2010-10-01: On 22nd September, 2010 … the United Nations Human Rights Council issued the following Report (Document Reference A/HRC/15/21) …
‘ 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.’
Report Summary (in full):
This report was prepared by the fact-finding mission established by the Human Rights Council, in resolution A/HRC/RES/14/1 of 2 June 2010, to investigate violations of international law, including international humanitarian law and human rights law, resulting from the interception by Israeli forces of the humanitarian aid flotilla bound for Gaza on 31 May 2010 during which nine people were killed and many others injured.
The report sets out background information relating to the interception of the flotilla as well as the applicable international law.
The fact-finding mission conducted interviews with more than 100 witnesses in Geneva, London, Istanbul and Amman. On the basis of this testimony and other information received, the Mission was able to reconstruct a picture of the circumstances surrounding the interception on 31 May 2010 and its aftermath. The report presents a factual description of the events leading up to the interception, the interception of each of the six ships in the flotilla as well as a seventh ship subsequently intercepted on 6 June 2010, the deaths of nine passengers and wounding of many others and the detention of passengers in Israel and their deportation.
The report contains a legal analysis of facts as determined by the Mission with a view to determining whether violations of international law, including international humanitarian and human rights law, took place.
The fact-finding mission concluded that a series of violations of international law, including international humanitarian and human rights law, were committed by the Israeli forces during the interception of the flotilla and during the detention of passengers in Israel prior to deportation.
Report Conclusions (Section V in full):
260 The attack on the flotilla must be viewed in the context of the ongoing problems between the Israeli Government and the Palestinian Authority and People. In carrying out its task, the Mission was exposed to the depth of conviction on both sides of the correctness of their respective positions. Similar disasters are likely to reoccur unless there is a dramatic shift in the existing paradigm. It must be remembered that might and strength are enhanced when attended by a sense of justice and fair play. Peace and respect have to be earned not bludgeoned out of any opponent. An unfair victory has never been known to bring lasting peace.
261 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.
262 Certain results flow from this conclusion. Principally, the action of the IDF (Israeli Defence Forces) in intercepting the Mavi Marmara in the circumstances and for the reasons given on the high sea was clearly unlawful. Specifically, the action cannot be justified in the circumstances, even under Article 51 of the United Nations Charter.
263 Israel seeks to justify the blockade on security grounds. The State of Israel is entitled to peace and security like any other. 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 in Gaza is not lawful in the present or any circumstances.
264 The conduct of the Israeli military and other personnel towards the flotilla passengers was not only disproportionate to the occasion but demonstrated levels of totally unnecessary and incredible violence. It betrayed an unacceptable level of brutality. Such conduct cannot be justified or condoned on security or any other grounds. It constituted grave violations of human rights law and international humanitarian law.
265 The Mission considers that several violations and offences have been committed. It is not satisfied that, in the time available, it can say that it has been able to compile a comprehensive list of all offences. However, there is clear evidence to support prosecutions of the following crimes within the terms of article 147 of the Fourth Geneva Convention:
- wilful killing ;
- torture or inhuman treatment ;
- wilfully causing great suffering or serious injury to body or health.
The Mission also considers that a series of violations of Israel’s obligations under international human rights law have taken place, including:
- right to life (article 6, International Covenant on Civil and Political Rights) ;
- torture and other cruel, inhuman or degrading treatment or punishment (article 7, ICCPR; Convention Against Torture) ;
- right to liberty and security of the person and freedom from arbitrary arrest or detention (article 9, ICCPR) ;
- right of detainees to be treated with humanity and respect for the inherent dignity of the human person (article 10, ICCPR) ;
- freedom of expression (article 19, ICCPR).
The right to an effective remedy should be guaranteed to all victims. The Mission must not be understood to be saying that this is a comprehensive list by any means.
266 The Mission notes that the retention by the Israeli authorities of unlawfully seized property remains a continuing offence and Israel is called upon to return such property forthwith.
267 The perpetrators of the more serious crimes being masked cannot be identified without the assistance of the Israeli authorities. They reacted in a violent manner whenever they thought that anyone was attempting to identify them. The mission sincerely hopes that there will be co-operation from the Israeli government to assist in their identification with a view to prosecuting the culpable and bring closure to the situation.
268 The Mission is aware that this is not the first time that the Government of Israel has declined to co-operate with an inquiry into events in which its military personnel were involved. On this occasion the Mission accepts the assurances of the Israeli Permanent Representative that the position which he was directed to follow was in no way directed towards the members of the Mission in their personal capacities. It is nonetheless regrettable that, on yet another occasion of an enquiry into events involving loss of life at the hands of the Israeli military, the Government of Israel has declined to co-operate in an enquiry not appointed by it or on which it was significantly represented.
269 The Mission regrets that its requests to the Permanent Mission of Israel for information were not entertained. The reason initially given was that the Government of Israel had established its own independent panel of distinguished persons to investigate the flotilla incident. The Mission was told that for that reason and also because the Secretary-General (of the United Nations) had also announced the establishment of another distinguished panel with a similar mandate, that “an additional Human Rights Council initiative in this regard are both unnecessary and unproductive”.
270 The Mission did not agree with that position and for that reason suggested to the Permanent Representative of Israel that he should direct to the Council and not the Mission a request that the Mission defer submitting its report to permit other enquiries to complete their tasks. The Mission has not received any direction from the Council to date and considers that it would have been obligated to respond positively to any such directive from the Council.
271 In the light of the fact that the Turkel Committee (Israeli Inquiry) and the Secretary-General’s Panel have not concluded their sittings, the Mission will refrain from any remarks which are capable of being construed as not allowing those bodies to complete their tasks “unfettered by external events”. The Mission confines itself to the observation that public confidence in any investigative process in circumstances such as the present is not enhanced when the subject of an investigation either investigates himself or plays a pivotal role in the process.
272 Elsewhere in this report, the Mission has referred to the fact that it found it necessary to re-interpret its mandate because of the manner in which the resolution appointing it was couched. It is important in the drafting of matters of this sort that the impression is not given of the appearance of any pre-judgment. The Mission took particular care, at the first opportunity, to indicate that it interpreted its mandate as requiring it to approach its task without any preconceptions or prejudices. It wishes to assure all concerned that it has held to that position scrupulously.
273 All the passengers on board the ships comprising the flotilla who appeared before the Mission impressed the members as persons genuinely committed to the spirit of humanitarianism and imbued with a deep and genuine concern for the welfare of the inhabitants of Gaza. The Mission can only express the hope that differences will be resolved in the short rather than the long-term so that peace and harmony may exist in the area.
274 Nine human beings lost their lives and several others suffered serious injuries. From the observations of the Mission, deep psychological scars have been inflicted by what must have been a very traumatic experience not only for the passengers but also the soldiers who received injuries. The members of the Mission sympathise with all concerned and, in particular, with the families of the deceased.
275 The Mission is not alone in finding that a deplorable situation exists in Gaza. It has been characterized as ‘unsustainable’. This is totally intolerable and unacceptable in the 21st Century. It is amazing that anyone could characterise the condition of the people there as satisfying the most basic of acceptable standards. The parties and the international community are urged to find the solution that will address all legitimate security concerns of both Israel and the people of Palestine, both of whom are equally entitled to “their place under the heavens”. The apparent dichotomy in this case between the competing right of security and the right to a decent living can only be resolved if old antagonisms are subordinated to a sense of justice and fair play. One has to find the strength to pluck from the memory rooted sorrows and to move on.
276 The Mission has given thought to the position of humanitarian organizations who wish to intervene in situations of long-standing humanitarian crisis where the international community is unwilling, for whatever reason, to take positive action. Too often are they accused as being meddlesome and, at worst, as terrorists or enemy agents.
277 A distinction is made between activities taken to alleviate crises and action to address the causes creating the crisis. The latter action is characterized as political action and therefore inappropriate for groups that wish to be classified as humanitarian. This point is made because of the evidence that while some of the passengers were solely interested in delivering supplies to the people in Gaza, for others the main purpose was raising awareness of the blockade with a view to its removal, as the only way to solve the crisis. An examination should be made to clearly define humanitarianism as distinct from humanitarian action, so that there can be an agreed form of intervention and jurisdiction when humanitarian crises occur.
278 The Mission sincerely hopes that no impediment will be put in the way of those who suffered loss as a result of the unlawful actions of the Israeli military to be compensated adequately and promptly. It is hoped that there will be swift action by the Government of Israel. This will go a long way to reversing the regrettable reputation which that country has for impunity and intransigence in international affairs. It will also assist those who genuinely sympathise with their situation to support them without being stigmatised.
The Following Earlier Text in the Report Should Also be Noted …
(Section III) E. Consequences for Israeli Citizens of Participation in the Flotilla
Factual Description and Findings
250 The Mission found the following facts to have been established to its satisfaction.
(a) Detention and criminal prosecution of Israeli citizens
251 Passengers with Israeli citizenship were separated from other passengers on arrival in Ashdod. After interrogation, they were informed that they would be detained and face charges under Israeli law, including attempting to kill a soldier, seizing arms, shooting from a soldier’s gun, organizing violence and being present in a military zone. Although taken to a different prison, they had similar experiences as the other passengers including sleep deprivation and denial of access to a lawyer.
252 On 1 June 2010, the Ashkelon Magistrate’s Court remanded in custody four Palestinian Israelis: Mr. Muhammed Zeidan, Chairman of the High Follow-up Committee for Arab Citizens of Israel; Sheikh Raed Salah, the Head of the Islamic Movement of Israel (northern branch); Sheikh Hamad Abu Daabe, Head of the Islamic Movement in Israel (southern branch) and Ms. Lubna Masarwa of the Free Gaza Movement. On 3 June 2010, the same court decided to release the group with certain conditions, including a period of house arrest until 8 June, prohibition from leaving the country for 45 days and the posting of a bond of 150,000 Shekels by a third party.
253 The four people have not since been indicted, but the file is still open and the charges have not been withdrawn.
(b) Reprisals against an elected member of the Knesset
254 One member of the Israeli Knesset, Ms Haneen Zouabi, was a passenger on the Mavi Marmara. Ms. Zouabi was not detained, but was extensively interrogated.
255 As a result of her participation in the flotilla, the Knesset voted on 7 June 2010 to remove three of the parliamentary privileges available to Ms. Zouabi as a Member of the Knesset: her privileges in overseas travel; her diplomatic passport; payment of any legal fees in case of removal of her parliamentary immunity from criminal prosecution. The Knesset held several sessions on the issue of her participation in the Flotilla during which there were racist and sexist remarks and physical threats made against her. Some parliamentarians have also called for her to face criminal prosecution and measures, such as revoking her membership in the Knesset, were discussed. The Israeli Minister of Interior accused Ms. Zouabi of treason and requested authorization from the Attorney General to revoke her citizenship. To date, no criminal proceedings have been initiated against Ms. Zouabi. Since her participation in the Gaza Flotilla, Ms. Zouabi has received many death threats.
256 The Inter-Parliamentary Union’s Committee on the Human Rights of Parliamentarians adopted a confidential decision at its 130th session in July 2010, holding the punishment of Ms. Zouabi for exercising her freedom of speech by expressing her political position to be unacceptable and calling on the Knesset to reconsider its decision.
257 The Mission refrains from any comment on any domestic legal proceedings which may be sub-judice. However, the Mission notes that these actions against Israeli citizens could give rise to certain violations of Israel’s international human rights obligations, including freedom of expression, political participation rights and rights to due process.