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The United Nations Human Rights Council appointed an expert panel to look into the deaths resulting from the
August 10 Israeli interception of a flotilla of vessels bringing relief supplies to Gaza. It was headed by Judge Karl T. Hudson-Phillips, Q.C., a retired judge of the International Criminal Court and former attorney general of Trinidad and Tobago, and included Sir Desmond de Silva, Q.C., the British former chief prosecutor of the Special Court for Sierra Leone, and Ms. Mary Shanthi Dairiam of Malaysia, a prominent women’s rights advocate. The panel released its report on September 27. (PDF) It contains some startling findings, particularly surrounding the death of a Turkish-American dual national, Furkan Do?an, and five other passengers:
The circumstances of the killing of at least six of the passengers were in a manner consistent with an extra-legal, arbitrary and summary execution. Furkan Do?an and ?brahim Bilgen were shot at near range while the victims were lying injured on the top deck. Cevdet Kiliçlar, Cengiz Akyüz, Cengiz Songür and Çetin Topçuo?lu were shot on the bridge deck while not participating in activities that represented a threat to any Israeli soldier. In these instances and possibly other killings on the Mavi Marmara, Israeli forces carried out extra- legal, arbitrary and summary executions prohibited by international human rights law, specifically article 6 of the International Covenant on Civil and Political Rights.
The report concludes that the Israeli boarders did not face credible threats of imminent harm that would have warranted the use of such lethal force as was used to subdue the Mavi Marmara. “A well-trained force such as the Israeli Defense 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,” the panel concluded. Indeed, the case of the American victim was particularly compelling in this regard:
two of the passengers killed on the top deck received wounds compatible with being shot at close range while lying on the ground: Furkan Do?an received a bullet in the face and ?brahim Bilgen received a fatal wound from a soft baton round (beanbag) fired at such close proximity to his head that parts such as wadding penetrated his skull and entered his brain.
The report contains a fairly conventional discussion of the legal posture of the Israeli government concerning its blockade of Gaza, but its heart is clearly the fact-finding concerning the use of lethal force and the justifications advanced for it. Moreover, it’s hard to quibble with many of the report’s legal premises. Israel had a colorable right under international law to board and inspect the ships, and it had a right to use force in the process. The difficulties arise when lethal force is used against people who either present no threat to begin with or have been subdued. A bullet wound to the head of a person who is prostate and offering no resistance requires some extraordinary explanation.
This report has been widely circulated and discussed among international law experts who trade notes about its interpretation of the San Remo Manual and the various theories advanced by Israel to advance its blockade, and it has gotten intense attention in the press in Europe and in Turkey. But it has drawn remarkably little attention from the press in the United States. Even the New York Times, whose editorial pages previously included dueling columns about the significance of Do?an’s death and the flotilla incident, has not even mentioned the report’s existence, notwithstanding the fact that it deals with the death of an American citizen. Why might that be?
Defenders of the Netanyahu government tend to be dismissive of anything that comes out of the Human Rights Council, which is indeed a profoundly flawed institution. But this is not an expression of opinion by the council, even though it voted to adopt the report; it is rather the fruit of an independent inquiry by experts. The persons who prepared this report are eminent figures with no obvious prejudices one way or the other on the Gaza controversy. Their report is a model of clarity and masters an impressive body of evidence. No doubt mistakes have been made at some point, and there is room to quibble over interpretation and application of legal norms to the incident. But complete and utter silence? That sends a clear and unfortunate message about the value assigned to the lives lost.
More from Scott Horton:
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."