I accuse! – Letting Israel off the hook

In his previous book, the monumental Gaza: An Inquest into its Martyrdom (2018), Norman Finkelstein depicted the Israeli attack on the Mavi Marmara, on the night of May 31, 2010, as an integral part of the recent story of Israeli atrocities against Gaza, ranging from Operation Cast Lead in 2008 to Operation Protective Edge in 2014 – massacres committed against an imprisoned population already suffering from a humanitarian crisis caused by a blockade imposed in 2007.

Finkelstein described the victims of the assault on the Mavi Marmara – ten killed (one died in 2014 after four years in a coma), scores injured — as “the first casualties of the interment of the Goldstone Report” on Operation Cast Lead – referring to the backpedalling from that Report by the human rights community, including Goldstone himself, that had taken place even before his recantation on April 1, 2011.

In its turn, Finkelstein claims in his Conclusion to I Accuse!, the refusal of Fatou Bensouda, the Chief Prosecutor of the International Criminal Court (ICC ) — who evidently feared the vilification campaign experienced by Goldstone — to launch a full investigation into the Flotilla Incident “paved the way” for the atrocities committed against peaceful civilian demonstrators in the Great March of Return that began in the spring of 2018.

It is precisely because the Prosecutor (as Bensouda is referred to in the book) does NOT situate the Flotilla Incident within the ongoing agony of Gaza that Finkelstein has launched against her, in his new book, a devastating personal denunciation. Essentially, the book is a thunderbolt in the form of a legal document.

As Finkelstein points out, despite international outrage, an Emergency Session of the UN Security Council, four reports—two by the UN, one by the Turkish National Commission of Inquiry and one commissioned by Israel — and “despite compelling evidence that the Israeli commandos committed war crimes by, while and after seizing control of the humanitarian flotilla, none of the perpetrators was prosecuted or otherwise held legally accountable for these crimes.” (1.2.4)

As a result, the Union of the Comoros, which was the registered state of the Mavi Marmara, decided to take the case to the International Criminal Court (ICC). The Document Key with which the book opens is very useful not only as a key to the terms used in the book but also as a chronology of the progress of the Flotilla Incident case within the ICC.

On May 14, 2013, the Comoros sent the case to the ICC. On November 6, 2014, the ICC’s Chief Prosecutor, Fatou Bensouda, published a Report that contained the results of her preliminary investigation. Her conclusion was that “the situation would not be of sufficient gravity to justify further action”, so there was “no reasonable basis to proceed with an investigation”.

The Comoros and lawyers acting for the victims submitted documents urging the Pre-Trial Chamber (PTC) to direct her to reconsider her decision. She responded by declaring the case closed. But between July 2015 and December 2019, the PTC twice directed the Prosecutor to reconsider her decision, and twice she published a “final decision” in which she declared the case closed. Finkelstein sums up:

“Although the case has been ignored outside the ICC’s milieu, it has engulfed the Court in a veritable civil war, whereby the Prosecutor has thrice declared the case closed, only to suffer mortification when it was reopened.” (2.8)

Though the Prosecutor provisionally – though with caveats — conceded that war crimes had been committed during the Flotilla Incident, she contended that the war crimes committed against the Mavi Marmara were not part of an over-arching plan or policy on the part of the Israeli government. According to her, the Israeli government had planned a peaceful takeover of the ship; but some of the commandos, faced with unexpected violent resistance from the passengers, had reacted to that violence by carrying out unplanned, spontaneous killings. It was therefore, she claimed, a minor, if bloody, incident that did not justify a full ICC investigation.

In Part A —“Preliminary Observations”, Finkelstein sums up the background to the case, and puts forward his main contentions: above all, that the Prosecutor exhibits undue reliance on the so-called “independent” Turkel Report commissioned by Israel that entirely exonerated the soldiers from the charge of committing war crimes.

In Part B – “Blaming the Victim” – Finkelstein eviscerates the contradictions and absurdities of the arguments put forward by the Prosecutor in support of her scenario. His questions include: why, if a peaceful takeover of the ship had been planned, was Israel’s “military-security brass….drawn into and intimately involved in the operation’s protracted, intricate planning”; why did Israel deploy “an elite commando trained to kill” (4.3.3.2); and why did this commando attack “in the dead of night, with blazing weapons and without final warning” (4.3.5.3)? He points out that the Prosecutor gives credence to the unsworn testimony of the Israeli soldiers — “self-interested, exculpatory testimonies by accused war criminals” (3.6.2.5) — but casts doubt on the statements of the victims (4.4.3.2.1).

But Finkelstein argues that the crux of the Prosecutor’s dereliction of duty is her attempt to separate the Flotilla Incident from the blockade and the humanitarian crisis caused by the blockade. In Part C – “Sufficient Gravity”, Finkelstein attacks with searing moral outrage the Prosecutor’s attempt to deny that the Flotilla’s mission was humanitarian – her reason being the passengers’ political intentions:

“If the passengers were committed to civilly protesting and shining a bright light on these inhumane and unjust violations of human rights, did their intentions vitiate the flotilla’s humanitarian mission? ….Isn’t such a distinction an immaterial and impertinent distraction – and, in so far as it wilfully diminished and denigrated the moral grace of those who would risk their own lives and limbs to defend the indefeasible rights of the downtrodden, wasn’t this verbal nitpicking downright disgusting?” (7.3.2).

Finkelstein also tears to pieces in this section the Prosecutor’s assertion that the naval blockade – the legality of which she calls controversial — had been imposed for military reasons. He points out that the naval blockade had been imposed in 2009 precisely in response to the peaceful, humanitarian flotillas organised by pro-Palestinian activists to highlight the desperate situation in Gaza. The Prosecutor actually (and not for the only time) contradicts the Turkel Report, despite basing her arguments upon it; Finkelstein cites the Turkel Report:

“The Military Advocate-General testified before, and presented documents to, the Turkel Commission that the blockade was imposed ‘to stem the increase in the phenomenon of flotillas….A naval blockade was regarded as the best operational method of dealing with the phenomenon because other solutions, such as the use of the right of visit-and-search, were proved to be problematic’”. (8.3.3.)

If, after a visit and search, the vessel proved not to be carrying any weapons or other contraband, but to be purely humanitarian, it had a legal right to continue. The naval blockade was imposed precisely because the flotillas were NOT carrying weapons; there was no other way for Israel to stop the flotillas. Finkelstein writes: “What Israel dreaded was not a ‘military-security threat’, but the political defeat it would suffer” (8.3.4). Israel’s reason for launching a violent attack, he argues, was to deter future flotillas (4.3.6 and 5.5).

But above all, Finkelstein exposes an appalling legal sophistry on the part of the Prosecutor. He points out in the first section of Part C – “Hamlet without the Prince of Denmark” — that the Prosecutor barely mentions the humanitarian crisis in Gaza. And he devotes the last part of Section C and the final part of his indictment to an excoriating attack on the Prosecutor’s claim that “the Court’s writ only extended to the vessel’s takeover” (9.3.2) – i.e., she denies she has any mandate to assess the attack on the Mavi Marmara in a wider context. Finkelstein passionately asserts the principle that law must itself be viewed in the context of universal Justice and Truth. He accuses the Prosecutor of using

“a rhetorical crowbar to pry loose the Flotilla Incident from both Israel’s illegal blockade and Gaza’s humanitarian catastrophe, even as such a procedure defied, if not a law of mechanics, then the mechanics of law – they being properly understood as the adjudication of Justice based on Truth”. (9.5).

The “pushback” within the ICC has recently, Finkelstein writes in the Preface, forced the Prosecutor to revisit the Mavi Marmara case. And on December 20, 2019, the Prosecutor announced, in relation to a separate case brought by the State of Palestine, with reference to Israel’s illegal settlement enterprise and to Operation Protective Edge: “There is a reasonable basis to proceed with an investigation into the situation in Palestine”. Finkelstein writes, however, that it “appears likely that…the Chief Prosecutor will invoke the principle of complementarity, according to which ICC jurisdiction kicks in only if national courts fail to carry out genuine investigations”.

Finkelstein’s long Appendix is a pre-emptive strike in this regard; it consists of a Table in which Finkelstein analyses every single incident investigated by Israel’s Military Advocate General (MAG) and reveals the MAG’s exoneration of Israel to be a robotic whitewash. The Table also, by detailing names of families murdered in Israel’s strikes against residential buildings, humanises and personalises the statistics, which otherwise are hard to take in: 1,500 civilians killed, including 500 children, 18,000 homes destroyed.

The photographs – of those murdered on the Mavi Marmara and of the situation in Gaza — make a significant contribution also in this regard throughout the book – as well as connecting the Mavi Marmara with the situation in Gaza.

One imagines that the Prosecutor, if she reads I Accuse!, will shrivel in shame as though hit by a thunderbolt; but, as Finkelstein writes in his Conclusion: “The evidence amassed in these pages makes clear that the Prosecutor will not be persuaded by facts and reason, but instead, by the political forces at play behind closed doors and in the court of public opinion.”

I Accuse! requires close attention to follow the complex legal and logical arguments, which are nonetheless pitched to the general reader. The book reflects Finkelstein’s renowned qualities as an educator: demanding, stretching, but nonetheless rendering accessible. This accessibility is the result of Finkelstein’s unique synthesis of clear logical and legal analysis, scathing irony (the footnotes contain a running sarcastic commentary demolishing the “dissenting opinions” of Judge Peter Kovacs) and fiery moral outrage reminiscent of the Hebrew Prophets. It is as though the power of this outrage on behalf of a forgotten and martyred people requires the discipline of law and logic as a means of containment (the one point where I felt this outrage went out of control was a word-image of Gaza “nailed and crucified” (9.5)).

But the public is also given the opportunity to exercise our own duty as international civil society. By reading, recommending and publicising I Accuse!, all of us can participate in the battle, in the face of intimidating Israeli tactics, to exert moral pressure on the Chief Prosecutor of the International Criminal Court to fulfil her responsibility to us, the international community, by launching full investigations into the accusations against Israel of committing war crimes and crimes against humanity — or else to resign.