Israel Raid on Gaza Flotilla: US Failure to Condemn Despite
UN Findings

by Marjorie Cohn

Jurist

October 13, 2010

http://jurist.org/forum/2010/10/israel-raid-on-gaza-flotilla-us-failure-to-condemn-despite-un-findings.php

	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...

On 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 ]

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