Turkey unveils its final report on Israeli attack on Gaza-bound aid convoy

Friday, February 11, 2011

Turkey on Friday made public its report on the May 31 Israeli attack on a humanitarian aid convoy that killed eight Turks and an American of Turkish origin and injured many others.

Turkey repeatedly asked Israel to officially apologize and pay compensation for all the loss and damages caused by its illegal attack.

The report, prepared by Turkish National Commission of Inquiry, has been submitted to the Panel of Inquiry set up by the UN Secretary-General in August 2010, in accordance with the Presidential Statement issued by the UN Security Council in June 2010 which called for a prompt, impartial, credible and transparent investigation conforming to international standards.

The executive summary of the report recalled that Israeli military forces on the early hours of May 31, 2010 attacked in international waters an international and multi-faith convoy of six ships organized by a coalition of NGOs from 37 countries transporting certified humanitarian aid to the Gaza Strip.

"The attack took place 72 nautical miles from the nearest coast, and 64 nautical miles from the zone declared unlawfully, as will be seen, blockaded by Israel. As a result of the attack, eight Turkish citizens and one US citizen of Turkish descent were killed. Over 70 passengers from a host of nationalities were wounded. One of these remains in a coma to this day," the summary said.

The executive summary of the report continues: The vessels that set sail from Turkey had been duly inspected for security, immigration and customs. The passengers on board, their personal belongings and the large volume of humanitarian aid had also been thoroughly checked. It was firmly established that there were no firearms or any sort of weapon on board the vessels. Those Turkish ports from where the ships in the convoy set sail are duly certified under the International Ship and Port Facility Security Code (ISPS) of the International Maritime Organization.

The Israeli forces mounted a full-fledged and well-planned attack with frigates, helicopters, zodiacs, submarines, and elite combat troops heavily armed with machine guns, laser-guided rifles, pistols and modified paintball rifles. The Israeli soldiers shot from the helicopter onto the Mavi Marmara using live ammunition and killing two passengers before any Israeli soldier descended on the deck. During the attack, excessive, indiscriminate and disproportionate force was used by the Israeli soldiers against the civilians on board. The Israeli military action was of excessive disproportion to such magnitude that the United Nations Human Rights Council Fact-Finding Mission used the terms ’totally unnecessary and incredible violence.. unacceptable level of brutality.’ The passengers only exercised a lawful right of self-defense, without any firearms, against the armed attack of the Israeli forces.

Once the Israeli forces took over the vessel, instead of exercising caution and restraint, they continued to brutalize and terrorize the passengers, abusing them physically, verbally and psychologically. The passengers were beaten, kicked, elbowed, punched, deprived of food and water, handcuffed, left exposed to sun, sprayed with sea-water for hours, and denied toilet access.

During and after the ten hours of sailing to the port of Ashdod in Israel, most of the passengers were kept handcuffed. Some of them were stripped and searched; women were subjected to sexually humiliating treatment; one of them, a journalist, was forced to strip multiple times and a metal detector was placed between her legs.

All passengers were forced to sign incriminatory statements in Hebrew which most did not even understand; they were not allowed access to legal assistance, or to consular officials, nor provided with proper and timely medical care. They were denied adequate food and were confined to restricted spaces with extreme temperatures.

The Israeli officials confiscated all property belonging to the passengers. Aside from the unlawful seizure of personal property, evidences of critical importance to shed light on the attack was destroyed, tampered with or despoiled.

The severe abuse against the passengers continued throughout their stay in Israel, including their transport to prison/hospital and therefrom to the Ben Gurion Airport which was the scene to the second most brutal episode in this tragedy. The passengers who arrived at the airport, exhausted by the ordeal they were subjected to, were taunted, paraded as terrorists and enemies, verbally abused, spat on, bullied, pushed around and manhandled just to spark the slightest reaction which would be countered with massive retribution, resulting in mass beatings where officers brutalizing the passengers were shielded from view by their colleagues.

The bodies of the deceased were completely washed and repatriated to Turkey without any accompanying medical and autopsy reports. The Mavi Marmara itself, when returned after being held for 66 days in Ashdod, had been scrubbed down thoroughly, blood stains completely washed off, bullet holes painted over; ship records, Captain?s log, computer hardware, ship documents seized, CCTV cameras smashed, all photographic footage seized and presumably destroyed or withheld.

The unlawfulness of the attack put aside, the killing of nine civilian passengers on the Mavi Marmara was first and foremost a violation of the right to life enshrined in the Universal Declaration of Human Rights, and also in the International Covenant on Civil and Political Rights (ICCPR) to which Israel has been a party since 1991. International law was also violated as a result of mistreatment of injured and other passengers on board of the Mavi Marmara and in Ashdod by the Israeli forces and officials.

Furthermore, the fact that the Israeli forces committed torture, engaged in degrading and inhuman treatment; forcibly deprived passengers of their human rights and fundamental freedoms, including the right to privacy, physical security and due process; and abused them physically and psychologically constitutes clear violations of the prohibition of torture and ill-treatment under Article 7 of the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to which Israel has been a party since 1991. These acts also constitute a breach of Article 3 of the European Convention on Human Rights (ECHR).

The Israeli attack on the humanitarian aid convoy in international waters constitutes a violation of freedom of navigation and safety of navigation on the high seas. Freedom of navigation on the high seas is a long-standing rule of customary international law. The 1958 High Seas Convention and the 1982 United Nations Law of the Sea Convention codify what widely recognized to be the customary international rules of the freedom of the high seas. One of the components of freedom of the high seas is the exclusive jurisdiction of the flag State.

The Law of the Sea restricts the right of warships to seize a foreign ship, and its property and arrest the persons on board only in the case of pirate ships or aircraft.

Israel’s failure to recognize its armed conflict with Hamas as one of international character precludes it from establishing any lawful naval blockade off the Gaza Strip. Since Israel’s naval ’blockade’ on the Gaza Strip is unlawful, any act it performs as a function of this ’blockade’ is also unlawful par excellence.

Israel’s naval ’blockade’ against the Gaza Strip, as it existed on 31 May 2010, was also in violation of the principles of international law governing blockade, as laid down in the San Remo Manual.

Even assuming, in arguendum, the validity of the basis of Israel’s ’blockade’, its implementation would render it unlawful. It was excessive, unreasonable, and disproportionate to any military advantage to be achieved in relation to its impact on the civilian population. This has been documented by numerous UN agencies and the international community at large.

Numerous official statements acknowledged that Israel’s blockade was ’illegal’ and had to be lifted, describing the blockade as ’collective punishment on civilians.’

The blockade failed to meet the other requirements of a lawful naval blockade under international law, such as specifying the duration and extent of the blockade.

Israel retains effective control over the Gaza Strip and is generally recognized by the international community and the UN as the occupying power there. As a result, Israel cannot lawfully impose a blockade on the Gaza Strip. From this perspective also, the Israeli blockade is illegal and any interdiction based on such blockade is, by definition, unlawful.

Finally, it is a central principle of international law that when a state violates its international obligations, it has a duty to make reparations for the wrongs committed and provide for compensation.

This case is a critical litmus test for the international community in upholding the rule of law. No State should be allowed to act above the law. Impunity must give way to accountability. Israel must acknowledge its responsibility and accordingly convey a public apology to the Republic of Turkey and provide compensation for all damages and losses resulting from its unlawful attack.

The condemnation of Israel’s attack is also crucial for the future of the right of navigation on the high seas. Otherwise, a dangerous precedential derogation from that paramount right will be established?with far-reaching ramifications that may not be accurately estimated today.

Copyright © 2011