Report to the Human Right Council on the attack on the Flotilla
Human Rights Council
Fifteenth session
Agenda item 7
Human Rights situation in Palestine and other Occupied Arab territories
A 56-page report was presented to the Human Rights Council. We reproduce its conclusions below.
The full report can be downloaded here
Conclusions
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 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, ICCPR);
• torture and other cruel, inhuman or degrading treatment or punishment (article 7, ICCPR; CAT); A/HRC/15/21 55
• 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 cooperation 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 cooperate 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 cooperate 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 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 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 reinterpret its mandate because of the manner in which the resolution appointing it was couched .It is important in the drafting of matters of the 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 A/HRC/15/21 56 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 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 concern 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.