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Israel/Gaza: Weak Mandate Undermines Flotilla Inquiry

Gaza Blockade Enters Fourth Year, Continuing Collective Punishment of Civilians

(Jerusalem) - The Israeli government has undermined the credibility of the panel appointed to investigate its military's deadly interception of the "Gaza aid flotilla" by preventing it from questioning Israeli soldiers or compelling the military to provide evidence, Human Rights Watch said today.  Human Rights Watch reiterated its criticism of Israel's blockade of Gaza, now entering its fourth year, as a form of collective punishment against the civilian population.

The three-member panel, which the Israeli Cabinet approved on June 14, 2010, is not a full commission of inquiry as set out in Israeli law and cannot subpoena witnesses or officials.  Under its mandate, the panel must instead rely on requests for documents and "summaries of operational investigations" conducted by the Israeli military itself to determine what military personnel did or were ordered to do during the May 31 interdiction of the flotilla. Nine Turkish participants were killed and dozens wounded in the operation.

"Israel claims the panel is independent, but insists that it accept the military's version of events," said Sarah Leah Whitson, Middle East director at Human Rights Watch. "Given the Israel's military poor record of investigating itself in past cases of possible wrongful death, it is hard to have confidence that the panel's dependence on the Israeli military will lead to the truth."

The Israeli government empowered the panel to "request" testimony or other evidence from any individual or entity, whether Israeli or foreign, except "in regard to military personnel and personnel from the other security forces." The panel may not interview soldiers or officers individually, may not see their testimony or statements, and must operate "only" by requesting documents and "summaries" of internal military inquiries, known as operational debriefings, for which soldiers are interviewed by officers in the chain of command who have no training in conducting inquiries into suspected wrongdoing. These debriefings are intended as a lessons-learned tool rather than an investigative mechanism into possible criminal actions. The panel may "request" further inquiries by an internal Israeli military team that is investigating the flotilla incident. 

"The Israeli government may have valid reasons for wanting to protect the identity of individual soldiers, but there are many ways it could do that without blocking the panel's access to those who participated in the incident," Whitson said. 

The panel's mandate states that it may redact any information from its final report that it feels could compromise national security.

The panel's Israeli members are Jacob Turkel, a former Supreme Court justice; Shabtai Rosenne, a jurist, and Maj.-Gen. (ret.) Amos Horev, a former president of Israel's Technion institute and former chairman of the board of the Rafael arms group. 

The panel also includes two international "observers," David Trimble, who won a Nobel peace prize in 1998 for his role in negotiating an end to the conflict in Northern Ireland, and Brig. Gen. Kenneth Watkin, a former Canadian military judge advocate general.  As observers, they may be prevented from seeing evidence that the chairman is substantially certain would significantly harm Israel's national security or foreign relations, and they cannot vote on the commission's findings.  On May 31, Trimble helped open a "friends of Israel" initiative, raising questions about the reasons for his selection.  

In addition to examining the raid on the flotilla, the panel is mandated to inquire into "the conformity of [Israel's] naval blockade [of Gaza] with the rules of international law."  Israel's blockade amounts to collective punishment against the civilian population and violates Israel's international legal obligations as the occupying power under international humanitarian law, Human Rights Watch said. The blockade has crippled Gaza's economy and caused immense hardship to 1.5 million residents there.

According to news reports, Israel's Cabinet may soon consider changes to the blockade policy proposed after negotiations between Prime Minister Binyamin Netanyahu and international Quartet representative Tony Blair.

Israel maintains that it imposed border closures, as well as fuel and electricity cuts, in response to attacks on Israel by Hamas, which violently took over Gaza in 2007 after winning elections in 2006, and other Palestinian armed groups, and the continued detention of an Israeli soldier, Gilad Shalit, who was captured in June 2006.

Since 2005, Hamas's armed wing, the al-Qassam Brigades, and other Palestinian armed groups in Gaza, have launched thousands of rockets at Israeli population centers.  These indiscriminate attacks on civilian areas are clear violations of international humanitarian law which Human Rights Watch has repeatedly condemned.

"Israel has every right to address its legitimate security concerns, but it can accomplish that by restricting a narrow list of military-related items rather than an arbitrary, changing, and secretive list of goods that civilians need and that present no conceivable security concern," Whitson said.

Israel should agree to international efforts to secure the immediate and sustained opening of border crossings for the flow of humanitarian aid as well as people and commercial goods in and out of Gaza, Human Rights Watch said.

Israel, with Egypt's collaboration, intensified existing restrictions on imports and exports to and from Gaza by completely sealing Gaza's borders during and after fighting between Hamas and Fatah on June 14 and 15, 2007, in which Hamas gained unilateral control of Gazan territory.  Hamas had defeated Fatah in parliamentary elections in Gaza and the West Bank in January 2006; a power-sharing government collapsed in June 2007. Israel has only partly and temporarily relaxed the closure since then, as Hamas consolidated its internal control of the territory.  Israel allows for the crossing of some goods in an ad-hoc, non-transparent and arbitrary fashion. Fatah has also quietly supported the Israeli and Egyptian blockade as a way to pressure its rival. 

The United Nations Security Council, the United States, and the 27 European Union member states have all referred to the blockade as unsustainable. International demands to lift it grew louder after the May 31 flotilla incident.

On June 14, speaking to EU Foreign Ministers, the representative of the international Quartet, Tony Blair, said that Israel should reverse its current punitive policy by "shifting from a list of goods that are permitted into Gaza to a list of goods that are prohibited from entering, such as weapons and combat material." The EU's 27 foreign ministers subsequently pledged to "contribute to the implementation of such a mechanism."

Although Israel removed its forces and settlements from Gaza in 2005, it almost fully controls Gaza's land and sea borders, airspace, and population registry, making it an occupying power under international law, Human Rights Watch said. The blockade violates Israel's obligations under international humanitarian law governing military occupation to ensure the safety and well-being of Gaza's civilian population and to facilitate the delivery of humanitarian aid by others.  Egypt formally relaxed its restrictions on the movement of people through Gaza's southern border after May 31.

Israel's restrictions on imports of food, fuel, and other essential goods, as well as on virtually all agricultural and industrial exports, have devastated Gaza's economy.  Some goods enter Gaza through Hamas-controlled tunnels along the border with Egypt, but most residents cannot afford them.  With Gaza's economy strangled by the blockade, approximately 80 percent of Gaza's population of 1.5 million people receive food aid.  Even as border closures increased Gaza's dependency on humanitarian aid, Israel further restricted that aid. Israel allowed an average of 2,807 weekly truckloads of goods into Gaza during the first months of 2007, before imposing the blockade, but only 488 weekly truckloads entered in late May 2010.

Israel has also limited the self-sufficiency of Gazans by restricting their access to farmland and fisheries.  Ostensibly to deter attacks by armed groups, Israel restricts Palestinian access to largely agricultural lands that lie near the Gaza-Israel border and comprise more than 18 percent of Gaza's territory by firing upon Palestinians who enter the area.   In January 2009, Israel reduced the area in which Gaza fishermen can fish from six to three nautical miles from Gaza's coastline. Prior to 2000, Gazans were permitted to fish up to 12 nautical miles from the coast. The number of fishermen in Gaza has decreased from 10,000 to 3,400 over the last 10 years, according to the UN. Israel has stated that the naval blockade is intended to prevent arms smuggling by sea.

Until now, Israel has rejected proposals to facilitate delivery of desperately needed assistance to Gaza.  There had been extensive destruction and damage to Gaza homes, schools, and infrastructure during Israel's large-scale military operations launched, according to the Israeli government, to suppress rocket fire by Hamas and other groups into Israel. In late May 2009, the UN presented a proposal to complete US$80 million worth of housing, health, and education projects that had been stalled for two years due to the blockade.  The proposal would have allowed Israeli authorities to extensively monitor imported materials, including vetting construction contractors and storage sites for the materials, as well as periodically photographing construction sites; Israel rejected the proposal.  After nine months of negotiations, Israel approved only a few UN projects, including recently the completion of 151 housing units.

Prime Minister Netanyahu stated on May 31 that Israel restricted only weapons and so-called dual-use items that could be used for military reasons by Palestinian armed groups.  In fact, Israel continues to ban imports of items ranging from mammogram machines to fishing rods to foodstuffs, and to ban all exports apart from sporadic shipments of cut flowers and strawberries.

On June 25, 2006, a Palestinian armed group, including Hamas fighters, captured Israeli soldier Gilad Shalit, who remains in detention.  Israel has cited Shalit's detention as well as Hamas's refusal to recognize Israel and to renounce violence as justifications for the blockade. Those who have willfully conducted or ordered deliberate or indiscriminate rocket attacks on Israeli civilians are responsible for war crimes, Human Rights Watch said. And Hamas's prolonged incommunicado detention of Staff Sergeant Shalit is cruel and inhumane and may amount to torture under international law. Shalit is unable to communicate with his family or to receive visits from the International Committee of the Red Cross. However, violations of the laws of war by one side to an armed conflict do not legitimate violations by the other, Human Rights Watch said. 

Hamas officials refused Human Rights Watch's request to visit Shalit and check on his conditions of confinement during a meeting in Gaza in May, saying that they would not take the risk that his location could be discovered, even though Human Rights Watch had offered to travel to the site blindfolded and to accept any other security precautions that Hamas wanted. Human Rights Watch has repeatedly condemned Shalit's prolonged incommunicado detention.   

"It is vital for the international community to commit to a comprehensive monitoring and control regime that will enable the free flow of goods and people in and out of Gaza based on a narrow list of specific prohibited goods," Whitson said.

While Israel is entitled to inspect goods going into Gaza, any restrictions should be for specific security reasons and not to block humanitarian aid or ordinary commercial transactions, Human Rights Watch said. Overly broad restrictions on basic goods violate international humanitarian law, which restricts a government with effective control over a territory from blocking goods that are essential to the survival of the civilian population.

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