Turkey said in its interim report about the Mavi Marmara attack that any state should not be allowed to act above the law.
The report which was submitted to the United Nations said that Israel violated human rights including the right to life and fundamental freedoms.
"The facts speak loudly of the flagrant multiple violations of human rights of the 600 passengers. Nine lives lost and nine violations of the inviolable right to life. Most suffered from multiple shots at close range," it said.
"Israel's bad faith and intent to punish the 600 passengers by use of physical and psychological abuse which fits the definition of torture, cruel, inhumane and degrading treatment under the ICCPR and CAT and European Convention on Human Rights. Israel cannot legally justify the manner in which it collectively treated the people. Assuming a need to maintain control over the ship during the 10-hour journey to Ashdod what the Israeli forces did went beyond the pale of acceptable and reasonable conduct. Beating, kicking, insulting, making people soil themselves, leaving in the hot sun without food or water has no other purpose but the punish everyone regardless of whether they had caused any threat or disorder. Even then this conduct was excessive. The Turkish doctor who gave first aid treatment to the Israeli soldiers was himself beaten, handcuffed and mistreated. He was not allowed to render care to other injured persons. As a medical care provider Dr. Hasan Huseyin Uysal should have been afforded protected status no matter what. Here again Israel violated basic human rights principles under international law. The vindictive intent behind Israeli actions towards the passengers of the humanitarian aid convoy is further demonstrated in how the injured were treated or in fact denied medical care. The seriously injured were left unattended for many hours exacerbating their health condition," it said.
"Why civilians would be made to strip naked and be searched other than to degrade and humiliate them. There is no possible justification and so again another case of human rights violation and of human dignity by Israel," it said.
The report indicated, "a fundamental tenet of human rights is the right to due process that attaches once a person is taken under custody. Under Article 10 of ICCPR all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person. The due process rights of the passengers were also systematically violated in numerous ways. They were deprived of their liberty and security without being afforded access to legal assistance. They were made to incriminate themselves by signing document in Hebrew accepting guilty of illegal entry into Israel when they had been brought by force. This violates the prohibition against being compelled to testify against oneself or to confess guilt under Article 14 of ICCPR."
"Violating law of freedom of high seas"
The report said about legal issues, "the starting point for a legal analysis of the Israeli attack on the convoy is overriding rule of freedom of the high seas and its component, the rule of exclusivity of the flag State. The 1958 High Seas Convention and UNCLOS, both almost identical in their language, codify what widely recognized to be the customary international rules of the freedom of the high seas."
"State practice over the years, has shown a consistent rejection against expansion of the limited exceptions to the rule of freedom of the highs seas. The United States, who was and continued under the threat of terror attacks from the sea, was careful to maintain the integrity of international law under the PSI system, which is based on the consent of the flag State," it said.
"The right of self-defense, as a lawful ground to stop, visit or seize a vessel on the high seas finds scant support under customary international law. Article 51 of the UN Charter is the principal governing source of international law for self-defense. A State must show that it was under an imminent threat or actual armed attack. The ICJ has reaffirmed the requirement that the attack be armed, thereby diminishing arguments seeking anticipatory self-defense as a reason to interdict vessel on the high seas," it said.
The report noted, "Israel who is claiming a significant exception to the customary international and codified right of freedom of navigation of the humanitarian aid convoy bears the burden of proving it. Moreover, its burden of proof is a heavy one given the importance of the right of freedom of the high seas."
"Israeli naval blockade of Gaza unlawful"
The report said that Israel's naval blockade against the Gaza Strip, as it existed on May 31, 2010, violated international law principles governing blockades, because this smothering blockade was much more limiting than what could be justified by Israel's security needs.
"Furthermore, the blockade failed to meet the technical requirements of notice specifying the commencement, duration, location and extent of the blockade and periods within which neutral State vessels may leave the blockaded coastline. In practice, Israel has maintained some form of naval blockade off the coast of Gaza since 2007. And while Israel tries to disguise these naval blockades with different names such as 'combat zone', 'zone of hostility' or 'maritime enclosure', the purpose and effect has been essentiality the same: to exclude vessels from Gaza. By their own admission to the Turkel Commission they realized that the blockades were legally questionable and tried to remedy the defectiveness with a 'new' blockade with a new name. But all have been in fact a continuation of the same defective and unlawful blockade, violating the international law against indefinite naval blockades," it said.
"In regard to the 2009 'military enclosure' because Israel had not given proper notice to others about which items were prohibited and which were permitted it failed the notification requirement as laid down in San Remo Manual. Israel's action on July 6, 2010 permitting many products now to enter Gaza and publishing a specific list of those that are prohibited can be seen as an acknowledgment that its previous policies were not consistent with international law obligations," it said.
The report stressed, "more important and fatal to the Israeli claim of a legal blockade is its disproportionate impact on the civilian population documented by various UN agencies and the international community at large. The UN Security Council, the OCHA, the World Food Programme, the ICRC, the UN High Commissioner for Human Rights, the World Bank, the UNHCR and the UNDP have all described the humanitarian situation in Gaza as a result of the blockade as dire, unacceptable and unsustainable. The serious humanitarian crisis in Gaza because of the blockade compelled the UNSC to adopt Resolution 1860. States have also condemned the impact of the blockade on the civilian population in Gaza. There is an overwhelming public view that the blockade cannot be continued and must be lifted. In other words, it is an unlawful blockade. And in as much as Israel attempts to distinguish the land blockade from the naval in reality and practice they are integrated and thus one and the same."
"Even in the case of a lawful blockade, under Article 47 of the San Remo Manual vessels engaged in humanitarian missions, including vessels carrying supplies, are exempt from attack. The Mavi Marmara and the other ships of the convoy were all transporting humanitarian aid vital for the of the civilian population. Based solely on this ground the conduct of Israel is de jure unlawful," it said.
"The use of lethal force by the Israeli military forces against the passengers on the Mavi Marmara was not justified by any legitimate need to enforce the naval blockade. First and foremost, the Mavi Marmara was carrying six hundred civilian passengers. This should alert Israel to tailor its strategy accordingly. Whereas, Israel prepared for a combat operation and refused to deviate from this strategy when it became apparent they would encounter civilian resistance. This tragic truth is that civilian casualty could have been avoided if Israel had sought alternative non-violent plan of action. The Israeli forces had a number of options that it could have used to stopped the vessel ? shooting across its bow, using high-powered water houses, maneuvering in front of the vessel to stop it, and disabling its rudder or sternpost ? and it had sufficient time to reassess its strategy and develop other options. During the critical hours between 1200-0430 no request was made to even visit the ship or seek some neutral port or alternative to diffuse the situation. Israel only pursued aggression, intimidation and provocation, and not peaceful means. Its failure to utilize these other options makes its use of lethal force, excessive and disproportionate and a violation of international law," the report added.
"Right to compensation"
The report reminded that it had now become accepted practice by the international community that providing compensation to civilian victims of combat was appropriate and necessary, and that such payments served the goal of ensuring proportionality by forcing military forces to internalize the real costs of failing to properly assess the impact of a military operation on civilians.
"Israel should, therefore, be required to pay compensation to those killed and wounded during the IDF's military operation against the Mavi Marmara on May 31, 2010. This case is a critical litmus test for the international community in upholding the rule of law. No State should be allowed to act above the law. Impunity must give way to accountability. Israel must acknowledge its responsibility and accordingly express public apology and provide compensation for all damages and losses resulting from its unlawful attack," the report concluded.
Related news reports:
Turkey's interim report on Israeli attack - 2
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