Tuesday, 28 September 2010

The Gaza Flotilla Report: Some Comments

A few days ago, this blog reported upon the issuance of the report of the fact-finding commission established by the Human Rights Council to investigate the attack on the Gaza flotilla on 31 May 2010. I’ve now had a few days to read and study this most interesting report, which concludes that Israel violated international law in several respects.
Perhaps the most striking aspect is the focus of the report upon human rights violations. Most observers have an almost knee-jerk reflex to consider the problem from the standpoint of international humanitarian law rather than human rights law. While the commission also looks at the law of armed conflict, concluding that the fourth Geneva Convention is relevant, its main thrust is to use the International Covenant on Civil and Political Rights. It finds violations of articles 6 (right to life), 7 (prohibition of torture) and 10(1) (humane conditions of detention) of the Covenant.
The substance of the violations does not seem to me to be very controversial. In essence, the commission finds that
throughout the operation to seize control of the Mavi Marmara, including before the live fire restriction was eased, lethal force was employed by the Israeli soldiers in a widespread and arbitrary manner which caused an unnecessarily large number of persons to be killed or seriously injured. Less extreme means could have been employed in nearly all instances of the Israeli operation, since there was no imminent threat to soldiers; for example in relation to the operation to move down to the bridge deck and seize control of the ship and the firing of live ammunition at passengers on the bow deck of the ship. Even in a situation where three individual soldiers have been injured and detained, the objective of freeing these soldiers does not legitimate the use of force outside applicable international standards and soldiers must continue to respect and preserve life and to minimize injury and damage. (para. 167)
… A well-trained force such as the Israeli Defence Force should have been able to successfully contain a relatively small group of passengers armed with sticks and knives and secure control of the ship without the loss of life or serious injury to either passengers or soldiers. (para. 168)
The Mission is satisfied that much of the force used by the Israeli soldiers on board the Mavi Marmara and from the helicopters was unnecessary, disproportionate, excessive and inappropriate and resulted in the wholly avoidable killing and maiming of a large number of civilian passengers. On the basis of the forensic and firearm evidence, at least six of the killings can be characterised as extra-legal, arbitrary and summary executions. As such, the conduct of the Israeli forces amounted to violations of the right to life and of the right to physical integrity, as stipulated in articles 6 and 7 of the International Covenant on Civil and Political Rights. (para. 172)
This holding is similar to the case law of the European Court of Human Rights in decisions like McCann et al. v. United Kingdom.
More challenging, however, is the actual application of the Covenant to ships on the high seas. The commission report is, to my knowledge, the first time there has ever been a finding that a state has violated its international human rights obligations by conduct on the high seas. If readers know of any previous examples, please inform the blog.
Similarities with the Bankovic case at the European Court of Human Rights present themselves. There, of course, the European Court declined jurisdiction because it said the European NATO powers did not actual control the territory of Serbia at the time of the bombing in 1999. The Court distinguished this from Loizidou v. Turkey, where Turkey actually had control over occupied northern Cyprus.
The high seas – international waters – are not anyone’s territory, but of course the ships themselves may be deemed to be the territory of the flag state. Thus, Israel’s conduct on the Mavi Marmara can be said to have been on Turkish territory. Here, too, I am not aware of any precedent for a conclusion that a state violates article 6 of the Covenant by a killing on the territory of another state, but perhaps readers of the blog know of examples that I have not considered.
The reliance upon human rights law is also of great interest in that the commission seems to depart from the reasoning of the International Court of Justice. The report cites the relevant decisions, including Nuclear Weapons and The Wall, where the Court’s famous lex specialis doctrine is set out to describe how article 6 of the Covenant actually applies in armed conflict. I think that the commission is quite plainly at variance with the position of the Court, in that it takes the view that we can understand ‘arbitrary’ deprivation of the right to life within the context of armed conflict purely from the perspective of international human rights law. In the commission report, the analysis relies strictly upon the proportionality of the use of force. But surely the members of the commission are not suggesting that during armed conflict, soldiers can only use the minimum amount of force necessary to subdue their opponents, and that they must use tasers or rubber bullets rather than real guns if this will do the job?
I guess the commissioners would answer that they are dealing with protected persons under the fourth Geneva Convention, so the rules are different. But if that is the case, why do we need article 6 of the Covenant at all? They conclude that the passengers on the ships were protected persons in accordance with the fourth Geneva Convention (para. 66). Here, too, I think this must be an innovation. The victims were considered to be protected persons although they were on the territory of a third state, Turkey, and on the high seas.
The commission also makes statements about the legality of the Israeli blockade. This was, after all, at the origin of the incident. The report refers to article 33 of the fourth Geneva Convention, which prohibits collective punishments. (para. 60). There has been some debate as to whether Gaza can even be considered an occupied territory. The commission says that it can, because Israel has ‘effective control’ (para. 69). The report holds that because the blockade itself was not lawful, the interception was unlawful too:
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. (para. 54)
… 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. (para. 57)
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. (para. 58)
Of course, it is not necessary to reach any conclusion about the lawfulness of the interception in order to find that there were violations of human rights law because of excessive use of force directed against protected persons. Even if Israel had been acting lawfully, it seems to me that the conclusion would be the same.
Unlike the Goldstone Report, this latest report does not consider the issue of jurisdiction of the International Criminal Court. Back in June, I speculated on on this blog about how the Court might actually intervene in the situation, noting the possibility of Turkey making a declaration in accordance with article 12(3) of the Rome Statute. Several readers wrote challenging the proposition that any crimes within the jurisdiction of the Court had been committed. The recent report confirms that there are reasonable grounds to conclude that a number of war crimes were committed.
Thus, it might be useful to put the suggestion of a Turkish declaration in accordance with article 12(3) of the Rome Statute back on the table. Blowhard politicians in Turkey who are making so much of the 31 May incident might address this issue, and call for their government to make a declaration.
There may be a link with the Court’s jurisdiction because the attack was also directed against a ship with a Greek flag, the Eleftheri Mesogios. According to article 12(2) of the Rome Statute, the Court may exercise jurisdiction ‘if the crime was committed on board a vessel or aircraft’ to the extent that ‘the State of registration of that vessel or aircraft’ is a State party. And Greece is a State party. That just leaves us with the problem of how the jurisdiction must be triggered. Greece could make a ‘self-referral’. Or any other State party could make a referral, under article 14. Or the Prosecutor could ask the Pre-Trial Chamber for authorization to initiate an investigation, as he did recently in Kenya.
The gravity of the attack on the Greek ship is probably at the low end of the scale. But it is part of a situation that is exceedingly grave: the decades-long occupation of territory, the denial to a people of their right to self-determination, the loss of life of perhaps 1,000 civilians in December 2008-January 2009 alone, ande of many more over the years. This is the issue of ‘situational gravity’, as opposed to ‘case gravity’. If we opt for ‘situational gravity’, then the Prosecutor has his work cut out for himself.


Harlan said...

The floatilla report confirmed media reports that the Mavi Marmara had been re-flagged in Comoros prior to the voyage.

So, it appears that Turkey would be barred from filing an article 12(3) declaration. Comoros has ratified the Rome Statute and could conceivably make a ‘self-referral’.

matthias.ms said...

Dear Professor Schabas,

I think that the CAT in the 'Marine case' had already determined that human rights treaties had extraterritorial application in the context of interception and detention in the high seas, so this report wouldn't really be breaking new ground.

Kees Wouters and Maarten Den Heijer, 'The Marine I Case: a Comment', Int J Refugee Law (2010), 22 (1): 1-19.

One could of course argue that the CAT Committee declared the case inadmissible, and that therefore there hadn't been a final finding on the merits. However, its inadmissibility decision was reached after it had declared that the refugees in question had been under Spanish jurisdiction...