Flotilla attack, day 4 | News round-up: who will lead the investigation?

Posted: June 3rd, 2010 | Author: | Filed under: In the News | Tags: , , , , , , , | 2 Comments »

Breaking News: Ynet quotes a Turkish news agency that reported the nationality of the casualties: one American and 8 from Turkey.

The big question this morning in Israel is the probe. Yesterday, the UNHRC decided to form a fact finding mission of the attack on the Gaza bound flotilla, similar to the one which issued the Goldstone report. The US, together with Italy and Netherlands, opposed the resolution, and according to reports, suggested that Israel will lead the investigation, but that US observers will take part in it. VP Joe Biden proposed something similar on his Bloomberg interview yesterday, saying Israel would ran the investigation, “but we’re open to international participation.”

There are conflicting reports as to what Israel will agree to. The army, as always, wants to investigate itself. The IDF was able to block all suggestions of a civilian Israeli investigation into the war in Gaza or the events in Jenin in 2002 (it’s very hard to touch the army in Israel: it even blocks attempt to have external inquiries into fatal training accidents when those occur). But this time the IDF might lose the battle, the military blunder is so evident and as even Israeli sources are admitting that an investigation is all but inevitable.

Strangely enough, Israel might even agree to an international probe, and for the most cynical reason of all: an internal civilian investigation might force leaders to resign (as happened after the war in Lebanon in 2006), but an international one won’t have immediate political consequences for them.

Yesterday, Prime Minister Netanyahu, as well as other officials, refused to address the issue at all.

UPDATE: both Foreign Minister Avigdor Liberman and minister Ben Eliezer spoke in favor of an Israeli probe with a foreign, probably American, observer.

More political fallout: the battle between Ehud Barak and Labor to Avigdor Liberman and Israel Beitenu has officially opened. After unnamed ministers called for Barak’s resignation two days ago, today Barak and his proxy, minister Ben-Eliezer, are publicly declaring that the attacks on Israel are the result of failed PR effort, or Hasbara, by the foreign office.

Ecuador will be sending home its Ambassador in Tel Aviv. UPDATE: so does South Africa.

NY Times reports that the US wants Israel to abandon the siege policy:

The Obama administration considers Israel’s blockade of Gaza to be untenable and plans to press for another approach to ensure Israel’s security while allowing more supplies into the impoverished Palestinian area, senior American officials said Wednesday.

Turkish TV reporting that all 9 casualties in the raid died of gun wounds. Their bodies’ arrived yesterday to Turkey. More evidences are published on the way the passengers were treated by Israeli security authorities. Regarding the attack itself, here is Former US Ambassador Edward Peck, who was on the Gaza aid flotilla, followed by Israel deputy ambassador to the UN:

recommended commentary:

Nicholas Kristof (NY Times): “Saving Israel from itself: President Obama needs to find his voice and push hard for an end to the Gaza blockade.”

Cenk Uygur (Huffington Post): “If the Israeli government is convinced they took the appropriate action in this case, they can go a long way toward proving that by giving us the whole tape. If not, we have to assume they’re hiding something.”

Ari Shavit (Haaretz’s pundit and Netanyahu and Barak supporter until recently): “Instead of rallying the Palestinians, Syrians and Turks against Iran, Netanyahu is pushing them toward Iran. Instead of rallying the Europeans and Americans in Israel’s favor, he is inciting them against Israel. The process reached a frenzied peak with the flotilla.”

Haaretz editorial: “Like a robot lacking in judgment, stuck on a predetermined path – that’s how the government is behaving in its handling of the aid flotillas to the Gaza Strip.”

Daniel Machover (Guardian): “This was almost certainly a breach of international law and Turkey has the right to take charge of a criminal investigation.”

Moshe Yaroni: flotilla fallout: winners and losers of the raid (very good analysis, with an emphasis on US reaction).

Harold Meyerson (Washington Post): The collateral damage from Israel’s raid (a look on the US Jewish community’s trends).

2 Comments on “Flotilla attack, day 4 | News round-up: who will lead the investigation?”

  1. 1 Noam W said at 10:12 am on June 3rd, 2010:

    Guesses on the foreign observer?

    Dershowitz? He may be too obvious (and he is not an int’l law expert).

    But there is a very small group of int’l law professionals who are always brought along to justify Israel’s position. For example Ann Bayefsky who claims the settlements are legal, or Ruth Wedgwood who supports torture in Guantanamo.

    In other words I wouldn’t count to much on a foreigner who would be nominated by the current government anyway…

  2. 2 corrigenda to weiner said at 8:41 pm on June 11th, 2010:

    Wall Street Journal
    Law and Torture
    June 28, 2004; Page A10

    In the wake of the Abu Ghraib scandal, it is clear that maintaining humanitarian standards for those we take prisoner is central to the good name of the United States. Interrogation methods for
    combatants and detainees must be framed in light of the applicable law, even in the war against al Qaeda, and a president needs to know where the red lines are. In a
    democratic country bounded by religious faith, there is no room for unbounded power over any human being.

    Yet the recently released memos delivered by the Justice Department’s Office of Legal Counsel to the White House in January and August 2002 — titled “Application of Treaties and Laws to al Qaeda and Taliban Detainees” and “Standards of Conduct for Interrogation” — do not give an adequate account of the law. One cannot dismiss them as mere academic musings, for they served
    as the starting point for other government deliberations on appropriate standards for detention and interrogation.

    To be sure, there were solid and persuasive reasons to conclude that al Qaeda and the Taliban were not lawful combatants under the standards of war and were thus not entitled to the entire range of privileges under the Geneva Conventions of 1949, fitted to international wars between
    states. This was the decision taken by the president in February 2002. So what then is amiss?

    * * *
    The answer lies in the memos’ inadequate consideration of the ground-level standards that apply whenever combatants or criminals are captured, regardless of their personal legal status. We do not live in the 14th century, when an outlaw was treated like a wild beast. The president’s need for
    wise counsel is not well served by arguments that bend and twist to avoid any legal restrictions.

    Most troubling is the narrow account of the ban on torture. The United States ratified the
    Convention Against Torture in 1994, and passed a criminal statute to bar Americans from participating in official torture anywhere in the world. The torture treaty applies even under “a state of war or a threat of war,” by the plain language of its Article 2, and the United States did not object to this point.

    Torture is defined by this treaty as the intentional infliction of “severe pain or suffering, whether physical or mental . . . on a person for such purposes as obtaining from him or a third person information or a confession.” Shooting someone on the battlefield in order to stop his advance is
    legitimate. But attacking someone with a knife during interrogation would be torture, even if the objective is solely to obtain information.
    Curiously, the OLC opinion bends over backwards to limit the definition of “severe pain or suffering” in a way that only Savoranola could love. In a non-Hippocratic application of hospital emergency medicine rules, the OLC explains that only “death, organ failure, or serious impairment of body functions” should serve as the measure of “severe pain.”

    This diminished definition of the crime of torture will be quoted back at the United States for the next several decades. It could be misused by al Qaeda defendants in the military commission trials and by Saddam’s henchmen. It does not serve America’s interest in a world in which dictators so
    commonly abuse their people and quash their political opponents.

    The OLC memos also brush past Article 16 of the Torture Convention, which requires each state to prevent the lesser acts of “cruel, inhuman or degrading treatment or punishment” within its jurisdiction. It is true that this part of the treaty was not translated into federal criminal law. But it
    is still a legal commitment to which we willingly have acceded. The United States noted in a treaty reservation that this safeguard is to be measured by the Constitution’s ban on cruel or
    unusual punishment, and extrajudicial abuse that “shocks the conscience.” This is a standard we can live with, even in the war against catastrophic terrorism. We are not legally free to choose cruel techniques just because they fall short of torture.

    The memos also dismiss common Article 3 of the Geneva Conventions — a rock-bottom standard designed for armed conflicts “not of an international character” that occur “in the territory of one of the High Contracting Parties.” This is a catch-all provision, designed for unlawful combatants
    who do not qualify as prisoners of war. It was a standard designed for asymmetric warfare.

    Insurgents do not have a protected right to make war. They do not sign humanitarian treaties. and more often than not, they fail to give quarter, killing prisoners summarily. Yet even for such blackguards, “at any time and in any place whatsoever,” all are entitled to protection against “outrages upon personal dignity, in particular, humiliating and degrading treatment,” as well as
    “mutilation, cruel treatment and torture.” These are grave breaches of the treaty and are classified as war crimes.

    Spurning the case law of the American-backed International Criminal Tribunal for the former Yugoslavia, the Justice Department lawyers assert that Article 3 could only have been intended
    for the Spanish or Chinese civil wars, not a struggle for control of Afghanistan. This is a captious conclusion. and in any event, common Article 3 is taken by most law of war experts to restate the minimum standards of the customary law traditionally applicable to armed conflicts of any kind.
    Separation of powers was also given short shrift in the lawyers’ memos. In the perennial debates between Alexander Hamilton and Thomas Jefferson over the nature of executive power, many of
    us do think that Hamilton gave the better account of the necessary link between foreign affairs and the Executive’s capacity for quick action. The president is the commander-in-chief, and this is a
    broad power.

    But the Congress also enjoys enumerated and coordinate powers under the U.S. Constitution. Article I, Section 8 allocates to Congress the power to “make rules concerning captures on land and water” and the power “to make rules for the government and regulation of the land and naval forces” — as well as the crucial power to “define and punish . . . offences against the law of nations.”

    It is thus peculiar to say that a criminal statute prohibiting acts “under the color of law” must have silently intended to exempt every executive branch employee, even for the crime of torture.

    Indeed, the torture treaty ratified by the United States covers only official acts — “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in
    an official capacity.” and it is imprudent, at the least, to suppose that Congress’s intent is irrelevant — that the president’s power to conduct war is absolute, even as to war crimes. A president, to be sure, always retains the pardon power under the Constitution. He retains the power of
    prosecutorial discretion. But he does not have, and would not wish, the power to dismantle the law.
    * * *
    Last week, it should be noted, the Justice Department took the unprecedented step of rescinding the August 2002 foundational OLC opinion “Standards of Conduct for Interrogation.” and it has pledged to review other OLC opinions dealing with the treatment and interrogation of captured
    combatants. This is to the good.

    In its review, Justice may wish to broaden the process of consultation — adapting, if you will, Goldwater-Nichols principles to the challenge of lawyering in wartime. On issues so crucial to America’s moral stature, as well as American safety, it is important that a president be informed of variant views from other responsible quarters of the State Department, the Defense Department,
    including the Joint Chiefs of Staff, and the CIA. It is important that the president know when other countries will disagree with our views. One might even consult quietly with committees of the Congress. This is not the kind of law that is done by pure deduction from the Federalist Papers.

    The Office of Legal Counsel has traditionally claimed the last word, at least on constitutional law, within the Executive Branch. But even the most capable lawyers cannot countermand the president’s solemn promise of humane treatment for all persons captured in war. Nor can they override the president’s proclamation of June 26, 2003. President Bush declared that “the United
    States is committed to the world-wide elimination of torture” and called for all governments to join with America to prohibit “all acts of torture” and “prevent other cruel and unusual punishment.”
    The words of a president should not be lightly dismissed.