CONCLUSIONS
The only clear conclusion arising from the facts determined as aforesaid (after having compared the various testimonies and unit journals of the relevant units) is that the attack on the ship by the Israeli Defence Forces was made neither maliciously nor in gross negligence, but as the result of a bona fide mistake. To be more specific, it can be said that the attack took place as the result of a chain of three mistakes, each of which, as such, seems to me, under the circumstances, to be a bona fide and reasonable mistake, namely:-
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- The first and most decisive mistake was in the erroneous message received from the Southern Command that El-Arish was being bombarded from the sea. This repeated message (The reason for which was not clarified) was passed on by the Command Post to the Naval and Air Forces and was no doubt both the background and the main factor in the chain of events which ended in the attack on the “Liberty”. As of the moment that Capt. Rahav and Comm. A. were convinced that El-Arish was being bombarded from the sea (and they verified that fact time and again with Lieut. Comm. P., who served as representative of the Naval Forces to the Air Force and with Comm. S. who served as representative of the Naval Force at the Command Post) there was no way out from the assumption that said bombardment was connected with the unidentified ship or ships discovered at that time near the El-Arish coast. This assumption, reasonable in itself under the circumstances, caused even those officers who had knowledge of the presence of the “Liberty” in the early hours of the morning, to disregard any possibility of connection between the “Liberty” and the unidentified ship(s) purported to be shelling El-Arish.
The Naval Forces can bear no responsibility for the basic error in the message on the bombardment and this fact is of major importance, since the responsibility for attacking targets at sea, whether carried out by the Naval Forces or by the Air Force at the request of the Naval Forces - lies solely with the Naval Forces.
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2) The second mistake, which followed in the wake of the first, determined the fate of the ship and led to the order given to the Air Force to despatch the aeroplanes, and possibility also to the order to attack the ship - was the error in determining the speed of the target at 30 knots. This error had a double implication:-
a) The speed of the “Liberty” was determined in the morning of the same day, based on its identification in the Fleet Manual (Ex. I), at 18 knots. Therefore had there been any doubt in anybody’s mind that the unidentified ship may be the “Liberty” - such doubt would have been entirely rebutted by the determination of the speed of the target at 28-30 knots.
b) Exhibit “F”, which is the telegram of the Naval Force containing urgent instructions prior to the outbreak of war, provides in clause 13 that the force should at all cost avoid attacks on any neutral merchant ships or warships. The question therefore arises - how was the ship identified as an enemy warship that can be attacked?
Sub-clause 7(b) of the Standing Orders/Naval Forces (Exh. “A”) provides: “An enemy vessel should be attacked in any waters provided such vessel attacks an Israeli vessel or shells a coast of Israel”.
Clause 10 of Order No. 50.003 of Flotilla 1 (Exh. “E”) provides:
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“When there is knowledge of an enemy in the area and the radar picks up a ship or ships travelling at a speed exceeding 20 knots, such ship(s) shall be deemed an enemy and not further identification shall be carried out”.
This order has no double meaning and the determination of the ship’s speed is a final and absolute factor thereunder if there is knowledge of an enemy in the area. Accordingly - once the speed of the target was determined to be 28/30 knots - the Naval Forces were entitled, in view of the repeated messages on shelling from the sea, to attack the target without any further identification.
The only question remaining at this point is: Was there no gross negligence in determining the ship’s speed at 28/30 knots when in fact it could not travel at a speed exceeding 18 knots? In as much as this question applies to the Chief of Operations Department/Naval Forces and to the Operations Section/Naval Forces, there could not have been any negligence in accepting the speed determination (after the same had been determined by the Torpedo boats Division) since they did not hurry to accept it, but were fairly cautious and demanded from the Torpedo boat division that the speed be re-examined and determined again. Only after the speed had been re-examined did they accept the determination of the speed as reliable and the notice to the aeroplanes was given.
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In the circumstances therefore, when there was a fear that the ship was escaping to Port Said and the Torpedo Boats were, as reported, unable to reach it, it seems to me that there was no room for additional delays and investigations and that the re-examination made at the demand of Chief of Operations Department, shows caution and discretion.
c) With reference to the question if the Torpedo Boats Division itself was negligent in determining the speed of the target - the answer to this question requires technical expert evidence. The only expert evidence before me on that point is of Comm. Erel Shlomo, Commander of the Israeli Naval Forces, who testifies that in a Torpedo Boat there can be great inaccuracies in determination of the speed of a vessel traveling in from of the Torpedo Boat, especially so if the measurements are made at short intervals; and that their definitely can be an error in verifying the distance even if the speed of the vessel in front of the Torpedo Boat is being measured twice or more. It therefore appears that even if there is room to investigate whether the system of identification of a ship as an enemy ship through determination of its speed is a proper and efficient system, in as much as it applies to the question before us, and so long as the provision in Exhibit “E” is in force, no responsibility for any negligence should be attributed to the Torpedo Boat division in respect of the determination of the said speed in the aforesaid circumstances.
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3) The third mistake which led to the second stage of the attack on the “Liberty” - this time with torpedoes of the Torpedo Boats Division - was a mistake in its identification as the Egyptian supply ship “El Kasir”. Here I am unable to avoid doubt whether the identification in accordance with the “Identification of Enemy Ships” booklet was not made with some undue haste, since it was made after grave doubts had already arisen in respect of the identification of the ship as an Egyptian ship. Comm. AR. testifies that the message conveyed that the aeroplanes might have been mistaken in their identification did not reach the Command Bridge where he was stationed at that time - yet the fact revealed by himself that the ship was not a destroyer but a supply or merchant ship, was sufficient in itself to merit additional caution in its identification. This “discovery” should have put under question mark all the previous assumptions and evaluations, including the previous identification of the ship, as per its speed, as well as the assumption that this ship was the one which purportedly shelled El Arish. Against these doubts, I feel obliged to mention the mitigating circumstances and the difficulties in identifying under the following conditions:-
The entire ship as enveloped in thick smoke, and when asked to identify itself, it failed to do so and behaved suspiciously. Furthermore, Comm AR. believed that he clearly saw a gun position on the ship’s nose and that the ship was firing in his direction (these facts were recorded on the Torpedo Boat’s Diary Exh. “B”).
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Adding to the aforesaid the decisive factor that under the special circumstances when the ship was totally covered in smoke it seemed to have strangely resembled the Egyptian supply ship “El Kasir” (Exhibits “I” and “J”) and that two persons (Comm. AR and Lieut. Sen. Gr. Avraham) have independently and at two different places simultaneously identified it as the “El Kasir” and that a third person (Capt. Rahav) who has himself examined the identification after receiving a report of same and considered it to be a reasonable identification - forces me to reach at least the negative conclusion that gross or serious negligence certainly did not exist in this case.
Finally - I wish to add that another grave error - no less decisive than the three mistakes referred to above - was made by the ship “Liberty” itself. In this respect I have before me the testimony of Comm. Erel and the opinion and testimony of Comm. Shur Alexander, Staff Judge Advocate of the Naval Forces, which supplement each other and from which it clearly appears that the American ship acted carelessly and placed herself in far reaching peril by approaching so near to the coast of an area known to her to be a war area - without giving notice of her presence to the Israeli authorities and without taking care to identify herself with conspicuous markings, while at the same time the said area was not a navigation area crossed by maritime and routes and in which ships do not usually sail.
On the contrary, it seems that the ship made every effort to conceal her identity, both by flying a small flag which was unidentifiable
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from a distance and by retreating when she realised that she was spotted by our forces as well as by failing forthwith and of her own accord to identify herself through flash signalling and by continuing in such default after having been asked by the Torpedo Boats Division to identify herself.
In view of the foregoing, I have no doubt that the Liberty did try to conceal her identify and presence in the area both before she was spotted by the Torpedo boats and even after she was attacked by the Air Force and the Naval Force and thus greatly and decisively contributed to her identification as an enemy ship and determined her own fate.
RECOMMENDATIONS:
A. Declaration of Dangerous Zones:
- Upon the outbreak of war, areas near to a coast in which hostilities take place should be declared “Dangerous Zones” in which sailing of neutral vessels should be prohibited. In such zones passage ways for neutral vessels should be pre-determined.
- Every neutral ship approaching passageways as aforesaid should be under obligation to give notice of its presence within a distance limit or at least 50 miles of the dangerous area.
- Every ship approaching the passageways aforesaid should be under obligation to bear conspicuous markings on both sides and on her deck.
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B. Instruction to the Israeli Defence Forces. It is hereby recommended that:
- Additional time be allocated to train the pilot how to identify enemy ships.
- Standing procedures be promulgated whereby when any Israeli force discovers neutral ships near the coasts in which hostilities are taking place - notice of same be forthwith given to all the relevant factors within the Israel Defence Forces.
- More reliable ways and systems for determining the speed of an unidentified vessel be worked out in association with the Naval Forces.
- Reliable systems be worked out for examining messages of bombardments of the Israeli coast line or of any other coast in which Israeli Forces are stationed.