Israeli human rights groups testify to Turkel Commission on Flotilla fiasco

Three of Israel’s most distinguished and respected human rights groups testified before the Israeli-government-appointed Turkel Commission on Wednesday in a six-and-a-half hour marathon public session (with two 10-minute breaks).

One Israeli media report afterwards described the rather mainstream groups [(1) B’Tselem(2) Physicians for Human Rights-Israel, and (3) GISHA] as “left-wing”, and B’Tselem’s Director Jessica Montell as a “radical leftist activist”, — which says a lot about the atmosphere in the country. See story here

The polarization increased geometrically after the massive Israeli military operation in Gaza, Operation Cast Lead [27 December 2008 to 18 January 2009] — during which Israel first announced its formal naval blockade of Gaza’s maritime space, on 3 January 2009, as the ground phase began.

And, the polarization was all too obvious in Wednesday’s hearing.

The Turkel Commission [website here – H/T to Jessica Montell] says it is an independent public inquiry looking into what they call the “maritime incident” of 31 May 2010 [or, the Flotilla fiasco] which occurred in the pre-dawn hours that day when Israeli naval missile boats and helicopter-borne Israeli commandos intercepted the Freedom Flotilla, and killed 9 men [8 Turkish, one American high-school student from a Turkish family] on board the larger Turkish passenger ship, the Mavi Marmara.

It is Israel’s main state-appointed body of inquiry on this matter, which was one of the main news stories in the world for several weeks.   An outpouring of international criticism followed the brutality of the interception.

GPO photo

The Commission’s website notes that it “was asked to relate to an assessment of the security circumstances of placing the maritime closure on the Gaza Strip and the maritime closure’s compatibility with the rules of international law”.

Retired Supreme Court Judge Yaakov [or Jacob] Turkel was roundly criticized by some in Israel for having accepted such a limited mandate for the inquiry.   However, by sticking it out, he has managed to achieve some significant changes, and has expanded the focus, the composition,  and the investigative powers of his Commission.  He insisted on, and got, include two non-Israelis Commission [though only as non-voting observers]: Ken Watson, a Canadian former military judge, and David Trimball, a former First Minister of Northern. Needless to say, neither is a harsh critic of Israel, and Trimball’s participation in a newly-formed Friends of Israel committee was announced on the same day as his appointment to the Turkel Commission. Because of their participation, there is simultaneous translation of all proceedings into English.

There has already been an IDF-authorized military investigation, carried out within five weeks or so by Maj.-Gen. (ret.) Giora Eiland, now an analyst at the Institute for National Security Studies [INSS] in Tel Aviv.  Members of the Eiland team, as well as Israel’s National Security Council Chairman Dr. Uzi Arad and Mossad Director Meir Dagan have all appeared before the Commission, testifying in closed door sessions held on various dates.

The Israeli State Comptroller has also announced that he will carry out an investigation.

Shortly after the Turkel Commission ended its hearing on Wednesday, a complaint was filed against Israel in the prosecutor’s office of the International Criminal Court in the Hague — the world’s first tribunal to consider war crimes committed anytime after its founding — by Turkish families of those killed in the “maritime incident”.   The Associate Press has reported that the attorney for the families, Ugur Sevgili. said “the victims want Israel investigated for torture, inhuman treatment, the taking of hostages and other violations of the Geneva war crimes convention[s].  ‘We demanded from the prosecutor to initiate an investigation and prosecute the perpetrators of this crime’, Sevgili said. ‘We didn’t mention any Israeli soldiers or any Israeli politicians. We just told them that we believe war crimes and crimes against humanity were committed’.”  This was published here.

There are reportedly also other international cases in preparation.

The UN Human Rights Council has just received a report from its own appointed commission. It stated that “Both from the Internet and other sources, the Mission was able to secure transcripts of some of the evidence given by witnesses to that enquiry [the Turkel Commission]. It appears that evidence was given partly in closed sessions, the transcripts of which have not been made available to the Mission”. The UN Human Rights Council’s report is posted here.

The UN Secretary-General formed a Panel of Inquiry, upon a request by the UN Security Council — and the UNSG’s Panel is supposed to analyze “reports of the national investigations [being carried out by Turkey and by Israel] with a view to recommending ways of avoiding similar incidents in the future”.

Israel argued that it could — and would — carry out its own investigations.

UPDATE: Amos Harel wrote in Haaretz on Friday that an internal Israeli Navy investigation  has “found that the main flaw of the commando raid was the bottleneck created as the commandos climbed down a rope from a helicopter, to board the Mavi Marmara.  The raid’s initial stage, in which a few commandos found themselves alone, facing a relatively large and violent group of activists, involved a mortal threat to the Israeli soldiers. This caused the commandos to open fire, leading to the nine deaths”.   According to the Haaretz report, the Navy is considering buying larger boats, with ramps, to allow rapid boarding of boats, and is also considering using crowd control measures such as water hoses.  Other reports suggested that boarding forces would be accompanied by trained dogs…

In advance of the session, Amira Hass wrote in Haaretz that “Palestinian and Israeli organizations, and a number of journalists, are trapped in the Sisyphean attempt to repulse the far-from-realistic official descriptions of the situation in Gaza and to penetrate the public’s lack of willingness to know. They offer the public (including bored diplomats) exact details about the siege in weekly reports on user-friendly Internet sites, in eyewitness reports from the field and petitions to the courts. But the right to provide the public with information, which is honored in Israel, does not entail the need that the public will know. Thus, the official stand (mainly that ‘in effect, Gaza is no longer under siege’) keeps gaining strength”. Amira Hass’ article can be read in full here.

After Wednesday’s testimony, the Jerusalem Post reported that members of the Commission “defended the government against criticism of its closure policy by human rights groups that testified before it”. This article can be read in full here.

The appearance of the three Israeli human rights organizations to testify at the Turkel Commission was a significant moment — and was a rare opening.

But it did not lead to any real clarity, other than illustrating perfectly the polarization of this situation, in which few have any interest in real communication with those who don’t already share their views.

B’Tselem, and to a lesser extent, Physicians for Human Rights-Israel were insufficiently prepared. They made their presentations as if they were attending any conference…

Neither B’Tselem nor PHR felt any apparent interest or curiosity about what the other organizations would say, or in what the members of the Turkel Commission might want to know. Neither of these organizations kept representatives in the public hearing after they finished their own testimony — they just left.

A representative of PHR said, dismissively, after his testimony: “we swim in this [information] all the time”.

Yet, when challenged by a member of the Commission to say what medicines and medical equipment, if any, might be missing or unavailable in Gaza, PHR Chairman Professor Zvi Bentwich was unable to answer, and said he would send details in writing later.

He did tell the Commission that “There is massive assistance of international organizations concerning food…It’s very clear that the [Israeli] crossings policy has an impact on the quality of life, with definite indications on mortality, though we don’t have the figures from Gaza…The organizations from outside [i.e., the United Nations, etc] are by and large preventing a disaster — without them there would have been a disaster”, including hunger and malnutrition.

And Professor Bentwich said that 30 percent of requests to let sick patients leave Gaza for treatment are either delayed or rejected, and the dominant reason is security. The delays are often significant — two to three months, he said, “and these are for serious medical conditions”. There is a major deficit in Gaza, he indicated, concerning cancer and cardiology cases.

Commission member Major-General (res.) Amos Horev replied that “It also happens here in Israel, that you wait three months for a medical test”.

Ran Yaron, director of the PHR-Israel’s Occupied Territories Department, replied: “Yes, there are waits in Israel, too, but a patient in Gaza waits a long time for a date, but has no idea if there will ever be an answer … those who are responsible for rejecting the transit of sick patients are, in Erez crossing, (1) [the Israeli military’s] COGAT [Coordinator of (Israeli) Government Activities in the Territories]; and (2) the security office, GSS. The Palestinian Authority has no say about the exit, it provides financial guarantees and medical records.

PHR-Israel introduced Dr. Yassin, an Israeli-Palestinian Arab orthopedic surgeon, who told the Commission that he has made some ten trips to Gaza since the Israeli military-administered sanctions in 2007 to perform joint replacement operations. Last year, he said, he was asked to go to the West Bank to perform these surgeries and teach other doctors how to do them as well. And, Dr. Yassin note, “after 10 to 15 years, these artificial joints need to be replaced again” — something that is not possible now in Gaza. “Bacteria, pneumonia, sepsis can set in — and without treatment, you’re doomed to die”. Now, he said, he can’t get back into Gaza, and even the artificial joints themselves are unavailable there. The former Director-General of the Israeli Foreign Minister, Reuven Merchav, noted that these were “quality of life operations” that are not medical imperatives, like cancer. Dr. Yassin said that joint replacement operations are as necessary, to those who can’t walk and who are in constant pain, as cancer treatment. Then, Dr. Yassin added, there isn’t equipment to diagnose cancer in Gaza, either.

As this testimony was playing out on Wednesday in Jerusalem, Mohammed Omer reported from Gaza for IPS that “Samir Tahseen Al-Nadeem died after waiting 35 days for an exit permit for treatment for his heart condition. He was 26. The medicines he needed could not get in. But the coffins do. The health ministry now lists 375 deaths due to shortage of life-saving medicines. The medicines sit just outside the borders of the territory until most pass their expiry dates. But there are no expiry dates on about 10,000 coffins that have been donated for Gaza. The coffins do make it to those that eventually need them. By the end of last month more than 70 percent of medicines donated for Gaza had been dumped because they were past their expiry date, the health ministry says. They were worth many millions of dollars … It’s not easy to dump medicines safely either. Much of unused supply mixes with domestic waste, creating health hazards far from bringing relief. The World Health Organisation has had to ‘raise concern about the unsafe disposal of expired medication and other medical disposable material’, WHO spokesperson told IPS … What Gaza needs is 110 types of medicines and 123 types of medical equipment that the ministry has listed. Gaza is expected to run out of more medicines over the next few months. The announced ease in the blockade of Gaza has not currently brought more supplies.The medicines now under threat are for childcare, in the maternity departments, and for conditions such as cancer, epilepsy, haemophilia and thalassemia”. This report can be read in full here.

The third organization, GISHA,  the last to testify, was more prepared — but more cagey.

Without ever using the word “occupation” — which would have certainly drawn rebukes, objection and even derision from certain members of the Commission — Gisha argued that international humanitarian law is what applies to the situation in Gaza, and not the San Remo manual developed by the U.S. Navy in an effort to encode customary international law. [The San Remo manual applies to naval blockades, which require the exsistance of a state of war].

GISHA’s testimony was allowed to continue for some 30 minutes past the scheduled closing time, and for the last 40 minutes or so — when GISHA Attorney Tamar Feldman was arguing that Gaza was occupied, without saying so — the few people left in the room were in such a state of such silent suspense, hyperalert, that the sound of a pin dropping could have been heard.

GISHA’s argument was that “since 1967, Israeli has controlled the air, land, and sea borders … And from 1967 to date, the policy was to prevent naval vessels from entering or leaving Gaza”. In addition, GISHA Attorney Tamar Feldman told the Commission, lsrael “restricts Gaza fishing to 3 nautical miles, despite the Olso Accord authorization for 20 nautical miles”. Israel has “very actively prevented the construction of a port in Gaza”, she added.

Tel Aviv University Professor Miguel Deutsh, another member of the Commission, said that “the maritime blockade changed the previous situation — something different is happening here. We’re talking about the ability to stop the flotilla”.

Professor Deutch noted that there was a problem in preventing the arrival of the first Free Gaza expeditions to Gaza by sea, because there was “no declaration of blockade”. GISHA Attorney Feldman replied that “after the imposition of the blockade, this allowed enforcing the blockade in deeper waters, farther away”.

The Commission members asked: Did the imposition of the naval blockade on 3 January 2009 worsen the humanitarian situation?

GISHA Attorney Feldman replied, “The answer is, Yes … There was very serious damage done to civilian facilities, water, sewage… and more by power … We do not believe Israel kept its obligations … We are lowering the bar — we are not supposed to bring a population up to the bar of minimal subsistence”. She quoted an ICRC statement issued in June, in a paper entitled “Not another year“, that “The whole of Gaza’s civilian population is being punished for acts for which they bear no responsibility. The closure, therefore, is a clear violation of Israel’s obligations under International Humanitarian Law”.

“What we are saying is that the Israeli closure policy is intended to damage civilians to put pressure on Hamas”, GISHA’s Attorney stated.

At the end of the marathon session, retired Judge Yaakov Turkel told GISHA that two questions remained without satisfactory answers: “(1) the point of departure, and (2) the question of whether the humanitarian situation in Gaza is now worse”.

GISHA led a group of ten Israeli and Palestinian human rights organizations in a valiant effort to prevent the calculated tightening of Israeli-military-administered sanctions against 1.5 million people in Gaza in late 2007 by an appeal to Israel’s Supreme Court, its High Court of Justice, and failed. The Israeli Supreme Court declined to intervene in the military-administered sanctions, and only required, in a ruling it handed down in late January 2008, that the Israeli military must not allow a “humanitarian crisis” to develop.

This ruling, in what is known as the “Bassiouni Case”, noted that there is a “dependence that has been forged over four decades of occupation”. And, GISHA Attorney Feldman stated, “from the Bassiouni ruling, we can see that wherever there is control, there is responsibility”.

GISHA is currently pursuing a request, under Freedom of Information provisions, in the Tel Aviv District Court, to get the Israeli military to disclose exactly what it is allowing into Gaza. After months of procedures, the District Court ordered the military to produce two out of four identified documents — but not until next week, after the testimony to the Turkel Commission.

Right from the start, and all during the 6.5 hours of testimony, members of the Turkel Commission were all over the three human rights groups, at times taunting and even belittling them for not living in the real world [which apparently is, to them, Israel — and not the Seychelles, which certainly is not Israel, and therefore not real…]

At times, the Commission members revealed a shocking lack of knowledge about the situation on the ground [though they blithely accused the human rights organizations of the same].

The former Director-General of the Israeli Foreign Minister asserted that Palestinians [in Gaza and in the West Bank] lived a perfectly normal life, and carried out their own population registrations without any interference from anyone. Gisha’s lawyer, Tamar Feldman, tried to correct this assumption: “That is the situation, sir: The registration is under full Israeli control”. She was then told that she should not enter inaccurate information into the testimony. But she replied “I’m saying this on the basis of unequivocal statements made by the government — it’s not our invention”.

At one point, Judge Turkel stated that the three organizations had been invited to present testimony because of the respect the Commission members had for the work of these groups.

According to an announcement on the Turkel Commission website, the Commission’s coordinator, attorney Hoshea Gottlieb, “appealed to various human rights organizations that may possess information on the humanitarian situation in Gaza regarding possible testimony before the Commission. Identical letters were sent to B’Tselem, Physicians for Human Rights, the Palestinian Center for Human Rights, El Haq, etc”. This is posted here.

The night before the oral testimonies, B’Tselem Director Jessica Montell tweeted [on Twitter, of course] this:
JessicaMontell: Late night study session to prepare for my testimony before Turkel Commission tomorrow. I feel like I’m back in college.
10:15 PM Oct 12th via web

Afterward, there was this exchange:
KungFuJew18 to @JessicaMontell – Arutz7 painted your testimony in their least favorable light. How’d it go otherwise?
JessicaMontell to @kungfujew18 – Most Cttee members were hostile and came w/their mind made up. Arutz7 quotes are accurate. Not sure why they invited me.
[KungFuJew18] Looking for opportunities to look tough against the left, I imagine. Trimble (UK) and Watkin (Canada) offered no help?

There was no follow-up reply.


The Jerusalem Post article on the testimony reported these details:

    The tenor of the hearing was set early on, when the first speaker, B’Tselem director-general Jessica Montell, used the word “siege” to describe the government’s closure policy toward Gaza, which was introduced in September 2007.

    “Why do you use the term ‘siege’ rather than ‘closure?’ panel member Maj.-Gen (res.) Amos Horev asked. “Words are important. Semantics are important.”

    Former Foreign Ministry director-general Reuven Merhav asked Montell to differentiate between Gazan civilians who were killed when they were used as human shields by terrorists firing at Israeli targets and when they were killed in other circumstances.

    “Either present these figures or acknowledge that there is a lacuna in your information,” Merhav told Montell.

    After presenting the background leading up to the closure policy and explaining B’Tselem’s view that even after 2005’s disengagement, Israel was still responsible for the Palestinians in Gaza to the same degree, as it continued to control key aspects of its life, such as access to it by land, air and sea, Montell began to give examples of the effects of the closure policy on Gaza’s economy.

    She started by charging that Israel had expanded the no-go zone that Palestinians are forbidden to enter, close to the Israeli border, from 50 meters according to the Oslo Accords to 300 meters today.

    She added that according to UN figures, Israel maintains a strict no-go zone of 500 meters from the border and a less strict one of 1,500 meters.

    Horev intervened, saying, “There are reasons given for the expansion of the zone. It isn’t a matter of papers [a reference to the Oslo agreement – DI]. You are presenting facts that are not in the context of reality. You ignore that.”

    Merhav added, “You must ask yourself these questions before you make such statements. The situation has changed since Arafat signed the Oslo agreements. Hamas is not such a great supporter of Oslo. Perhaps the expansion is because of mortar fire.”

Again, this article can be read in full here.


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