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The UN Accuses Israel of War Crimes — Again

The UN Human Rights Council releases its report on the flotilla raid.

1:45 PM, Sep 29, 2010 • By MICHAEL WEISS
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A mere two days after May’s deadly flotilla raid off the coast of Gaza, the Geneva-based UN Human Rights Council (UNHRC), in a special “emergency session,” passed a resolution by a 32 to 3 count that “condemn[ed] in the strongest terms the outrageous attack by the Israeli forces against the humanitarian flotilla of ships.” Despite already forming its consensus view of the flotilla raid, it nonetheless ordered a “fact-finding Mission,” which went ahead despite the support of Secretary General Ban Ki-Moon for a wider and more legally consequential UN inquiry, which Israel later agreed to cooperate with.

The UN Accuses Israel of War Crimes — Again

In addition to agreeing to work with the general UN inquiry, Israel has conducted an internal military review which acquitted the IDF commandos of any professional misconduct, faulting them only for not anticipating the violence they were met with onboard the Mavi Marmara. Furthermore, Israel is also now engaged in a domestic civil review headed by retired Israeli Supreme Court Justice Jacob Turkel and observed by Northern Irish First Minister Lord David Trimble and former Canadian military judge Ken Watkin.

The results of the UNHRC flotilla investigation were published last week in an “Advance Unedited Version” of its official report and the verdict is as predictable as it is one-sided. As with the Goldstone Report, Israel is once again accused of war crimes. And once again, the UNHRC’s Mission sacrifices methodological rigor and dispassion for a politicized and prefabricated ruling.

It claims to have interviewed “more than 100 witnesses in Geneva, London, Istanbul and Amman” but in perhaps the most naked acknowledgement of its own distorted approach to fact-finding, the report states the following in its Methodology section:

In ascertaining the facts surrounding the Israeli interception of the Gaza-bound flotilla, the Mission gave particular weight to the direct evidence from interviews with eye witnesses and crew, as well as the forensic evidence and interviews with government officials. In light of seizure of cameras, CCTV footage and digital media storage devices and of the suppression of that material with the disclosure only of a selected and minute quantity of it, the Mission was obliged to treat with extreme caution the versions released by the Israeli authorities where those versions did not coincide with the evidence of eyewitnesses who appeared before us.

This act of dismissing from the outset the ample video footage of protesters attacking and beating up Israeli soldiers where its contents did not chime with the passengers’ versions of events tarnishes the entire mission from the start. Moreover, much of the seized footage referred to above actually corroborates the documentary video, audio and photographic footage recorded by the IDF.   

The report thus begins by proceeding from a ridiculously tendentious premise.  Interviews with “government officials” in Turkey and Jordan are to be taken at face value, but nothing of consequence from the Israeli government passes the mission’s smell test. That is, unless it expressly undercuts the Israeli version of events.

In attempting to justify its rejection of the validity of Israel’s domestic inquiry the report states in its introduction 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.” But this principle is hardly adhered to in a report whose conclusions were reached almost entirely on the basis of flotilla passenger testimony and passenger-produced documentary footage—did these individuals not play a “pivotal role” in the subject of the presently under investigation?

Moving on from these bankrupt starting points, the reader is then treated to serious flaws in the mission’s recounting of the history of the Gaza naval blockade. For instance, Israel is judged to have implemented it “to punish the people of the Gaza Strip for having elected Hamas.” If that were the case, then why was it established on January 3, 2009, coinciding with Operation Cast Lead, two years after Hamas’s victory in the 2006 Palestinian parliamentary election, and a year after Israel and Egypt jointly instituted the land blockade of Gaza?  In the intervening period, Hamas, an internationally designated terrorist organization, engaged in a bloody civil war with its chief secular rival Fatah, resulting in the former’s coup and unilateral takeover of Gaza at around the time it began indiscriminately firing rockets and mortar bomb into southern Israel. In 2007 alone, according to the Israeli Foreign Ministry, Hamas fired 1,115 rockets and 1,435 mortar bombs at cities such as Sderot and Ashkelon, the majority of which armaments fell on civilian sites such as playgrounds and schools. 

Moreover, as the mission does indeed indicate, in mid-2008 Israel undertook a series of preventive measures prior to implementing a full maritime closure of Gaza in order to hamper Hamas’s ability to import weapons. These included posting notices to mariners that informed all seagoing vessels of Israel’s intent to inspect their cargos. The report even cites one such notice posted in August 2008, which read: “In accordance with the agreements between Israel and the PA, entry by foreign vessels to this zone is prohibited.” According to this declaration, the Palestinian Authority under the presidency of Mahmoud Abbas was equally responsible for Israel’s regulation of the Gaza seaways in 2008. And yet, the UNHRC Mission reserves no censure for that government or the “illegality” of its decision.

Nor does it employ an especially impartial reading of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea. The mission claims Israel violated this relevant covenant because, according to the language of the Manual, a naval blockade is unjustifiable when:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or

(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.

So far as (a) is concerned, the people of Gaza are not “starving” by any credible metric thanks to the importation of over half a million tons of food annually by Israel – another fact breezily elided in this report. Indeed, according to the CIA World Factbook, in 2010, the population of Gaza grew by about 3.5 percent: hardly an indicator of mass famine. Infant mortality is lower and life expectancy is higher there than in Turkey. Various accounts, based on first-hand investigation from Time magazine to the New York Times to Slate, have similarly failed to uncover starvation in Gaza. 

As to point (b), the mission’s analysis is extremely debatable. Consider the following. In 2008, Hamas fired 1,750 rockets and 1,528 mortar bombs into southern Israel. As of 2010, those numbers have reduced by 95.2 percent and 95.7 percent, respectively: 83 rockets and 65 mortar bombs. Might this not constitute a reasonable definition of a “direct military advantage”? 

The San Remo Manual stipulates the right of a belligerent nation to “visit, inspect and control the destinations of neutral vessels on the high seas” if there is reasonable suspicion that those vessels are “engaged in activities which support the enemy.”  From this, the report takes the fatuous view that the Mavi Marmara engaged in no such activity, scanting on abundantly well-attested information that connects I.H.H., the Turkish organization that owned and convened the ship, to the Hamas government in Gaza.  Given the mission’s sometime reliance on “the internet and other sources,” one wonders how it failed to come across this revealing statement made by Mehmet Kaya, IHH’s Gaza representative, in the course of an interview with the New York Times granted after the flotilla raid: “We only work through Hamas, although we don’t limit our aid to its followers… We consider Israel and the United Nations to be the terrorists, not Hamas.”  

Indeed, I.H.H. is a member of the Saudi-based umbrella group known as the Union of Good founded by the Islamist cleric Yusuf al-Qaradawi for the express purpose of fundraising for Hamas. (The Union was outlawed by the U.S. Treasury Department in 2008 as a Hamas financier and all of I.H.H.’s U.S. funds were consequently frozen.) The report instead un-ironically refers to I.H.H. as a “Turkish humanitarian organisation,” or “Turkish charity,” ignoring the crucial fact that Ankara, prior to the election of the ruling Islamist party AKP – key members of which also have been shown to serve on the I.H.H. board of trustees – was the first government to accuse I.H.H. of being an ally of global terrorism.  

In 1997, Turkish police raided I.H.H.’s headquarters in Istanbul and arrested key members of the organization after discovering caches of weapons, explosives, and bomb-making instructions as well as a “jihadist flag.” The Turkish authorities at the time believed that “detained members of IHH were going to fight in Afghanistan, Bosnia and Chechnya.”  For this and other salient reasons, the French counterterrorism magistrate Jean-Louis Bruguière, who now oversees the U.S. Treasury Department’s Terrorist Finance Tracking Program, has plausibly linked I.H.H. to al Qaeda, noting:

“The essential goal of this Association was to illegally arm its membership for overthrowing democratic, secular, and constitutional order present in Turkey and replacing it with an Islamic state founded on the Shariah. Under the cover of this organization known under the name of I.H.H., [its leaders] acted to recruit veteran soldiers in anticipation of the coming holy war.”

That I.H.H. may have altered its raison d’etre since the 1990s is acknowledged. But that none of its history as a militant Islamist organization is ever so much as hinted at by the mission is a seminal failing of any inquiry purporting to act with investigatory scruple. Instead, the report recycles I.H.H. and Free Gaza talking points as to the true purpose of the flotilla, plus an anodyne characterization of comments made by I.H.H. president Bulent Yildirim, who sailed with the Mavi Marmara. He spoke, we’re casually informed, “with some bravado about preventing an Israeli takeover of the ship.” What Yildirim actually said was this:

“We’re going to defeat the Israeli commandos –we’re declaring it now. If you bring your soldiers here, we will throw you off the ship and you’ll be humiliated in front of the whole world.”

Prior to the flotilla’s launch from the port of Istanbul, various participants on all eight original ships (only six made it to the Gaza coast) were recorded on film declaring their intent to become “martyrs” for Palestine; others chanted antique slogans about Islamic conquest and defeating the Jews. Of this, though, the mission is happily oblivious.

At no point is the question asked why, if one of the avowed motives of I.H.H. was to “deliver humanitarian aid” to Gaza, there was no viable humanitarian aid onboard the Mavi Marmara. In fact, much of the aid carried by the flotilla was completely useless. As Jane Corbin of BBC’s Panorama made clear by visiting the warehouse in Ashdod where the Free Gaza cargo was offloaded, much of the medicine included had already expired. The report does raise one intriguing point only to then drop it without slightest trace of piqued curiosity: namely, that Gaza Strip “does not possess a deep sea port designed to receive the kind of cargo vessels included in the flotilla, raising practical logistical questions about the plan to deliver large quantities of aid by the route designated.” How was the Mavi Marmara going to dock to deliver all that expired medicine?  And does this not do more than invite “logistical questions” about I.H.H.’s real intentions?

Most laughable is the mission’s assertion that Israel was in violation of the laws of armed conflict because “military force can only be used against a combatant or against civilians participating actively and directly in combat activities, which cannot be said of the civilians on the Mavi Marmara.”  Here it isn’t even necessary to cite the well-trafficked video footage produced by the IDF showing the opposite (although such footage found no hearing under this UNHRC remit), or even the footage produced by independent Turkish and Arab media doing so. The mission’s own report explodes the merit of the preceding claim by establishing the following in the section that purports to tell what happened onboard the Mavi Marmara:

“During the night of 30 to 31 May, some passengers took electric tools from the ship’s workshop, which was not kept locked and sawed sections of railings into lengths of approximately one and a half metres, apparently for use as weapons. Lengths of metal chains from between the railings were also removed...

“The Israeli forces attempted to board the ship through attaching ladders to the hull. Passengers engaged in efforts to repel the attempted boarding using the ship’s water hoses and the throwing of various items at the boats including chairs, sticks, a box of plates and other objects that were readily to hand...

“A fight ensued between passengers and the first soldiers to descend onto the top deck that resulted in at least two soldiers being pushed down onto the bridge deck below, where they were involved in struggles with groups of passengers who attempted to take their weapons. The equipment jacket of at least one soldier was removed as he was pushed over the side of the deck...

“A number of the passengers on the top deck fought with the soldiers using their fists, sticks, metal rods and knives. At least one of the soldiers was stabbed with a knife or other sharp object. Witnesses informed the Mission that their objective was to subdue and disarm the soldiers so that they could not harm anyone.”

The mission insists that while Israeli commandos did not fire live rounds at the passengers whilst abseiling down onto the Mavi Marmara, the helicopter from which they descended did open fire, resulting in “fatal injuries” for four passengers and debilitating “injuries” for 19 others. Israel’s military investigation has found that the only live ammunition fired at the passengers came from commandos aboard the ship who were first fired upon by guns that IDF forensic analysis show did not belong to the commandos. The Israeli military investigation also maintains that in the midst of the violent skirmish on the upper deck, commandos were shot at with their own confiscated pistols.  

The mission does acknowledge the commandeering of these pistols but credulously regurgitates the passengers’ claim that removing a soldier’s weapon was only to “subdue and disarm” him. Dismissed out of hand is Israel’s allegation of being fired upon first; the mission “finds no evidence” to suggest that the passengers aboard the Mavi Marmara were armed with guns.

More revealing, though, is the mission’s feeble attempt to find contradictions in the Israeli narrative. In a footnote, the authors cite IDF Chief of Staff Gabi Ashkenazi’s testimony to the Turkel Committee in which he claimed that one soldier had been “shot in his abdomen by one of the activists” and that “in the course of the battle, five soldiers [were] wounded by stabbings, blows and shooting [sic].” This is meant to be at odds with what Israeli Ambassador Aharon Leshno Yaar, the Permanent Representative of Israel to the United Nations, told the UNHRC on June 1: that passengers “shot two Israeli soldiers.”  But Ashkenazi’s testimony, which was delivered orally to the Turkel Committee, can easily be read to mean that five soldiers were wounded variously by “stabbings, blows and shooting” – not that all five were shot. When it suits its purposes, the Mission finds disparity where there is none and neglects disparity (as with I.H.H.’s declared versus actual motive) where it screams for attention.

Given the mission’s gravest accusations against the Israeli commandos – that they employed “extra-legal, arbitrary and summary executions” of already wounded passengers – one is again given to wonder why it would even bother citing nominal abuse as acts of “torture.” In detaining the pacified combatants aboard the Mavi Marmara, the commandos’ use of plasticuffs, evidently fitted “in an overly tight manner” and causing “neurological damage up to three months after the events of the flotilla,” is treated herein as tantamount to waterboarding.

Other examples of supposed gratuitous violence visited upon the flotilla passengers, which occurred after they were remanded to Israeli custody, are said to be “so consistent and vivid as to be beyond question,” which again invites scrutiny of the, mission’s methodology. (Can a group of people, cooperating months after an event, not invent consistent and vivid accounts of what happened?) 

Finally, if the mission’s goal was to present a judicious portrayal of the flotilla raid and its aftermath, then its repeated recourse to polemics and moralizing rhetoric have compromised that goal. Stating in its conclusion that “[p]eace and respect have to be earned, not bludgeoned out of an opponent” is inappropriate for such a “fact-finding” exercise, as is this descent into the bathos of the peace process poetaster: “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.” 

The italics are mine; the absurdity of the sentiment now belongs to the UN Human Rights Council.

Michael Weiss is the executive director of Just Journalism, a London-based think tank that monitors the British media's coverage of Israel and the Middle East.

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