Friday, January 28, 2011

As a follow-up to this story I broke this morning, proving Amnesty's bias by condemning the Turkel Commission report before even reading it, Amnesty has written a more comprehensive critique of the Turkel report, this time explicitly calling it a "whitewash."

Of course, since Amnesty had already come to that conclusion before actually examining the report, we can rest assured that their objectivity in their analysis is equally flawed. Can it even enter one's mind that Amnesty would have issued a press release saying, "Sorry, we were wrong"?

And, of course, Amnesty's response falls short of proving anything close to what they are claiming:

Amnesty International has condemned the findings of an Israeli inquiry into last year’s raid on a Gaza-bound aid flotilla as a “whitewash” which failed to account for the deaths of nine Turkish nationals.
The published  Turkel report indeed did not go into details on every death, and it explained why:
The detailed testimonies of the soldiers as well as their analysis can be found in an annex to the report. The Commission decided, while giving due consideration to article 539 A of the Military Justice Law 5715-1955, to privilege this annex pursuant to its authority under Article 11 to the Government’s decision of June 14, 2010, unless the government decides to lift this privilege. The Commission recommends that the Government will examine the possibility of making this annex public pursuant to its authority under law.
Amnesty seizes on this:

[The report] states that a detailed analysis of each incident, as well as the Israeli soldiers’ written testimonies on which this analysis was based, are contained in an unpublished annex to the report, which it recommends that the Israeli government “examine the possibility of making… public”. Amnesty International calls on the Israeli authorities to do so without delay, so that it can be read by independent parties.
If the Turkel commission itself is recommending that the annex be made public, how can Amnesty accuse it of a whitewash? Clearly the investigators wanted to make their methods and result be as transparent as possible, and the observers did get a chance to see their methods - and approved them.

The fundamental problem that Amnesty has is not with the report itself, though, but the framework:
Significantly, [the commission] chose to base its analysis of the lawfulness of the actions taken against those who resisted the boarding of the ship on international humanitarian law, which governs armed conflict and allows much greater latitude for the use of lethal force. Amnesty International categorically rejects the application of this legal framework to the events concerned.
But Turkel goes into great detail on why they chose to base the report on international humanitarian law rather than human rights law as Amnesty demands:

Although there are schools of thought that largely favor extensive applicability of human rights law, this approach is not universally accepted. For example, neither Israel nor the United States agrees with a broad extra-territorial application of human rights law.796 The issue of
whether, or the degree to which, there is extra-territorial application of human rights law is particularly relevant to the enforcement of the Gaza naval blockade on May 31, 2010, since it took place on the high seas, outside the territory of the Israeli State.

Recently, the European Court of Human Rights ruled in the Case of Medvedyev and Others v. France 797 that the interception of a vessel on the high seas by a French warship in a counter-drug law enforcement operation did engage human rights jurisdiction after "full and exclusive control" over the ship had been established. However, the judgment does not clarify exactly when the French armed forces were considered to have obtained "full and exclusive control" of the ship, especially since the litigation did not center on the boarding and overtaking of the ship,
but rather on the arrest and confinement of the crew to their cabins for a period of 13 days during the transit to France.

In the case at hand, it is difficult to see how Israel could be considered to have had “full and exclusive control” prior to taking control of the bridge of the flotilla vessels and the subsequent cessation of resistance. Further, even if Israeli forces were considered to have had such control over the Mavi Marmara prior to taking control of the bridge, the actions of the Israeli forces would still be governed by the lex specialisof international humanitarian law since the enforcement of a blockade is not a law enforcement mission. Therefore, the ruling of the European Court of Human Rights in the Medvedyev case is of limited assistance in resolving the issue of extra-territorial application of human rights law during the enforcement of the Gaza blockade.

With respect to the enforcement of the blockade, the use of force is to be interpreted under the international humanitarian law framework,798 which permits attacks against combatants and civilians taking a direct part in hostilities. International humanitarian law is guided by the principle of distinction, which is an obligation to distinguish at all times between civilians and combatants. A civilian is any person who is not defined as a "combatant."799 Civilians enjoy a general protection against the dangers arising from military operations.800 Hence, when attacking a military objective, the attacking party must take all feasible precautions to avoid incidental (collateral) injury and death to civilians.801 Further, the expected incidental harm caused to civilians by an attack must not be excessive in relation to the concrete and direct military advantage anticipated (the "principle of proportionality").802 Civilians shall not be
the object of an attack unless, and for such time as they take a direct part in hostilities.

Regarding the use of force, international humanitarian law treats combatants and civilians who take a direct part in hostilities differently than uninvolved civilians. Under international humanitarian law, the right to life is protected by prohibitions against indiscriminate attacks,
804 targeting individual civilians and the civilian population unless they take a direct part in
hostilities,805 causing superfluous or unnecessary suffering to combatants,806and targeting those who are hors de combat.807
This is only a part of Turkel's justification for the legal framework - arguments that Amnesty dismisses without putting forth any of its own legal arguments, effectively declaring Turkel wrong because they say so. In fact, Amnesty even goes into hyperbole, saying:
Effectively, the Commission argued that these activists could be shot dead lawfully whether or not they were posing a direct threat to the lives of IDF soldiers.
Turkel makes no such claim and his analysis of every bullet and paintball pellet shows that Amnesty's charge is baseless - if Turkel's frame of reference was that every IHH member could be killed legally, why bother investigating?

Amnesty throws in some more tendentious charges, such as that there is no evidence that Turkel had access to ballistics tests [there is no evidence that he didn't, either - must the report mention every activity done over five months?] all of which are designed to divert attention from the fact that the Turkel Commission's methods were transparent and observed by two highly qualified internationals who gave their unqualified stamp of approval on their methods.

Amnesty had a pre-determined idea of what the conclusion should be - that Israel was guilty - and no amount of evidence could ever change its mind. And as we saw, its conclusion really was pre-determined. As such, Amnesty's criticisms ring hollow, as an after-the-fact papering over of their own ignorance of the circumstances. Amnesty has proved its willingness to believe every piece of evidence that damns Israel and to question everything that exonerates her.

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