Ref: 49/2010

On
Monday, 14 June 2010, the Israeli Cabinet approved the establishment of a
committee charged with investigating Israel’s 31 May attack on the ‘Gaza
Freedom Flotilla’; the attack resulted in the killing of 9 international
activists and the wounding of dozens more. On 1 June 2010, the UN Security
Council issued a presidential statement condemning the attack and calling for
“a prompt, impartial, credible and transparent investigation conforming to
international standards.”

The
Palestinian Centre for Human Rights (PCHR) assert that the commission
established by Israel fails to conform with these standards and that in
preventing effective investigation Israel is internationally accountable.

The
Israeli “Independent Public Commission” is not an official commission of
inquiry. It is a government appointed, non-statutory body, which in practice
will enjoy only nominal power. Significantly, the committee may only ‘request’
co-operation, while the Israeli government has already stated that no Israeli
soldier will be called upon to testify.

The
mandate of the commission is also overly vague and generic; the language of the
resolution adopted by the Israeli cabinet – which speaks of “examination” of
the aspects related to the actions taken by the State of Israel to prevent
vessels from reaching the coast of the Gaza Strip – indicates that the purpose
of the commission is not to conduct a thorough, independent inquiry into the
military operation, but rather to divert attention and frustrate the pursuit of
justice.

That
the commission does not offer any guarantee of independence and effectiveness
is further illustrated by reference to the appointed members of the commission,
who (notwithstanding their venerable ages) have little experience in criminal
investigation and inquiry commissions.

Jakob
Turkel, a former Israeli Supreme Court judge expert in civil matters who also
served as a military court judge, will chair the commission, composed also of a
retired major-general in the Israeli army and a former diplomat.

Most
importantly, the two foreign experts who were appointed as observers will not
have the right to vote in relation to the proceedings and conclusions of the
commission, and they will have only a limited right to participate in the
hearings and deliberations. The commission in fact can hinder the observers’
access to certain documents and information on the ground that revealing such
information could harm national security or Israel’s foreign relations.

International
law establishes a binding obligation on all States to carry out exhaustive and
impartial investigations – and if appropriate prosecutions – into all suspected
violations of international law. Such investigations must be genuine and not
designed to shield those responsible from justice. The European

Court
of Human Rights has consistently stated that in order to be effective, or
genuine, investigations must be “capable of leading to the identification and
punishment of those responsible”.

The
newly-appointed Israeli committee fails to meet even this basic requirement. It
is tasked with evaluating the situation from an overly broad contextual
perspective and has neither the power nor the mandate to evaluate or attribute
individual criminal responsibility. On the contrary, the resolution appointing
the commission expressly provides that: “law enforcement agencies will not make
use of testimonies given before the Commission or before those individuals
tasked with collecting information for the Commission, as evidence in legal
proceedings”.

PCHR’s
and other human rights organisations’ experience[1]
has revealed that Israel has consistently disregarded its obligation to conduct
effective investigations, taking only fake measures which effectively shield
suspected war criminals from justice. Now 18 months since the end of the 23
day-long military attack on the Gaza Strip, during which hundreds of alleged
war crimes were committed, Israel has still failed to conduct any independent
and genuine investigations, as it is internationally required.

PCHR
believe that this committee’s real purpose is to divert international
attention, waist time, and ultimately frustrate the pursuit of justice. It is
essential that the international community take immediate action to uphold
victims’ legitimate rights to the equal protection of the law and an effective
judicial remedy.

Therefore,
in accordance with the requirements of the UN Security Council, an
international investigative committee must be promptly appointed. The committee
must be empowered with the necessary tools in order to be capable of
identifying and prosecuting those responsible for the operation that caused the
deaths, injures and damages to the members of the humanitarian flotilla.

Concurrently,
States should exercise the jurisdiction of their national criminal systems to
investigate the facts of the events of 31 May 2010, and refer the situation to
the Prosecutor of the International Criminal Court in accordance with Article
13(a) of the Rome Statute.