Holding Israel Accountable for the Gaza Flotilla Raid

By Huwaida Arraf

Janet McMahon: Thank you so much, Susan—and, again, she’ll be signing her books after this panel in the exhibition hall.
Over the years, countless lawsuits have been filed against Iran for terrorist attacks it allegedly made possible. These lawsuits have not accused Iran of directly killing Americans, but rather of providing material support to Hamas, Hezbollah, the Khobar Tower bombers, you name it. Just last month, in fact, 367—I counted—family members and estates sued Iran for providing material support for the killing or injuring of Americans, including soldiers—in Iraq! As if Iran, not the U.S., had been the one to invade that country.

Israel, on the other hand, has directly killed and injured Americans, from the crew of the USS Liberty in 1967—37 Americans killed, 171 wounded, in international waters; to 23-year-old nonviolent activist Rachel Corrie, killed 13 years ago this past Wednesday, days before we invaded Iraq; and 18-year-old Furkan Doğan, a passenger on the humanitarian vessel Mavi Marmara, who was killed six years ago. The U.N. Human Rights Council described his killing as, I quote, “summary execution,” by Israeli commandos who boarded the unarmed ship, also in international waters.

Our final speaker, Huwaida Arraf, was a passenger on the Challenger I, one of the other vessels in that 2010 Gaza flotilla. She is one of four Challenger passengers who are suing the State of Israel and four of its ministries for torture; cruel, inhuman, or degrading treatment; arbitrary arrest and detention; assault and battery; and intentional infliction of emotional distress.
Huwaida is a Palestinian-American lawyer and human rights advocate. As the daughter of an Israeli-born Palestinian, she is also a citizen of Israel. She received her bachelor’s degree from the University of Michigan and her Juris Doctor from the American University Washington College of Law, where she focused on international human rights and humanitarian law. In 2001, Huwaida co-founded the International Solidarity Movement, or ISM, for which Rachel Corrie was volunteering when she was crushed to death by an Israeli bulldozer. Huwaida is coeditor of the book Peace Under Fire: Israel, Palestine and the International Solidarity Movement—an organization which has twice been nominated for the Nobel Peace Prize.
Huwaida was one of the initiators and organizers of a delegation of American lawyers to Gaza in February 2009 and co-authored the report on their findings, Onslaught: Israel’s Attack on Gaza and the Rule of Law. She is the former chairperson of the Free Gaza Movement, and from August to December 2008 led five successful sea voyages to the Gaza Strip to confront and challenge Israel’s illegal blockade. Huwaida was one of the primary organizers of the Gaza Freedom Flotilla, which Israeli forces lethally attacked on May 31, 2010. Please join me in welcoming Huwaida Arraf.

Huwaida Arraf: Thank you, Janet. Thanks to the Washington Report for inviting me again, and thanks to all of you for being here. I must admit, I am now a little intimidated to go after all these wonderful speakers, especially since I’m a little out of my element here. I usually speak kind of as a human rights activist about what’s happening in Palestine, what we’re doing about it. Sometimes I’m called to speak up as a lawyer about some legal issues implicated. But today I’m not speaking as either one of those, because the topic here is pending litigation. It’s rather sensitive, and I’m not the lawyer on the case, but rather a plaintiff, and one of my lawyers told me, don’t speak about the legal issues. I’m like, what am I going to speak about, then?
And last year when I spoke here I had my six-month old daughter with me, and she just captivated the audience and ­really added to my talking. Nobody paid attention to what I said—and I could ­really use her right now! But she had other plans this weekend, so she’s not here. I’ll try not to bore you. It won’t be that bad, but if you can just understand that there are probably some things that I won’t be able to talk about.

So, by way of a brief background, as Janet already said in my introduction and some of you already know, I was one of the organizers of the Gaza Freedom Flotilla in 2010, and I was one of the passengers. The Gaza Freedom Flotilla sought to challenge Israel’s illegal blockade on Gaza. And to do that, we organized seven ships carrying over 700 people from over three dozen countries, and over 10,000 tons of urgently needed materials in Gaza. I was on the Challenger I, which was a small U.S.-flag vessel. It was sailing very close to the bigger ship, the Mavi Marmara, which was carrying a bulk of the passengers.

On the night of May 30th into May 31st, I was in the wheelhouse of the Challenger I. Around midnight, the Israeli navy contacted us, and they proceeded to ask us questions about who we were, what our vessel numbers were, where we came from, where we were heading. The captains of the various ships answered these questions, so they knew very clearly who we were.
Then I took over in speaking on behalf of the flotilla, and I repeatedly told the Israeli navy that we are unarmed civilians. We are carrying only humanitarian aid for the people of Gaza, who are under an illegal blockade. We are not going near Israeli waters. We’re going from international waters into Gaza’s territorial waters. We constitute no threat to the State of Israel or its armed forces. Do not use force against us. And I repeated that we are unarmed civilians. Do not use force against us.

At about 1:30 in the morning, the communication from the Israeli navy stopped, and about three hours later we heard shooting. It was still the dead of night. There was shooting going on all around us. I went out onto the deck, and I could see helicopters overhead and Israeli Zodiacs, gunships. The Mavi Marmara was the first boat to come under attack. Our ship sped off. We were hoping to delay the boarding of our ship at least until we could get word out on our satellite phones that we were under attack, but the Israeli ships quickly overtook us. At least two Zodiacs filled with armed masked men trying to board our boats, and I remember myself holding up my arms saying, stay away from us. This is an American ship. We’re only civilians. Do not come on board. And I was screaming, this is an American ship, stay away from us. And then chaos ensued.

They threw sound bombs. I looked at one of my colleagues. She had blood all over her face. I don’t know what had happened to her. I was thrown down to the ground. My face was smashed into a deck full of glass, and as a soldier stepped on my head, others were trying to get my hands cuffed behind my back. When I was finally cuffed, they dragged me to one end of the ship, pinned me down and put a sack over my head as they were searching my body, went into my pants looking for any media equipment I had on me. Primarily, they were looking for our cameras and our phones, and they indeed succeeded in taking those away from us.

Our boat was eventually taken to the now-Israeli port of Ashdod, where violence continued. I was carried off the ship, as were a lot of my colleagues, by our hands and feet and thrown to the ground. I was later detained for hours, interrogated and, toward the end of the day, was physically abused to the point where I passed out and was taken to a hospital.

But what happened to me, to us on that Challenger, was nothing in comparison to what happened to our colleagues on the Mavi Marmara, in which nine of our colleagues were shot dead. One was lethally injured and passed away four years later.
 
And it pales in comparison to what’s happening to the people of Palestine every single day, to what’s happening to the people of Gaza—the very situation that we were attempting to draw attention to with our action. Nevertheless, it wasn’t a minor thing, and we are thankful to be alive.

When we first founded the International Solidarity Movement, we did it believing that Israel kills Palestinians, they have a freehand to do so, no one has ever held Israel accountable for killing Palestinians—but Israel does not want to kill internationals. It doesn’t look good for them. Internationals have governments which will stand up for them, at least try to hold Israel accountable.
 
But then, as Janet mentioned, 13 years ago they killed our colleague, Rachel Corrie, in Gaza in a brutal way, ran her over with a huge armored bulldozer. And a few weeks later, they killed another foreign national, Tom Hurndall, a UK citizen. He lay in a coma for nine months before he died from a bullet wound to the back of the head. And then a month after that, they killed a British journalist, James Miller. They got some bad PR, but they weren’t held accountable.

For Tom Hurndall’s death, because his parents pursued, went after really—and not only his parents, because also Rachel Corrie’s parents were very active in this—but Tom Hurndall’s parents had a bit of support from their government, and in a sense it pressured Israel a little bit to arrest the soldier who shot Tom, in the sense to hold him out as the sacrificial lamb, but it did nothing to address the total impunity with which the Israel military operates or the government that gives those orders and uses this policy. It’s a matter of national policy.
 
So, they put this soldier on trial. He spent a few years in jail, was released early. The American government promised Rachel Corrie’s parents that the Israeli government would conduct an independent, impartial investigation into what happened. That never happened. So, there was no one ever held accountable, and the culture of impunity continues.

In terms of the flotilla, I think something that Israel did not expect was that there was a backlash of sorts amongst the people of the world. Tens, if not hundreds, of thousands of people around the world marched in protest. Artists who were supposed to perform in Israel cancelled their performances. There were different unions and protests at ports because Israel attacked our ship and was not letting ships into Gaza, that they tried to block Israeli ships coming to various ports in Oakland and in Sweden. And so the people reacted, and I think that remains significant.

In addition, we, the people who planned the flotilla, we did not in any way—I mean, it was traumatizing in a sense, what happened, but we made the decision that we were not going to let this violence deter us, and we went on to plan another flotilla. At the same time, we strategized and collected, gathered, lawyers from all over the world to try to decide how we are going to pursue legal action. So, this comes a little bit to the legal part of my talk.

One of the things that we did is assemble a file for the International Criminal Court. The International Criminal Court did not open an investigation as a result of the files submitted from the lawyers representing the plaintiffs, but we also appealed to the Island of the Comoros. Now, the Mavi Marmara ship was flagged in the Comoros, and the Comoros is a signatory to the Rome Statute of the ICC. In 2013, Comoros did request that the prosecutor open an investigation into the attack on the Mavi Marmara and the Freedom Flotilla, and the prosecutor did do so.

The prosecutor of the International Criminal Court came back with a decision that there was evidence showing that war crimes were committed in that flotilla attack, but unfortunately decided that the events did not meet the gravity threshold. It wasn’t grave enough to merit further ICC involvement, and she decided to close the case.
 
Now, the Comoros Islands appealed that decision to what’s called the Pre-Trial Chamber and, surprisingly—we were surprised—but the Pre-Trial Chamber did issue a decision calling on the prosecutor to reconsider her decision, saying that she overlooked some significant matters, and called on her to reopen the matter, which she and her office tried to appeal.
They tried to appeal that decision, and the appeals chamber last year came back and, actually, they did not accept her appeal—and therefore the decision of the Pre-Trial Chamber stands, that she needs to take another look at this case. Now, we don’t know what’s she’s going to do. We hope she doesn’t, but she might find another way to close the case, but that case before the International Criminal Court is still open.

Some passengers filed cases in various countries. In Spain, we had three Spanish citizens on the flotilla, and they filed the lawsuits in November of 2015. So, just a few months ago, a Spanish national court judge instructed the Spanish police to notify him if any of the seven—they named seven officials as guilty; they’re accused of war crimes—if any of these seven step foot into Spain, that the police should be notified in order for these people to be detained and to undergo questioning in connection with this lawsuit.

Unfortunately, over the last few years, Spain has really gutted its universal jurisdiction laws. It used to have a very vibrant universal jurisdiction law. In fact, the laws that allowed for the—I think it was 1998 when Augusto Pinochet was arrested in London and extradited to Spain to stand trial. But in 2009, a Spanish judge agreed to open an investigation, or to actually pursue a case against the perpetrators of a 2002 bombing attack on Gaza. As a result of that—so where you have a potential of an Israeli official being investigated for war crimes in Spain, the foreign minister of Spain at the time promised the Israelis that this would be looked into, that this would not be allowed to happen. And indeed, only a few months later, Spain’s universal jurisdiction law was gutted.

So now it stands that, in order to pursue a case in Spain, not only must a Spanish citizen be involved, be a victim of the abuse. Before, it could be anybody. I mean, the whole theory of universal jurisdiction is that there are some crimes that are so heinous that any government, any state, any court should be able to take jurisdiction over these war criminals, so that these people can be stopped. But now, in Spain and in many other countries that have gutted their universal jurisdiction laws as a result of political pressure. In Spain, a Spaniard has to be involved, and the person, the accused, has to be on Spanish soil—which did not limit the ability to still prosecute for this case, for the flotilla, because the thought was, there were Spaniards involved, and if any of these people set foot in Spain, they should be arrested.

But, following this ruling, a spokesperson for the Israeli Foreign Ministry told the media, we’re working with the Spanish authorities to get this cancelled, and we hope it will be resolved soon. A month later, the Spanish high court annulled the decision of this judge and removed the seven officials from the police database. The attorney for the three Spanish victims appealed. Unfortunately, not only did the appellate court in Spain uphold the dismissal, but it also imposed costs on the victims, which is kind of unprecedented. The attorney is appealing now to the Spanish Constitutional Court, and if he fails there, he plans to take it all the way up to the European Court of Human Rights. So, we’re not stopping there.

In the UK, in January 2015, lawyers also presented a complaint to police, who are gathering evidence now with a view to deciding if certain Israeli accused officials—basically, if they set foot in the UK, if they should be arrested. So there is an ongoing case in the United Kingdom.

The United States—so the precedent here hasn’t been so great. After we were attacked, we tried to work with the U.S. government a lot—through the embassy, the State Department—to try to get answers as to what happened to us, to try to get some kind of help. I mean, very basic, to try to get some of our things back. Everything was taken from us—our money, our wallets, our cameras, our laptops, everything—just to get some of our things back, and that never happened. The Center for Constitutional Rights has been over the last few years since the attack trying through the Freedom of Information Act to get a lot of documents from the U.S. government as to what they knew in relation to the attack on the flotilla, both before, after. This has resulted in way over 15,000 pages of redacted documents.

But in terms of pursuing legal action, Maria actually has been at the forefront of trying to hold Israelis accountable for grave abuses of human rights when it comes to Rachel Corrie against the Caterpillar Corporation, and for a Palestinian, also a victim. Some of the cases were mentioned here. Belhas v. Ya'alon, Matar v. Dichter. Both of those cases were against Israelis for their involvement in war crimes.

In Belhas v. Ya'alon, it was for the 1996 attack on the U.N. refugee base camp in Lebanon. With Avi Dichter, Matar v. Dichter, it was for the 2002 bombing of an apartment building in Gaza which killed 15 people, including 8 children. Both of those cases, unfortunately, were dismissed based on sovereign immunity, saying that these officials are entitled to immunity. Let me go quickly to our case today.

We, on Jan. 12, 2016, myself and three others, did file or institute a civil action for compensation against the State of Israel, so not against an official, but against the State of Israel and a number of named ministries. Our jurisdictional claim is the Foreign Sovereign Immunities Act, which in general gives immunity to foreign states because the politics of this country, they don’t want to create a situation where the politics or the actions of foreign states are litigated in U.S. courts.

Okay. That is understandable, but there are some exceptions to that immunity, and we believe that our case fits very clearly into one of these exceptions. One of the exceptions, it’s found under 1605(a)(5) of the Foreign Sovereign Immunities Act, which says that a foreign state shall not be immune from the jurisdiction of the courts of the United States in a case in which money damages are sought against a foreign state for personal injury, or death, or damage to, or loss of property occurring in the United States.

Our ship was flying a U.S. flag—for all intents and purposes it was U.S. territory on the high seas. Therefore, immunity does not apply. Now what, unfortunately, the United States government has been doing—and there’s another case—I’m sorry, I forgot to mention—that has been instituted only a few months before in California for the death of Furkan Doğan, who was a United States citizen executed on the Mavi Marmara, executed because the U.N. fact-finding commission found that he was shot five times, once in the face at pointblank range, likely when he was lying on his back already down.

What happened when that U.N. fact-finding mission report came before the U.N. Human Rights Council for a vote, the United States—which had one of its citizens executed—was the only country to vote not to approve that report. If we’re talking about the influence of the U.S. lobby or Israel and its relationship with the United States, is it good for America, when it causes America to take such shameful positions against the rights and lives of its own citizens, that cannot be good for America. But that case is also ongoing in California.

Israel recently sent a letter to the United States government asking for what’s called the Suggestion of Immunity, asking the United States to submit a letter to the U.S. courts saying that they recommend immunity for Ehud Barak, who’s the individual being sued in California. And it is, indeed, what they have done in these past cases that have been dismissed based on sovereign immunity. Now, the United States, to the best of my knowledge, has not submitted this letter yet. It is ongoing. The lawyers on that case are currently responding to Barak’s motion to dismiss.

In terms of our case, it is likely they will do the same thing. They are not entitled to immunity. What the government of Israel in their letter said is that this is an orchestrated and politically motivated effort to invoke and abuse the judicial systems of various countries to achieve political ends trying to accuse basically us, trying to accuse Furkan Doğan’s parents of politically motivated reasons for this lawsuit, as opposed to seeking justice for lost loved ones and for gross abuse that we faced at the hands of Israel.

If this is politically motivated, is it politically motivated to seek justice for Eric Garner, to seek justice for Sandra Bland, to seek justice for Freddie Gray? Those same people with that same mindset would say that this is politically motivated. What’s political about it is to say that some people are entitled to justice based on the color of their skin and others are not, or their race, or their ethnicity—and that is unacceptable. [Applause]

It’s not politically motivated in any other sense, because freedom for Palestine is not going to be won in U.S. courtrooms. It is going to be won by the people marching in the streets in Palestine, by the people from all over the world marching with them, by the people getting on boats, by the students here and around the world and others that are taking up BDS. These are the ways that we, the people of the world, are going to hold Israel accountable. It is not going to be in the courtrooms.

But what we seek from our courts is to say that our lives are important and that foreign governments cannot abuse and kill, execute people and not face justice for it, because if the United States government submits a letter granting immunity to Israel for attacking Americans on U.S. soil, then who is safe and who is next? And people are going to continue to go. In fact, there is an all-women’s boat being planned right now to sail to Gaza, and there’s a representative of the women’s boat to Gaza here somewhere. Susan, are you in the room?

If you want to talk to her about the women’s boat and supporting that, the effort of the people won’t stop—but we definitely need to use the courts to at least deter or to provide some kind of deterrence, because otherwise, as we’ve seen, when there is no deterrence, the violence continues. And if there is no accountability, what is to stop Israel? That’s a true danger here. It remains to be seen, but we hope, we hope that our national courts will be a place where we can get justice. But despite that, we will keep on. We will keep on. We keep on marching, and we keep on sailing.

Janet McMahon: I’d like to thank our inspiring panelists for a fabulous session today. We are running a little late, so I’m going to propose that we take a 15-minute break and then come back for a very exciting second keynote address and our final panel of the day. So 15 minutes and then we’ll come back. Thank you so much.

 

 

 

 

 

Thank you so much, Susan, and again, she’ll be signing her books after this panel in the exhibition hall.

Over the years, countless lawsuits have been filed against Iran for terrorist attacks it allegedly made possible.  These lawsuits have not accused Iran of directly killing Americans, but rather of providing material support to Hamas, Hezbollah, the Khobar Tower bombers, you name it.  Just last month, in fact, 367 - I counted - family members and estates sued Iran for providing material support for the killing or injuring of Americans including soldiers in Iraq, as if Iran, not the U.S., hadn’t been the one to invade that country.

Israel, on the other hand, has directly killed and injured Americans from the crew of the USS Liberty in 1967, 37 Americans killed, 171 wounded in international waters; to 23-year old nonviolent activist Rachel Corrie, killed 13 years ago this past Wednesday, days before we invaded Iraq; and 18-year old Furkan Doğan, a passenger on the humanitarian vessel Mavi Marmara, who was killed six years ago.  The U.N. Human Rights Council described his killing, as I quote, “summary execution, by Israeli commandos who boarded the unarmed ship, also in international waters.”

Our final speaker, Huwaida Arraf was a passenger on the Challenger 1, one of the other vessels in that 2010 Gaza flotilla.  She is one of four Challenger passengers who are suing the State of Israel and four of its ministries for torture, cruel, inhuman, or degrading treatment, arbitrary arrest and detention, assault and battery, and intentional infliction of emotional distress.

Huwaida is a Palestinian American lawyer and human rights advocate.  As the daughter of an Israeli-born Palestinian, she is also a citizen of Israel.  She received her bachelor’s degree from the University of Michigan and her Juris Doctor from the American University, Washington College of Law where she focused on international human rights and humanitarian law.  In 2001, Huwaida cofounded the International Solidarity Movement or ISM for which Rachel Corrie was volunteering when she was crushed to death by an Israeli bulldozer.  Huwaida is coeditor of the book, Peace Under Fire: Israel, Palestine and the International Solidarity Movement, an organization which has twice been nominated for the Nobel Peace Prize.

Huwaida was one of the initiators and organizers of a delegation of American lawyers to Gaza in February 2009 and coauthored the report on their findings, Onslaught: Israel’s Attack on Gaza and the Rule of Law.  She is the former chairperson of the Free Gaza Movement, and from August to December 2008 led five successful sea voyages to the Gaza Strip to confront and challenge Israel’s illegal blockade.  Huwaida was one of the primary organizers of the Gaza Freedom Flotilla, which was lethally attacked on May 31, 2010.  Please join me in welcoming Huwaida Arraf.

Huwaida Arraf:  Thank you, Janet.  Thanks to the Washington Report for inviting me again and thanks to all of you for being here.  I must admit, I am now a little intimidated to go after all these wonderful speakers, especially since I’m a little out of my element here.  I usually speak kind of as a human rights activist about what’s happening in Palestine, what we’re doing about it.  Sometimes I’m called to speak up as a lawyer about some legal issues implicated, but today, I’m not speaking as either one of those because the topic here is pending litigation.  It’s rather sensitive and I’m not the lawyer on the case but rather a plaintiff, and one of my lawyers told me don’t speak about the legal issues.  I’m like what am I going to speak about then?

And last year when I spoke here, I had my six-month old daughter with me and she just captivated the audience and really added to my talking.  Nobody paid attention to what I said and I could really use her right now.  But she had other plans this weekend, so she’s not here.  I’ll try not to bore you.  It won’t be that bad, but if you can just understand that there are probably some things that I won’t be able to talk about.

So, by way of a brief background, as Janet already said in my introduction and some of you already know, I was one of the organizers of the Gaza Freedom Flotilla in 2010, and I was one of the passengers.  The Gaza Freedom Flotilla sought to challenge Israel’s illegal blockade on Gaza.  And to do that, we organized seven ships carrying over 700 people from over three dozen countries and over 10,000 tons of urgently needed materials in Gaza.  I was on the Challenger 1, which was a small U.S.-flag vessel.  It was sailing very close to the bigger ship, the Mavi Marmara, which was carrying a bulk of the passengers.

On the night of May 30^th into May 31^st, I was in the wheelhouse of the Challenger 1.  Around midnight, the Israeli Navy contacted us, and they proceeded to ask us questions about who we were, what our vessel numbers were, where we came from, where we were heading.  The captains of the various ships answered these questions, so they knew very clearly who we were.

Then I took over in speaking on behalf of the flotilla, and I repeatedly told the Israeli Navy that we are unarmed civilians.  We are carrying only humanitarian aid for the people of Gaza who are under an illegal blockade.  We are not going near Israeli waters.  We’re going from international waters into Gaza’s territorial waters.  We constitute no threat to the State of Israel or its armed forces.  Do not use force against us.  And I repeated that we are unarmed civilians.  Do not use force against us.

At about 1:30 in the morning, the communication from the Israeli Navy stopped, and about three hours later we heard shooting.  It was still the dead of night.  There was shooting going on all around us.  I went out onto the deck, and I could see helicopters overhead and Israeli Zodiacs, gunships.  The Mavi Marmara was the first boat to come under attack.  Our ship sped off.  We were hoping to delay the boarding of our ship at least until we could get word out on our satellite phones that we were under attack, but the Israeli ships quickly overtook us.  At least two Zodiacs filled with armed masked men trying to board our boats, and I remember myself holding up my arms saying stay away from us.  This is an American ship.  We’re only civilians.  Do not come on board.  And I was screaming this is an American ship, stay away from us.  And then chaos ensued.

They threw sound bombs.  I looked at one of my colleagues.  She had blood all over her face.  I don’t know what had happened to her.  I was thrown down to the ground.  My face was smashed into a deck full of glass, and as a soldier stepped on my head, others were trying to get my hands cuffed behind my back.  When I was finally cuffed, they dragged me to one end of the ship, pinned me down and put a sack over my head as they were searching my body, went into my pants looking for any media equipment they had on me.  Primarily, they were looking for our cameras and our phones, and they indeed succeeded in taking those away from us.

Our boat was eventually taken to the now Israeli Port of Ashdod where violence continued.  I was carried off the ship as were a lot of my colleagues by our hands and feet thrown to the ground.  I was later detained for hours, interrogated, and towards the end of the day was physically abused to the point where I passed out and was taken to a hospital.

But what happened to me, to us on that Challenger was nothing in comparison to what happened to our colleagues on the Mavi Marmara in which nine of our colleagues were shot dead.  One was so lethally injured and passed away four years later.  And it pales in comparison to what’s happening to the people of Palestine every single day, to what’s happening to the people of Gaza, the very situation that we were attempting to draw attention to with our action.  Nevertheless, it wasn’t a minor thing and we are thankful to be alive.

When we first founded the International Solidarity Movement, we did it believing that Israel kills Palestinians.  They have a freehand to do so.  No one has ever held Israel accountable for killing Palestinians, but Israel does not want to kill internationals.  It doesn’t look good for them.  Internationals have government, which will stand up for them, at least try to hold Israel accountable.  But then, as Janet mentioned, 13 years ago, they killed our colleague, Rachel Corrie in Gaza in a brutal way, ran her over with a huge armored bulldozer.  And a few weeks later, they killed another foreign national, Tom Hurndall, a U.K. citizen.  He lay in a coma for nine months before he died from a bullet wound to the back of the head.  And then a month after that, they killed a British journalist, James Miller.  They got some bad PR, but they weren’t held accountable.

For Tom Hurndall’s death, because his parents pursued, went after really - and not only his parents because also Rachel Corrie’s parents were very active in this - but Tom Hurndall’s parents had a bit of support from their government, and in the sense it pressured Israel a little bit to arrest the soldier that shot Tom, in the sense to hold him out as the sacrificial lamb, did nothing to address the total impunity with which the Israel military operates or the government that gives those orders and uses this policy.  It’s a matter of national policy. 

So, they put this soldier on trial.  He spent a few years in jail, was released early.  The American government, promised Rachel Corrie’s parents that the Israeli government would conduct an independent, impartial investigation into what happened.  That never happened.  So, there was no one ever held accountable, and the culture of impunity continues.

In terms of the flotilla, I think something that Israel did not expect was that there was a backlash of sorts amongst the people of the world.  Tens, if not hundreds of thousands of people around the world marched in protest.  Artists that were supposed to perform in Israel cancelled their performances.  There were different unions and protests at ports because Israel attacked our ship and was not letting ships into Gaza, that they tried to block Israeli ships coming to various ports in Oakland and in Sweden.  And so, the people reacted and I think that remains significant.

In addition, we, the people that planned the flotilla, we did not in any way -- I mean, it was traumatizing in a sense what happened, but we made the decision that we were not going to let this violence deter us, and we went on to plan another flotilla.  At the same time, we strategized and collected, gathered lawyers from all over the world to try to decide how we are going to pursue legal action.  So, this comes a little bit to the legal part of my talk.

One of the things that we did is assemble a file for the International Criminal Court.  The International Criminal Court did not open an investigation as a result of the files submitted from the lawyers representing the plaintiffs, but we also appealed to the Island of the Comoros.  Now, the Mavi Marmara, ship was flagged in the Comoros and the Comoros is a signatory to the Rome Statute of the ICC.  In 2013, the Island of the Comoros did request that the prosecutor open an investigation into the attack on the Mavi Marmara and the freedom flotilla, and the prosecutor did do so.

The prosecutor of the International Criminal Court came back with a decision that there was evidence showing that war crimes was committed in that flotilla attack, but unfortunately decided that the events did not meet the gravity threshold.  It wasn’t grave enough to merit further ICC involvement, and she decided to close the case.  Now, the Comoros Islands appealed that decision to what’s called the Pre-Trial Chamber and surprisingly, we were surprised, but the Pre-Trial Chamber did issue a decision calling on the prosecutor to reconsider her decision saying that she overlooked some significant matters and called on her to reopen the matter, which she and her office tried to appeal.

They tried to appeal that decision, and the appeals chamber last year came back and -- actually, they did not accept her appeal and, therefore, the decision of the Pre-Trial Chamber stands that she needs to take another look at this case.  Now, we don’t know what’s she’s going to do.  We hope she doesn’t, but she might find another way to close the case, but that case before the International Criminal Court is still open.

Some passengers filed cases in various countries.  In Spain, we had three Spanish citizens on the flotilla, and they filed the lawsuits in November of 2015.  So, just a few months ago, a Spanish national court judge instructed the Spanish police to notify him if any of the seven -- they named seven officials as guilty.  They’re accused of war crimes.  If any of these seven step foot into Spain, that the police should be notified in order for these people to be detained and to undergo questioning in connection with this lawsuit.

Unfortunately, over the last few years, Spain has really gutted its universal jurisdiction laws.  It used to have a very vibrant universal jurisdiction law.  In fact, it is the laws that allowed for the -- I think it was 1998 where Augusto Pinochet was arrested in London and extradited to Spain to stand trial.  But in 2009, a Spanish judge agreed to open an investigation or to actually pursue a case against the perpetrators of a 2002 bombing attack on Gaza.  As a result of that, so where you have a potential of an Israeli official being investigated for war crimes in Spain, the foreign minister of Spain at the time promised the Israelis that this would be looked into, that this would not be allowed to happen.  And indeed, only a few months later, Spain’s universal jurisdiction law was gutted.

So, now, it stands that in order to pursue a case in Spain, not only must a Spanish citizen be involved, be a victim of the abuse before it could be anybody.  I mean the whole theory of universal jurisdiction is that there are some crimes that are so heinous that any government, any state, any court should be able to take jurisdiction over these war criminals so that these people can be stopped.  But now, in Spain and in many other countries that have gutted their universal jurisdiction laws as a result of political pressure.  In Spain, a Spaniard has to be involved, and the person - the accused - has to be on Spanish soil, which did not limit the ability to still prosecute for this case, for the flotilla because the thought was there were Spaniards involved, and if any of the people set foot in Spain, they should be arrested.

But, following this ruling, a spokesperson for the Israeli Foreign Ministry told the media, we’re working with the Spanish authorities to get this cancelled, and we hope it will be resolved soon.  A month later, the Spanish high court annulled the decision of this judge and removed the seven officials from the police database.  The attorney for the three Spanish victims appealed.  Unfortunately, not only did the appellate court in Spain uphold the dismissal, but it also imposed costs on the victims, which is kind of unprecedented.  The attorney is appealing now to the Spanish Constitutional Court, and if he fails there, he plans to take it all the way up to the European Court of Human Rights.  So, we’re not stopping there.

In the U.K., in January 2015, lawyers also presented a complaint to police who are gathering evidence now with a view to deciding if certain Israeli accused officials basically if they set foot in the U.K., if they should be arrested.  So there is an ongoing case in the United Kingdom.

The United States, so the president here hasn’t been so great.  After we were attacked, we tried to work with the U.S. government a lot through the embassy, the State Department to try to get answers as to what happened to us, to try to get some kind of help.  I mean, very basic, to try to get some of our things back.  Everything was taken from us - our money, our wallets, our cameras, our laptops, everything - just to get some of our things back and that never happened.  The Center for Constitutional Rights has been over the last few years since the attack trying through the Freedom of Information Act get a lot of documents from the U.S. government as to what they knew in relation to the attack on the flotilla both before, after.  This has resulted in way over 15,000 pages of redacted documents.

But in terms of pursuing legal action, Maria actually has been at the forefront of trying to hold Israelis accountable for grave abuses of human rights when it comes to Rachel Corrie against the Caterpillar Corporation, and for a Palestinian also a victim.  Some of the cases were mentioned here.  Belhas v. Ya'alon, Matar v. Dichter.  Both of those cases were against Israelis for their involvement in war crimes.

In Belhas v. Ya'alon, it was for the 1996 attack on the U.N. refugee base camp in Lebanon.  With Avi Dichter, Matar v. Dichter, it was for the 2002 bombing of an apartment building in Gaza which killed 15 people including eight children.  Both of those cases unfortunately were dismissed based on sovereign immunity, saying that these officials are entitled to immunity.  I see the red light has gone on.  Let me go quickly to our case today.

We, on January 12, 2016, myself and three others did file or instituted a civil action for compensation against the State of Israel, so not against an official but against the State of Israel and a number of named ministries.  Our jurisdictional claim is the Foreign Sovereign Immunities Act, which in general gives immunity to foreign states because the politics of this country, they don’t want to create a situation where the politics or the actions of foreign states are litigated in U.S. courts.

Okay.  That is understandable, but there are some exceptions to that immunity, and we believe that our case fits very clearly in to one of these exceptions.  One of the exceptions, it’s found under 1605(a)(5) of the Foreign Sovereign Immunities Act, which says that a foreign state shall not be immune from the jurisdiction of the courts of the United States in a case in which money, damages are sought against the foreign state for personal injury, or death, or damage to, or loss of property occurring in the United States.

Our ship was flying a U.S. flag for all intents and purposes.  It was U.S. territory on the high seas.  Therefore, immunity does not apply.  Now what, unfortunately, the United States government has been doing -- and there’s another case - I’m sorry, I forgot to mention - that has been instituted only a few months before in California for the death of Furkan Doğan who was a United States citizen executed on the Mavi Marmara, executed because the U.N. fact-finding commission found that he was shot five times, once in the face at pointblank range likely when he was lying on his back already down.

What happened when that U.N. fact-finding mission report came before the U.N. Human Rights Council for a vote, the United States, which had one of its citizens executed, was the only country to vote not to approve that report.  If we’re talking about the influence of the U.S. lobby or Israel and its relationship with the United States, is it good for America when it causes America to take such shameful positions against the rights and lives of its own citizens?  That cannot be good for America.  But that case is also ongoing in California.

Israel recently sent a letter to the United States government asking for what’s called the Suggestion of Immunity, asking the United States to submit a letter to the U.S. courts saying that they recommend immunity for Ehud Barak who’s an individual being sued in California.  And it is indeed what they have done in these past cases that have been dismissed based on sovereign immunity.  Now, the United States, to the best of my knowledge, has not submitted this letter yet.  It is ongoing.  The lawyers on that case are currently responding to Barak’s motion to dismiss.

In terms of our case, it is likely they will do the same thing.  They are not entitled to immunity.  What the government of Israel in their letter said that this is an orchestrated and politically motivated effort to invoke and abuse the judicial systems of various countries to achieve political ends trying to accuse basically us, trying to accuse Furkan Doğan’s parents of politically motivated reasons for this lawsuit as opposed to seeking justice for lost loved ones and for gross abuse that we faced at the hands of Israel.

If this is politically motivated, is it politically motivated to seek justice for Eric Garner, to seek justice for Sandra Bland, to seek justice for Freddie Gray?  Those same people with that same mindset would say that this is politically motivated.  What’s political about it is to say that some people are entitled to justice based on the color of their skin and others are not, or their race, or their ethnicity, and that is unacceptable.

It’s not politically motivated in any other sense because freedom for Palestine is not going to be won in U.S. courtrooms.  It is going to be won by the people marching in the streets in Palestine, by the people from all over the world marching with them, by the people getting on boats, by the students here and around the world and others that are taking up BDS.  These are the ways that we, the people of the world, are going to hold Israel accountable.  It is not going to be in the courtrooms.

But what we seek from our courts is to say that our lives are important and that foreign governments cannot abuse and kill, execute people and not face justice for it because if the United States government submits a letter granting immunity to Israel for attacking Americans on U.S. soil, then who is safe and who is next?  And people are going to continue to go.  In fact, there is an all-women’s boat being planned right now to sail to Gaza, and there’s a representative of the women’s boat to Gaza here somewhere.  Susan, are you in the room?

If you want to talk to her about the women’s boat and supporting that, the effort of the people won’t stop, but we definitely need to use the courts to at least deter or to provide some kind of deterrence because otherwise as we’ve seen, when there is no deterrence, the violence continues.  And if there is no accountability, what is to stop Israel?  That’s a true danger here.  It remains to be seen, but as we hope, we hope that our national courts will be a place where we can get justice.  But despite that, we will keep on.  We will keep on.  We keep on marching, and we keep on sailing.

Janet McMahon:  I’d like to thank our inspiring panelists for a fabulous session today.  We are running a little late, so I’m going to propose that we take a 15-minute break and then come back for a very exciting second keynote address and our final panel of the day.  So 15 minutes and then we’ll come back.  Thank you so much.

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