On 13th June 2010, the Israeli Prime Minister’s Office published its draft resolution on “The Appointment of an Independent Public Commission, Headed by Former Supreme Court Justice, Jacob Turkel, to Examine the Maritime Incident of 31 May 2010” (available here). This is Israel’s response to the calls by the international community, including the UN and individual states, to launch an “international independent” investigation of the Gaza flotilla attacks (see our previous post on the Flotilla attacks, here). Instead of cooperating with an international investigation, Israel responds by initiating its own.
There is no need to elaborate on the character of Israel’s faulted record of (self) investigations. The most recent example of the nature of Israel’s domestic inquiries was following “Operation Cast Lead” in the Gaza Strip December 2008 – January 2009, when Israel rejected the findings of the Goldstone report and fiercely argued that its domestic investigation was adequate, despite widely consenting claims to the contrary. Virtually none of Israel’s domestic investigations were complaisant with the basic international law standards applicable – namely, independence, impartiality and effectiveness, inter alia. Israel’s investigations have further failed to ensure the participation of the victims and the conclusions of these investigations have consistently claimed that the Israeli military acted in compliance with international law, effectively whitewashing even the most substantiated prima facie allegations of war crimes and violations of IHL presented in countless thoroughly detailed reports by different independent expert groups, including primarily the report of the UN Fact-Finding Mission on the Gaza Conflict (also known as the Goldstone report). For previous posts on Israel’s investigations see, here.
In light of the particular circumstances on the Gaza flotilla attacks, the limited mandate and restricted scope of the investigation launched by Israel makes the conclusions of such an investigation, ab initio, largely immaterial and inappropriate to the assessment of the legality of Israel’s actions against the ships. In order for an investigation to competently assess the legality of Israel’s actions, it needs to examine the intentions of the flotilla mission by investigating the states, organizations and individuals involved. The fact that these actors originate from a number of different states requires necessarily the cooperation of the states concerned in such an investigation.
In the establishment of this investigative body, Israel is clearly looking to fulfill the two main demands expressed by the international community as part of its reactions to the attacks and to Israel’s steps to initiate a national investigation: (i) that the investigation be “prompt, credible, impartial and transparent”; and (ii) that the investigation include an element of “international involvement” or “role”. The appointment of former ICJ Justice Shabbtai Rosen is a clear attempt to fulfill the latter element. Still, the head of the investigatory body, Jacob Turkel, is a former Israeli justice of the Supreme Court and a former judge in the Israeli military courts in the occupied Palestinian territories. The “international” members, including Rosen, hold particularly pro-Israel agendas, which contribute to very serious doubts against their credibility and impartiality. These alongside with other indicators, including statements by politicians and military officials, that give rise to serious doubts that a genuine investigation, which is not designed to shield those responsible from justice, is sought to be conducted.
Similar flaws to those that were applicable to Israel’s previous (self) investigations are already beginning to show. For instance, Prime Minister Netanyahu has been insisting that the Israeli military soldiers would not be questioned, meaning that the investigation procedure will use military debriefings and the findings of the committee appointed by IDF Chief of Staff Gabi Ashkenazi as the basis for its conclusions and recommendations (see article in Ynet, an Israeli newspaper). Operational military briefings have institutional and structural deficiencies – they are conducted by the military itself and are designed to assess military performance as opposed to identifying criminal behavior or liability. This same kind of evidence was the basis for the finding of the Israeli government’s investigation of “Operation Cast Lead”, which was called inappropriate and whose findings were not recognized by any consequential international body, namely because it is a fundamental breach of the principles of international law concerning the conduct of investigations.
The Israeli government has accepted in the days following the events, the erroneous character of its actions on board of the flotilla ships on 31st May 2010. It nevertheless proceeds to mount its usual response in the frenzy of defensive rhetoric by establishing an investigation team, which will help ground the Israeli position and possibly also earn Israel legitimacy amongst the circles that may have been hurt by the recent events. As Israel goes through its moves to pacify the international community, the international latter is liable to closely follow this process whilst recalling that the investigations initiated by the Israeli government on the Gaza operations, inter alia, paid no more than lip service to the primal importance of accountability for violations of the basic considerations of humanity upon which the international community stands and which the international governance structures of the UN have been established to uphold and actively secure together with the member states of the UN (i.e. through the concept of erga omnes obligations).
The attacks on the Gaza flotilla are just another example of Israel’s utter disregard for international law, and the demands of the international community of states and UN bodies. This status quo is, however, coupled by Israel’s flagrant disregard for international opinion and therefore its growing engagement with the necessary actors through newly established special bodies to give a pretense of compliance to those who may have questioned Israel’s intentions towards international law. It is thereby that Israel mounts a legitimization campaign through the international legal discourse, making international law itself into a site of conflict.
It also reflects on Israel’s more recent policies towards humanitarian aid workers and missions as well as the numerous battles the Israeli government has been mounting over the past few years against international human rights workers and activists in the occupied Palestinian territory as well as more recently, although not unprecedentedly, against Israeli activists, mostly Palestinians with Israeli nationality, by means of pushing through a series of legislation. These measures amount to systematic violations of international human rights law, specifically the body of rules for the protection of the work and status of human rights defenders. Notably, the most recent legislation premised on the concept of loyalty and citizenship (presented by Foreign Minister Lieberman and his political party “Yisrael Beitenu”, an ultra-right wing group) is part of this campaign, which stands a strong possibility of being formalized in a law. This law would criminalize directors as well as employees of human rights organizations and groups for their work (for more information on this see, here).
In light of the precedent, which unequivocally attests to Israel’s general reluctance to uphold international law in a way that serves truth and justice, it is essential that the international community take immediate action to uphold victims’ rights to the equal protection of the law and an effective judicial remedy and ensure that the perpetrators are no longer operating in a culture of impunity (see also PCHR’s statement on this, here).
For a very insightful piece by Keenan and Weizman on Open Democracy and Maan news on the ‘demonization’ of the NGO community in the context of the flotilla incident, here.
The ICRC has also recently published a statement calling for the immediate lift of the illegal closure of Gaza, which constitutes a form of collective punishment.
Shabtai Rosenne never was an ICJ justice.
Ms. Azarov’s plaintive claims against Israel’s government notwithstanding the one fact that she does not mention is that Israel is the only country that has had so many condemnations of its actions in defence of its people and territory. Not because Israel has done anything as bad or worse than other States but only because we are Israel.
For example, the following actions by the U.K. and the U.S. militaries have not yielded the clamour that international investigations or panels should be empaneled, either by Ms. Azarov or anyone else.
1. The multiple U.S. drone killings of Afghani civilians;
2. The Turkish aircraft bombings of at least a dozen Iraqi Kurds on June 19, 2010. The Turks ignored the socereignty of Iraq and flew over Iraqi airspace with impugnity;
3. British Troops torturing and killing Iraqi civilians, e.g.,
“Robert Fisk of the Independent, in Baghdad
4 January 2004
Eight young Iraqis arrested in Basra were kicked and assaulted by British soldiers, one of them so badly that he died in British custody, according to military and medical records seen by The Independent on Sunday.
Amnesty International has urged its members to protest directly to Tony Blair about the death of Baha Mousa, the son of an Iraqi police colonel, and to demand an impartial and independent investigation into the apparent torture of the Basra prisoners. A major at 33 Field Hospital outside the southern Iraqi city said that one of the survivors suffered “acute renal failure” after “he was assaulted … and sustained severe bruising to his upper abdomen, right side of chest, left forearms and left upper inner thigh”.
British military authorities have offered Mr Mousa’s relatives $8,000 (£4,500) in compensation, providing they are not held responsible for his death, but the young hotel receptionist’s family plans to take the Ministry of Defence to court. His body was returned to them, covered in bruises and with his nose broken, after he and seven colleagues were arrested by British forces in Basra last September and held in military custody for three days.”
4. UK Soldiers Hooding and torturing Prisoners again.
“Many of us have seen footage or genuine photos of Iraqi prisoners who have hoods put over there heads. We saw this from the start of the war as prisoners were captured. This is a cruel treatment yet it is one that British Troops have used and been warned about before. In Northern Ireland, putting hoods on suspects was noted as one of the so-called “five techniques” used in Northern Ireland in the early 1970s. The four other techniques were wall-standing, subjection to white noise, and deprivation of sleep and of food and drink. These “five techniques” were found by the European court of human rights to constitute inhuman treatment, in breach of the UK’s obligations under the European convention on human rights. British troops have not learned much since then have they? It is likely that the Iraqi resistance will now view UK troops much the same as USA ones. The odds of more British Troops coming home in body bags has gotten shorter.”
So until the US and the UK allow international investigations of their military actions, explain to me why Israel should.
It may be a new bottle but its not the same old wine, it is the same wine that every other State drinks without the heavy handed criticisms that Ms. Azarov and her ilk cast only towards Israel.
Faculty of Law
The Hebrew University of Jerusalem
Ruth Lapidoth, Professor Emeritus of International Law at the Hebrew University of Jerusalem, writes on “The Legal Basis of Israel’s Naval Blockade of Gaza”:
“Stopping the flotilla heading for Gaza in international waters 100 kilometers from Israel was not illegal; in time of armed conflict, ships intending to breach the blockade may be searched even on the high seas. Israel is in full compliance with international law because it fulfilled all of the conditions for a lawful blockade.”
For the full article click here: