The Importance of the Palmer Report

Trevor S. Norwitz

The United Nations report prepared under the leadership of former New Zealand Prime Minister Geoffrey Palmer on the Israeli interception of a Gaza-bound flotilla in which nine pro-Palestinian activists were killed is noteworthy for several reasons. It confirms long-standing and important principles of international law concerning the use of naval blockades in military conflicts, which had been under attack by parties with a political agenda. It injects a degree of moral clarity into the debate surrounding the legitimate use of force in asymmetrical situations by properly allocating the responsibility for violence to those who cause it. And it demonstrates the continuing vitality of the United Nations in international law and justice, by showing that where a fair and reasonable process for an international investigatory mission is established, including even-handed resolutions establishing the mission, appropriate staffing, and proper information-gathering techniques, the countries involved will likely cooperate, which will greatly enhance the legitimacy and quality of the end-product.

International Law

Although not as common as they once were, naval blockades have been an important part of military strategy since time immemorial. Rules governing the legality of sea blockades, including the principle that to be legal a blockade has to be effectively enforced, have been part of international law for over 150 years. The 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea contains the current standards for imposing and maintaining naval blockades. As the Palmer Report confirmed, Israel complied fully with all aspects of the San Remo Manual in imposing its naval blockade of Gaza in 2009 to prevent rockets and other military equipment reaching Gaza, a very real threat given the thousands of rockets that had been fired towards Israeli population centers and the capture of weapons-laden ships bound for Gaza. An earlier report on the flotilla incident rushed out at the request of the Human Rights Council concluded – without a single line of analysis – that the blockade was disproportionate and therefore unlawful. Such naked manipulation of international law principles for political purposes – an example of what has come to be known as “lawfare” – is not only a threat to Israel and other countries that may need to utilize naval blockades in the future, but to the integrity of international law itself. Fortunately the Palmer report, by acknowledging the legality of the blockade and the legal and practical necessity of its enforcement, and focusing instead on the manner of enforcement in this case, will limit the damage to established international law principles.

The argument is sometimes made that the rules governing armed conflicts have to be modified to take account of the increasing use of asymmetrical warfare and terrorist tactics. The main problem, however, has not been that the laws of war are outmoded, but that their application has been tainted by political motivation and bias. The Palmer report, although influenced by political forces to some degree, offers hope that the United Nations, the primary global institution responsible for enforcing international law, is still capable of rising to the challenge, even if its human rights organs are manifestly not.

Moral Clarity

The Palmer report upholds the Israeli position on all of the important legal elements regarding the flotilla incident. This may come as a surprise to anyone following the press coverage, which ironically but not surprisingly emphasized its criticism of the Israeli operation. (Even the Wall Street Journal published its report under the headline “UN Calls Israel Force On Flotilla Excessive.”) The Palmer report found that Israel’s naval blockade of Gaza was legal and “was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea,” that its implementation “complied with the requirements of international law,” that Israel had a “right to visit and search the vessel and to capture it if found in breach of a blockade,” including in international waters, that the flotilla organizers planned “in advance to violently resist any boarding attempt” and that “Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara” and responded in self-defence.   The commissioners also noted that they have serious questions about “the conduct, true nature and objectives of the flotilla organizers, particularly [the Turkish NGO] IHH,” and described the decision to breach the blockade as a “dangerous and reckless act,” which “needlessly carried the potential for escalation.”

In stating these legal conclusions and seemingly obvious facts, the Palmer report does something that recent reports emanating from the UN Human Rights Council have tragically failed to do, namely place the responsibility for bad outcomes where it belongs. By allocating primary responsibility for violence to the instigators – those who fire rockets at civilian towns, and who recklessly force violent confrontations to generate publicity – this report will discourage the manipulation of international law and its institutions for political ends. By contrast, reports recently produced under the auspices of the Human Rights Council could be said to have rewarded and encouraged such cynical behavior. For example, the Goldstone Report on Israel’s 2009 Gaza war, even though Judge Richard Goldstone has himself reconsidered its principal findings, was viewed as a great victory and exoneration by Hamas, which has subsequently replenished its supply of rockets and other weapons. Hopefully the Palmer report will discourage future reckless efforts to violently break the blockade.

Excessive or unreasonable?

Although the Palmer report upheld Israel’s legal position, it did criticize the execution of the flotilla interception. As it notes, Israel did not anticipate that there would be significant violent opposition to an attempt to board the ships. This intelligence failure hampered the proper preparation and execution of the mission.  The report echoes criticism that had already been leveled at the operation by Israeli sources, including suggestions that, having encountered heavy resistance to their initial attempt to board the Mavi Marmara from speedboats, the Israelis should have reconsidered their plan to board immediately by helicopter, and that before actually boarding the Israelis should have given a fifth and final warning or fired a shot across the ship’s bow. These seem like sensible suggestions, especially to someone with no experience in planning complex naval operations. However it is hard to square such tempered and modest recommendations with the unequivocal legalistic terms “excessive and unreasonable,” which naturally provided the media with their favorite quotes and sound bites.

There is no question that mistakes were made and the operation was not a success, but it is hard to read the report and not feel that the phrase “excessive and unreasonable” is inconsistent with the actual findings made. That characterization is more likely explained by the commissioners’ desire to appear even-handed, and perception of their express policy imperative “to achieve a way forward”. In this same spirit, the Report suggests that Israel make an appropriate statement of regret and offer a payment for the benefit of the deceased and injured, not because of any legal obligation or liability but symbolically “to advance the interests of stability in the Middle East”.  The former Israel has done and the latter is a reasonable suggestion that I expect Israel would be willing to comply with if that would put an end to the matter.

The report’s criticisms of the treatment of the flotilla passengers after the battle are more troubling. Although the facts are contested and highly uncertain, it is clear that the Israelis did not treat the Mavi Marmara passengers with kid gloves. It is also clear that Israel needs to remember, should a similar situation ever arise again, both that its actions will be subject to a level of scrutiny not applied to anyone else, and that its own people and its supporters expect that it will adhere to the highest standards of decency. These standards should be applied (with appropriate security measures) even in the case of people who have chosen to provide moral and material support to terrorist organizations targeting Israeli citizens. It may not be fair but that is how it is if you want to be the state of the Jewish people. Israel would also do well to remember that people who have given up their vacations and even risked their lives to score a public relations coup can not always be counted on to tell the truth. Video cameras should be used both to enforce and to evidence appropriate treatment of prisoners.

Unfortunately, given Turkey’s response to the Palmer Report, it seems it may not achieve its primary objective of putting the flotilla matter to rest and facilitating the normalization of relations between Israel and Turkey. The report does however offer valuable and important lessons and provides a far better template for involvement in international disputes than other recent examples.

Trevor S. Norwitz is a partner at the law firm of Wachtell, Lipton, Rosen & Katz, and an adjunct faculty member of the Columbia University School of Law.

The post Issue 315: The Importance of the Palmer Report appeared first on UN Watch.

Recall that in September 2010, commission chair Desmond de Silva castigated UN Watch for daring to challenge his report’s failure to consider key facts, and famously declared: “Even if Bin Laden himself were on the Mavi Maramara, Israel’s blockade would still be illegal.”

Completely wrong, says a separate UN commission appointed by Secretary-General Ban Ki-moon. Read full report here. Headed by Sir Geoffrey Palmer, the former prime minister of New Zealand, the new commission of inquiry finds that Israel’s naval blockade of Gaza is lawful.

Following are the key findings of the Palmer commission that completely negate  the conclusions reached by the Human Rights Council:

* “Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.”

* “Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade.”

* “The majority of the flotilla participants had no violent intentions, but there exist serious questions about the conduct, true nature and objectives of the flotilla organizers, particularly IHH. The actions of the flotilla needlessly carried the potential for escalation.”

* “Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection.”

* “Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.”

* “Where a State becomes aware that its citizens or flag vessels intend to breach a naval blockade, it has a responsibility to take proactive steps compatible with democratic rights and freedoms to warn them of the risks involved and to endeavour to dissuade them from doing so.”

The post UN Palmer commission negates Human Rights Council on Israeli clash with IHH flotilla appeared first on UN Watch.

(article 21 in: Briefing to the Security Council on the situation in the Middle East, by Robert Serry, UN Special Coordinator for the Middle East Peace Process, 19 May 2011)

The post UN Secretary-General Ban-ki Moon calls nations to “discourage flotillas” appeared first on UN Watch.

(article 21 in: Briefing to the Security Council on the situation in the Middle East, by Robert Serry, UN Special Coordinator for the Middle East Peace Process, 19 May 2011)

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One of the most troubling manifestations of Lawfare today is the increasing abuse of the instruments of international law, specifically to delegitimize and demonize one country (Israel) and to embarrass and weaken another (America).

I thought I would talk today about the latest contribution of the United Nations “Human Rights” Council to this phenomenon, namely its report on what might be called the Guerilla Flotilla (or, if you prefer, the Intifada Armada) which as you probably know was submitted to and accepted by that august body just a few days ago.  After that, I’d like to offer a few general thoughts on the topic of Lawfare.

The Flotilla Report is the “Son of Goldstone.”  Cut from the same cloth, it is a political manifesto masquerading as a fact-finding report. The main difference (aside from its scope) is that it does not bear the name of a prominent Jew and self-styled “Zionist” and so it is easier to just treat like all the other anti-Israel detritus that has come out of the UN over the years.

It is not surprising that the Flotilla Report looks, feels and smells just like the Goldstone Report given its genesis.  Hamas leader Khaled Mashaal specifically called for the HRC to commission “another Goldstone Report.”  After all, Goldstone excoriated Israel and exonerated Hamas (contrary to how many in the press have chosen to characterize it).  Needless to say, Hamas – along with Hezbollah, Al Qaeda, Iran and all those other champions of human rights around the world – are simply thrilled with the results of this mission as well.  They could not have written it better themselves.

The creation of a document like this, however preposterous it may be, is a perfect example of Lawfare in action: a massive public relations coup (“UN Flotilla” gets you 3 million Google hits in 0.11 seconds) and a precedent that can be used not only against Israel but against the US and other countries when they try to tackle asymmetrical threats in the future.

The most important thing to understand about the Flotilla Report is that it is a political document hinging almost entirely on the commissioners’ subjective determination of proportionality.   Its essential finding is that, since the Israeli sea blockade of Gaza was itself disproportional – that is, it inflicts disproportionate damage on the civilian population of Gaza in relation to the military advantage sought by Israel – it was illegal per se, so the boarding of the ships was illegal, justifying virtually everything the activists on the ships did to “protect” themselves and their ship and negating the legitimacy of almost anything the Israelis did. [1] 

This essential finding from which the Report’s other findings all flow shows up in one conclusory paragraph:  “[T]he Mission is satisfied that the blockade was inflicting disproportionate damage upon the civilian population in the Gaza strip and that as such the interception could not be justified and therefore has to be considered illegal.” (53)  In the entire 56 page Report there is hardly any discussion or justification for this key finding of disproportionality.  And there is no discussion whatsoever on Israel’s reasons for the blockade – one of the two elements of the proportionality analysis – beyond the observation (in one of the final paragraphs) that “Israel seeks to justify the blockade on security grounds” (263). [2]

It should be noted that the Mission did determine that the primary objective of the flotilla was not in fact humanitarian but political, namely to break the blockade (80), and also acknowledged that Israel had offered to itself deliver all of the humanitarian supplies the ships were carrying.  But somehow – inexplicably – they still found the blockade disproportional and therefore illegal.

To give you a sense of the mindset of the authors of this masterpiece of fictional jurisprudence, one of the comissioners, British lawyer Da Silva, commented that “even if Bin Laden himself were on the Mavi Maramara, Israel’s blockade would still be illegal.” The Goldstone and Flotilla Reports share many of the same fundamental flaws. I have time to cite just a few:

1.  Both missions were born in sin, the illegitimate offspring of politics and prejudice.  They were commissioned by the much same cast of characters, including many of the rogue nations who dominate the “Human Rights” Council.  In both cases they were authorized by resolutions that expressly prejudged the outcome.

•·        Goldstone called the resolution creating his tribunal a “very unfair lopsided resolution” but he still produced his report under it even though it was never formally changed.

•·        HRC Resolution 14/1 which established the Flotilla fact-finding mission is entitled “The Grave Attacks by Israeli Forces against the Humanitarian Boat Convoy” and at the outset “condemns in the strongest terms the outrageous attack by the Israeli forces against the humanitarian flotilla of ships“.   (Of course this resolution was adopted after the footage of Israeli soldiers being beaten with iron bars had been all over the news.)  The commission, according to the Report, “found it necessary to reinterpret its mandate because of the manner in which the resolution appointing it was couched.”  In other words “yes we know we were hired to do a one-sided hatchet job and we took on that assignment willingly, but trust us when we say we had no prejudices”.  Well, that is just not good enough.  It is equivalent to Goldstone’s admission that Christine Chinkin would have had to be recused for bias if their mission had been a judicial inquiry. [3] 

2. Both missions based all of their findings on one-sided evidence.  In both cases, the evidence they had was obviously biased, and in Goldstone’s case it was (by the report’s own admission) also tainted by duress.  But the same basic formula was used to produce the factual findings in both: the evidence we collected (from the anti-Israel side) said X; Israel provided no evidence to the contrary; therefore we find that the facts are X.

•·        To quote from the Flotilla Report: “The Mission gave particular weight to the direct evidence received from interviews with eyewitnesses . . . the Mission was obliged to treat with extreme caution the versions [of TV footage] released by the Israeli authorities where those versions did not coincide with the evidence of eyewitnesses . . .”  (In other words, as Groucho Marx put it: “Who are you going to believe – me or your lying eyes?”)

3. Both reports represent an unwarranted rush to judgment, dealing in an expedited cursory manner with matters that should be handled with much greater rigor.  The Israeli investigations into the allegations and accusations made by Goldstone have shown the vast majority of them to be false – and the one or two that have substance are being pursued, as well they should.  The Flotilla mission is even more egregious in a sense because it is front-running the Turkel Commission, an ongoing independent investigation including international observers (which is quite unprecedented).

4. Both reports utterly failed (or refused) to investigate critical facts.  Goldstone exhibited the most extraordinary willful blindness in refusing to look beyond the evidence presented from the Palestinian side or to investigate Hamas’ behavior (such as locating fighters and weapons in hospitals, schools and other civilian locations). The Flotilla Report doesn’t even mention Hamas except to refer to their electoral victory as the alleged reason Israel wanted to punish the people of Gaza.  And it never examines the dubious background, aims or tactics of IHH, evidently the primary instigators of the violence aboard the Mavi Marmara.

5.  Both reports betray their bias in their use of language.  Here are a just a few gems from the Flotilla Report:

•·        You may have seen the photograph of an Israeli soldier who had been beaten and stabbed in the stomach with a knife (it was one of those photos doctored by Reuters to remove the knife from the picture); well, in the Report that is described as follows:  “One of the soldiers had a superficial wound to the abdomen, caused by a sharp object . . .” (A thumbtack no doubt!)

•·        There is a very short description of the battle itself – the vicious one the whole world saw on TV – just a few paragraphs, but here is how they describe the events when the first Israeli commandos tried to rappel down the rope and were pummeled by a mob of armed activists: “a fight ensued between passengers and the first soldiers to descend . . .”.  A fight ensued . . . like “war broke out” in 1948.  Or a scuffle ensued between the office workers in the World Trade Center and the young gentlemen who had commandeered the planes.

•·        You may have seen the video clip of the IHH leader urging his troops to jihad and martyrdom and to “throw the Jews off the ship”. In the Report it is noted that he “spoke with some bravado about preventing an Israeli takeover of the ship.”

•·        Of course on the other side there is no such euphemism: the Israeli commandos are found to have summarily executed passengers and tortured those they didn’t kill (by tying their plasticuffs too tightly).  The finding is actually that they are guilty of torture in violation of articles 7 and 10, paragraph 1, of the International Covenant on Civil and Political Rights and of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  And, to add insult to injury, they are guilty of not informing the passengers of the reason for their detention as required by Article 9, paragraph 2 of the International Covenant on Civil and Political Rights.

6.  Both reports demonstrate shocking evidentiary double standards, in the assessment of credibility of witnesses and evidence and in the ascertaining of intentions.  I go into some detail on this regarding the Goldstone Report in my letter to Judge Goldstone.  By way of example in the Flotilla Report, Israel’s evidence of weapons used by activists on the ship is summarily dismissed as unreliable but “the fact that some passengers engaged in last minute efforts to fashion rudimentary weapons shortly prior to the interception confirms the findings of the Mission that no weapons were brought on board the ship“. (101)

7. Both reports include grandiose political pronouncements that are not only irrelevant and inappropriate for a “fact-finding” mission, but betray both a lack of understanding of the complexities (let alone the equities) of the Middle East conflict and a bias against Israel.  For example, the Conclusions section of the Flotilla Report offers the pretentious but revealing admonition that “an unfair victory has never been know to bring lasting peace” and ends by referring to “the regrettable reputation which [Israel] has for impunity and intransigence in international affairs“.  In similar vein, the Goldstone Report criticizes Israel for “failing to protect its own citizens by refusing to acknowledge the futility of resorting to violent means and military power” (as though its implacable enemies like Hamas have given it any choice).

8. Both reports exhibit a startlingly un-judicial lack of balance between the prejudicial and the probative.  The Flotilla Report for example includes lengthy and graphic descriptions of the way in which the deceased activists were (allegedly) summarily executed and of the horrible abuses (allegedly) suffered by the surviving passengers after Israeli commandos took control of the ships which, although obviously derived from one-sided testimony, was simply stated as fact, and seemed to serve little purpose other than to highlight how merciless, bloodthirsty and depraved the Israeli military is.

I could go on and on but I think you get the point.  Tragically, both reports reward and encourage the most cynical and despicable of behavior.  Both cases represent a missed opportunity to provide moral clarity and deter cynical manipulation of international law and institutions. 

Instead they provided a blueprint for violent political groups as to how they can use international law to protect themselves and shift blame to those trying to contain them, a blueprint that can be used against the United States as easily as against Israel.

In my few remaining minutes, I’d like to say a few words about Lawfare more generally.

Almost anything created for a good purpose can be abused or even “weaponized”: think of an ice-pick, a candlestick, a box-cutter knife, an airplane, a shoe, a pair of underpants.

And not just physical objects.  We have seen the abuse of almost every institution invented by man: democracy (think of Venezuela, Iran, the Weimar Republic); education (look at Gaza under Hamas or the PLO, Apartheid South Africa); religion (no examples needed). 

It should be no surprise then that the law – one of humanity’s greatest achievements, designed for the creation of ordered societies, the establishment and maintenance of justice and the determination and protection of truth – is also susceptible to abuse.

Today what is really under attack is perhaps the most fundamental value in our Western culture: truth.  And it is ironic in the extreme that it is the law, which was created and designed to be the servant and protector of truth, that is the enemy’s weapon of choice to undermine the truth.

When one speaks of abuse, of things being misused, the abuse can be in design or in application.  Some things are just bad by design and no amount of tinkering can save them: crack cocaine – it’s cheap and devastating and has no good purpose; the legal system of Apartheid South Africa (intricately designed to achieve its awful goal).  Such things cannot be fixed, they are just bad and have to be eradicated or, if that is not possible, contained.

But more often the abuse lies not in design but in application.  People take ordinary things and use them in a bad way:  a webcam becomes a weapon with which to bully; a water bottle becomes a bomb; a civilian airplane becomes a guided missile.

Human nature being what it is, it is not possible to guarantee that things will not be abused.  But once a risk of abuse is manifested, what we can do is implement design improvements to prevent that abuse in the future:  we add a dead bolt on the cockpit door – a simple cheap fix to prevent a civilian aircraft being turned into a weapon of mass destruction.  Some fixes are more expensive and the cost benefit analysis is not as clear. 

The same is true for the law.  The fundamental problem is not one of design but one of application. I know some disagree and think that the laws should be changed to take account of asymmetrical warfare and terrorism, but I think the fundamental laws and principles themselves are basically fine.  Universal jurisdiction is not inherently a bad idea, but it is being abused.  The fundamental principles of the laws of war – the principle of distinction between civilian and military objects, and the principle of proportionality, which have developed over hundreds of years – are good and sensible tools for balancing the needs for people to defend themselves and their rights and the protection of the innocent.

The problem is that the application of these laws and principles has been corrupted.

When Tzipi Livni has to avoid traveling to England for fear of arrest under universal jurisdiction, something is wrong.

When a terrorist organization can commandeer a major hospital in Gaza for their military headquarters with absolute impunity because the so-called fact-finders are not interested but are only looking to condemn the other side, something is wrong.

When the so-called “human rights” organs of the United Nations are so obsessed with demonizing one country that they make a mockery of the very idea of human rights and allow real violators to literally get away with murder and genocide, something is terribly wrong.

The question of why seemingly good people abuse the law like this is a fascinating one but beyond my brief.  A question we do need to ponder is what can be done about it?

In some cases, there are fairly simple design improvements – like the dead bolt on the cockpit door – that will fix a problem.  For example, England and other countries are in the process of fixing (or have fixed) the abuses of universal jurisdiction in their countries.  

I am actually confident that the law is quite resilient and, with the help of good lawyers and NGOs like The Lawfare Project who shine a light into the darkness, will strike the right balance eventually. 

In the meantime, there are a variety of tactics by which to prod the law in the right direction: political intervention of course; legal defence work (although that can legitimize the abuse, and so has not been favored for example by Israel which has refused to cooperate with the marsupial tribunals of the HRC, or the International Court of Justice in the separation barrier case, another nadir of jurisprudential gibberish); and perhaps also going on the Lawfare offensive, if only to highlight the absurdity of the abuses.  Public relations is a large part of the battle, since that is one of the main objects of the abusers.  And just continuing to speak the truth is an imperative – and a victory in itself.    

Where I have far less confidence is in the institutions that are being entrusted to implement these laws.  In particular the so-called “human rights” organs of the United Nations.  It is becoming increasingly clear that these bodies, in particular the “Human Rights Council,” are not capable of being a force for good in the world.  To the old saying “If it ain’t broke, don’t fix it” I’d like to offer a corollary: “If it ain’t fixable, don’t waste resources trying.”  The U.S. made a good effort at constructive engagement with the Council but it is clear that it has not worked.  The HRC is not in need of a design tweak, it is rotten and malignant to the core.  I believe that the single most significant step that could be taken to put an end to the abuse of international law is for the US to disengage from that contemptible body.

 [1] Although the Report’s authors did not actually accuse Israel of piracy – although I am not sure why they bothered to stop short given the tone of the Report – they did note that the use of water cannons is specifically advocated by merchant marine manuals as a defence against pirates.

[2] I suppose space was too tight because of the need to include so many pages of graphic “eyewitness accounts” of Israeli brutality, sadism and sexual depravity.

[3] In fact, the Flotilla commission was apparently so ashamed of their authorizing resolution that they dropped it as an Annex in the final Report although it had been called for as an exhibit in the draft submitted.

The post Goldstone and the Guerilla Flotilla: An Emerging Pattern appeared first on UN Watch.

Goldstone and the Guerilla Flotilla:
An Emerging Pattern

By Trevor S. Norwitz

 One of the most troubling manifestations of Lawfare today is the increasing abuse of the instruments of international law, specifically to delegitimize and demonize one country (Israel) and to embarrass and weaken another (America).

I thought I would talk today about the latest contribution of the United Nations “Human Rights” Council to this phenomenon, namely its report on what might be called the Guerilla Flotilla (or, if you prefer, the Intifada Armada) which as you probably know was submitted to and accepted by that august body just a few days ago.  After that, I’d like to offer a few general thoughts on the topic of Lawfare.

The Flotilla Report is the “Son of Goldstone.”  Cut from the same cloth, it is a political manifesto masquerading as a fact-finding report. The main difference (aside from its scope) is that it does not bear the name of a prominent Jew and self-styled “Zionist” and so it is easier to just treat like all the other anti-Israel detritus that has come out of the UN over the years.

It is not surprising that the Flotilla Report looks, feels and smells just like the Goldstone Report given its genesis.  Hamas leader Khaled Mashaal specifically called for the HRC to commission “another Goldstone Report.”  After all, Goldstone excoriated Israel and exonerated Hamas (contrary to how many in the press have chosen to characterize it).  Needless to say, Hamas — along with Hezbollah, Al Qaeda, Iran and all those other champions of human rights around the world — are simply thrilled with the results of this mission as well.  They could not have written it better themselves.

The creation of a document like this, however preposterous it may be, is a perfect example of Lawfare in action: a massive public relations coup (”UN Flotilla” gets you 3 million Google hits in 0.11 seconds) and a precedent that can be used not only against Israel but against the US and other countries when they try to tackle asymmetrical threats in the future.

The most important thing to understand about the Flotilla Report is that it is a political document hinging almost entirely on the commissioners’ subjective determination of proportionality.   Its essential finding is that, since the Israeli sea blockade of Gaza was itself disproportional — that is, it inflicts disproportionate damage on the civilian population of Gaza in relation to the military advantage sought by Israel — it was illegal per se, so the boarding of the ships was illegal, justifying virtually everything the activists on the ships did to “protect” themselves and their ship and negating the legitimacy of almost anything the Israelis did. [1]

This essential finding from which the Report’s other findings all flow shows up in one conclusory paragraph:  “[T]he Mission is satisfied that the blockade was inflicting disproportionate damage upon the civilian population in the Gaza strip and that as such the interception could not be justified and therefore has to be considered illegal.” (53)  In the entire 56-page Report there is hardly any discussion or justification for this key finding of disproportionality.  And there is no discussion whatsoever on Israel’s reasons for the blockade — one of the two elements of the proportionality analysis — beyond the observation (in one of the final paragraphs) that “Israel seeks to justify the blockade on security grounds”(263). [2]

It should be noted that the Mission did determine that the primary objective of the flotilla was not in fact humanitarian but political, namely to break the blockade (80), and also acknowledged that Israel had offered to itself deliver all of the humanitarian supplies the ships were carrying.  But somehow — inexplicably — they still found the blockade disproportional and therefore illegal.

To give you a sense of the mindset of the authors of this masterpiece of fictional jurisprudence, one of the comissioners, British lawyer Da Silva, commented that “even if Bin Laden himself were on the Mavi Maramara, Israel’s blockade would still be illegal.” The Goldstone and Flotilla Reports share many of the same fundamental flaws. I have time to cite just a few:

1.  Both missions were born in sin, the illegitimate offspring of politics and prejudice.  They were commissioned by the much same cast of characters, including many of the rogue nations who dominate the “Human Rights” Council.  In both cases they were authorized by resolutions that expressly prejudged the outcome.

•   Goldstone called the resolution creating his tribunal a “very unfair lopsided resolution” but he still produced his report under it even though it was never formally changed.

•   HRC Resolution 14/1 which established the Flotilla fact-finding mission is entitled “The Grave Attacks by Israeli Forces against the Humanitarian Boat Convoy” and at the outset “condemns in the strongest terms the outrageous attack by the Israeli forces against the humanitarian flotilla of ships“.   (Of course this resolution was adopted after the footage of Israeli soldiers being beaten with iron bars had been all over the news.)  The commission, according to the Report, “found it necessary to reinterpret its mandate because of the manner in which the resolution appointing it was couched.”  In other words “yes we know we were hired to do a one-sided hatchet job and we took on that assignment willingly, but trust us when we say we had no prejudices”.  Well, that is just not good enough.  It is equivalent to Goldstone’s admission that Christine Chinkin would have had to be recused for bias if their mission had been a judicial inquiry. [3]

2. Both missions based all of their findings on one-sided evidence.  In both cases, the evidence they had was obviously biased, and in Goldstone’s case it was (by the report’s own admission) also tainted by duress.  But the same basic formula was used to produce the factual findings in both: the evidence we collected (from the anti-Israel side) said X; Israel provided no evidence to the contrary; therefore we find that the facts are X.

•   To quote from the Flotilla Report: “The Mission gave particular weight to the direct evidence received from interviews with eyewitnesses . . . the Mission was obliged to treat with extreme caution the versions [of TV footage] released by the Israeli authorities where those versions did not coincide with the evidence of eyewitnesses . . .”  (In other words, as Groucho Marx put it: “Who are you going to believe — me or your lying eyes?”)

3. Both reports represent an unwarranted rush to judgment, dealing in an expedited cursory manner with matters that should be handled with much greater rigor.  The Israeli investigations into the allegations and accusations made by Goldstone have shown the vast majority of them to be false — and the one or two that have substance are being pursued, as well they should.  The Flotilla mission is even more egregious in a sense because it is front-running the Turkel Commission, an ongoing independent investigation including international observers (which is quite unprecedented).

4. Both reports utterly failed (or refused) to investigate critical facts.  Goldstone exhibited the most extraordinary willful blindness in refusing to look beyond the evidence presented from the Palestinian side or to investigate Hamas’ behavior (such as locating fighters and weapons in hospitals, schools and other civilian locations). The Flotilla Report doesn’t even mention Hamas except to refer to their electoral victory as the alleged reason Israel wanted to punish the people of Gaza.  And it never examines the dubious background, aims or tactics of IHH, evidently the primary instigators of the violence aboard the Mavi Marmara.

5.  Both reports betray their bias in their use of language.  Here are a just a few gems from the Flotilla Report:

•   You may have seen the photograph of an Israeli soldier who had been beaten and stabbed in the stomach with a knife (it was one of those photos doctored by Reuters to remove the knife from the picture); well, in the Report that is described as follows:  “One of the soldiers had a superficial wound to the abdomen, caused by a sharp object . . .” (A thumbtack no doubt!)

•   There is a very short description of the battle itself — the vicious one the whole world saw on TV — just a few paragraphs, but here is how they describe the events when the first Israeli commandos tried to rappel down the rope and were pummeled by a mob of armed activists: “a fight ensued between passengers and the first soldiers to descend . . .”.  A fight ensued . . . like “war broke out” in 1948.  Or a scuffle ensued between the office workers in the World Trade Center and the young gentlemen who had commandeered the planes.

•   You may have seen the video clip of the IHH leader urging his troops to jihad and martyrdom and to “throw the Jews off the ship”. In the Report it is noted that he “spoke with some bravado about preventing an Israeli takeover of the ship.”

•   Of course on the other side there is no such euphemism: the Israeli commandos are found to have summarily executed passengers and tortured those they didn’t kill (by tying their plasticuffs too tightly).  The finding is actually that they are guilty of torture in violation of articles 7 and 10, paragraph 1, of the International Covenant on Civil and Political Rights and of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  And, to add insult to injury, they are guilty of not informing the passengers of the reason for their detention as required by Article 9, paragraph 2 of the International Covenant on Civil and Political Rights.

6.  Both reports demonstrate shocking evidentiary double standards, in the assessment of credibility of witnesses and evidence and in the ascertaining of intentions.  I go into some detail on this regarding the Goldstone Report in my letter to Judge Goldstone.  By way of example in the Flotilla Report, Israel’s evidence of weapons used by activists on the ship is summarily dismissed as unreliable but “the fact that some passengers engaged in last minute efforts to fashion rudimentary weapons shortly prior to the interception confirms the findings of the Mission that no weapons were brought on board the ship“. (101)

7. Both reports include grandiose political pronouncements that are not only irrelevant and inappropriate for a “fact-finding” mission, but betray both a lack of understanding of the complexities (let alone the equities) of the Middle East conflict and a bias against Israel.  For example, the Conclusions section of the Flotilla Report offers the pretentious but revealing admonition that “an unfair victory has never been know to bring lasting peace” and ends by referring to “the regrettable reputation which [Israel] has for impunity and intransigence in international affairs“.  In similar vein, the Goldstone Report criticizes Israel for “failing to protect its own citizens by refusing to acknowledge the futility of resorting to violent means and military power” (as though its implacable enemies like Hamas have given it any choice).

8. Both reports exhibit a startlingly un-judicial lack of balance between the prejudicial and the probative.  The Flotilla Report for example includes lengthy and graphic descriptions of the way in which the deceased activists were (allegedly) summarily executed and of the horrible abuses (allegedly) suffered by the surviving passengers after Israeli commandos took control of the ships which, although obviously derived from one-sided testimony, was simply stated as fact, and seemed to serve little purpose other than to highlight how merciless, bloodthirsty and depraved the Israeli military is.

I could go on and on but I think you get the point.  Tragically, both reports reward and encourage the most cynical and despicable of behavior.  Both cases represent a missed opportunity to provide moral clarity and deter cynical manipulation of international law and institutions.

Instead they provided a blueprint for violent political groups as to how they can use international law to protect themselves and shift blame to those trying to contain them, a blueprint that can be used against the United States as easily as against Israel.

In my few remaining minutes, I’d like to say a few words about Lawfare more generally.

Almost anything created for a good purpose can be abused or even “weaponized”: think of an ice-pick, a candlestick, a box-cutter knife, an airplane, a shoe, a pair of underpants.

And not just physical objects.  We have seen the abuse of almost every institution invented by man: democracy (think of Venezuela, Iran, the Weimar Republic); education (look at Gaza under Hamas or the PLO, Apartheid South Africa); religion (no examples needed).

It should be no surprise then that the law — one of humanity’s greatest achievements, designed for the creation of ordered societies, the establishment and maintenance of justice and the determination and protection of truth — is also susceptible to abuse.

Today what is really under attack is perhaps the most fundamental value in our Western culture: truth.  And it is ironic in the extreme that it is the law, which was created and designed to be the servant and protector of truth, that is the enemy’s weapon of choice to undermine the truth.

When one speaks of abuse, of things being misused, the abuse can be indesign or in application.  Some things are just bad by design and no amount of tinkering can save them: crack cocaine — it’s cheap and devastating and has no good purpose; the legal system of Apartheid South Africa (intricately designed to achieve its awful goal).  Such things cannot be fixed, they are just bad and have to be eradicated or, if that is not possible, contained.

But more often the abuse lies not in design but in application.  People take ordinary things and use them in a bad way:  a webcam becomes a weapon with which to bully; a water bottle becomes a bomb; a civilian airplane becomes a guided missile.

Human nature being what it is, it is not possible to guarantee that things will not be abused.  But once a risk of abuse is manifested, what we can do is implement design improvements to prevent that abuse in the future:  we add a dead bolt on the cockpit door — a simple cheap fix to prevent a civilian aircraft being turned into a weapon of mass destruction.  Some fixes are more expensive and the cost benefit analysis is not as clear.

The same is true for the law.  The fundamental problem is not one of design but one of application. I know some disagree and think that the laws should be changed to take account of asymmetrical warfare and terrorism, but I think the fundamental laws and principles themselves are basically fine.  Universal jurisdiction is not inherently a bad idea, but it is being abused.  The fundamental principles of the laws of war — the principle of distinction between civilian and military objects, and the principle of proportionality, which have developed over hundreds of years — are good and sensible tools for balancing the needs for people to defend themselves and their rights and the protection of the innocent.

The problem is that the application of these laws and principles has been corrupted.

When Tzipi Livni has to avoid traveling to England for fear of arrest under universal jurisdiction, something is wrong.

When a terrorist organization can commandeer a major hospital in Gaza for their military headquarters with absolute impunity because the so-called fact-finders are not interested but are only looking to condemn the other side, something is wrong.

When the so-called “human rights” organs of the United Nations are so obsessed with demonizing one country that they make a mockery of the very idea of human rights and allow real violators to literally get away with murder and genocide, something is terribly wrong.

The question of why seemingly good people abuse the law like this is a fascinating one but beyond my brief.  A question we do need to ponder is what can be done about it?

In some cases, there are fairly simple design improvements — like the dead bolt on the cockpit door — that will fix a problem.  For example, England and other countries are in the process of fixing (or have fixed) the abuses of universal jurisdiction in their countries.

I am actually confident that the law is quite resilient and, with the help of good lawyers and NGOs like The Lawfare Project who shine a light into the darkness, will strike the right balance eventually.

In the meantime, there are a variety of tactics by which to prod the law in the right direction: political intervention of course; legal defence work (although that can legitimize the abuse, and so has not been favored for example by Israel which has refused to cooperate with the marsupial tribunals of the HRC, or the International Court of Justice in the separation barrier case, another nadir of jurisprudential gibberish); and perhaps also going on the Lawfare offensive, if only to highlight the absurdity of the abuses.  Public relations is a large part of the battle, since that is one of the main objects of the abusers.  And justcontinuing to speak the truth is an imperative — and a victory in itself.

Where I have far less confidence is in the institutions that are being entrusted to implement these laws.  In particular the so-called “human rights” organs of the United Nations.  It is becoming increasingly clear that these bodies, in particular the “Human Rights Council,” are not capable of being a force for good in the world.  To the old saying “If it ain’t broke, don’t fix it” I’d like to offer a corollary: “If it ain’t fixable, don’t waste resources trying.”  The U.S. made a good effort at constructive engagement with the Council but it is clear that it has not worked.  The HRC is not in need of a design tweak, it is rotten and malignant to the core.  I believe that the single most significant step that could be taken to put an end to the abuse of international law is for the U.S. to disengage from that contemptible body.

Click here to view this article on the internet. Guest contributions to unwatch.org are those of the authors and do not necessarily reflect the positions of UN Watch.

Footnotes

[1] Although the Report’s authors did not actually accuse Israel of piracy — although I am not sure why they bothered to stop short given the tone of the Report — they did note that the use of water cannons is specifically advocated by merchant marine manuals as a defence against pirates.

[2] I suppose space was too tight because of the need to include so many pages of graphic “eyewitness accounts” of Israeli brutality, sadism and sexual depravity.

[3] In fact, the Flotilla commission was apparently so ashamed of their authorizing resolution that they dropped it as an Annex in the final Report although it had been called for as an exhibit in the draft submitted.

The post Issue 258: Goldstone and the Guerilla Flotilla: An Emerging Pattern appeared first on UN Watch.

GENEVA, October 6 – The U.N. commission into Israel’s May 31 flotilla clash declared during a recent U.N. Human Rights Council debate that “even if Bin Laden himself were on the Mavi Maramara, Israel’s blockade would still be illegal.”

The statement was made by U.N. commissioner Desmond de Silva in response to questions posed in the council plenary by the Geneva-based UN Watch as to why the probe’s report ignored voluminous evidence it had submitted on the stated intentions of the Islamist flotilla members to physically confront Israel and become “Shahids,” or martyrs.

(See full transcript below of UN Watch’s challenge and flotilla commission’s response. Click here for video.)

The chair of the flotilla probe, Judge Karl T. Hudson-Phillips, said that he had never heard the term “Shahid” before. Nevertheless, he insisted that the intentions of the IHH activists carried no legal relevance.

It is astonishing that the U.N. panel openly admitted to disregarding UN Watch’s evidence as to the violent, Jihadist and suicidal intentions of the IHH militants on the Mavi Marmara. That the head of the probe said he never heard the word ‘Shahid’ before means that he never even looked at the numerous video testimonies and other compelling evidence that UN Watch submitted to his inquiry.

Contrary to the U.N. commissioners’ attempt to downplay this evidence, the truth is that the entire interpretation of the facts hinges on who was the aggressor, and whether Israel’s soldiers attacked peaceful activists or instead acted in self-defense in face of a violent mob seeking to lynch them.

The declared intentions and state of mind of the passengers is highly relevant. Indeed, the U.N. report itself touches on the question of whether the passengers’ purpose was humanitarian or political. Evidence that seven of the nine passengers killed in the clash had previously declared their intent to become ‘martyrs’ is something the inquiry obviously should have examined, yet failed to do so.

Moreover, while UN Watch submitted over 40 items (see submissions here)—whose receipt the U.N. duly acknowledged—the commission chair said that he looked at only “two references.” UN Watch is calling on the Chair of the Human Rights Council to urgently investigate the U.N. inquiry’s serious breach of due process.

————————————

Statement by UN Watch
Agenda Item 7, UNHRC 15^th Session
Interactive Debate with UNHRC Flotilla Probe
As Delivered by Leon Saltiel, 28 September 2010

Thank you, Mr. President.

UN Watch wishes to thank the Mission for acknowledging yesterday that Resolution 14/1, which created the flotilla probe, contained, “apparent predeterminations;” and that, “the tenor and wording of the preambular and operative parts of the resolution indicate a certain bias.”

We also thank the Mission for urging this council that, “greater care should be taken not to give the appearance of prejudgment of matters to be investigated.”

In light of the council’s long and well-known record on such matters, we would be interested to hear the Mission’s views on the reasonable likelihood that this change will occur; and whether the Mission has any concerns that its work has aided and encouraged—and is now in the hands of—those who, in the Mission’s own words, resort to bias, predeterminations and prejudgments.

Mr. President, we turn now to the report. UN Watch submitted a substantial amount of relevant evidence to the Mission. Why was it disregarded by the report?

In particular, numerous items documented the Jihadist intent and actions of the IHH militants on the ship. One report showed that seven of the nine passengers killed had declared they wanted to die as “shahids.”

The evidence included the following interview of one of the passengers:

“When I went on the first convoy I wanted to be a shahid. I wasn’t that lucky. Second time wanted to be a shahid. Didn’t work. Third time lucky, Inshaala, I will be a shahid… So I’m not worried. If Israelis dare and try to fight us, we’re going to give them a really good fight. Let them try. We [will] show them who we are, because we are Muslims, we not scared to die. And I know, for a fact, they love to live.”

All of this is probative to what really happened, to the true nature and intentions of the so-called humanitarians.

How is it, then, that the words “martyr” and “Shahid” feature nowhere in the report?

Thank you, Mr. President.

Response by Judge Karl T. Hudson-Phillips, Chair of UNHRC Flotilla Fact Finding Misson

… With respect to UN Watch, I want to assure them that we took into consideration the two references they referred us to, which were a Panorama program and information contained in the Turkel report, with which we were already familiar. We alluded to the fact in our report that we paid particular attention to eyewitness reports.

In any event, the particular matter to which UN Watch has thrown our attention this morning was not something which would have altered our conclusions as to the lawfulness or otherwise of the Israeli intervention. It would not have made the blockade lawful, and therefore it would not have made the interception lawful. It could not have changed our thinking in any way.

In any event, I’ll merely make the comment that the mere fact that somebody wants to be a “Shahid”—and that is a term which is new to me, because where I come from we don’t know this term—but the mere fact that somebody wanted to be a “Shahid,” was not an excuse for making them realize their ambitions so to be, by the summary execution that we found. I have no further report.

Response by Sir Desmond de Silva, Member of UNHRC Flotilla Fact Finding Misson

We have approached our task that the council gave us the opportunity to do with the view to seek the truth within the context of the law, and it’s very easy to make a wishy-washy report so as to avoid the wrath of the criticized government or its friends.

I was most interested to hear the observations that the learned chairman of the mission has just dealt with, namely the observations by UN Watch. The remarks made by the representative of UN Watch betrays, I am afraid to say, a fundamental and undenying ignorance of the law.

Great store is placed on the fact that there were people on board the Mavi Marmara who declared, perhaps with some bravado, that they were willing to die. But where was the imminent threat toIsrael? Well of course we found a photograph of somebody with a catapult, in the course of making our inquires. No doubt that catapult was there to sink one of the two Israeli submarines that were part of the naval force. Indeed, to reemphasize what my colleague Judge Hudson-Phillips has said, is this: even if Bin Laden himself was on board the Mavi Marmara it wouldn’t have made the blockade legal.

In the same way as we have found that Israel has acted unlawfully in this instance, it is right to say that every time that Hamas fires a rocket aimlessly into Israel, that organization also commits war crimes. I hope that in the not too distant future that the peace will descend upon troubled lands and upon troubled peoples. That’s all I wish to say.

Click for Video

The post Issue 257: U.N. Flotilla Probe: “Even If Bin Laden Himself Were on Ship, Israel’s Blockade Still Illegal” appeared first on UN Watch.

NGO: U.N. Probe Ignored Evidence on Islamist Passengers’ Bid for ‘Martyrdom’

GENEVA, Sept. 28 – The U.N. commission into Israel’s May 31 flotilla clash declared during a U.N. Human Rights Council debate today that “even if Bin Laden himself were on the Mavi Maramara, Israel’s blockade would still be illegal.”

The statement was made by commissioner Desmond de Silva in response to questions posed in the council plenary by the Geneva-based UN Watch as to why the probe ignored voluminous evidence it submitted regarding the stated intentions of the Islamist flotilla members to physically confront Israel and become “Shahids,” or martyrs. (See below for statement and response from UN flotilla commission.)

The chair of the flotilla probe, Judge Karl T. Hudson-Phillips, said that he had never heard the term “Shahid” before. However, he insisted that, in any event, the intentions of the IHH activists carried no legal relevance.

Some international lawyers disagree. “It is astonishing that the UN panel now openly admits to disregarding our evidence as to the violent, Jihadist and suicidal intentions of the IHH militants on the Mavi Marmara,” said Hillel Neuer, executive director of UN Watch.

“That the head of the probe said he never heard the word ‘Shahid’ before today means that he never even looked at the numerous video testimonies and other compelling evidence that we submitted to his inquiry,” said Neuer.

“Contrary to the commissioners’ attempt to downplay this evidence, the truth is that the entire interpretation of the facts hinges on who was the aggressor, and whether Israel’s soldiers attacked peaceful activists or instead acted in self-defense in face of a violent mob seeking to lynch them.”

“The declared intentions and state of mind of the passengers is extremely relevant. Indeed, the report itself touches on the question of whether the passengers’ purpose was humanitarian or political. Evidence that seven of the nine passengers killed in the clash had previously declared their intent to become ‘martyrs’ is something the inquiry obviously should have examined, yet failed to do so,” said Neuer.

“Moreover, while we submitted over 40 items (see submissions here)-whose receipt the UN acknowledged-the commission chair said today that he looked at only two. This is absolutely unacceptable. UN Watch calls on the Chair of the Human Rights Council to urgently investigate this serious breach of due process before the council votes on the report tomorrow.”

————

Statement by UN Watch
Agenda Item 7, UNHRC 15^th Session
Interactive Debate with UNHRC Flotilla Probe
As Delivered by Leon Saltiel, 28 September 2010

Thank you, Mr. President. 

UN Watch wishes to thank the Mission for acknowledging yesterday that Resolution 14/1, which created the flotilla probe, contained, “apparent predeterminations;” and that, “the tenor and wording of the preambular and operative parts of the resolution indicate a certain bias.”

We also thank the Mission for urging this council that, “greater care should be taken not to give the appearance of prejudgment of matters to be investigated.”

In light of the council’s long and well-known record on such matters, we would be interested to hear the Mission’s views on the reasonable likelihood that this change will occur; and whether the Mission has any concerns that its work has aided and encouraged-and is now in the hands of-those who, in the Mission’s own words, resort to bias, predeterminations and prejudgments.

Mr. President, we turn now to the report. UN Watch submitted a substantial amount of relevant evidence to the Mission. Why was it disregarded by the report?

In particular, numerous items documented the Jihadist intent and actions of the IHH militants on the ship. One report showed that seven of the nine passengers killed had declared they wanted to die as “shahids.”

The evidence included the following interview of one of the passengers: 

Quote: “When I went on the first convoy I wanted to be a shahid. I wasn’t that lucky. Second time wanted to be a shahid. Didn’t work. Third time lucky, Inshaala, I will be a shahid… So I’m not worried. If Israelis dare and try to fight us, we’re going to give them a really good fight. Let them try. We [will] show them who we are, because we are Muslims, we not scared to die. And I know, for a fact, they love to live.”

All of this is probative to what really happened, to the true nature and intentions of the so-called humanitarians. How is it, then, that the words “martyr” and “Shahid” feature nowhere in the report?

Thank you, Mr. President.

Response by Judge Karl T. Hudson-Phillips, Chair of UNHRC Flotilla Fact Finding Misson

 […] With respect to UN Watch, I want to assure them that we took into consideration the two references they referred us to, which were a Panorama program and information contained in the Turkel report, with which we were already familiar. We alluded to the fact in our report that we paid particular attention to eyewitness reports.

In any event, the particular matter to which UN Watch has thrown our attention this morning was not something which would have altered our conclusions as to the lawfulness or otherwise of the Israeli intervention. It would not have made the blockade lawful, and therefore it would not have made the interception lawful. It could not have changed our thinking in any way.

In any event, I’ll merely make the comment that the mere fact that somebody wants to be a “Shahid”-and that is a term which is new to me, because where I come from we don’t know this term-but the mere fact that somebody wanted to be a “Shahid,” was not an excuse for making them realize their ambitions so to be, by the summary execution that we found. I have no further report.

Response by Sir Desmond de Silva, Member of UNHRC Flotilla Fact Finding Misson

We have approached our task that the council gave us the opportunity to do with the view to seek the truth within the context of the law, and it’s very easy to make a wishy-washy report so as to avoid the wrath of the criticized government or its friends.

I was most interested to hear the observations that the learned chairman of the mission has just dealt with, namely the observations by UN Watch. The remarks made by the representative of UN Watch betrays, I am afraid to say, a fundamental and undenying ignorance of the law.

Great store is placed on the fact that there were people on board the Mavi Marmara who declared, perhaps with some bravado, that they were willing to die. But where was the imminent threat to Israel? Well of course we found a photograph of somebody with a catapult, in the course of making our inquires. No doubt that catapult was there to sink one of the two Israeli submarines that were part of the naval force. Indeed, to reemphasize what my colleague Judge Hudson-Phillips has said, is this: even if Bin Laden himself was on board the Mavi Marmara it wouldn’t have made the blockade legal.

In the same way as we have found that Israel has acted unlawfully in this instance, it is right to say that every time that Hamas fires a rocket aimlessly into Israel, that organization also commits war crimes. I hope that in the not too distant future that the peace will descend upon troubled lands and upon troubled peoples. That’s all I wish to say.�

The post U.N. Flotilla Probe: “Even If Bin Laden Himself Were on Ship, Israel’s Blockade Still Illegal” appeared first on UN Watch.

NGO: U.N. Probe Ignored Evidence on Islamist Passengers’ Bid for ‘Martyrdom’

GENEVA, Sept. 28 – The U.N. commission into Israel’s May 31 flotilla clash declared during a U.N. Human Rights Council debate today that “even if Bin Laden himself were on the Mavi Maramara, Israel’s blockade would still be illegal.”

The statement was made by commissioner Desmond de Silva in response to questions posed in the council plenary by the Geneva-based UN Watch as to why the probe ignored voluminous evidence it submitted regarding the stated intentions of the Islamist flotilla members to physically confront Israel and become “Shahids,” or martyrs. (See below for statement and response from UN flotilla commission.)

The chair of the flotilla probe, Judge Karl T. Hudson-Phillips, said that he had never heard the term “Shahid” before. However, he insisted that, in any event, the intentions of the IHH activists carried no legal relevance.

Some international lawyers disagree. “It is astonishing that the UN panel now openly admits to disregarding our evidence as to the violent, Jihadist and suicidal intentions of the IHH militants on the Mavi Marmara,” said Hillel Neuer, executive director of UN Watch.

“That the head of the probe said he never heard the word ‘Shahid’ before today means that he never even looked at the numerous video testimonies and other compelling evidence that we submitted to his inquiry,” said Neuer.

“Contrary to the commissioners’ attempt to downplay this evidence, the truth is that the entire interpretation of the facts hinges on who was the aggressor, and whether Israel’s soldiers attacked peaceful activists or instead acted in self-defense in face of a violent mob seeking to lynch them.”

“The declared intentions and state of mind of the passengers is extremely relevant. Indeed, the report itself touches on the question of whether the passengers’ purpose was humanitarian or political. Evidence that seven of the nine passengers killed in the clash had previously declared their intent to become ‘martyrs’ is something the inquiry obviously should have examined, yet failed to do so,” said Neuer.

“Moreover, while we submitted over 40 items (see submissions here)-whose receipt the UN acknowledged-the commission chair said today that he looked at only two. This is absolutely unacceptable. UN Watch calls on the Chair of the Human Rights Council to urgently investigate this serious breach of due process before the council votes on the report tomorrow.”

————

Statement by UN Watch
Agenda Item 7, UNHRC 15^th Session
Interactive Debate with UNHRC Flotilla Probe
As Delivered by Leon Saltiel, 28 September 2010

Thank you, Mr. President. 

UN Watch wishes to thank the Mission for acknowledging yesterday that Resolution 14/1, which created the flotilla probe, contained, “apparent predeterminations;” and that, “the tenor and wording of the preambular and operative parts of the resolution indicate a certain bias.”

We also thank the Mission for urging this council that, “greater care should be taken not to give the appearance of prejudgment of matters to be investigated.”

In light of the council’s long and well-known record on such matters, we would be interested to hear the Mission’s views on the reasonable likelihood that this change will occur; and whether the Mission has any concerns that its work has aided and encouraged-and is now in the hands of-those who, in the Mission’s own words, resort to bias, predeterminations and prejudgments.

Mr. President, we turn now to the report. UN Watch submitted a substantial amount of relevant evidence to the Mission. Why was it disregarded by the report?

In particular, numerous items documented the Jihadist intent and actions of the IHH militants on the ship. One report showed that seven of the nine passengers killed had declared they wanted to die as “shahids.”

The evidence included the following interview of one of the passengers: 

Quote: “When I went on the first convoy I wanted to be a shahid. I wasn’t that lucky. Second time wanted to be a shahid. Didn’t work. Third time lucky, Inshaala, I will be a shahid… So I’m not worried. If Israelis dare and try to fight us, we’re going to give them a really good fight. Let them try. We [will] show them who we are, because we are Muslims, we not scared to die. And I know, for a fact, they love to live.”

All of this is probative to what really happened, to the true nature and intentions of the so-called humanitarians. How is it, then, that the words “martyr” and “Shahid” feature nowhere in the report?

Thank you, Mr. President.

Response by Judge Karl T. Hudson-Phillips, Chair of UNHRC Flotilla Fact Finding Misson

 […] With respect to UN Watch, I want to assure them that we took into consideration the two references they referred us to, which were a Panorama program and information contained in the Turkel report, with which we were already familiar. We alluded to the fact in our report that we paid particular attention to eyewitness reports.

In any event, the particular matter to which UN Watch has thrown our attention this morning was not something which would have altered our conclusions as to the lawfulness or otherwise of the Israeli intervention. It would not have made the blockade lawful, and therefore it would not have made the interception lawful. It could not have changed our thinking in any way.

In any event, I’ll merely make the comment that the mere fact that somebody wants to be a “Shahid”-and that is a term which is new to me, because where I come from we don’t know this term-but the mere fact that somebody wanted to be a “Shahid,” was not an excuse for making them realize their ambitions so to be, by the summary execution that we found. I have no further report.

Response by Sir Desmond de Silva, Member of UNHRC Flotilla Fact Finding Misson

We have approached our task that the council gave us the opportunity to do with the view to seek the truth within the context of the law, and it’s very easy to make a wishy-washy report so as to avoid the wrath of the criticized government or its friends.

I was most interested to hear the observations that the learned chairman of the mission has just dealt with, namely the observations by UN Watch. The remarks made by the representative of UN Watch betrays, I am afraid to say, a fundamental and undenying ignorance of the law.

Great store is placed on the fact that there were people on board the Mavi Marmara who declared, perhaps with some bravado, that they were willing to die. But where was the imminent threat to Israel? Well of course we found a photograph of somebody with a catapult, in the course of making our inquires. No doubt that catapult was there to sink one of the two Israeli submarines that were part of the naval force. Indeed, to reemphasize what my colleague Judge Hudson-Phillips has said, is this: even if Bin Laden himself was on board the Mavi Marmara it wouldn’t have made the blockade legal.

In the same way as we have found that Israel has acted unlawfully in this instance, it is right to say that every time that Hamas fires a rocket aimlessly into Israel, that organization also commits war crimes. I hope that in the not too distant future that the peace will descend upon troubled lands and upon troubled peoples. That’s all I wish to say.�

The post U.N. Flotilla Probe: “Even If Bin Laden Himself Were on Ship, Israel’s Blockade Still Illegal” appeared first on UN Watch.

NGO: U.N. Probe Ignored Evidence on Islamist Passengers’ Bid for ‘Martyrdom’

GENEVA, Sept. 28 – The U.N. commission into Israel’s May 31 flotilla clash declared during a U.N. Human Rights Council debate today that “even if Bin Laden himself were on the Mavi Maramara, Israel’s blockade would still be illegal.”

The statement was made by commissioner Desmond de Silva in response to questions posed in the council plenary by the Geneva-based UN Watch as to why the probe ignored voluminous evidence it submitted regarding the stated intentions of the Islamist flotilla members to physically confront Israel and become “Shahids,” or martyrs. (See below for statement and response from UN flotilla commission.)

The chair of the flotilla probe, Judge Karl T. Hudson-Phillips, said that he had never heard the term “Shahid” before. However, he insisted that, in any event, the intentions of the IHH activists carried no legal relevance.

Some international lawyers disagree. “It is astonishing that the UN panel now openly admits to disregarding our evidence as to the violent, Jihadist and suicidal intentions of the IHH militants on the Mavi Marmara,” said Hillel Neuer, executive director of UN Watch.

“That the head of the probe said he never heard the word ‘Shahid’ before today means that he never even looked at the numerous video testimonies and other compelling evidence that we submitted to his inquiry,” said Neuer.

“Contrary to the commissioners’ attempt to downplay this evidence, the truth is that the entire interpretation of the facts hinges on who was the aggressor, and whether Israel’s soldiers attacked peaceful activists or instead acted in self-defense in face of a violent mob seeking to lynch them.”

“The declared intentions and state of mind of the passengers is extremely relevant. Indeed, the report itself touches on the question of whether the passengers’ purpose was humanitarian or political. Evidence that seven of the nine passengers killed in the clash had previously declared their intent to become ‘martyrs’ is something the inquiry obviously should have examined, yet failed to do so,” said Neuer.

“Moreover, while we submitted over 40 items (see submissions here)—whose receipt the UN acknowledged—the commission chair said today that he looked at only two. This is absolutely unacceptable. UN Watch calls on the Chair of the Human Rights Council to urgently investigate this serious breach of due process before the council votes on the report tomorrow.”

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Statement by UN Watch
Agenda Item 7, UNHRC 15^th Session
Interactive Debate with UNHRC Flotilla Probe
As Delivered by Leon Saltiel, 28 September 2010

Thank you, Mr. President.

UN Watch wishes to thank the Mission for acknowledging yesterday that Resolution 14/1, which created the flotilla probe, contained, “apparent predeterminations;” and that, “the tenor and wording of the preambular and operative parts of the resolution indicate a certain bias.”

We also thank the Mission for urging this council that, “greater care should be taken not to give the appearance of prejudgment of matters to be investigated.”

In light of the council’s long and well-known record on such matters, we would be interested to hear the Mission’s views on the reasonable likelihood that this change will occur; and whether the Mission has any concerns that its work has aided and encouraged—and is now in the hands of—those who, in the Mission’s own words, resort to bias, predeterminations and prejudgments.

Mr. President, we turn now to the report. UN Watch submitted a substantial amount of relevant evidence to the Mission. Why was it disregarded by the report?

In particular, numerous items documented the Jihadist intent and actions of the IHH militants on the ship. One report showed that seven of the nine passengers killed had declared they wanted to die as “shahids.”

The evidence included the following interview of one of the passengers:

Quote: “When I went on the first convoy I wanted to be a shahid. I wasn’t that lucky. Second time wanted to be a shahid. Didn’t work. Third time lucky, Inshaala, I will be a shahid… So I’m not worried. If Israelis dare and try to fight us, we’re going to give them a really good fight. Let them try. We [will] show them who we are, because we are Muslims, we not scared to die. And I know, for a fact, they love to live.”

All of this is probative to what really happened, to the true nature and intentions of the so-called humanitarians. How is it, then, that the words “martyr” and “Shahid” feature nowhere in the report?

Thank you, Mr. President.

Response by Judge Karl T. Hudson-Phillips, Chair of UNHRC Flotilla Fact Finding Misson

[…] With respect to UN Watch, I want to assure them that we took into consideration the two references they referred us to, which were a Panorama program and information contained in the Turkel report, with which we were already familiar. We alluded to the fact in our report that we paid particular attention to eyewitness reports.

In any event, the particular matter to which UN Watch has thrown our attention this morning was not something which would have altered our conclusions as to the lawfulness or otherwise of the Israeli intervention. It would not have made the blockade lawful, and therefore it would not have made the interception lawful. It could not have changed our thinking in any way.

In any event, I’ll merely make the comment that the mere fact that somebody wants to be a “Shahid”—and that is a term which is new to me, because where I come from we don’t know this term—but the mere fact that somebody wanted to be a “Shahid,” was not an excuse for making them realize their ambitions so to be, by the summary execution that we found. I have no further report.

Response by Sir Desmond de Silva, Member of UNHRC Flotilla Fact Finding Misson

We have approached our task that the council gave us the opportunity to do with the view to seek the truth within the context of the law, and it’s very easy to make a wishy-washy report so as to avoid the wrath of the criticized government or its friends.

I was most interested to hear the observations that the learned chairman of the mission has just dealt with, namely the observations by UN Watch. The remarks made by the representative of UN Watch betrays, I am afraid to say, a fundamental and undenying ignorance of the law.

Great store is placed on the fact that there were people on board the Mavi Marmara who declared, perhaps with some bravado, that they were willing to die. But where was the imminent threat to Israel? Well of course we found a photograph of somebody with a catapult, in the course of making our inquires. No doubt that catapult was there to sink one of the two Israeli submarines that were part of the naval force. Indeed, to reemphasize what my colleague Judge Hudson-Phillips has said, is this: even if Bin Laden himself was on board the Mavi Marmara it wouldn’t have made the blockade legal.

In the same way as we have found that Israel has acted unlawfully in this instance, it is right to say that every time that Hamas fires a rocket aimlessly into Israel, that organization also commits war crimes. I hope that in the not too distant future that the peace will descend upon troubled lands and upon troubled peoples. That’s all I wish to say.

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