Sunday, January 23, 2011

Background Document- The Flotilla Operation and Israel's Policies Towards Gaza

(This document has been prepared before the release of the Turkel Commission's Report. It is based on information made available over the past six months.)

Israel was entitled under international law to board the Mavi Marmara. Maritime blockades are recognized by international law as legitimate, and may be enforced in international waters.

Israel is engaged in an ongoing armed conflict with Hamas, a terrorist organization which violently seized de facto control of the Gaza Strip in 2007. Hamas and other Gaza-based terrorist groups have launched more than ten thousand rockets at Israeli cities and towns. Israel has imposed a maritime blockade on the Hamas regime in order to prevent it from building up its military capabilities, smuggling terrorists and weapons and staging attacks from the sea. Security considerations have likewise led Israeli to impose a number of restrictions on the transfer of goods and supplies to Gaza via its land crossings. At the same time, Israel has continued to facilitate the import of hundreds of thousands of tons of food, medicine and other goods into Gaza, thereby ensuring that the humanitarian needs of the civilian population are met.

Hamas fighters prepare to launch rockets at Israel

International law recognizes maritime blockades as a legal and legitimate measure within the context of armed conflicts. A blockade may be enforced against breach. Article 98 of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea states "Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured." Furthermore, "Merchant vessels which, after prior warning, clearly resist capture may be attacked" (see similarly art. 67a.)

The blockading party has the right under international law to stop ships which intend to evade the blockade, even if they have not yet entered the blockaded area, Ships may be stopped even if they are in international waters. The US Commander’s Handbook on the Law of Naval Operations explains that an “attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or airfield with the intention of evading the blockade.”

International law requires that a blockade must "be applied impartially to the vessels of all States." (San Remo, art. 100). The blockading party may stop ships claiming to carry humanitarian aid. The duty to ensure that the humanitarian needs of a blockaded territory are met, which Israel complies with, does not imply a duty to allow the passage of a particular ship.

Israel publicly declared the imposition of a maritime blockade on the Gaza Strip in full compliance with international law. It informed the flotilla ships of the blockade numerous times through diplomatic, media and maritime channels.

The flotilla's cargo was in no way essential for meeting Gaza's humanitarian needs. In any case, even if allowing a particular ship to enter the blockaded territory were essential to meeting the humanitarian needs of the civilian population, international law would still allow the blockading party to insist on inspecting the ship. It would also have the right to demand that the ship's cargo be distributed by a recognized neutral party. Such a security inspection could not be carried out at sea. Neither the Turkish IHH nor the Free Gaza Movement, the organizations which lead the flotilla, is a recognized neutral party.

Non-neutral parties- members of the Free Gaza Movement receive medals from Hamas PM Ismail Haniyeh (center, first row.)

IHH head Bulent Yildirim with Hamas Political Chief Khaled Mashaal

Israel took numerous steps to avoid the need to employ force while taking control of the Mavi Marmara.

Israel made numerous efforts to avoid employing force and had no desire to cause harm to civilians. It repeatedly communicated the following or similar messages to the flotilla activists both before and during their journey (video here)-

"Mavi Marmara, you are approaching an area of hostilities, which is under a naval blockade…The Israeli government supports delivery of humanitarian supplies to the civilian population in Gaza Strip and invites you to enter Ashdod port. Delivery of supplies will be in accordance with the authorities' regulations…and under your observation, after which you can return to your home ports aboard the vessels on which you arrived."

The ships were also warned that if they proceeded, Israel would be forced to take all necessary steps to enforce its blockade.

No effective method currently exists for forcing a ship the size of the Marmara to change course without taking physical control. Attempts to block the ship's passage with other vessels or to disable its systems would have endangered the flotilla participants. Israel had no choice but to board the vessel.

The naval commandos were instructed to use the minimum force necessary to take control of the vessels, and to avoid lethal force unless necessary for self-defense in the event that their lives were in immediate danger. Accordingly the first teams to land on the Marmara were equipped primarily with riot-control equipment such as tear gas and paintball guns.

Using similar methods, Israel had stopped a number of previous attempts to violate its blockade without having to resort to lethal force. Five out of the six ships in the May 2010 flotilla were brought under Israeli control without serious injury to flotilla participants or soldiers. Since the Marmara, the IDF has prevented several additional attempts to violate its blockade without the need to employ a significant degree of force. This indicates that the problem stemmed not from Israeli methods, but from the violent behavior of the flotilla activists.

Soldiers abseiling onto the ship from helicopters were assaulted immediately by dozens of activists wielding knives and clubs, who also seized four of the soldiers' firearms. Facing an immediate threat to their lives, the soldiers had no choice but to use force to repel the attack.

Activists making preparations to confront Israeli soldiers

Soldiers assaulted by dozens of armed activists

A number of the Marmara's passengers were members of hardcore Islamist groups. These activists openly declared their desire for a violent confrontation and their hope to die as shahids (martyrs).

While the majority of the flotilla passengers may well have been peaceful civilians, some (approx. 40-50) were hardcore extremists determined to violently attack the Israeli boarding party.

Many of the members of this group were affiliated with the Turkish Islamic organization IHH, which Western countries and terrorism experts have described as a supporter of terrorist groups including Hamas.

IHH 'Peace Activists'

IHH head Bulent Yildirim declared on board the Marmara- "We’re going to defeat the Israeli commandos…If you bring your soldiers here, we will throw you off the ship and you’ll be humiliated in front of the whole world." During the voyage, IHH activists chanted songs celebrating the killing of Jews and openly declared their desire to die as shahids (martyrs) (here, here and here).

Former U.S. Marine Kenneth O'Keefe, who took part in the assault on the soldiers, told the Haaretz newspaper ("Rough Passage", 24.9.10) "I knew that if the Israelis boarded that ship, it would be a disaster…You have to be an idiot to board that ship and think it will be a ship of passive resistance."

This group of hardcore extremists took control of the ship prior to the IDF's boarding. According to the Chief Officer of the Marmara, they limited the movement of the other flotilla participants and carefully controlled entrance to certain parts of the ship.

These activists were equipped with commando knives, daggers, tear gas, gas masks, night vision goggles, and ballistic vests (here and here)- objects not found on a humanitarian passenger ship.

Weapons used by the Marmara passengers

Israeli soldiers employed a necessary and proportionate degree of force.

The first several Israeli commandos who boarded the Marmara were rushed by dozens of activists wielding knives, clubs and chains. The first soldier to land was stabbed and thrown to the deck below. The second was shot in the stomach. Others suffered knife and gunshot wounds as well.

The attackers were able to take four of the soldiers' firearms. O'Keefe told the BBC that "myself and another brother descended on him [a wounded soldier] and the first thing I did was to go for his 9mm pistol." While O'Keefe claims that the gun was not used, two soldiers suffered gunshot wounds. Video released by the IDF records the commandos' surprise at being shot at with live fire.

Three soldiers from the first landing party were seriously wounded and taken by the activists to the ship's interior.

Wounded Israeli soldier assaulted by mob (note knife in corner)

Wounded soldier forced below deck

Therefore the soldiers had no choice but to use limited and precise force against their attackers in self-defense.

Nearly all of those killed were IHH activists or members of affiliated Islamist groups, the very people who led the assault on the descending soldiers. About half had previously declared their hope to be martyrs.

Claims that soldiers summarily executed activists, or that they fired live ammunition indiscriminately from the air, are completely false.

Given that the soldiers were mobbed and intense hand-to-hand combat ensued, it is not surprising that a number of those shot were hit at close range. This does not in any way indicate that they were summarily executed, as the Report prepared for the UN Human Rights Council facetiously states.

The claim that activists were shot from the air is also unfounded; the commandos rappelling from helicopters required both hands to grasp the rope and could not have fired. The helicopters carrying the commandos were not equipped with firing systems, nor did they carry snipers who could have fired from the air.

Israel began its operation using stun grenades, paintball guns, and other crowd control equipment.

The timing and manner of the operation were a result of the complex situation and Israel's desire to avoid harm to civilians.

The early morning timing of Israel's boarding was the result of numerous factors. Given the expected time that it would take to board six ships carrying more than 700 flotilla participants, and the fact that the ships continued ahead at full speed, Israel decided to carry out the operation at a distance from the Israeli coast. Israel also allowed time to observe whether the ships would heed its numerous warnings to change course.

Once it became clear that boarding the ships would be necessary, Israel employed one of its most highly-trained and disciplined units, which had carried out several similar missions while avoiding the use of lethal force. The timing was likewise meant to contribute to a rapid and non-violent transfer of control.

As soon as the danger to the soldiers subsided, IDF medics attended to wounded activists. The flotilla participants were treated in a respectful manner while specially-trained units searched for additional weapons.

Immediately following the completion of the operation, IDF medics attended to the injured. Given the violent confrontation that had just taken place, the participants and ship were searched for additional weapons by soldiers specially trained in such procedures. Activists judged to constitute a potential threat were restrained, while the other flotilla passengers were not.

31 activists were airlifted from the ship directly to Israeli hospitals. Another 24 were transferred to Israeli medical facilities after docking in Ashdod. These activists were given professional medical care at six of Israel's leading hospitals.

The flotilla participants were processed in an orderly manner and offered the option of being quickly deported. Those who refused this offer were given access to medical care and diplomatic personnel while detained. Within a week, all foreign flotilla participants had departed.

Israel prepared extensively to quickly and efficiently process the flotilla participants. Those in need of medical attention were taken to hospitals. The rest were registered in a specially erected reception center staffed by government officials and translators. In special cases, such as that of a mother with a one-year old baby, passengers were immediately sent back to their countries of origin.

The flotilla participants were then taken to the new 'Aileh' detention center in southern Israel. There they were held in open units where, other than during roll calls, they were free at all times to leave their rooms and congregate in common areas. They were provided with all their needs including medical care.

Flotilla participants willing to be deported were able to leave the country within a very short time of their arrival. The departure of those who refused was delayed by several days.

The activists were not held incommunicado. They were given access to the diplomatic officials of their home countries. Consular representatives from 26 countries, as well as 19 lawyers providing legal services, visited the flotilla participants. Participants were also provided with phone cards.

As the flotilla ships were still making their way to Ashdod, a petition was filed with Israel's Supreme Court which challenged the custody of the flotilla passengers by Israeli authorities. The Court held hearings on the matter within 48 hours and ultimately dismissed the petition.

While Israel could have begun prosecutions against those who had assaulted its soldiers, it decided to release all of the flotilla participants. Six days after the ships were brought to Ashdod, all of the foreign flotilla participants had left Israel.

The Mavi Marmara itself did not carry humanitarian aid. The limited amount of aid carried by the other ships included outdated and useless medicines.

The Mavi Marmara did not carry humanitarian aid. The humanitarian aid that was carried by three of the flotilla ships appears to have been carelessly packed, leading to some of it being damaged. The BBC's Jane Corbin found that two-thirds of the medicines aboard the flotilla "are out of date and useless."

Of the 10,000 tons of humanitarian supplies which the flotilla claimed to be carrying, approximately 8,000 tons consisted of construction materials. Hamas uses such materials for building rockets, bunkers and launching sites. Therefore, while Israel regrets the difficulties that may be caused to Gaza's civilians, it can only allow the import of such materials in coordination with recognized international bodies.

Hamas initially refused to allow aid from the flotilla into Gaza. Israel made good on its promise to quickly prepare the aid for transfer. Hamas, however, apparently felt that the need was less pressing. An unnamed Gaza official told the Guardian, "Israel brought five truckloads of wheelchairs to the crossings, but Hamas turned them back."

Israel's import restrictions and blockade are legal under international law.

International law recognizes the right of a state to impose a naval blockade within the context of hostilities.

The blockade on Gaza has been imposed strictly for security reasons and is not aimed at harming the civilian population. These security considerations include the need to prevent the smuggling of terror operatives and military-use materials into and out of Gaza, and to prevent terrorist attacks against Israeli towns and vessels.

With regard to Israel's restrictions on the transfer of goods into Gaza- such a policy is neither illegal nor considered collective punishment. This is indicated by the numerous examples from the international community (for example, the UN's 13-year sanctions against Iraq.) Although international law requires that Israel facilitate the transfer of humanitarian aid to Gaza, Israel has no obligation to engage in economic relations or maintain open borders with the territory.

Israel has facilitated the transfer of well over a million tons of goods and supplies to Gaza, thereby more than ensuring that its humanitarian needs are met.

Despite the armed conflict with Hamas, Israel has gone far beyond the demands of international law in assisting Gaza's civilian population. Israel has provided or facilitated the transfer of over a million tons of humanitarian goods and supplies to the Gaza population. At no point has there been a humanitarian crisis in the territory.

From the end of the 2008-2009 Gaza War until approximately the time of the IHH flotilla, Israel facilitated the delivery to Gaza of 1,025,686 tons of aid, 49,610 tons of cooking gas and 136,097,330 liters of fuel. This aid includes wheat, meat, dairy products, fruits and vegetables, baby formula, seeds, clothes, school supplies, medical equipment, glass, wood and equipment for the flower industry.

Numerous indicators show that there is no humanitarian crisis or extreme hardship in Gaza. According to the CIA World Factbook, the projected life expectancy in Gaza is 73.68, greater than that in half of the world's countries, including many in Europe. The infant mortality rate in Gaza is 17.71 per 1000, lower than in the West Bank and in more than 50% of countries worldwide.

As explained, Israel has been forced to restrict the import of construction materials in order to prevent Hamas from using such materials for military purposes. However, Israel does facilitate the import of construction materials in coordination with recognized international agencies.

Truckloads of aid at the Gaza border crossing

Scenes from Gaza's markets (Video of daily life in Gaza)

Israel facilitates the transfer of medical supplies into Gaza and treats thousands of Gazans each year in Israeli hospitals.

In 2009, 4,883 tons of medical equipment and medicine were brought into the Strip. 10,544 patients and their companions left Gaza to receive treatment in Israeli hospitals (Israel also treats patients and trains doctors from the West Bank.)

Gazan Children with cancer enter Israel for treatment. Video here. (Video from Israeli hospital program for training Palestinian doctors here.)

The medical corridor is maintained despite the fact that since 2005, Palestinians have used medical cooperation arrangements to carry out more than 20 terrorist attacks.

Hamas refuses to allow the International Red Cross or any other organization access to an Israeli soldier which it has been holding hostage since June 2006. This is a gross violation of his basic human rights.

Israel's restrictions are necessary in light of Hamas' repeated diversion of goods and supplies for its own purposes. Israel's border crossings have been attacked numerous times since Hamas' takeover of Gaza.

The Hamas regime's control of the Gaza Strip has enabled it to divert goods and supplies on numerous occasions in order to build its military and economic capabilities. For example in February 2009 UNRWA halted its import of goods into Gaza after Hamas repeatedly seized thousands of tons of aid from the UN agency. In August 2009 Hamas claimed to have seized three ambulances transferred from Israel to UNRWA (UNRWA officials issuing conflicting reports regarding the claim.) Palestinian officials have complained that Hama commandeers fuel trucks coming from the Nahal Oz crossing for its own needs.

Video of Hamas using ambulances to transfer armed militants in Gaza (Reuters, 2004)

The transfer of fuel to Gaza has been disrupted at times due to disputes between Hamas and the Palestinian Authority. A UN official described this as a "Palestinian problem, made by Palestinians, and causing Palestinian suffering." Hamas has also repeatedly attacked the Nahal Oz fuel depot. Quartet envoy Tony Blair explained that "most people don't understand- that we're trying to urge Israel to get fuel into Gaza, and then the extremists come and kill the people bringing the fuel in. It's a crazy situation."

Since Hamas' violent takeover of Gaza, more than a dozen bombs and mortar attacks have been launched at the crossing points at which goods are transferred. Israeli servicemen and civilians have died in these attacks.

April 2008 mortar attack on the Nahal Oz fuel terminal at the Israeli-Gaza border, in which two Israelis were killed.

Nevertheless, Israel has assisted in the export of several of Gaza's main commodities, such as strawberries and flowers, in accordance with security considerations.

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