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
III. Interception of the flotilla by the Israeli navy and its aftermath
D. Confiscation and Return of Property by the Israeli authorities
1. Factual Description and Findings
234. The Mission found the following facts to have been established to its satisfaction.
(a) Possessions of passengers confiscated by the Israeli authorities
235. The Mission received accounts from passengers who were on board all six vessels in the flotilla on the confiscation by the Israeli authorities of cash and a wide variety of personal belongings, including passports, identification cards, driving licenses, mobile telephones, laptop computers, audio equipment including MP3 players, photographic and video recording equipment, credit cards, documents, books and clothing. These items were taken at a number of stages, primarily while on board the vessels (during body searches and items left in others parts of the vessels that they were not permitted to retrieve) or during processing at the Ashdod detention facility. The Mission estimates that many hundreds of expensive electronic items remain in the possession of the Israeli authorities. Many passengers were carrying considerable amounts of cash donations to be distributed in Gaza, in some cases amounting to tens of thousands of dollars. There was inconsistent practice by the Israelis with regard to cash: some passengers were allowed to hold on to cash throughout their detention, some had cash confiscated and then returned and others had the cash taken and it was not returned.
236. Furthermore, while most passports were returned to passengers prior to their departure from Israel and others have since been returned, some passengers have still not received their passports nearly four months after the incident.
237. It is clear in the view of the Mission that the Israeli authorities did not put a system in place to properly record items that were confiscated and identify personal effects with the aim of returning them to the rightful owners. On board the various vessels, the Israeli forces conducted extensive searches of the passengers’ luggage that left personal possessions strewn across the cabins in a highly disordered state. One witness, who had been isolated and beaten, described the surreal experience of sitting handcuffed on a large heap of laptops and electronic devices and being “serenaded” by mobile telephones reconnecting to the network as the ship approached Ashdod.
238. Some items were returned to the Turkish authorities and passengers were able to retrieve some items of luggage from the forensic office in Istanbul. When the vessels were later returned from Israeli custody, some luggage and other items still on board were stored at an IHH warehouse in Istanbul. However, passengers who went to the warehouse were only able to reclaim a few clothing items or empty suitcases. The mission was informed that items belonging to some of the British passengers were also returned to them by post via the British Consulate in Israel but that these items were damaged or not actually theirs.
239. The mission’s attention has been drawn to several allegations regarding misuse of items confiscated by the Israeli authorities, including laptop computers, credit cards and mobile telephones. On 20 August 2010 it was reported in the Israeli media that “at least four” Israeli soldiers had been detained on suspicion of stealing and selling laptops belonging to passengers that were on board the flotilla.84 Furthermore, at least four passengers have stated that their personal items, including credit cards and mobile telephones, have been subsequently used in Israel. There is an account of a particular witness, a journalist, who was on board the Svendoni and alleged that his credit card was used to purchase items in Israel, both while he was detained at the Beersheva prison and after he had been released.85 There is another specific account where more than $1,000 was spent on a confiscated credit card in Israel.86
240. Amongst the items confiscated and not returned by the Israeli authorities is a large amount of video and photographic footage that was recorded on electronic and other media by passengers, including many professional journalists, on board the vessels of the flotilla. This includes a large number of photographic and video material of the Israeli assault and interception on the Mavi Marmara and other vessels. The Israeli authorities have subsequently released a very limited amount of this for public access, in an edited form,87 but the vast majority has remained in the private control of the Israeli authorities. 241. The Mission is satisfied that this represents a deliberate attempt by the Israeli authorities to suppress or destroy evidence and other information related to the events of 31 May on the Mavi Marmara and other vessels of the flotilla.
242. Many journalists who were on board the flotilla in their professional capacity have subsequently submitted various complaints regarding the confiscation of their data and equipment and the non-payment of damages or compensation. An example of this is a letter of behalf of the approximately 60 journalists that was sent to request action of the European Commission. The mission is aware of formal claims being prepared on behalf of a number of passengers whose personal property was taken or confiscated on board the Mavi Marmara and other vessels. The Mission estimates the value of such property to be not inconsiderable.
(b) Vessels of the flotilla confiscated by the Israeli authorities
243. The six vessels of the flotilla were held by the Israeli authorities for an extended period of time. For example, the Mavi Marmara, Defne Y and Gazze 1 ships were only taken to the Turkish port of Iskenderun on 7 August, more than two months after arriving at the port of Ashdod in Israel.
244. The Mavi Marmara was in a state of disrepair on its return to Turkey. The ship’s captain and other crew members confirmed that items damaged had been in full working order when the ship was taken under the control of the Israeli authorities on 31 May. The Mission’s own investigations confirmed that equipment had been destroyed or badly damaged including two Automatic Identification Systems (AIS) and a gyro-screen, two Very High Frequency (VHF) handset radio loud speakers, surveillance and other equipment, the VHF radio and VHF DSC Watch Receiver, MF-HF radio and DSC equipment, the control panel indicator, the speed log screen, the INMARSAT-C screen, the Raytheon Plotter-Radar replacement screen, two mobile Global Positioning Systems (GPS) and the fire alarm control panel. Other items had been removed, including the satellite telephone, the ship survey recording computer and its spare equipment and the ship's journal and all records, including the ship's certificate file. In the engine room, the control room generator and main control dash were destroyed and the gear dash was damaged. There was oily water and submergible pumps in the bilge water compartment of the engine and the diesel generator spare parts were scattered with some sea water as well as oil leaks were present. Furthermore, the engine command and control systems had been tampered with.
2. Legal Analysis of the denial of property and right to freedom of expression
245. The Mission is concerned that the actions of the Israeli authorities in confiscating, withholding, and in some cases destroying the private property of many hundreds of passengers on board the various vessels of the flotilla represents both a violation of rights related to property ownership and to the freedom of expression.
246. Article 17 of the Universal Declaration of Human Rights states that “Everyone has the right to own property alone as well as in association with others; No one shall be arbitrarily deprived of his property.” Insofar as the Universal Declaration in considered to form part of customary international law, no State may arbitrarily deprive someone of their own property. The Mission considers that the Israeli authorities, in disregarding the rights of many hundreds of passengers on board the flotilla to their possessions, fails to meet a State’s obligations in relation to rights to own property.
247. In relation to International Humanitarian Law, Article 97 of the Fourth Geneva Convention states: “Internees shall be permitted to retain articles of personal use. Monies ... and valuables in their possession may not be taken from them except in accordance with established procedure ... On release or repatriation; internees shall be given all articles, monies or other valuables taken from them during internment ... with the exception of any articles or amounts withheld by the Detaining Power by virtue of its legislation in force. If the property of an internee is so withheld, the owner shall receive a detailed receipt. Family or identity documents in the possession of internees may not be taken away without a receipt being given ...”.
248. Furthermore, the International Criminal Tribunal for the Former Yugoslavia has established that as far as the destruction or appropriation of property cannot be justified by military necessity, it is unlawful.88 Clearly no military necessity existed to justify the confiscation and continuing appropriation of the property of the passengers of the Flotilla. Furthermore, the Mission has been made aware of communications between the Israeli government and a law firm in the UK, where the Israeli government admits to retaining property of the passengers, but does not claim reasons of military necessity but only that the items are necessary for ongoing investigations within Israel.
249. Article 19(2) of the International Covenant on Civil and Political Rights states that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” While this right may be subject to certain restrictions, as set out in article 19(3), none of these are met in this case that would allow the Israeli authorities to restrict the rights of journalists and other passengers to freely utilize and share information gathered on board the vessels of the flotilla. Journalists in particular have the right to utilize the tools of their trade. The Mission considers that the actions of the Israeli authorities represent a continuing violation of the right to freedom of expression for the journalists and other passengers on board the flotilla.
84 http://www.haaretz.com/news/diplomacy-defense/idf-soldiers-suspected-of-theft-from-gaza-flotillaship-1.308862
85 http://www.haaretz.com/print-edition/news/italian-flotilla-journalist-my-credit-card-was-used-afteridf-confiscated-it-1.295493
86 http://www.guardian.co.uk/world/2010/jun/18/gaza-convoy-activists-debit-card-fraud
87 For example, footage taken by a passenger on the top deck while Israeli soldiers descended onto the deck: http://www.youtube.com/watch?v=S6Xm8Irz-so
88 ICTY, Judgment, The Prosecutor v. Dario Kordic and Mario Cerkez, IT-95-14/2-T.
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