to suggest). The report, despite some methodological flaws, contains very disturbing revelations which are based on hard evidence (see e.g. the finding – based on forensic analysis – that at least two passengers were shot at close range while lying wounded on the ground).

    - One of the basic problems with the report, which you identify in your post, is the ‘light treatment’ given to the question of applicable law. On this point, I cannot but agree that the fact-finding mission assumes, more than it explains, why international humanitarian law and human right law should apply to the interception of a foreign ship in international waters. This lack of explanation, undoubtedly, is the report’s Achilles’ heel, its weakest point. At the same time, whilst I find your reasoning of human rights law rather compelling, I think it goes almost without saying that international humanitarian law applies to the flotilla incident. You say that the laws of war “cannot apply on the high seas”. I can think of at least two good reasons why, in this instance at least, they do. First, Israel itself admitted that the whole operation fell within the ambit of international humanitarian law. Israel’s main line of defence is that a lawful blockade was established on the Gaza strip and that under international humanitarian law – and in particular the San Remo manual – it had the right to take enforcement measures against any ship attempting to break the blockade. I fail to see how Israel could, on the one hand, justify its operation by invoking IHL and, on the other hand, deny the applicability of IHL to the operation. If the only justification for the operation is the fact that IHL permits the enforcement of lawful blockades, then surely IHL applies to the attack. IHL cannot be used as a legitimate title to use force on the high seas and yet not govern the actual use of force. Either IHL applies to the enforcement action – and then it applies fully – or it doesn’t, in which case Israel’s main line of defence fails altogether. Now of course, there remains the question of which IHL should apply. Is it ‘general’ IHL, i.e. the Geneva Conventions, or the lex specialis applicable to maritime warfare? On this point, the report is unfortunately very elusive. But my point remains that IHL – whether general or special – clearly applies to the operation. This, in fact, is confirmed expressis verbis by the San Remo manual itself. Article 1 reads: “the parties to an armed conflict at sea are bound by the principles and rules of international humanitarian law from the moment armed force is used”. Then article 2 provides that “in cases not covered by this document” customary international law, the principles of humanity and the dictates of the public conscience are applicable subsidiarily. Now, the enforcement of maritime blockades is explicitly “covered” by the San Remo manual and article 10 (b) makes it clear that maritime warfare, for the purpose of the Manual, can occur “on or over the high seas”. It follows that Israel was bound by the rules of IHL – if only the special rules on maritime warfare – from the moment it used force against the flotilla in international waters.

    - Another important claim you make in your post is that, under IHL, a blockade is not rendered unlawful if it results in a humanitarian crisis. According to your interpretation of the San Remo manual, a humanitarian crisis limits the blockading force’s options and prevents it from denying the introduction of humanitarian supplies into the blockaded area, but it does not render the blockade unlawful per se. I find your argument unpersuasive. You read article 103 in isolation from its immediate context, and in particular from article 102. Article 102 and article 103 must be read together. Together, they say the following: the establishment of a blockade is prohibited if it has the sole purpose of starving the civilian population or if the damage to the civilian population is disproportionate (102); and humanitarian relief, if not available directly in the blockaded territory, must be provided – or allowed in the blockaded territory – by the blockading party itself (103). So article 103 does not contemplate, as you suggest, the possibility of a lawful blockade with dire humanitarian implications. All it does is specify the conditions under which humanitarian relief must be provided so as to make the blockade lawful. Granted, the blockading party is entitled to impose some technical conditions and to screen the passage of humanitarian goods. But the principle remains that, if the blockading party does not take all the necessary steps to avoid a humanitarian crisis, then article 102 bites and the blockade is prohibited. If your interpretation was correct, then article 102 would be devoid of any meaningful effect. All a blockading party would have to do to make its blockade lawful would be to arrange for the passage of some goods into the blockaded territory, regardless of whether such passage is free or adequate.

    I shall stop here for now. Apologies for the length of my comments. This is only testimony to the importance and quality of your post which, I thought, deserved a proper response.

    Best,
    Mario.

  4. Barak

    Dr. Prost,
    You seem to find the Report’s factual narrative persuasive. I will explain why I disagree with you on this point.
    In my previous comment I mentioned the curiously poor quality of the legal analysis. The Report’s errors and omissions are not always self-evident.

    Examples:
    In the analysis of the law of the sea, the Report relies upon the San Remo Manual. In making its argument the Report does not quote the Manual but rather paraphrases it. Compare what the Report argues should be the tool of analysis vs. what the Manual actually says:
    Report: “making an effective contribution to the opposing forces’ war effort, such as by carrying weaponry or was otherwise closely integrated into the enemy war effort” (para 56)
    Manual: “make an effective contribution to the enemy s military action, e.g., by carrying military materials” (Manual para 67)

    Next, in accusing Israel of conduct which amounts to torture, the Report quotes the Convention Against Torture. The Report quotes nearly the entirety of article 1 which lays out the much debated definition, but leaves out one sentence. (Para 180) That missing finale sentence of the article 1 definition is, “It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” (Article I)

    Even the most basic of facts, such as dictionary definitions, cannot be trusted here. The Report relies upon the OED to provide a legal definition for “starvation”, claiming that it means merely to cause hunger. The definition offered by the Report is, “to deprive of or keep scantily supplied with food”. This definition is not under starvation in the OED, it is under starve. It is not the first definition given but the seventh. In its entirety, “7. a. To cause to perish of hunger; to deprive of or keep scantily supplied with food; also with up; more definitely to starve for hunger or meat; more emphatically to starve to death”

    These errors, amongst others, convinced me that the Report’s disclaimer of the prejudgment of the mandate was not entirely trustworthy. Simply claiming less bias than your parent does not mean you are objective.

    In the factual analysis, we are denied the opportunity to check the Report’s work. I could not find the forensic reports the authors interpret for us. The claim that passengers were shot at close range is couched language, “wounds compatible with being shot at close range while lying on the ground” (para 118). I am not inclined to simply trust the authors work here given the implications of the troubling legal analysis.

  5. Mario Prost

    Dear Barak,

    Many thanks for your comments. They are very useful and, clearly, you have spent a great deal of time studying the report in its smallest details!

    Now, let me respond, first, by answering some of your arguments and, second, by making a more general point about the relation between factual and legal analysis:

    - You criticize the report for paraphrasing, rather than quoting, the San Remo Manual. This is not entirely correct. On several occasions, the report does quote, precisely and consistently, the Manual. When analyzing the legality of blockades, for instance, the report provides a full quote of article 102 of the Manual (see para. 51). Granted, the report does also, from time to time, paraphrase. But I don’t think paraphrasing is necessarily, in and of itself, a bad thing. Judges do it all the time. In my view, the problem only comes when paraphrasing is used to distort the meaning of the law, something which would have to be proved here. In your example, the reason for the discrepancy between paragraph 56 of the report and art. 67 of the Manual is simply that paragraph 56 summarizes the provisions of art. 67 AND 146 of the Manual (see footnote 49), which are both relevant to the issue of intercepting vessels where there is no lawful blockade.

    - I agree with you on the definition of torture. The report did conveniently leave out the final sentence of article 1.

    - I think you are being a little picky on the dictionary definition of starvation… It is true that the Report does not provide the full definition of starvation from the Oxford English Dictionary. But, really, how relevant is this? What the report is saying is that the ordinary meaning of starvation UNDER THE LAW OF ARMED CONFLICTS is to cause hunger, and its main authority for this is the Pictet commentary to the additional protocols, not the OED. More importantly perhaps, the starvation issue is completely secondary in the report. The main point of the report is that the blockade inflicts disproportionate damage to the civilian population in Gaza, and that this could amount to collective punishment. With regard to starvation, the report simply ‘notes’ that an argument could ALSO be made that the blockade causes starvation. But the report itself does not make that argument. In fact, starvation is not mentioned once in the rest of the report.

    - The language used to describe the wounds is classical forensic language.

    - Now, to my more general point on facts and law. I shall restate here what I said previously: I agree with Yuval Shany that the report largely eludes the legal complexities of this case and assumes, rather than explains, why certain rules of IHL and international human rights law should apply to the flotilla incident. But my main points were: A/ that some of Yuval’s claims or counter-claims are equally debatable; and B/ that the poor legal analysis does not necessarily invalidate the factual findings. We should recognize that the report can be BOTH poor on the law and accurate on the facts and we shouldn’t throw the baby out with the bath water. Let us be critical about the report, as we should be with any legal document (especially on the issue of Israel and Palestine), but let us also not be too quick to dismiss the whole report and conclude that everything it says is biased or vitiated. You say that you are not inclined to simply trust the authors of the report. Well, equally, I am not inclined to simply ignore what they say about the incident and their finding that at least some civilians may have been killed whilst carrying no weapons and posing no immediate threat to Israeli soldiers.

    Let us continue this conversation after the Palmer Commission has issued its report.

    Best,
    Mario.

  6. DK

    I should like to comment on one point Professor Shany makes. It is that whilst international human rights certainly kick in after the resistance on board the vessel is quelled, it is debatable (indeed Professor Shany seems to question) whether they are applicable throughout the duration of the effort to ensure order on board the vessels.

    It seems to me that Professor Shany’s argument is incorrect. Effective control is not triggered only when the de facto ability of, say, a State’s military forces is ascertained. A territory, person or vessel is under a State’s effective control at the moment this State seeks to exercise control over it. In the case of human rights violations during unrest in a military operation outside a State’s territory (e.g. British forces in Iraq), it would be no defence for that State to suggest that it was not exercising control because there was unrest. This is to put the cart before the horse. If the territory should be considered as under that State’s effective control (because of the number of troops on the ground, infrastructure, arms etc) then that State becomes liable for human rights breaches, regardless of whether matters have ‘settled down’. If Israeli armed forces should have been considered as exercising effective control (as, to my mind, they plainly should) then they must have been burdened with the ICCPR from the moment they boarded the vessel.

  7. Richard Lightbown

    I cannot comment at all on the legality but I would like the legal minds here to be aware of a few facts to consider.
    1) The Turkish National Committee of Inquiry tells us that there was an accord by the Turkish and Israeli governments that the flotilla would seek to get to Gaza and that if this goal was unattainable it would divert to Al Arish.
    2) At the time the raid started the ship was sailing on a course of 185 degrees heading west of Al Arish. After the attack commenced but before the boarding it had turned and was going to the west and accelerating to full speed.
    3) Several witnesses, including the captain, have testified that there was lethal fire from the helicopters at the ship BEFORE any commando attempted to land. Significantly the IDF infrared video for the period between the initial attack from the zodiac speedboats and the arrival of the first helicopter over the ship has never been released.
    4) The cargoes were sealed and certified at their point of departure. The flotilla organizers had stated their willingness to undergo inspection by a third party (UN or ICRC were suggested) before proceeding.

  8. Richard Lightbown

    ADDENDUM

    “…some of the cargo on board the flotilla ships fell under the definition of suspected contraband (this was the case, in particular, with the cement carried, since cement is a dual-use object that could be used for constructing military fortification; Israel offered to allow the entry of the cement in question into Gaza under international supervision guaranteeing its non-military use).”

    This has to be a joke. The UN estimates that 670,000 (yes 670,000) truckloads of construction materials are needed to rebuild Gaza, but cement is not allowed because Hamas may build fortifications with it. And how long do we suppose these “fortifications” would stand up to an F-15 strike? As for Israeli supervision: this has ensured that only seven per cent of UNRWA’s reconstruction plan for Gaza has been approved. (And those materials still have to get past the crossings yet.)

    Sure Israel did offer transfer facilities at the port of Ashdod for the 10,000 tons of aid in the flotilla. But how much of it has arrived to date? Turkel tells us 114 lorry loads had gone into Gaza by 26 December which is nearly seven months after the raid. If we allow a 40 ton average payload (and that has to be an overestimate) then less than half of the cargo had entered by this late date. Some of it is never going to get there. The 10,000 gift parcels for Gazan orphans that was being carried on the Mavi Marmara from sponsor families in Turkey were all torn open and cards, gifts and packaging were all thrown on the deck in a heap. Suspected contraband? Stop making excuses and face the facts of this sadistic occupation.