Hugh Pope, Solving the EU-Turkey-Cyprus Triangle | 30 Sep 2010
When the UN Human Rights Council commissioned a report on the Mavi Marmara flotilla disaster, Israel dismissed any findings in advance because the Council mandated a search for "violations" in an Israeli "attack". When the report was published on 23 September, the Israeli Foreign Ministry denounced what it called a "biased, politicized and extremist approach". A commentator in Israeli daily Yedioth Ahranoth went so far as to declare that it "served as a lesson in diplomatic and political cynicism, and the end of the dream known as the UN" (24 September).
For sure, the Human Rights Council’s disproportionate focus on Israel, and its disregard for the actions of many of the world's worst human rights abusers, not least among its 47 members, has done great damage to the body’s credibility. Even the Council's rapporteurs themselves rejected the wording of their original Council mandate because of "justified criticism" of its "bias" against Israel.
But anyone wanting to learn more of what happened in the eastern Mediterranean on the night of 31 May should set aside the hour or so it takes to study the 56-page document. Even the United States, explaining its lone vote against the report in the Council on 29 September, did not criticize its contents. Based on interviews with 112 passengers from 20 countries, the account of the flotilla's challenge to the Israeli blockade of Gaza, and the lethal Israeli commando operation against it, is thorough, unemotional and consistent with such facts as are publicly known. Despite Israeli non-recognition and non-cooperation with the rapporteurs, it is respectful to the Israeli official the panel did meet, takes such official Israeli statements that have been published into account and by no means leaves the international flotilla without blame.
For instance, the report notes the fundamental tension between the political and humanitarian objectives of the organizers. It points out that organizers were fully aware of the Israeli intention to use force well before the interception, casting more doubt on the wisdom of their decision to actively resist any Israeli attack, especially after Israel offered to send the goods to Gaza under neutral supervision. The account further details differences between the contract crew of the Mavi Marmara, who did not want trouble, and the organizers, including the Turkish NGO that owned the ship, who were determined to resist and started cutting up iron bars with which they later fought back against the Israeli attempt to seize the vessel. On the night itself, many activists perceived the sound of stun grenades and other explosions in the night as attack by live fire. But the panel was "not satisfied" by reports that Israeli commandos used live ammunition in a first attempt to seize the Mavi Marmara from the sea.
At the same time, the step-by-step account raises important questions about the rapidity, lethality and sustained nature of the Israeli commandos' use of force against civilians in international waters. During the seizure of the Mavi Marmara, it asserts that Israelis used live fire from a helicopter to clear the top deck of resisting activists before any soldiers landed. It finds no evidence of any firearms brought on board by or used by the activists, as some Israeli officials have claimed. It shows that force used in Israeli takeovers of three other vessels in the flotilla was also disproportional. It lays out abuses by Israeli troops and officials during several subsequent stages, including failure to treat several injured properly, degrading treatment of tied-up prisoners during the long, hot passage by sea to the Israeli port of Ashdod, an improper parading of the detained activists to jeering Israeli onlookers on the quayside, attempts to force activists to sign self-incriminating documents, cases of unaccountable Israeli seizure of activists' cameras, computers, cellphones, cash and property, and severe beatings of activists that continued to draw blood even as they were about to be deported from Ben Gurion International Airport.
The rapporteurs -- Karl T. Hudson-Phillips, Q.C., retired Judge of the International Criminal Court and former Attorney-General of Trinidad and Tobago, Sir Desmond de Silva Q.C., of the United Kingdom, former Chief Prosecutor of the United Nations-backed Special Court of Sierra Leone, and Malaysian women's rights activist Ms. Mary Shanthi Diariam -- begin by changing the language of the Human Rights Council mandate. Judge Hudson-Phillips later stated to the Council "there has been justified criticism that the tenor and wording of the preambular and operative parts of the Resolution indicate a certain bias". The rapporteurs decided to simply "ascertain the sequence of the facts and events as they occurred and to examine the reasons and justification in lay, if any, for the same."
They start by setting out the background, a factual account establishing effective Israeli control of Gaza, the history of the Israeli naval blockade of Gaza, UN Security Council and other UN bodies' views of Gaza's humanitarian situation, and recent violence by the Israeli and Palestinian parties. The rapporteurs then examine the applicable law, especially relating to blockades and Israel's obligations under international humanitarian and human rights legislation. They find that the blockade "has to be considered illegal" because it is clearly "inflicting disproportionate damage on the civilian population" and "amounts to collective punishment" (citing for this, among others, the International Committee of the Red Cross, the guardians of the Geneva Convention). The report deals with the fate of all eight ships in the flotilla (including the late-comer Rachel Corrie and a ship disabled en route), and those on board, some 748 activists and crews from more than 40 nationalities.
Regarding the actual interception itself, it notes that Israel has not claimed this was on the grounds that the flotilla was an overwhelming threat, or carrying weaponry or materiel closely integrated with the enemy war effort -- as would have justified the interception, for instance, under the non-binding but influential San Remo Manual on International Law Applicable to Armed Conflicts at Sea. The mission therefore "finds that the interception was illegal" and was "motivated by concerns about the possible propaganda victory that might be claimed by the organizers of the flotilla."
Twelve pages then detail the background to the flotilla led by the Mavi Marmara and its 31 May interception by Israeli forces. It establishes that the organizers, the Republic of Cyprus-based Free Gaza Movement, had previously made five boat voyages to Gaza in 2008 with the aim of breaking the Israeli blockade. These voyages were not intercepted despite threatening Israeli messages. After subsequent vessels were physically blocked by Israel, the Free Gaza Movement sought to expand the scale of the action, linking up with Greek, Swedish, European groups and the Turkish Foundation for Human Rights and Freedems and Humanitarian Relief (IHH). They aimed to attract international attention to the blockade, to break it and to deliver humanitarian supplies.
The rapporteurs however underline "a certain tension between the political objectives of the flotilla and its humanitarian objectives". This "comes to light the moment that the Israeli Government made offers to allow the humanitarian aid to be delivered via Israeli ports but under the supervision of an international organization," especially when, in the case of the flotilla's delayed ship, the Rachel Corrie, the Irish Government had sponsored the proposal. It also notes that Gaza does not have a deep sea port designed to receive the kind of cargo vessels in the flotilla, that "many of the participants interviewed" had no humanitarian work qualifications, and that one activist was likely a pro-Chechen convicted hijacker of a Russian ferry boat in 1996. "Whilst the Mission is satisfied that the flotilla constituted a serious attempt to bring essential humanitarian supplies into Gaza", they say, "it seems clear that the primary objective was political." Nevertheless, the rapporteurs said "stringent security" surrounded the Mavi Marmara before it left the Turkish port of Antalya, that "all items taken on board were checked", and that they are satisfied that "no weapons were brought on board the ship".
The rapporteurs say that "as the flotilla was assembling off Cyprus, participants became aware of the full extent of Israeli plans to intercept, board and commandeer the ships", mainly because they had been published in an Israeli newspaper. Flotilla organizers, including senior IHH leaders from Turkey, "prepared actively to defend the ship … prominent passengers spoke with some bravado about preventing an Israeli takeover". It reports tests on pressure hoses on the decks and says some passengers took electric tools from the ship's workshop and sawed railings into one-and-a-half meter lengths "apparently for use as weapons". However, there were few medicines, little equipment and "no preparation for the nature of the injuries" from any Israeli use of live ammunition.
When the Israeli navy started contacting the ships late on 30 May -- as they steamed south in international waters towards Egypt, 70 nautical miles away from and parallel to the Israeli coast -- it demanded them one by one to divert to the Israeli port of Ashdod to deliver their goods. The captains replied that they would continue to Gaza and that only civilians and humanitarian goods were on board. No Israeli request was made to inspect the ships, the account says. The rapporteurs were "not satisfied" at the authenticity of recordings released by the Israeli authorities in which the Defne Y allegedly made insulting references to the holocaust camp of Auschwitz, and reported receiving "positive evidence" that they did not originate with "anyone involved in communications on the flotilla".
The approach of Israeli commandos on zodiac boats was accompanied by "the firing of non-lethal weaponry onto the ship, including smoke and stun grenades, tear-gas and paintballs. Plastic bullets may also have been used at this stage: however, despite some claims that live ammunition was also fired from the zodiac boats, the Mission is not satisfied that this was the case." This initial attack was repelled using the use of water hoses (which the International Maritime Organization permits against acts of piracy) and the throwing of "chairs, sticks, a box of plates and other objects that were readily to hand". Commandos then arrived by helicopter, but their use of stun and smoke grenades failed to clear the top deck, the roof of the ship, of more than 10-20 activists gathered there. Joined by some others -- but still a very small minority of the several hundred people on board -- these activists began to resist the Israelis, including by tying the first rope down from the helicopter to the ship. The rapporteurs dismissed claims that soldiers fired while rappelling down the second rope, but "concluded that live ammunition was used from the helicopter prior to the descent of the soldiers".
The first soldiers lost their struggle against the activists, and at least two were thrown down to the deck below. Some of the Israelis' weapons were thrown into the sea; one, a 9mm pistol, was unloaded by an activist who was formerly a U.S. Marine "in front of witnesses and then hidden in another part of the ship in an attempt to retain evidence" (possibly explaining initial Israeli reports that one weapon was found concealed in the ship). Activists fought back with "fists, sticks, metal rods and knives" -- which the rapporteurs found to have been entirely taken from the Mavi Marmara's six kitchens -- resulting in at least one stabbing of a soldier. At least two activists used "handheld catapults to propel small projectiles at the helicopters". But "the Mission has found no evidence to suggest that any of the passengers used firearms".
The report then gives a blow-by-blow account of the 45-50 minute operation, detailing who was killed, and when, where, and how it happened. Two of the dead "received wounds compatible with being shot at close range while lying on the ground." The account charges that several deaths and injuries were caused by live fire against photographers, first aid helpers and others well away from the points of contact and not offering any resistance. An early attempt by IHH President Bülent Yıldırım to remove his shirt and wave it as a white surrender flag also failed to stop the assault.
The report examines the fate of the three captured Israeli soldiers. When taken below deck, put under protection from angry activists and examined by doctors among the passengers, they were in shock after having been badly beaten. Israel has said the second soldier down the rope was shot in the stomach, but the rapporteurs said the doctors found no gunshot wounds, although one Israeli had a cut from a sharp object on his abdomen. When activists realized the danger of holding the soldiers captive, they were released. Two then jumped overboard to be rescued by the boats, and one was rescued by commandos on board.
When the Israeli operation was over, even some of the severely wounded were handcuffed with plastic cord. "Many were stripped naked and then had to wait some time, possibly as long as two-three hours, before receiving medical treatment", the report says. At least 54 received injuries from "widespread misuse" of the handcuffs. Most people, including the crew, were handcuffed and forced to kneel on various decks for some hours. The few exceptions were "some women, elderly men and persons from western countries." During this stage there was "verbal abuse", "derogatory remarks about the female passengers", some suffered bites from Israeli dogs, and "physical abuse of passengers by the Israeli forces" included "kicking and punching and being hit with the butts of rifles". Some were very cold from being drenched by spray caused by helicopter rotors; elsewhere, thirteen passengers suffered first degree sunburn. The treatment of passengers "amounted to cruel, inhuman and degrading treatment and, insofar as the treatment was additionally applied as a form of punishment, torture".
An important feature of the UN Human Rights Council report is that it gives a rare account of what happened aboard the other seven vessels. Unarmed activists who stood side-by-side to signal their opposition to the Israeli boarding of Challenger I were attacked with a stun grenade, paintball guns and non-lethal bullets, which hit one woman in the face and another on the back. Israeli use of an electroshock weapon burned a woman journalist, and an Israeli soldier stood on another woman's head. On board the Sfendoni, non-lethal ammunition hit two passengers, and electroschock weapons were used against several people including the captain, who was also punched several times. Activists aboard the Eleftheri Mesogios went through a similar experience. By contrast, the Turkish cargo ships Gazze 1 and Defne Y were seized without incident and with almost no reports of mistreatment of activists or crew. Activists' advance notification of a no-resistance policy and other coordination also meant that Israel was also able to seize the Rachel Corrie relatively peacefully five days later.
The rapporteurs' five-page legal analysis of the seizure of the ships asserts Israel's obligation to act in accordance with the law and to use "less extreme means". It says that on board the Mavi Marmara "use of live fire was done in an extensive and arbitrary manner", and that "the circumstances of the killing of at least six of the passengers were in a manner consistent with an extra-legal, arbitrary and summary execution". It allows that "while the circumstances of the initial stages on the top deck may not have been conducive to the issuance of … warnings", this was "possible and necessary" in the later stages of the Israeli operation. The Israeli use of "significant force" against passive resistance on the Challenger 1, the Sfendoni, and the Eleftheri Mesogios was "unnecessary, disproportionate, excessive and inappropriate".
According to the rapporteurs, mistreatment continued at the port of Ashdod, and "some passengers said that they were jeered or taunted by the people on the quay" as television cameras and journalists recorded the scene, all a violation of article 13 of the Third Geneva Convention. Passengers were presented with official papers, apparently requiring the signator to admit to having entered Israel illegally, consenting to deportation and a 10-yar ban on re-entry, all of which the rapporteurs saw as an attempt "to shroud the illegality of the interception in a veil of legality". Some female passengers were strip-searched in view of male officers. One Greek passenger was "severely beaten for refusing to provide his fingerprints", resulting in a "deliberate fracture of his leg". The wife of one of the deceased passengers "was treated with complete insensitivity" and unable to inform her family of the death by phone. At the jail to which they were transported, most were not allowed contact with a lawyer or their embassies. In hospitals, some witnesses said they were unable to sleep due to "deliberate disturbances by guards". What the rapporteurs called "perhaps the most shocking testimony" related to the final stage of deportation from Ben Gurion International Airport including "consistent accounts of … extreme and unprovoked violence" in which "around 30 passengers were beaten to the ground, kicked and punched in a sustained attack by soldiers".
Finally, the rapporteurs estimated that "many hundreds of expensive electronic items remain in the possession of the Israeli authorities". Many activists were carrying cash donations to be distributed in Gaza, in some cases amounting to tens of thousands of dollars, but "some passengers were allowed to hold on to cash throughout their detention, some had cash confiscated and then returned and others had the cash taken and it was not returned."
The report concludes that "the conduct of the Israeli military and other personnel towards the flotilla passengers was not only disproportional to the occasion but demonstrated levels of totally unnecessary and incredible violence. It betrayed an unacceptable level of brutality." It ends with an account of possible judicial remedies and compensation, and finds "clear evidence to support prosecutions" in eight areas ranging from wilful killing to restricting freedom of expression under the terms of article 147 of the Fourth Geneva Convention and articles six, seven, nine, ten, and nineteen of the International Covenant on Civil and Political Rights.
The rapporteurs repeatedly seek to avoid any grounds for accusations of bias. In fact, the most obvious pre-judgment in the circumstances of the report appears to be Israel's pre-emptive refusal to cooperate with it. The rapporteurs note their "profound regret that, notwithstanding a most cordial meeting" with the Israeli ambassador to the UN, they were informed of an Israeli position of "non-recognition and non-cooperation", and that a subsequent list of requests on points of information went unanswered. The mission thanked Jordan and Turkey for their assistance.
The UN Human Rights Council rapporteurs also seek to distinguish themselves from the other UN group looking into the flotilla disaster, the four-person Panel of Enquiry set up by UN Secretary General Ban Ki-moon in August, which includes a senior representative from each of Israel and Turkey. The rapporteurs point out that this Panel of Enquiry is principally designed to find ways to avoid such incidents in future, and to help repair Turkey-Israel relations. Indeed, the panel has cast no new light on the actual events so far. The interim report on 15 September only talked of procedural discussions. The panel's final report is expected to be presented in February 2011, but since what is known of the secret terms of reference rule out any discussion of criminal responsibility, and since it is presumably operating on a principle of consensus, it is unlikely to attempt an investigation like that of the UN Human Rights Council.
The world will have to wait, therefore, for an authoritative report that has full access to Israeli, Turkish and other actors. Turkey's thick official account remains under wraps in Ban Ki-Moon's Panel of Enquiry. Israel has published only small parts of Major General (res.) Giora Eiland's probe that approved the Israeli military's conduct during the operation. An investigation by a civilian committee under retired Supreme Court Justice Jakob Turkel may produce a wide-ranging report and leading Israeli figures have given public testimony, but key hearings are secret and it as yet unclear how far it will go beyond an initial focus on the underlying legality of Israeli positions and actions. Israeli newspapers have only just begun to seek out participants in the convoy to find out fuller stories and new perspectives -- for instance the long and eye-opening interview with activist and former U.S. Marine Ken O'Keefe in Haaretz. In Turkey, the principal supplier of flotilla activists, the nine deaths and 50 injuries have fostered a reluctance to question the actions of their own side, but some media commentators are beginning to point out that a long feud with Israel over the affair is not in the country's best interest.
Nevertheless, one initial benefit of Ban Ki-moon's all-party Panel of Enquiry is that it has given political cover and time to politicians and people in Israel, Turkey and elsewhere to think more calmly about what happened off the coast of Israel before, during and after the night of 31 May. And the solid work by the UN Human Rights Council's rapporteurs has built a convincing platform for everyone to see new points of view.
Hugh Pope is the Turkey/Cyprus Project Director of the International Crisis Group. He conducts research in Turkey and Cyprus, writing policy-focused reports on Turkish policy, Turkey’s immediate region and the factors that mitigate or increase the risk of armed conflict.
Solving the EU-Turkey-Cyprus Triangle
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