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Flotilla report: So how did the activists die?

Why does Israel still refuse to show us the full footage from the Mavi Marmara? Perhaps because it knows what we’ll see

Last weekend saw the release of the Palmer Report (which can be read here – a PDF file) dealing the Flotilla incident and the assault on the Mavi Marmara last year. To make a simplistic summary, the report reaches two conclusions: That Israel’s naval blockade of the Gaza Strip is legal, which means is entitled (in fact, required) to enforce it; and that the assault on the Mavi Marmara was wild and lacked proportion.

The Israeli government, naturally, quickly adopted the first part and did its best to keep the second out of sight. Netanyahu even had the gall to announce Israel accepts the first and rejects the second. I’ll be dealing with the first part, but – as I think the death of nine human beings and the wounding of dozens more is more important than questions of legality – will spend most of my time dealing with the second part.

To begin with, the Palmer Report is a strange animal. The committee investigated nothing on its own and it only relies on the reports delivered by Israel and Turkey. The committee had to ascertain whether the naval blockade of Gaza is legal, and this posed some problems. The first one is that for a blockade to take place, there have to be two belligerent sides – and Israel never recognized Hamas as such. The committee solved the problem by recognizing Hamas as a belligerent (article 73). In the same article, the committee notes it is aware that “under the law of armed conflict, a State can hardly rely on some of its provisions but not pay heed to others.” Yours truly is not an expert on international law, but it looks as if the Palmer Committee recognizes the Hamas gunmen as warriors, enjoying all the rights accorded them in international law. This means Israel can no longer treat them as criminals and try them in its kangaroo courts; it must treat them as prisoners of war. This is something Israel fought against for decades. Since Netanyahu was so happy to adopt the parts of the report dealing with the blockade, one assumes he agrees to this, as well.

The report bypasses another mine on its path to legalizing the blockade, this time the demand that its enforcement be “effective and impartial”, by saying it began in January 2009 (art. 76), and ignoring the fact Olmert allowed several flotillas to reach Gaza. Article 77 shows the committee at its naïve best, when it says the policy of land siege of Gaza is unconnected to the naval blockade, and by saying the blockade is only intended to prevent the smuggling of arms. The committee ignores the fact that equipment which reaches Gaza by sea also has to pass through the Israeli checkpoints – and that Israel’s siege is not at all limited to arms. For instance, it refuses to allow the import of construction material, under the pretense Hamas may use it to build bunkers. Hamas, which controls the tunnels, has all the construction material it needs, thank you for asking; it’s the common Gazan who wants to build a house, or who wants to rebuild the school Israel destroyed, who is harmed by this policy.

The committee also says the Mavi Marmara could not have landed in Gaza, since there are no adequate port facilities (art. 78), while tacitly ignoring the fact that the port does not exist because Israel bombed it, and it is not rebuilt because Israel refuses to assure the donating countries it won’t bomb it again.  Furthermore, Israel’s policy regarding Gaza has been expressed publicly in the past. It is not military, per se. It is a policy of economic pressure against the population for its support of Hamas. An American communiqué leaked by Wikileaks said that “Israeli officials have confirmed to econoffs on multiple occasions that they intend to keep the Gazan economy on the brink of collapse without quite pushing it over the edge.”

The Gisha Center, which focuses on the siege on Gaza and its effect on Gazans and Israelis, noted in its response to the report that international law – which, as the report says, A State can hardly rely on some of its provisions but not pay heed to others” – requires Israel “Israel to allow freedom of movement for people and civilian goods to and from the Strip, subject only to individual security inspections. The Palmer Commission did not review Israel’s overall closure of the Gaza Strip, still in place today”. Needless to say, Israel does not abide by these standards.

And now for the really interesting part: What happened on the Marmara. The report strongly rebukes Israel for carrying the attack a long distance away from Gaza, for carrying it out at dawn and without the warnings common in international law – such as warnings, firing across the bow, and so on. No such warnings were given even though the IDF’s battle order said they ought to be, as well as informing the vessels prior to the assault that the navy “was obliged to take all necessary measures” (art. 110-111). The committee found that the decision to attack at dawn without prior warning derived as much from Israel’s wish to avoid publicity as from operational reasons (112). It further finds the assault, as carried out, treated the flotilla as if it was an immediate military threat, which it certainly was not (114), and reached the conclusion that the attack without warning on the ship was a major factor in the deterioration into violence (115). It says that had the IDF bothered to supply a warning – for instance, a shot across the bow – this may well have calmed tempers, and the incident may have been prevented. It also criticizes the IDF for not using non-lethal weapons.

The IDF, as you probably recall, claimed his men did not open fire until they were attacked by a raging mob. And while such a mob certainly was there, the committee finds the IDF’s claims to be reality-challenged. Bullet holes have been found in the upper decks of the Marmara, which clearly indicate being shot from above, and the committee assumes guns were fired at the ship from the helicopters. The committee also accepts the Turkish claim that the ship was also under fire from Israeli navy boats surrounding it, all of which denies the IDF’s claim of “using accurate fire”.

Another reason to dismiss this claim comes from the number of rounds fired. The IDF gunmen say (126) they fired 308 live bullets, 264 paintball bullets, and 87 beanbag bullets. Seven out of nine dead suffered a number of injuries to sensitive parts of the body. Five of them were shot from behind (at least three suffered a shot to the back of the head), two were each hit by one accurate bullet (one of them was hit between the eye, one in the throat), and at least one of them, Furkan Dogan, took a bullet to the back of the head at point-blank range after already taking bullets to the leg, face and back, and was likely lying down. The committee refrains from saying he was murdered execution style (128).

The Israeli representative failed to explain how each of the victims was harmed, and said (127) given the circumstances, Israel could not find out the circumstances of each wound – which says all needs to be said about the quality of IDF debriefings, which the army lauded. The IDF failed to provide the committee with any proof that and of the men he killed was armed (128), and one of the dead – who was shot from a passing boat – was holding at the time of his death a weapon of mass destruction cleverly disguised as a fire hose (ibid).

The committee also finds that the IDF used unnecessary violence – admittedly, non-lethal – towards people on the other ships of the flotilla, even though no resistance was offered to the boarders (132), and refers (135-145) to the abuse and looting which were suffered by the detainees by the heroes of the IDF.

If you please, may I point out an elephant in the middle of the room? During the takeover, the IDF confiscated all of the magnetic media found on the flotilla, including photos and videos documenting the assault itself. It released a few short videos it took itself, but so far – 15 months after the events – it won’t release neither its own full filming of the assault, nor the confiscated media.

After reading the report, one understands why: We would see an ecstasy of violence not just from the IHH goons, but from Israel’s finest gunmen, who fired 659 rounds of various sorts on the Marmara. Which is to say, more than one bullet per person on the ship, or – given the IDF’s claim that 30 activists resisted the boarding – more than 20 bullets per resister. This isn’t controlled fire; this is unbridled frenzy, which was possibly the result of three soldiers being taken captive by the people on the Marmara. The IDF had all the chances in the world to prove it is in the right: All it had to do was release the documentary data. It didn’t, and probably with good reason. The Chief of Staff, Gabi Ashkenazi, later forbade the testimony of soldiers by the Israeli investigative committee. Again, he probably had a good reason for that.

The IDF not only assaulted the Marmara ignoring its own battle order (which said warning before the assault is required); not only did so in an unusually poor attempt to avoid publication of the attack (as if such a thing was remotely possible), and not only lost its senses when it was on board – it also ruined any chance of rebuilding our relations with Turkey. The army said time and time again that an apology would be a “humiliation of the Shayetet soldiers”, which made it impossible for Israel politicians to make such an apology.

The IDF is not alone here, of course: Binyamin Netanyahu, always willing to buy right-wing votes at the expense of Israel’s interests, refused to apologize. At first, Israeli pundits noted, he told the Obama administration he is afraid that Liberman will use the apology as a pretext for leaving the government. Once the Americans spoke with Liberman, who said he won’t resign, Netanyahu demanded he say so in public, which Liberman duly did. And then Netanyahu informed the Americans he can’t apologize, not with a social justice protest movement on his hands.

Naturally, other politicians are riding this horse – Erdogan prominent among them; he certainly could use any drop of patriotic fervor as he chucks his military leadership in prison – but it is jaw-dropping to see, once more, how a military screw-up at company level causes most of Israel to defend the military, despite the staggering diplomatic and political price.

Which, one fears, is just the appetizer before the main dish, to be served in about three weeks.

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  • COMMENTS

    1. phil

      @Yossi

      A good article and a refreshing contrast to the vitriol expressed in Avi’s “Shit-bow diplomacy” article last week

      However, there is one very important omission:

      The summary to the report states that the committee was “not acting as a Court and was not asked to adjudicate on legal liability. Its findings and recommendations are therefore not intended to attribute any legal responsibilities.”

      Despite this statement, Palmer et al (in reality, Palmer and Uribe) sought fit to declare the blockade “legal”.

      Even as they did, they failed to reference any aspect of international law that supported this claim

      Simply put, the report is a whitewash

      Reply to Comment
    2. SICK, calling response 2 descending, purposeful assassins ‘AN ECSTASY OF VIOLENCE’ on the part of the victims! Exercise of half one’s mental capacities coupled with an even smaller percentage of whatever humanity might be brought 2 bear in analysis, reveals who stews in the ecstasy of violence even still. Good reasons asserted, ok he says critically, fine by him, sure you’re right! Finding comfort in ANY legal assertion from the criminal URIBE, just proof of willfully forcing ‘conclusions’ which have absolutely no basis in law. Just a screw-up at ‘company level?’ You IN da company, it was a screw-up, monumentally, BUT ALSO WILLFUL MURDER PLANNED WITH MALICE AFORETHOUGHT! You condemned forever as purposeful shaper of continuing falsehoods 4 public consumption, not a seeker after truth at all, completely unimportant, extraneous 2 your real work, assuaging the consciences of killers & their lazy supporters & subjects!

      Reply to Comment
    3. Rika Chaval

      Phil, you missed the point, while it wasn’t the Palmer Commissions business to “adjucate” anything, as a commission isn’t a Court quite obviously, they did have to get into the question whether the naval blockade of Gaza is legal under international law, because Israels position was based on the notion of legitimate defense, which would authorize Israeli forces to stop and board any ship that sailes to Gaza. Thus whether or not Israel can rightfully invoke “legitimate defense” can’t possibly be answered without looking at whether the blockade is rightfull under international law. If it is, than Mavi Marmara captain, crew and passengers were trespassing.
      You may not find the commissions reasoning convincing, I do (being a lawyer myself).

      Reply to Comment
    4. Phil

      @Rika,

      It appears that you did not read my comment completely, as your response bears no relation to what I wrote

      You are correct in saying that the question of whether or not Israel can rightfully invoke “legitimate defense” can’t possibly be answered without looking at whether the blockade is rightfull under international law

      However, and as I have already pointed out, Palmer et al “failed to reference any aspect of international law that supported this claim”

      To repeat, there is not a single reference to any article of international law in this report. You state you are a lawyer, so I am surprised that this fact poses no problem for you.

      It is, in effect, the same as pronouncing a guilty verdict on an individual without informing them of the offence they have committed or the law they have broken..

      As such, the findings of the report can only be convincing to those who already had their minds made up.

      Reply to Comment
    5. Kernod

      Phil, the upside is that by stating that the blockade is legal, the Palmer Committee has motivated Turkey to test this assertion in the ICJ. It will be interesting to see what happens to the legal standing of the blockade when real legal professionals are asked to review its legality.

      Reply to Comment
    6. Zvi

      Many months ago I heard a good radio interview with a Canadian/Palestinian who had been on the boat and witnessed the events. He basically said: “I knew that we were in for it when they [the motivated activists who were waiting to attack the soldiers] overpowered a soldier and brought him below deck. Israel fucking destroyed Lebanon the last time their soldiers were kidnapped!”

      Reply to Comment
    7. Zvi

      And why was an elite combat unit used for this operation anyway? It seems more like a job for mishmar ha-gvul (the border police)….

      Reply to Comment
    8. @Fil – the name is “Ami”.
      .
      And I fail to see what vitriol my post has that Yossi’s doesn’t. The fact that I said they were “thugs” and Yossi only called them “goons”? Come on, Fil…

      Reply to Comment
    9. aristeides

      Well, Ami, the next time masked men break into your house and you pick up the kitchen cleaver to fend them off, you can argue whether that makes you a “thug” or a “goon.”

      Reply to Comment
    10. Delphine Goldberg

      Despites Israel’s hasbara the international community still claims that the seige on Gaza is illegal. You can only put a soverign country under seige during times of war. Israel is neither in a war with Gaza nor is Gaza a soverign state. However, if Israel did have a blockade that only prohibited weapons from intering Gaza then maybe the international community wouldn’t find it so illegal but we must remember that Israel also prohibits tea, toys, shoes, paper, a large percentage of medical supplies, spices, cabbage, macaroni and chease, and concrete to Gaza.

      As for the attack on the flotilla I couldn’t have said it any better Yossi (:… But I would like to mention that the flotilla attack and the Gaza massacre is what turned the international community against Israel. I live in the US and very few pity Israel anymore. Lately the comments have become very sympathetic to Palestine as well as describing Israel as “radical, racist” and my favorite “the Jewish Iran.”

      Keep up the good writing!

      Reply to Comment
    11. @aristeides – you’re right. That’s a perfectly legitimate comparison. Don’t know why I didn’t think of it earlier. It’s the simple ones, the superficial crappy ones that are always right under you nose, innit! ;)

      Reply to Comment
    12. Michael

      It says a lot about the reputation of Israel and the IDF that people were not surprised by the events on the Mavi Marmara.

      Let’s remind ourselves, this is Israel’s supposedly “elite” commando force.

      Let’s do a thought experiment.

      If the SAS or the Navy Seals were required to deal with civilians who did not possess firearms and who were confined to a boat, and the operation turned out the way the Mavi Marmara did.

      Would anyone seriously contend that this had been a successful mission?

      They would be ridiculed, public outrage and a government enquiry would follow, and they would rightly be described as incompetent.

      Reply to Comment
    13. aristeides

      Grant for the sake of argument that the Israeli position is legitimate, they had the right to intercept the ship. Say they’re in the position of police at a roadblock, stopping cars to see if they have contraband. Say that the passengers in the car resisted the police and the police had the right to subdue them.

      Granting all that, when the police have the passengers UNRESISTING on the ground, bleeding, with broken bones, and they then execute them with gunshots to the back of the head, there’s only one word for it. Murder. Yet Israel not only refuses to indict these murderers, it pins medals on them.

      Reply to Comment
    14. Phil

      @ Ami

      Apologies for misspelling your name, it was a genuine mistake..

      However, doing the same with mine can only be described as petulant

      If you cannot take criticism, why do you do what you do?

      As regards Yossi’s use of the word “goon”, it appeared to me to be intended as a tongue-in-cheek remark

      Reply to Comment
    15. directrob

      I do not know why people of the IHH need to be called “goons”. It is the language of propaganda and unworthy of 972mag. It is rather over the top in every sense of the word.
      .
      Oxford dictionary goon (noun)
      .
      1 a silly, foolish, or eccentric person.
      .
      2 (us) a bully or thug, especially a member of an armed or security force.
      .
      3 (gb) a guard in a German prisoner-of-war camp during the Second World War.

      Reply to Comment
    16. @Phil – apology accepted.
      .
      I can deal with the criticism. It’s the patronizing vitriol that tends to make me “bite back”.
      .
      @directrob – i think that definition fits a small part of the people that were on the Marmara.

      Reply to Comment
    17. The IDF ignores High Court orders for decades with impunity. Now immediate command contravenes a battle order with impunity. There was no overriding cause to do this. The IDF, above the law, now becomes above military command as appllied. This should be a clear warning sign. The rule of law, flauted externally, is flauted internally as well. Raw military politics controls.

      Reply to Comment
    18. Bosko

      @Directorb
      “I do not know why people of the IHH need to be called “goons”. It is the language of propaganda and unworthy of 972mag. It is rather over the top in every sense of the word”
      .
      You are kidding us, right? That description of the IHH is the language of propaganda, you say. Do you apply the same standard when various posters on these blogs describe us few Zionists who take the time to post our opinions here in even more derogatory terms? Is that propaganda too? Why do I smell a whiff of double standards in that sentence of yours?

      Reply to Comment
    19. Piotr Berman

      Aresteides: “when the police have the passengers UNRESISTING on the ground, bleeding, with broken bones, and they then execute them with gunshots to the back of the head …”

      It is my understanding that one cannot use a single word but a rather longish phrase “The circumstances of their death are troubling and require further clarifications.” For example, only some were shot in the rear of the head.

      To give another example, “unresisting” is actually an interpretation. In Rodney King case, the accused policemen successfully argued that King was twitching and that was a form of resistance.

      However, would LADP follow the behavior of IDF, to wit, refuse to supply all available evidence concerning the “troubling circumstances” of the arrest of Rodney King, I think that they would be in contempt and the head of the department could be in jail until he would comply. (King was indeed tased, bleeding, with broken bones, BUT alive.) Perhaps I am wrong, luckily, in USA police complies with court orders.

      I actually do not understand why Turkey is not prosecuting the murders (it really seems that there is enough material for murder indictments). I assume that Israel will be (a) in contempt and (b) sovereign. Then Turkey could try to enforce contempt penalties in various countries (sizing assets and individuals). But I do not know if there are international rules concerning compliance with requests for evidence etc.

      Reply to Comment
    20. aristeides

      I believe it is precisely these murders that Turkey intends to take to the Hague. It is just a shame that the US, whose citizen Dogan’s murder is perhaps the most provable, has not taken the lead on this, is in fact obstructing the attempts of his family to find justice.

      (Just as a point of comparison, the city of Chicago recently settled a civil lawsuit filed by the family of a man who died in custody, having been legitimately arrested, legitimately subdued – because the police, seeing him in obvious physical distress, took him to the jail instead of the hospital. This is the civilized standard. Shooting the subdued prisoner in the head is so far from this as to be indefensible. Even thugs have a right not to be murdered.)

      Reply to Comment
    21. aristeides

      Then there is the death in British custody of Iraqi citizen Baha Mousa, in which one soldier has now been convicted and the prosecutions of several others belatedly promised, after a coverup that looks trivial next to Israel’s coverup of the Mavi Mamara crimes.

      http://www.guardian.co.uk/world/2011/sep/08/baha-mousa-report-british-soldiers

      Reply to Comment
    22. “Israel’s overall closure of the Gaza Strip, still in place today”. (from the article)

      But Gaza has 2 land borders – and the Rafah crossing point to Egypt has been open for free passage for some weeks now.

      Israel is not – and never was – solely responsible for Gaza’s connection to the rest of the world and the inference that the people of Gaza are ,in some way, imprisoned, is a distortion of the truth.

      Reply to Comment
    23. RichardL

      I would just like to point out that Palmer report’s finding is merely an opinion, and by a bunch of rank amateurs at that. Nobody on this panel had any expertise in international criminal or humanitarian law. They also spent the whole time in their ivory tower reading only whatever guff was given them.
      By comparison the UNHRC fact-finding mission had a former judge from the ICJ and a former prosecutor from a UN Special Court backed up by a secretariat which included experts in international law. It also got out to see the Mavi Marmara and to meet as many witnesses as would testify before it. (It was not the Mission’s fault that nobody from Israel took up the offer.)Nevertheless their opinion is still only that, an unenforceable opinion;it is not a ruling. For that we need Turkey to go to the ICJ (or perhaps even the ICC.)
      For all that this Panel was an exercise in futility which has told us little beyond showing how gullible Palmer was in taking Turkel at face value, it is not a whitewash. It has condemned the actions of the Israeli soldiers, and quite forcefully too. It has embarrassed Israel on the first occasion it has ever allowed outsiders to comment on its activities. It has not given Netanyahu the opportunity to gloat that the Hutton report gave to Tony blair. For this we should be grateful.As to its absurd opinion (a classic case of garbage in garbage out) don’ t worry about it. It has no legal standing anymore than mine or yours. Surely nobody believes Israel would have abandoned the blockade if Palmer had said it was illegal. But in the meantime it seems to have stiffened Turkey’s resolve to go The Hague, and that is well worth having.

      Reply to Comment
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