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Human Rights Council
Fifteenth session
Agenda item 7
Human Rights situation in Palestine and other Occupied Arab territories

Report of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance

II. Background

A. Context

1. The blockade of the Gaza Strip

Pre-existing restrictions of maritime access to the Gaza Strip

26. Israel implemented a complete military occupation of the Gaza Strip from June 1967 until its first disengagement from parts of the Gaza Strip from May 1994 as part of the peace process. A series of peace agreements between 1993 and 1995 concluded between the State of Israel and the Palestinian Liberation Organization with international backing were intended, within a transitional period of five years, to regulate Israel’s disengagement from the West Bank and Gaza Strip leading up to the conclusion of a permanent status agreement which would establish an independent Palestinian state alongside Israel. These agreements, often collectively referred to as the Oslo Accords, provided the basis for, amongst other matters, the establishment of the Palestinian Authority and Council and put in place interim arrangements for security cooperation between the Israeli and Palestinian police, including the policing of borders and maritime and air space.

27. Under the Oslo Accords, it was agreed that the territorial waters off Gaza would be included in the territorial jurisdiction of the Palestinian Authority (PA).⁸ However, the external security of the Gaza Strip was specifically excluded from the PA’s functional jurisdiction;⁹ responsibility of external security was retained by Israel until the final status agreement.¹⁰ Article VIII of the Gaza-Jericho Agreement specifically stated that “Israel will continue to carry the responsibility … for defence against external threats from the sea and the air […] and will have all the powers to take the steps necessary to meet this responsibility.” The agreed security arrangements and coordination mechanisms establishes three maritime activity zones: a central zone extending twenty nautical miles out to sea, bounded by two one-nautical mile wide strips of water at the Egyptian end and Israeli end of the Gaza Strip, both of which are closed military areas under Israeli control. The central zone, under joint Palestinian-Israeli control, was designated as open for fishing up to the twenty nautical miles limit and recreational boats up to three nautical miles. Foreign vessels entering the central zone were not allowed to approach closer than twenty nautical miles from the coast pending agreement on construction of a sea port for Gaza. Even though there was a breakdown in security cooperation between Israelis and Palestinians in the West Bank and Gaza Strip following the breakdown of bilateral peace negotiations in 2002, significant aspects of the Oslo Accords remain in force, including provisions related to the territorial waters off Gaza.

28. During the 1990s, following the contours of the peace negotiations, Israeli forces imposed periodic “closures” of the Palestinian areas, usually in response to suicide bombings inside Israel. These closures would last for a matter of weeks or months. Prior to the first peace accords, it was estimated that as many as 20,000 Gazans left the strip each day to work inside Israel, returning each evening. Closures impacted on the many families dependent on the wages earned by these workers.

Restrictions imposed on Gaza following Hamas’ election victory

29. Since the beginning of the Second Intifada in 2000, a progressive restriction of the access for Gaza fishermen to the sea has taken place. According to OCHA the latest expansion of the restricted sea areas can be dated to late 2008, on the eve of the “Cast Lead” offensive.¹¹ Along most of Gaza’s coast, the restricted areas begin at three nautical miles from shore. Overall, OCHA states that Palestinians are barred access to 85 percent of the sea areas on which they are entitled to carry out maritime activities and that Palestinian fishermen entering the restricted sea areas are regularly exposed to warning fire by Israeli naval forces and in some cases, directly targeted and that fishing boats are often intercepted by the Israeli military and confiscated.

30. Economic and political measures started to be imposed against the Gaza Strip in February 2006 following the Hamas election victory in the legislative elections, accompanied by the withholding of financial resources on the part of donor countries. The closure on the Gaza Strip was imposed by Israel after Hamas took control of the Gaza Strip in June 2007. In September 2007, Israel declared the Gaza Strip “hostile territory” and that the movement of goods into and out of Gaza would be restricted for security concerns as well as in order to apply pressure on the Hamas government “as part of the State of Israel’s operations against continuous terrorism.”¹² Harsher fuel restrictions came into effect since October 2007.

31. In a petition to the Israeli Supreme Court,¹³ the legality of the decision by the Government of Israel to reduce the supply of electricity and fuel was challenged based on the argument that such cuts were inconsistent with the obligations of Israel under the Fourth Geneva Convention relating to the protection of civilians. In its response, the State Attorney’s Office inter alia submitted that harming the economy itself is a legitimate means of warfare and a relevant consideration even when deciding on allowing in relief consignments.¹⁴

32. From mid-2008, in response to the Free Gaza Movement’s attempts to enter Gaza by sea, the Israeli Government took a series of steps aimed initially at deterring shipping from travelling to the area. A Notice to Mariners was issued stating that all ships entering the central zone of the Gaza Maritime Area would be “subject to supervision and inspection.” Then, in August 2008, a second Notice to Mariners was issued stating that “a maritime zone extends 20 miles to seaward from the Gaza Strip. In accordance with the agreements between Israel and the PA, entry by foreign vessels to this zone is prohibited.”¹⁵

Imposition of the naval blockade

33. In his testimony to the Turkel Committee, Chief of General Staff Gabi Ashkenazi accepted that the “phenomenon of the flotillas” in mid-2008 represented the trigger for the imposition of the maritime closure, although he outlines that it was done for security purposes.¹⁶ Israeli Chief Military Advocate General, Avichai Mandelblit also stated that the justification for a naval blockade was on security grounds only. However, plans for a full naval blockade were initially not approved at the political level “on grounds of legitimacy” and the possibility of what Mandelblit describes as “severe criticism” at the international level.¹⁷

34. Shortly prior to the initiation of Operation ‘Cast Lead’ at the end of 2008 a recommendation for the initiation of a closure was made by the Military Advocate General to the Defence Minister who directed the imposition of a maritime closure on the Gaza Strip until further notice.¹⁸ The naval blockade of the Gaza Strip was established by Israel on 3 January 2009 and announced by the Israeli Navy on 6 January. The advisory states that “the Gaza maritime area is closed to all maritime traffic and is under blockade imposed by the Israeli Navy until further notice.”¹⁹ This advisory was publicised inter alia in a further Notice to Mariners (NTM)²⁰ and through other channels. It was also publicised twice daily on the NAVTEX broadcast system, regularly updating shipping according to location via a direct-printing service.²¹ Chief Military Advocate General Staff Mandelblit stated that this blockade was approved at ministry level by the State Attorney without involving military legal advice.²²

35. Senior Israeli officials have stated that the legal basis for the blockade was (1) the San Remo Manual, (2) the London Declaration and (3) customary law²³ and the existence of an armed conflict between Hamas and Israel that had continued after Operation Cast Lead.²⁴

36. A military closure order was signed by the Commander of the Israeli Navy on 28 May 2010,²⁵ prohibiting persons from entering a specified “closed area” referred to as “Area A” and advising all ships and persons to stay away from a “dangerous area” referred to as “Area B”²⁶ but, according to testimony received by the Mission, not gazetted. The order announcing the blockade was presented by the representative of the State in a hearing on the extension of detention of four Palestinian Arab citizens of Israel as the provision on the basis of which the Israeli forces entered international waters. The application to extend the arrest of the 4 individuals concerned was based on the argument that there had been a violation of the above mentioned order.

2. The humanitarian situation in the Gaza Strip

37. The humanitarian situation in Gaza resulting from the imposition of the blockade on the Gaza Strip since June 2007 has been a matter of increasing concern for the international community, including the Security Council. Following the Flotilla incident, the Security Council qualified the situation in Gaza as “not sustainable”, stressing the full implementation of Resolutions 1850 and 1860, in which it, inter alia, expressed “grave concern [...] at the deepening humanitarian crisis in Gaza”, emphasized “the need to ensure sustained and regular flow of goods and people through the Gaza crossings” and called for the “unimpeded provision and distribution throughout Gaza of humanitarian assistance, including food, fuel and medical treatment.” In the Presidential Statement, the Security Council reiterated its “grave concern at the humanitarian situation in Gaza” and stressed “the need for sustained and regular flow of goods and people to Gaza as well as unimpeded provision and distribution of humanitarian assistance throughout Gaza.”²⁷ In addition, the United States Ambassador to the United Nations in Geneva said “we continue to believe the situation in Gaza is unsustainable and is not in the interest of any of those concerned”.²⁸

38. In a United Nations joint statement issued on 31 May, Robert Serry, the United Nations Special Coordinator for the Middle East Peace Process and Filippo Grandi, Commissioner-General of the United Nations Relief and Works Agency (UNRWA) emphasized that “such tragedies are entirely avoidable if Israel heeds the repeated calls of the international community to end its counterproductive and unacceptable blockade of Gaza.” In a public statement issued on 14 June 2010, the ICRC described the impact of the closure on the situation in Gaza as “devastating” for the 1.5 million people living there, emphasizing that “the closure constitutes a collective punishment imposed in clear violation of Israel’s obligations under international humanitarian law”, saying the only sustainable solution is a lifting of the closure.

39. Similarly, the Human Rights Committee, in its concluding observations of July 2010, expressed its concern at the “effects of the blockade on the civilian population in the Gaza Strip, including restrictions to their freedom of movement, some of which led to deaths of patients in need of urgent medical care, as well as restrictions on the access to sufficient drinking water and adequate sanitation.” It recommended that Israel lift the military blockade of Gaza, insofar as it adversely affects the civilian population.²⁹

40. According to information provided to the Mission by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) in the occupied Palestinian territory, the blockade exacerbated the already existing difficulties of the population in Gaza in terms of livelihoods and brought to new peaks the severe human dignity crisis resulting from the deteriorated public services, widespread poverty, food insecurity, over 40 percent unemployment and 80 percent aid dependence (i.e. some 80 percent of the population receives humanitarian assistance, mainly food). People’s lives were reduced to a daily struggle in an attempt to secure the most basic needs.

41. “Abject poverty" among refugees tripled since the imposition of the blockade from 100,000 to 300,000 and 61 percent of households are food insecure. There has been a shift in diet (from protein rich to low cost and high carbohydrate foods), triggering concerns over mineral and vitamin deficiencies. Moreover, Gaza has been affected by a protracted energy crisis, with the power plant operating at 30 percent of its capacity, scheduled cuts of 8-12 hours per day, leaving households with partial food refrigeration. Services and utilities are forced to rely on generators and UPS units vulnerable due to inconsistent supply of spare parts.

42. Water and sanitation services have deteriorated and resulted in over 40 percent of water loss due to leakages. On a daily basis, eighty million litres of untreated and partially treated sewage is discharged into the environment. Polluted sea water has led to increased health risks and as a result of sewage infiltrating into the aquifer only between five and ten percent of the extracted water is safe. Challenges to the health system include the impossibility to ensure that medical equipment is available and properly maintained, while referral abroad is subject to long and arduous permit processing and medical staff is prevented from upgrading knowledge and skills.

43. On 20 June 2010, the Security Cabinet of the Government of Israel decided on several steps to implement a new Governmental policy towards Gaza, seeking to keep weapons and war material out of Gaza while liberalizing the system by which civilian goods enter Gaza.³⁰ In July, the United Nations and international relief agencies cautiously welcomed the easing of import restrictions on the blockade, but emphasized that only a complete lifting of the blockade can address the humanitarian crisis, highlighting that this would also mean bringing exports out of Gaza in order to rebuild the economy destroyed by the blockade.³¹

44. At the end of August, OCHA reported that despite the easing of the restrictions and an increase of imports into the Gaza Strip for some weeks, ongoing restrictions on the entry of construction materials as well as on exports, continued to impede major reconstruction and development, noting that the truckloads of goods entering Gaza during the week of 18 August to 24 August constituted only 37 percent of the weekly average of truckloads that entered during the first five months of 2007, prior to the imposition of the blockade. In the same report, OCHA also highlights the continuing fuel shortage and electricity crisis in the Gaza Strip.³² The impact of the power cuts in terms of putting people’s lives at risk, for instance those in need of medical treatment (i.e. dialysis patients) was also highlighted by the ICRC in a press release on 7 September 2010.

3. Information on recent armed hostilities

45. According to OCHA, in 2010, forty-one Palestinians (including fourteen civilians), three Israeli soldiers and one foreign national have been killed in the context of the Palestinian–Israeli conflict in the Gaza Strip and southern Israel, with another 178 Palestinians (including 154 civilians) and eight Israeli soldiers having been injured.³³ According to the Israeli Defence Forces, a total of 120 rockets were fired from the Gaza Strip into Israel from 1 January 2010 to 31 July 2010.³⁴ This figure does not include failed attempts or firing directly at Israeli forces.

⁸ Article 5, para. 1(a), Gaza-Jericho Agreement.
⁹ Article 5, para. 1(b), Gaza-Jericho Agreement.
¹⁰ Article 5, para. 3, Gaza-Jericho Agreement.
¹¹ ‘Between the Fence and a Hard Place’, UNOCHA oPt Report, August 2010
¹² “Hamas is a terrorist organization that has taken control of the Gaza Strip and turned it into hostile territory. This organization engages in hostile activity against the State of Israel and its citizens and bears responsibility for this activity. In light of the foregoing, it has been decided to adopt the recommendations that have been presented by the security establishment, including the continuation of military and counter-terrorist operations against the terrorist organizations. Additional sanctions will be placed on the Hamas regime in order to restrict the passage of various goods to the Gaza Strip and reduce the supply of fuel and electricity. Restrictions will also be placed on the movement of people to and from the Gaza Strip. The sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis.” http://www.mfa.gov.il/MFA/Government/Communiques/2007/Security+Cabinet+declares+Gaza+host ile+territory+19-Sep-2007.htm
¹³ Israeli Supreme Court, case HCJ 9132/07 – Al Bassiouni vs. Prime Minister.
¹⁴ Section 4 of State Submission to the Israeli Supreme Court in case HCJ 9132/07 – Al Bassiouni vs. Prime Minister. See http://www.gisha.org/UserFiles/File/turkel%2026-8-2010-3.pdf
¹⁵ Israeli Notice to Mariners 6/2008
¹⁶ IDF Chief of General Staff, Gabi Ashkenazi’s testimony to the Turkel Committee: Public Commission to Examine the Maritime Incident of May 31, 2010, Session Number 4, 11 August 2010, p. 13.
¹⁷ IDF Chief Military Advocate General Staff, Avichai Mandelblit’s testimony to the Turkel Committee: Public Commission to Examine the Maritime Incident of May 31, 2010, Session Number 4, 26 August 2010, p. 41.
¹⁸ IDF Chief of General Staff, Gabi Ashkenazi’s testimony to the Turkel Committee: Public Commission to Examine the Maritime Incident of May 31, 2010, Session Number 4, 11 August 2010, pp. 18f.
¹⁹ NO. 1/2009 Blockade of the Gaza Strip. See website of theState of Israel Ministry of Transport and Road Safety: http://info.mot.gov.il/EN/index.php?option=com_content&view=article&id=124:no12009&catid=17: noticetomariners&Itemid=12
²⁰ A Notice to Mariners advises mariners of important matters affecting navigational safety, including new hydrographic information, changes in channels and aids to navigation and other important data.
²¹ IDF Chief of General Staff, Gabi Ashkenazi’s testimony to the Turkel Committee: Public Commission to Examine the Maritime Incident of May 31, 2010, Session Number 4, on the date of 8.11.2010, pp. 18f.
²² IDF Chief Military Advocate General Staff, Avichai Mandelblit’s testimony to the Turkel Committee: Public Commission to Examine the Maritime Incident of May 31, 2010, Session Number 4, 26 August 2010, pp. 41-43.
²³ Ibid, p. 43.
²⁴ Ibid, pp. 44-45.
²⁵ Closure Order and Announcement of Dangerous Area in Sea 06(10, 2010 [Defense (Emergency) Regulations of 1945].
²⁶ Extract of the hearing on 1 June 2010 on the detention of the four Palestinian Arab citizens of Israeli, before the Ashkelon Magistrates Court (unofficial translation).
²⁷ S/PRST/2010/9. In Security Council resolution 1860 of 8 January 2009, the Security Council expressed “grave concern ...at the deepening humanitarian crisis in Gaza” and emphasized “the need to ensure sustained and regular flow of goods and people through the Gaza crossings. It called for the “unimpeded provision and distribution throughout Gaza of humanitarian assistance, including food, fuel and medical treatment.” A/28 Statement by the Ambassador of the United States of American to the Human Rights Council, Geneva, 1 June 2010.
²⁹ CCPR/C/ISR/CO/3, para. 8
³⁰ http://www.mfa.gov.il/MFA/HumanitarianAid/Palestinians/Briefing- Israel_new_policy_towards_Gaza_5-Jul-2010.htm outlining specific elements of the new policy.
³¹ http://www.irinnews.org/Report.aspx?ReportId=89762
³² Protection of Civilians: 18-24 August 2010, United Nations OCHA oPt, p.4.
³³ Protection of Civilians: 18-24 August 2010, United Nations OCHA oPt, p.3.
³⁴ http://dover.idf.il/IDF/English/News/today/10/08/1203.htm