• Military Menu                       

• Introduction
• Systems
• Facilities
• Agencies
• Industry
• Operations
• Countries
• Hot Documents
• News
• Reports
• Policy
• Budget
• Congress
• Links

• WMD
• Intelligence
• Homeland Security
• Space

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

B. Applicable law

46. At the outset it should be noted that a State is responsible for the conduct of its officials, including its armed forces, when acting either in their official capacity or when acting under the colour of authority and using means put at their disposal by the State, even if exceeding their authority or contravening instructions.³⁵ In the course of enforcement actions carried out by a State, certain fundamental, minimum obligations are applicable at all times, whether an operation is governed by the laws of armed conflict (LOAC) or the laws of international human rights law. The content of those obligations is not affected by the legality or otherwise of a State’s claim to exercise authority over individuals or property.

47. However, acting in an official capacity does not relieve a State agent of individual criminal responsibility. It is possible that individual criminal liability and State responsibility may arise from the same act. The fact that the State bears international responsibility does not mean that individuals cannot also bear individual criminal liability.

1. The law of naval warfare and the question of the blockade

48. Considering the issues raised by the mandate given to the Mission which involved issues of law relating to naval warfare and the matter of a naval blockade imposed by Israel, the Mission views those matters as follows.

49. According to applicable international law, unless an exception applies, a vessel on the high seas is subject to the exclusive jurisdiction of its flag State. Under the international law of the sea such exceptions are usually limited to suspicion of certain activities (piracy, the slave trade, unauthorized high seas broadcasting), ships suspected of lacking nationality (i.e. stateless vessels) and cases where permission to board and inspect have been given either ad hoc or by treaty (e.g. those dealing with narcotics smuggling).³⁶ Other exceptions would include acts of self-defence under Article 51 of the United Nations Charter against vessels which posed an immediate and overwhelming threat to the boarding State and lawful acts under LOAC.

50. It has been suggested that the United Nations Law of the Sea Convention (UNCLOS), by reserving the use of the high seas for peaceful purposes,³⁷ has effectively outlawed acts of naval warfare on the high seas. First, it should be noted that Israel is not a party to UNCLOS. Second, there was no consensus on this position during the negotiation of UNCLOS and it was certainly not accepted by the major naval powers at the time. Indeed, the military manuals of many States (both UNCLOS parties and non-parties) continue to include provisions on the law of naval warfare and blockade.³⁸ Further, a report of the United Nations Secretary General found that these UNCLOS provisions did not affect action that was lawful either under the law of self-defence under Article 51 of the United Nations Charter (the jus ad bellum) or acts justified by the law of armed conflict (LOAC) once an armed conflict has commenced (the jus in bello).³⁹ The majority of scholarly opinion would also support the view that the law of naval warfare continues to be potentially applicable on the high seas. One attempt at codifying this law was the independent expert study, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (SRM).⁴⁰ While not authoritative, its codification effort has had a significant impact on the formulation of military manuals and it has been expressly relied upon by Israel.

Blockade

51. Under the laws of armed conflict, a blockade is the prohibition of all commerce with a defined enemy coastline. A belligerent who has established a lawful blockade is entitled to enforce that blockade on the high seas.⁴¹ A blockade must satisfy a number of legal requirements, including: notification, effective and impartial enforcement and proportionality.⁴² In particular a blockade is illegal if:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or

(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.⁴³

52. A blockade may not continue to be enforced where it inflicts disproportionate damage on the civilian population. The usual meaning of “damage to the civilian population” in LOAC refers to deaths, injuries and property damage. Here the damage may be thought of as the destruction of the civilian economy and prevention of reconstruction of past damage. One might also note, insofar as many in Gaza face a shortage of food or the means to buy it, that the ordinary meaning of “starvation” under LOAC is simply to cause hunger.⁴⁴

53. In evaluating the evidence submitted to the Mission, including by the Office for the Coordination of Humanitarian Affairs in the occupied Palestinian territory, confirming the severe humanitarian situation in Gaza, the destruction of the economy and the prevention of reconstruction (as detailed above), the Mission is satisfied that the blockade was inflicting disproportionate damage upon the civilian population in the Gaza strip and as such the interception could not be justified and therefore has to be considered illegal.

54. Moreover, the Mission emphasizes that according to article 33 of the Fourth Geneva Convention, collective punishment of civilians under occupation is prohibited. “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism, are prohibited.” The Mission considers that one of the principal motives behind the imposition of the blockade was a desire to punish the people of the Gaza Strip for having elected Hamas. The combination of this motive and the effect of the restrictions on the Gaza Strip leave no doubt that Israel’s actions and policies amount to collective punishment as defined by international law. In this connection, the Mission supports the findings of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk,⁴⁵ the report of the United Nations Fact-Finding Mission on the Gaza Conflict⁴⁶ and most recently the ICRC47 that the blockade amounts to collective punishment in violation of Israel’s obligations under international humanitarian law.

55. It might be suggested that a belligerent in an armed conflict has a right to visit, inspect and control the destinations of neutral vessels on the high seas, irrespective of any declared blockade. Whilst there is some controversy on this issue, the San Remo Manual and a number of military manuals take the view that the right may only be exercised upon reasonable suspicion that a vessel is engaged in activities which support the enemy.⁴⁸ The Mission takes the view that a right of interference with third States’ freedom of navigation should not lightly be presumed.

56. Thus, if there is no lawful blockade, the only lawful basis for intercepting the vessel would be a reasonable suspicion that it:

• was making an effective contribution to the opposing forces’ war effort, such as by carrying weaponry or was otherwise closely integrated into the enemy war effort (belligerent right of capture);⁴⁹ or
• posed an imminent and overwhelming threat to Israel and there was no alternative but to use force to prevent it (self-defence under Article 51 of the United Nations Charter).

In view of the information available, the Mission is satisfied that the interception of the flotilla and related preparatory planning by Israel was not purely motivated by concerns as to the vessels’ contribution to the war effort. Evidence attributed to the Chief of General Staff, Gabi Ashkenazi who testified that he did not believe that the IHH, one of the coalition members organizing the Flotilla, was a “terrorist organization”.⁵⁰ The evidence of Prime Minister Netanyahu to the Turkel Committee indicates that the decision to stop the flotilla was not taken because the vessels in themselves posed any immediate security threat. In any event, no such right of belligerent interdiction or wider claim of self-defence against the Flotilla has been asserted by Israel.

57. Therefore the Mission is satisfied not only that the flotilla presented no imminent threat but that the interception was motivated by concerns about the possible propaganda victory that might be claimed by the organizers of the flotilla.

58. Given the evidence at the Turkel Committee, it is clear that there was no reasonable suspicion that the Flotilla posed any military risk of itself. As a result, no case could be made to intercept the vessels in the exercise of belligerent rights or Article 51 self-defence. Thus, no case can be made for the legality of the interception and the Mission therefore finds that the interception was illegal.

59. The Mission finds that the policy of blockade or closure regime, including the naval blockade imposed by Israel on Gaza was inflicting disproportionate civilian damage. The Mission considers that the naval blockade was implemented in support of the overall closure regime. As such it was part of a single disproportionate measure of armed conflict and as such cannot itself be found proportionate.

60. Furthermore, the closure regime is considered by the Mission to constitute collective punishment of the people living in the Gaza Strip and thus illegal and contrary to article 33 of the Fourth Geneva Convention.

61. The Mission considers that the enforcement of an illegal blockade does not only constitute a violation of the laws of war, but also a violation of the laws of neutrality giving rise to State responsibility.

2. International Humanitarian Law

62. The relevant international humanitarian law standards binding on Israel as the occupying power in the occupied Palestinian territory are set out in the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War. In addition, Israel is bound by customary rules of international humanitarian law.

63. As the occupying power, Israel has certain obligations imposed on it by international law. The International Court of Justice has concluded that the Fourth Geneva Convention is applicable in the occupied Palestinian territories which before the 1967 conflict lay to the east of the Green Line and which during the conflict were occupied by Israel.⁵¹ This is also the case for the Gaza strip, despite the unilateral withdrawal by Israel of the forces from the Gaza Strip in 2005, as the occupation has been confirmed repeatedly since then by the General Assembly and the Security Council.⁵² In this context, the Mission notes that occupation continues to the extent to which the occupying power retains effective control.

64. The Mission agrees with the assessment presented in the Goldstone Report as follows:

Given the specific geopolitical configuration of the Gaza Strip, the powers that Israel exercises from the borders enable it to determine the conditions of life within the Gaza Strip. Israel controls the border crossings (including to a significant degree the Rafah crossing to Egypt, under the terms of the Agreement on Movement and Access) and decides what and who gets in or out of the Gaza Strip. It also controls the territorial sea adjacent to the Gaza Strip and has declared a virtual blockade and limits to the fishing zone, thereby regulating economic activity in that zone. It also keeps complete control of the airspace of the Gaza Strip, inter alia, through continuous surveillance by aircraft and unmanned aviation vehicles (UAVs) or drones. It makes military incursions and from time to time hit targets within the Gaza Strip. No-go areas are declared within the Gaza Strip near the border where Israeli settlements used to be and enforced by the Israeli armed forces. Furthermore, Israel regulates the local monetary market based on the Israeli currency (the new sheqel) and controls taxes and custom duties.⁵³ The Mission is satisfied that these circumstances continued to prevail at the time of the incident under investigation.

65. Under the Fourth Geneva Convention, individuals may not be killed, tortured, illtreated or suffer humiliating and degrading treatment and there may not be destruction of property unless absolutely necessary for the military operation. Article 147 Fourth Geneva Convention spells out a list of “grave breaches” of international humanitarian law.

66. Flotilla passengers were civilians and in the context of the interception of the vessels must be considered as protected persons. Under article 4 Fourth Geneva Convention, protected persons are those who, at a given moment and in any manner whatsoever, find themselves in the hands of a part to the conflict of occupying Power of which they are not nationals. In a situation of armed conflict, military force can only be used against a combatant or against civilians participating actively and directly in combat activities, which cannot be said of the civilians on the Mavi Marmara.

3. International Human Rights Law

67. Israel is party to the core human rights treaties relevant to the situation under consideration.⁵⁴ The vessels in the flotilla whilst in international waters were also subject to the jurisdiction of the flag states, namely Cambodia (Rachel Corrie), Comoros (Mavi Marmara), Greece (Eleftheri Mesogios), Kiribati (Defne Y), Togo (Sfendoni), Turkey (Gazze 1) and the United States of America (Challenger 1), The international human rights treaties accepted by each of these states at the time of the incident under investigation were applicable on the relevant vessels.

68. Human rights law in its entirety continues to apply in situations of armed conflict, except for derogations in accordance with treaty provisions relating to times of emergencies. In this respect the Mission notes the recent reiteration by the Human Rights Committee of its view that “the applicability of the regime of international humanitarian law during an armed conflict, as well as in a situation of occupation, does not preclude the application of the Covenant, except by operation of article 4, whereby certain provisions may be derogated from in a time of national emergency.”⁵⁵ In its General Comment 29, the Human Rights Committee specified that the Covenant continues to apply in situations of armed conflict to which the rules of international humanitarian law are applicable. “While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be especially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.”⁵⁶

69. Moreover, in the Nuclear Weapons Advisory Opinion (1996) the ICJ affirmed the applicability of the Covenant during armed conflict, stating that “In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.”⁵⁷

70. In its Advisory Opinion on the Legal consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court considered that "the protection offered by the human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of any kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law."⁵⁸

71. The Mission is of the view that the conduct of the IDF on board the Mavi Marmara as well as the conduct of the authorities in the aftermath of the operation is not limited strictly to the law of armed conflict, but is subject also to human rights law. Indeed human rights law and international humanitarian law are not mutually exclusive but rather should be regard to be complementary and mutually reinforcing to ensure the fullest protection to the persons concerned.

72. The ICCPR contains several articles which cannot be derogated from even “in times of public emergency which threatens the life of the nation (art. 4).” Non-derogable rights include the right to life and the right not to be subjected to torture or to cruel, inhuman or degrading treatment of punishment. Israel has made a notification under article 4(3) of the ICCPR – states of emergency, dated 3 October 1991, specifically relevant to article 9 regarding liberty and security of person.⁵⁹ In this connection, the Human Rights Committee extends in its General Comment No. 29 the list of non-derogable provisions as provided for by article 4 (2), emphasizing that States parties to the Covenant “may in no circumstances invoke article 4 of the Covenant as a justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivation of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.”⁶⁰

73. Article 2 of the ICCPR obliges each State party to respect and to ensure to all individuals “within its territory and subject to its jurisdiction” the rights recognized within it. The extra-territorial applicability was elaborated by the Human Rights Committee in its General Comment 31: “A State party must respect and ensure the rights laid down in the Covenant to anyone with the power or effective control of that State party, even if not situated within the territory of the State party.”⁶¹ The applicability of the ICCPR “in respect of acts done by a State in the exercise of its jurisdiction outside its own territory” was confirmed by the ICJ in its 2004 Advisory Opinion on the Wall.⁶² The Human Rights Committee itself has reaffirmed this view in its recent consideration of Israel in July 2010.⁶³

74. Other relevant United Nations human rights standards applicable to member States of the United Nations include the Code of Conduct for Law Enforcement Officials; the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; and the Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions.

³⁵ Article 7, International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, [2001] Vol. II(2) Yearbook of the International Law Commission, p. 45. See also: Caire (1929) 5 Reports of International Arbitral Awards 516; Mallén (1925) 4 Reports of International Arbitral Awards 173.
³⁶ See, in particular, United Nations Law of the Sea Convention 1982, United Nations, Treaty Series, vol. 1833, No. 31363, article 110(1); Convention on the High Seas 1958, United Nations, Treaty Series, vol. 450, No. 6465, article 22.
³⁷ United Nations, Treaty Series, vol. 1833, No. 31363, articles 88, 141 and 301.
³⁸ UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004) (hereafter, UK Manual); Dieter Fleck (ed), Handbook of International Humanitarian Law 2nd edition (Oxford University Press, 2008), being an annotated translation of the German military manual (hereafter, German Manual); The Law of Armed Conflict at the Operational and Tactical Levels (2004), available at the website of the Canadian Office of the Judge Advocate General, http://www.forces.gc.ca/jag/publications/Training-formation/LOAC-DDCA_2004-eng.pdf (hereafter, Canadian Manual); Commander’s Handbook of the Law of Naval Operations (US, 2007), available at http://usnwc.edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/1-14M_(Jul_2007)_(NWP) (hereafter, US Manual).
³⁹ Report of the Secretary General, “Study on the Naval Arms Race”, United Nations Doc. A/40/535 (1985), para. 188.
⁴⁰ As reproduced in Louise Doswald-Beck et al (eds), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge University Press, 1995). Available at: http://www.icrc.org/ihl.nsf/FULL/560?OpenDocument.
⁴¹ San Remo Manual, paragraph 10(b).
⁴² San Remo Manual, paragraph 93-95, 100.
⁴³ San Remo Manual, para 102.
⁴⁴ C. Pilloud and J. Pictet, Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross, 1987), p.53 para 2089. See also Oxford English Dictionary definitions: “to deprive of or keep scantily supplied with food” or to “subdue by famine or low diet”.
⁴⁵ A/HRC/13/53, para.34
⁴⁶ The Mission considered the policy of blockade “amounts to collective punishment intentionally inflicted by the Government of Israel on the people of Gaza”; A/HRC/12/48, para. 1878.
⁴⁷ In its statement of 14 June 2010, the ICRC maintained that “the whole of Gaza's civilian population is being punished for acts for which they bear no responsibility. The closure therefore constitutes a collective punishment imposed in clear violation of Israel's obligations under international humanitarian law”.
⁴⁸ San Remo Manual, paras 118 and 67; United Kingdom Manual, para 13.91.
⁴⁹ San Remo Manual, paragraph 67 and 146.
⁵⁰ Turkel Committee: Public Commission to Examine the Maritime Incident of May 31, 2010, Session Number 4, 11 August 2010, responding to a question by Professor Deutch; http://www.turkelcommittee. gov.il/files/wordocs/07790ga.doc. The Mission notes that a Germany-based organization called “Internationale Humanitaere Hilfsorganisation” that shares the same abbreviation but has no link with the Turkish organization, is under investigation in Germany for alleged ‘terrorist’ links. A/
⁵¹ Legal Consequences of the construction of the Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, para. 101.
⁵² Security Council resolution 1860 (2009); General Assembly resolutions A/Res/64/92 and A/Res/64/94.
⁵³ Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict, United Nations Doc A/HRC/12/48 (25 September 2009), para 278.
⁵⁴ ICCPR, ICESCR, CEDAW, ICERD, CAT, CRC and the OP on the involvement of children in Armed Conflict.
⁵⁵ CCPR/ISR/CO/3, para.5
⁵⁶ Human Rights Committee, General Comment No. 29, para. 3, also incorporated into General Comment 31, para. 11.
⁵⁷ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, 1996 ICJ Reports, p. 226, Para. 25.
⁵⁸ Legal Consequences..., Para 106.
⁵⁹ "Since its establishment, the State of Israel has been the victim of continuous threats and attacks on its very existence as well as on the life and property of its citizens.
"These have taken the form of threats of war, of actual armed attacks and campaigns of terrorism resulting in the murder of and injury to human beings.
"In view of the above, the State of Emergency which was proclaimed in May 1948 has remained in force ever since. This situation constitutes a public emergency within the meaning of article 4 (1) of the Covenant.
"The Government of Israel has therefore found it necessary, in accordance with the said article 4, to take measures to the extent strictly required by the exigencies of the situation, for the defence of the State and for the protection of life and property, including the exercise of powers of arrest and detention.
"In so far as any of these measures are inconsistent with article 9 of the Covenant, Israel thereby derogates from its obligations under that provision."
60 Human Rights Committee, General Comment 29, para.11 (HRI/GEN/Rev.9 (Vol.I))
⁶¹ Human Rights Committee, General Comment 31, para.10.
⁶² Legal Consequences..., paragraph 111.
⁶³ CCPR/ISR/CO/3, para.5: “The Committee reiterates its view, previously noted in paragraph 11 of its concluding observations on the State party’s second periodic report (CCPR/CO/78/ISR) and paragraph 10 of its concluding observations on the State party’s initial report (CCPR/C/79/Add.93), that the applicability of the regime of international humanitarian law during an armed conflict, as well as in a situation of occupation, does not preclude the application of the Covenant, except by operation of article 4, whereby certain provisions may be derogated from in a time of national emergency. The Committee’s position has been endorsed, unanimously, by the International Court of Justice in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, I.C.J. Reports 2004, p. 136), according to which the Covenant is applicable in respect of acts done by a State in exercise of its jurisdiction outside its own territory. Furthermore, the applicability of the regime of international humanitarian law does not preclude accountability of States parties under article 2, paragraph 1, of the Covenant for the actions of their authorities or agents outside their own territories, including in occupied territories. The Committee therefore reiterates and underscores that, contrary to the State party’s position, in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the occupied territories, including in the Gaza Strip, for all conduct by the State party’s authorities or agents in those territories affecting the enjoyment of rights enshrined in the Covenant (arts. 2 and 40). The State party should ensure the full application of the Covenant in Israel as well as in the occupied territories, including the West Bank, East Jerusalem, the Gaza Strip and the occupied Syrian Golan Heights. In accordance with the Committee’s general comment No. 31, the State party should ensure that all persons under its jurisdiction and effective control are afforded the full enjoyment of the rights enshrined in the Covenant.”