Mideast situation – Incident in the Suez Canal – UNTSO report

Document S/3323

Report dated 25 November 1954 by the Chief of Staff of the United Nations

Truce Supervision Organization in Palestine to the Secretary-General

concerning the Bat Galim incident

[Original text: English]

 [29 November 1954]

I have the honor to report to the Security Council as follows:

1. Following the statement made at the 685th meeting of the Security Council, on 11 November 1954, by the President of the Council, the Egyptian and Israel delegations to the Mixed Armistice Commission agreed, at its meeting held on 16 November, to select among the complaints on the agenda some of the more important (seven altogether) which they would consider at once, and to take upon 18 November the Egyptian complaint relating to the Bat Galim.

2. The Egyptian complaint, submitted on 6 October 1954, read as follows:

"1. During the early hours of 28 September 1954, an Israel merchant vessel named Bat Galim, manned by a crew of 10 Israelis, entered Egyptian territorial waters in the Gulf of Suez in the area a few miles south of Port Rock lighthouse. The crew attacked two Egyptian fishing boats by automatic fire in the above-mentioned area, sinking one of them, thus causing the death of two Egyptian fishermen named: Abd el Aziz Sabri and Mohamed Hameed el Talatini. The other boat was damaged because of the fire, but its crew succeeded in returning to the shore with the boat.

"2. This hostile act committed by armed Israelis inside Egyptian territorial waters constitutes a flag-rant violation of the General Armistice Agreement.

"3. An investigation is requested."

3. Following the Egyptian request for an investigation, arrangements were made with the Egyptian authorities for a team of three United Nations observers to carry out an investigation in Egypt, The investigation lasted from 10 to 16 October 1954.

4. The team heard and interrogated the sergeant-major of the frontier regiment in command of the Abu Darag post, who stated that on 28 September 1954 one of the fishermen had reported the attack on the fishing boats; the officer in charge of the Suez frontier, who stated that he had received the message from the Abu Darag post; the inspector of passports in Suez Port, who stated that the officer in charge of the Suez frontier had asked him by telephone if the small ship described by the fisherman had entered the harbor; the Chef du Parquet [counsel for the State], who was one of the committee which had inspected the Bat Galim; the coastguard commander in Suez; the second in command of the Suez frontier force; the chief medical-legal expert of the Cairo district, who had examined one of the Egyptian fishing boats for bullet marks or holes; the Director of the Palestine Department, Ministry of War, who stated that the Egyptian Government claimed that its territorial waters extended to a distance of six miles from the shore and that the whole Gulf of Suez was inside Egyptian territorial waters.

The United Nations observers further heard and interrogated two Egyptian fishermen, who stated that they had been in one of the two boats allegedly attacked by the Bat Galim, and a third fisherman who stated that he had been in the neighboring "mother boat" which had not been attacked. The United Nations observers visited the two boats. They also interrogated a fisherman, who had stated that he was the step-brother of one of the two fishermen who allegedly had been in the third boat sunk by the Bat Galim. The United Nations observers heard and interrogated in Cairo the master and crew of the Bat Galim (10 altogether). They also visited the ship. They went in a launch belonging to the Compagnie universelle du canal maritime de Suez to the alleged scene of the incident. The spot was pointed out by an Egyptian navy vessel.  According to the captain of the launch, it was situated about 15 sea miles south of Newport lighthouse, approximately in the middle of the Gulf. Both shores could be seen clearly. According to the sea chart, the depth is 28 fathoms. The United Nations observers were also shown the ship's deck log and other documents.

5. On 18 November 1954, the Mixed Armistice Commission convened, as agreed, to consider the Egyptian complaint. At the beginning of the meeting, the senior Israel delegate proposed that the suggestion of the Egyptian  representative in the Security Council should be, accepted, and that the Commission should discuss the Egyptian complaint and the Israel claim at the same time, as they referred to the same incident. The Israel claim, dated 8 October 1954, read as follows:

"I should like to refer to Egyptian complaint No. 62-54 dated 6 October 1954 and, in accordance with article X, para. 7, of the Egyptian-Israeli General Armistice Agreement, to submit hereby Israel's claim against Egypt's completely unfounded contentions contained in the aforesaid complaint.

"The allegations contained in the above Egyptian complaint are grave distortions and are clearly designed as a manoeuvre to prevent a speedy release of the Bat Galim and its crew.

"In view of the serious accusations in the Egyptian complaint and the grave circumstances of the case, I have the honor to request, in accordance with article IV, para. 3 of the rules of procedure, an immediate investigation and an emergency meeting of the Egyptian-Israeli Mixed Armistice Commission to consider the matter."

6. Following the Israel request, the Chairman of the Mixed Armistice Commission sent a United Nations observer to Tel Aviv to hear and interrogate the general agent of the shipping company which had bought the Bat Galim.  The Chairman also decided to call an emergency meeting as requested in the Israel claim. During the meeting held on 21 October 1954, which was continued on 23 October, questions of procedure raised by the senior Egyptian delegate were considered. The Israel claim was not discussed.

7. On 18 November 1954, in reply to the Israel suggestion that the Egyptian complaint and the Israel claim should be discussed at the same time (see para. 5 above), the senior Egyptian delegate declared that, as he wished to respect the statement of the Egyptian representative in the Security Council, "we are going to discuss the Egyptian complaint and then the Israel claim at this meeting, but it will not be taken as a principle in future".

8. The senior Egyptian delegate then presented the Egyptian case as follows:

On the 27 September 1954, an armed Israel vessel, named the Bat Galim, had entered the Gulf of Suez through Egyptian territorial waters and advanced through the Gulf on its way to Suez. According to the log-book, the ship had arrived at a point 6 miles from Newport lighthouse at 1 a.m. (local time) on 28 September 1954. Instead of proceeding in a northerly direction, the vessel had turned back to the south and then to the north, by the master's orders, until 5.45 a.m., when it had anchored near Green Island, in the area of Port Suez. As proof, and only as proof, that the Bat Galim had been armed between 1 a.m. and 5.45 a.m., and approximately at 3.30 a.m., the crew of that vessel had attacked two fishing boats, Nos. 90 and 314, with light automatic weapons, in an area 15 miles south of Newport lighthouse. As a result of that attack, the two fishermen on boat No. 314 were missing. The other boat, No. 90 had been hit by several bullets. Mohammed Barakat Achmud, one of the two fishermen who had been in boat No. 90, stated to the United Nations observers:

"… When I started going towards south, I saw the ship that had passed by twice coming to the north. When it was near to us, shots were fired at the boat, so I was scared and I and my friend jumped into the water to avoid the bullets. And we stayed there in the water and shouted, but the ship proceeded on its way towards the north. After a while, Rayes Helmi with his boat came toward us…"

Rayes Helmi (Helmi Seddek el Daly) stated to the United Nations observers:

"… the two fishermen were in the water and hanging on the boat; I went to them and asked them what had happened.  They told me that they had heard some shooting, so after a while they had decided to go an see what was going on, but they had been met by that boat, which looked like a small tanker, coming towards them, where it had fired automatic fire at their boat, so they had jumped into the water to avoid the firing, and hung to the edge of the boat.  After hearing this statement from them, I took the two fishermen who were in the water on my boat…"

The United Nations observers who visited boat No. 90 reported:

"The boat was approximately 5 1/2 meters [18 feet] in length and 1.6 meters [5-1/4 feet] in width. It was old and seemed to be in bad condition. In the hull there were many holes and scratches, some of which could have been made by bullets, calibre 6-8 millimeters. It was difficult to ascertain the direction of the bullets, and sometimes the kind of marks, due to the fact that someone had apparently been searching the holes with some kind of tool. The United Nations observers searched carefully for a long time for slugs and bullets, but could find nothing. The boat was marked in Arabic: "5-90". Captain DeBarr (a United Nations observer) was of the opinion that the marks  had been caused by automatic weapon fire and that it could not be determined what calibre bullet had caused the damage."

The person who had been "searching the holes with some kind of tool" was Dr. Zaki Mohamed el Banhawi, chief medical-legal expert of the Cairo district. A United Nations observer asked him whether he had used a sharp instrument in his examination of the boat, and he replied:

"Yes, I used a knife, and when I found a hole or a mark I searched with my knife to see if I could find any slugs."

"Did you find any?"

"Yes, I found this slug and this piece of metal which is from a slug."

The investigation report continues as follows:

"The witness then handed the observer two pieces of metal, one of which was a slug and the other piece could have been from a slug. Both pieces had particles of wood and it can be said that from all appearances the two pieces of metal could have been removed from the boat."

9. After the senior Egyptian delegate had presented the Egyptian case, the senior Israel delegate stated that it was difficult to consider the Egyptian complaint as a serious charge. The fabrications were transparent. Should any doubt exist, it would long ago have been dispelled by Egypt's "delaying tactics" on its own complaint. The Egyptian complaint had not been lodged until 6 October 1954; no emergency meeting of the Mixed Armistice Commission had been requested; in the meetings held on 21 and 23 October, the senior Egyptian delegate had discussed points of procedure; on 30 October, the senior Egyptian delegate had addressed a letter to the Chairman stating that he was anxious to discuss the Egyptian complaint as early as possible; however, it had been Israel and not Egypt which had been ready to give precedence to the Egyptian complaint.

10. The senior Israel delegate referred to the statement made at a Press conference by a member of the Egyptian Government after the seizure of the Bat Galim. He said that, according to that statement, the Bat Galim had attacked a number of inhabitants and fishermen in the area of a guard post on the Red Sea coast with fire from small-arms, and some people had been injured. The version of the attack in the subse-quent complaint submitted to the Mixed Armistice Commission was different. There was no question of inhabitants or fishermen being wounded, but of a fish-ing boat and two fishermen being missing. Those two fishermen were strangers to everyone concerned. A step-brother of one of the missing fishermen had been found; he did not know where his relatives lived. The fishing boats had allegedly been attacked by the Bat Galim while fishing at night, and without lights, in the middle of the Gulf of Suez. The senior Israel delegate doubted that the Egyptian authorities would countenance such fishing on one of the busiest international waterways in the world. The Egyptian authorities seemed, moreover, to have instituted no inquiry whatsoever amongst the vessels which had used the waterway on the night of 27 to 28 September 1954. The only ship whose crew had been questioned was the Bat Galim. No ship had reported the incident. The senior Israel delegate then referred to statements by witnesses about the Egyptian fishing boat No. 90, at which the Bat Galim had allegedly fired. Dr. Zaki Mohamed el Banhawi, the, chief medical-legal expert of the Cairo district, had found the boat in good condition; the United Nations observers had found that it was old and, seemed to be in bad condition.  Dr. Zaki Mohamed el Banhawi had found only bullet holes and marks caused by bullets; the United Nations observers had found many holes and scratches, some of which could have been made by bullets. With regard to the fishermen from the other boat, which was missing, no divers could be found to look for them.

11. The senior Israel delegate, after concluding from the above that the alleged incident had never occurred, argued that, even if such an incident had occurred, there would be no evidence to connect it with the Bat Galim. He pointed out that the head fisherman on the "mother boat", and two fishermen on boat No. 90, had in the darkness of a moonless night discerned the yellow funnel of the ship which had passed to and fro several times. The Bat Galim, however, had no funnel; it was a motor ship. They also alleged that they had perceived on that moonless night the tanker-like shape of the Bat Galim. The senior Israel delegate then, referred to the official note from the Egyptian Ministry for Foreign Affairs quoted by the representative of Egypt on 14 October 1954 in the Security Council. The note had stated: "The pilot [the head fisherman] remained at the extreme northern point, and the two small boats were posted respectively at the center and the extreme southern point. There was a distance of 2 kilometers between each of the boats" [682nd meeting, para. 136]. Yet, to the question: "How do you usually keep contact between your boats?", one of the fishermen who had been in boat No. 90, posted at the center, had replied: "I cannot keep in touch in the dark with the other boats, but when the shooting started I heard the people in the other small boat shouting."  The senior Israel delegate submitted that the "other small boat", supposedly sunk by small arms fire, had never existed.  As to boat No. 90, according to the statement of the Egyptian fishermen, it bad been subjected to automatic fire and had filled with water, so that the "mother boat" which had taken it in tow had had to proceed to the nearest point on the shore. The senior Israel delegate recalled in that connection that boat No. 90 had been examined by Dr. Zaki Mohamed el Banhawi (see para. 8 above) and that the evidence found by the Egyptian chief medical–legal expert had been one slug and a piece of metal which, according to the United Nations observer who had seen it "could have been from a slug". The Egyptian expert had seen nothing except "some bullet holes marks made by bullets". The sketch of fishing boat No. 90 in the United Nations observers' report showed three "holes, larger than bullet holes, and the origin which is uncertain". The senior Israel delegate asked if it would be "unkind" to suggest that the origin had been an axe. On the floor of the boat there were three "scratches which could have been made by bullets". The sketch indicated the probable direction which the bullets had followed. The senior Israel delegate argued that the only two penetrations indicated in the right side of the deck were too high to leave markings on the floor boards. Since there were no penetrations on the left side of the boat, the only solution would be that the boat had made a complete circle, with two fishermen hanging from its side. There were also a number of alleged bullet holes on the deck. In the opinion of the senior Israel delegate, the height of the freighter and the distance of the small boat from the freighter at the time of firing would, by the angle of fire so produced, strike the side of the boat and not its deck. The senior Israel delegate further wondered why the Bat Galim, instead of choosing the obvious target of the lit-up "mother-boat", should have pre-ferred to commit its act of aggression on the other two small, unlit, invisible boats. A fishermen bad stated that be had heard from thirty to forty shots. Yet, according to the Egyptian authorities and the United Nations observers, no weapon had been found on the ship except one small unserviceable pistol, .33 calibre. The senior Israel delegate said that that was the apparent source of the weapon which was used in marking boat No. 90–in which United Nations observers had found holes and scratches, some of which could have been made by bullets, calibre 6 to 8 milimeters–no calibre for any known automatic weapon.

12. The senior Egyptian delegate recalled that he had mentioned that shooting at the fishermen as a proof and only as a proof that the Bat Galim had been armed. He quoted article 11, para. 2, of the General Armistice Agreement 1/ as follows:

"No element of the land, sea or air military or para-military forces of either party, including non-regular forces, shall commit any warlike or hostile act against the military or para-military forces of the other party, or against civilians in territory under the control of that Party …"

13. The senior Egyptian delegate said that the fishermen had been fired at not in the area under Egyptian control, but in Egypt. The Mixed Armistice Commission therefore had no competence at all to discuss whether those fishermen had been fired at or not; it was a matter pertaining to the sovereignty of Egypt and to Egyptian law. He had mentioned the incident in his statement only in order to prove that the Bat Galim had been armed and, according to article II, para. 2, of the armistice agreement, it had had no right to enter Egyptian territorial waters. The senior Egyptian delegate referred further to the shipping agreement concluded on 23 July 1953, which is reproduced in annex I to this report. He said that the shipping agreement was considered complementary to the General Armistice Agreement, because it had been witnessed by the Chairman of the Mixed Armistice Commission. The shipping agreement, he said, prevented any ship of any party from entering the territorial waters of the other party, except in a case of force majeure.

14. The senior Israel delegate had said that the agreement did not state that a vessel of either party should not enter the territorial waters of the other.

15. The senior Egyptian delegate then presented a draft resolution (the draft which was voted upon–see para. 17 below–was an amended version of this first draft).

16. The senior Israel delegate said he would submit a counter-resolution.

17. After the Commission had reconvened on the following day, 19 November, the senior Egyptian delegate presented the following draft resolution:

"The Mixed Armistice Commission,

"Having discussed the Egyptian complaint No. 62-54 and its report of investigation carried out by United Nations military observers, Major Rosenius, Captain Rietbergen and Captain DeBarr,

"1. Finds that during the night 27-28 September 1954 the Israel vessel Bat Galim entered Egyptian territorial waters;

"2. Decides that this action is a violation of article II, para. 2, of the General Armistice Agreement;

"3. Decides further that this action is also a violation of the shipping agreement signed by both parties and witnessed by the Chairman of the Mixed Armistice Commission, which is considered as complementary to the General Armistice Agreement;

"4. Calls upon the Israel authorities to prevent such actions in the future."

18. The senior Israel delegate said that, after weeks of delay, the Mixed Armistice Commission had reached, on the preceding day, the point of considering the substance of the complaint.  Now, the Egyptian draft resolution made no reference to the facts alleged in the complaint and the accusations brought before the Commission seemed suddenly of no further importance. The Egyptian delegation had made it clear that it was best to ignore the allegations made in its complaint. Instead, it had inserted in its draft resolution general questions which did not belong to an examination of such allegations.

19. The senior Israel delegate said that the Egyptian draft resolution suggested that the entry of the Bat Galim into Egyptian territorial waters was a violation of the General Armistice Agreement, and that the Bat Galim's crew constituted a military force within the meaning of article II, para. 2 of that agreement. He contended that the Bat Galim had been on its passage through what, by international law, had always been recognized as an international waterway. That fact alone must determine the question of the legality of the Bat Galim's entry into the Gulf of Suez, and it was clear that the Mixed Armistice Commission was not the body to deal with the matter. The Security Council, in its resolution of 1 September 1951 [S/2322], had determined that the General Armistice Agreement precluded Egypt from interfering with the free passage of all ships through the Suez Canal. The

Security Council resolution had made the Bat Galim’s passage legal on the basis of the General Armistice Agreement, which the Security Council had examined the greatest care before reaching its decision.

20. The senior Israel delegate dealt next with the Egyptian contention that the Bat Galim on its voyage had been contravening the 1953 shipping agreement. That agreement, he said, had been concluded outside the framework of the Mixed Armistice Commission between the representatives of Egypt and Israel; it had at no stage been made into an agreement governed by the Mixed Armistice Commission; it had been concluded to deal with a very limited field of specifically mentioned cases, and could have no relevance with regard to the passage of ships through the Suez Canal. That bilateral agreement–which had not been signed by the Chairman of the Mixed Armistice Commission–could not be invoked in the Commission and the Commission had no right to consider or interpret it.

21. The senior Egyptian delegate stated that the object of the Egyptian complaint was the passage through Egyptian territorial waters of an Israel vessel, and that the killing of the two fishermen had been mentioned in the complaint to prove that there had been arms on the Bat Galim. Though the United Nations observers had no right to investigate the killing of two Egyptian fishermen in Egypt, they had been asked to do so in order to prove that the ship was carrying arms. The killing of two Egyptians in a part of Egypt was not within the competence of the Mixed Armistice Commission. Nor had the Commission any competence to discuss Egyptian territorial waters. The words "territorial waters" were not mentioned in the General Armistice Agreement. Article II, para. 2, simply provided that "no element of the land, sea or air military or para-military forces of either party … shall … pass … through the waters within three miles of the coastline of the other party".

22. The senior Egyptian delegate said that the Security Council resolution of 1 September 1951 to which the senior Israel delegate had referred concerned the free passage through the Suez Canal of goods, and not of the Israel flag. The Suez Canal was not mentioned in the General Armistice Agreement; it was not mentioned in the Egyptian complaint. As to the 1953 shipping agreement, it had been concluded through the Mixed Armistice Commission, as was proved by its heading and by the signature of the Chairman of the Commission at the bottom. It could be considered as complementary to the General Armistice Agreement.

23. The Egyptian draft resolution (see para. 17 above) was put to the vote. It was not adopted, the Israel delegation having voted against and the Chairman having abstained from voting.

24. After the vote, the Chairman made the following statement:

"I abstain on this draft resolution for two reasons:

"First, I wish to recall the terms of article 11, para. 2, of the General Armistice Agreement, which states:

"No element of the land, sea or air military or para-military forces of either party, including non-regular forces, shall commit any warlike or hostile act against the military or para-military forces of the other party, or against civilians in territory under the control of that party; or shall advance beyond or pass over for any purpose whatsoever the armistice demarcation line set forth in article VI of this agreement except as provided in article III of this agreement; and elsewhere shall not violate the international frontier; or enter into or pass through the air space of the other party or through the waters within three miles of the coastline of the other party.

"I do not think that this article should apply to this case.

"Secondly, certainly it has been the practice of both parties to present complaints to the Mixed Armistice Commission relating to merchant or fishing ships of one party entering the territorial waters of the other party. Some of these complaints have contained a mention to the effect that such an act constitutes a violation of the General Armistice Agreement. However, the Mixed Armistice Commission has never decided on these complaints. They have been dealt with in informal meetings or sub-committee meetings and have been settled directly by the parties. Although the parties have concluded a shipping agreement, dated 23 July 1953, relating to the release of any non-military vessel of one party carrying non-military cargo and which, as a result of a case of force majeure, seeks shelter in the territorial waters of the other party, it is not for the Mixed Armistice Commission to decide in a resolution whether such agreement has been respected or not.

"However, in the present instance the Bat Galim was bound for the Suez Canal. But the Security Council is seized of a complaint by Israel concerning this general question, which is outside the competence of this Commission."

25. The Israel delegation submitted the following draft resolution:

"The Mixed Armistice Commission,

"Having considered Egyptian complaint No. 62-54, the investigation report and the statements of both parties,

"Finds the Egyptian complaint regarding the Bat Galim to be unfounded."

26. The senior Egyptian delegate asked under which provision of the General Armistice Agreement the draft resolution had been submitted.

27. The senior Israel delegate replied that the draft resolution had been submitted under paragraphs 1 and 4 of article X of the General Armistice Agreement, and under paragraphs 1 and 2 of article III of the rules of procedure of the Mixed Armistice Commission. 2/  Since the Israel draft resolution did not condemn Egypt for a breach of the General Armistice Agreement, there was no reason to quote an article of the agreement. The Israel draft resolution was a counter-resolution on the Egyptian complaint.

28. The senior Egyptian delegate said that article X, para. 1, of the General Armistice Agreement, which the senior Israel delegate had mentioned, referred to the supervision by the Mixed Armistice Commission of the "execution of the provisions" of the agreement. The decisions of the Commission must relate to the execution of the provisions of the agreement. The Israel draft resolution did not relate to the execution of the provisions of the agreement and the Mixed Armistice Commission was not competent to vote upon it.

29. The senior Israel delegate said that there were many precedents. He also mentioned article X, para. 8, which gave the Commission the right of interpreting the armistice agreement, and article X, para. 7, which referred to "claims or complaints".  The word "claims" added to the word "complaints" could not be considered as superfluous. It had been included for the purpose of permitting a draft resolution such as the present Israel draft resolution to receive the Commission's attention.

30. The senior Egyptian delegate said that the discussion was about decisions of the Mixed Armistice Commission, and not about claims or complaints.  Besides, Article X, para. 7, referred to "claims or complaints … relating to the application of this agreement".  In both cases, it was necessary to refer to the armistice agreement.

31. The senior Israel delegate said the Israel draft resolution referred to the Egyptian complaint and, in so far as the complaint referred to the General Armistice Agreement, the Israel draft resolution referred to the same agreement.

32. The Chairman said that it had been common practice in the Mixed Armistice Commission to vote on a second draft resolution on a complaint.

33. The senior Egyptian delegate said that the law in the Mixed Armistice Commission was the provisions of the General Armistice Agreement and the rules of procedure, and not common practice. If the common practice was wrong, it had to be corrected.

34. The senior Israel delegate amended his draft resolution to read as follows:

"The Mixed Armistice Commission,

"Having considered Egyptian complaint No. 62-54, the investigation report and the statements of both parties,

"Finds the Egyptian complaint regarding the Bat Galim case to be unfounded and that no provision of the General Armistice Agreement has been violated by Israel."

35. The senior Egyptian delegate asked the Chairman whether he accepted the Israel draft resolution because of common practice or because it was based on the provisions of the General Armistice Agreement.

36. The Chairman replied that, so long as he had been in the Commission, it had been common practice to have more than one draft resolution on the same complaint.  Nothing in the rules of procedure prevented it.

37. The senior Egyptian delegate said that both parties had made their statements on the Egyptian complaint, and that the Egyptian delegate had sub-mitted a draft resolution which had been voted upon, which meant that the Egyptian complaint was settled.  Did the submission of another draft resolution mean that the Egyptian complaint was to be discussed again from the beginning?  How was it possible to accept the Israel draft resolution which read: "The Mixed Armistice Commission, having considered Egyptian complaint No. 62-54, the investigation report and the statements of both parties, finds …"?

38. The senior Israel delegate said that at the preceding meeting the Israel delegation had reserved its right–which had not been questioned–to submit a draft resolution.

39. The senior Egyptian delegate said that be had made no objection when the Israel delegation had announced its intention to submit a "counter-resolution", because he could not prevent it from submitting any resolution, if it was based on the provisions of the General Armistice Agreement. Having found that the Israel draft resolution submitted today was based on no article of the armistice agreement, he had to state that he could not accept it. According to the Israel draft resolution, the Egyptian complaint regarding the Bat Galim case was "unfounded". The Egyptian complaint was composed of two parts: the entry of the Bat Galim into Egyptian territorial waters and the killing of two Egyptian fishermen. The killing of the Egyptian fishermen had nothing to do with the General Armistice Agreement; it had been mentioned only to prove that there had been arms on the Bat Galim. The accusation was now out of the Egyptian complaint, as was confirmed by the Egyptian draft resolution, With regard to the first part of the complaint, it was not unfounded: the Bat Galim had entered the Gulf of Suez; three United Nations observers had seen the vessel in Suez.

40. The Israel draft resolution (see para. 34 above) was put to the vote. It was adopted, the Israel delegation and the Chairman voting in favor. The Egyptian delegation did not vote, explaining that it could not co-operate with a Mixed Armistice Commission that followed common practice and not the provisions of the General Armistice Agreement and the rules of procedure.

41. After the vote, the Chairman made the following statement:

"I shall now read the Egyptian complaint No. 62-54:

"'1. During the early hours of 28 September 1954, an Israel merchant vessel named Bat Galim, manned by a crew of 10 Israelis, entered Egyptian territorial waters in the Gulf of Suez in the area a few miles south of Port Rock lighthouse. The crew attacked two Egyptian fishing boats by automatic fire in the above-mentioned area, sinking one of them, thus causing the death of two Egyptian fishermen named: Abd el Aziz Sabri and Mohamed Hameed el Talatini. The other boat was damaged because of the fire, but its crew succeeded in returning to the shore with the boat.

"'2. This hostile act committed by armed Israelis inside Egyptian territorial waters constitutes a flagrant violation of the General Armistice Agreement.'

"I have voted for the Israel draft resolution because conclusive evidence has not been produced that the Bat Galim attacked the Egyptian fishermen in the Gulf of Suez.

"I shall call on both parties to come quickly to an agreement for the release of the Bat Galim and its crew."

42. The senior Egyptian delegate recalled that the Chairman had explained his abstention on the Egyptian draft resolution by stating "I do not think that this article [article II, para. 2, of the General Armistice Agreement] should apply in this case" (see para. 24 above).  Now, the Chairman had voted for the Israel draft resolution because he considered that the Israelis had not killed the two Egyptians, though the killing of Egyptians in Egypt or in Egyptian territorial waters had nothing to do with the General Armistice Agreement.  The senior Egyptian delegate further objected to the fact that the Chairman had called on "both parties to come quickly to an agreement for the release of the Bat Galim and its crew". The 1953 shipping agreement entitled Egypt to seize the Bat Galim and its crew. The Chairman had no right to ask that the parties come to an agreement for their release.

43. The senior Israel delegate said that killing of civilians in Egypt by an element of the land, sea or air military or para-military forces of the other party did come under the General Armistice Agreement (article 11, para. 2), and that it was the basis of the Egyptian complaint. As for the Chairman calling on both parties to come quickly to an agreement for the release of the vessel and its crew, it was his human duty in this case to do so and the Commission's dealing with the case would not be complete and would not reach its logical conclusion without it.

44. The senior Egyptian delegate said that the Chairman could not interfere with the policy of Egypt in a matter which, according to the Chairman's own statement, had nothing to do with the General Armistice Agreement.

45. After the Mixed Armistice Commission had concluded its consideration of the case, the Chairman received an Egyptian appeal based on article X, para. 4, of the General Armistice Agreement, which provides:

"On questions of principle, appeal shall lie to a special committee, composed of the United Nations Chief of Staff of the Truce Supervision Organization and one member each of the Egyptian and Israeli delegations…"

46. The Egyptian appeal, dated 20 November 1954, read as follows:

"An appeal is hereby submitted against the decision by a majority vote on the Israel resolution on Egyptian complaint No. 62-54 which was taken at a meeting of the Egyptian-Israeli Mixed Armistice Commission held on 19 November 1954 at kilometer 95.

"The questions of principle in this case are:

"1. The decision does not relate to the application of the provisions of the General Armistice Agreement.

"2. The decision was taken on a complaint that had been considered as settled after the first decision.

"3. According to the Israel resolution adopted by the Commission, the whole Egyptian complaint was unfounded, although the Commission had not heard the Egyptian point of view in the killing of the two Egyptian fishermen, since that bad not been considered within the competence of the Commission.

"It is requested that the case be brought before the Special Committee, in accordance with article X, para. 4, of the Egyptian-Israeli General Armistice Agreement."

47. The Egyptian appeal was placed on the agenda of the Special Committee, after a number of Egyptian or Israeli appeals which are pending before it.

48. At  the  beginning  of  the  meeting  of  the Special Committee held on 25 November 1954, it was agreed to discuss immediately the Egyptian appeal against the resolution adopted by the Mixed Armistice Commission on 19 November 1954 (see paras. 34 and 40 above). After discussion, the Special Committee took the following decision:

"The Special Committee finds that the words in the resolution, "the Egyptian complaint regarding the Bat Galim case to be unfounded and" should be the following reasons:

"The Mixed Armistice Commission should not adopt resolutions defining a complaint as 'unfounded', as this may appear as restricting the right of either side to submit any complaint it may deem necessary; furthermore, it is unnecessary to describe complaint in such terms after the non-adoption of the complaining party's resolution.

"This decision is not intended as a judgment on the facts of this particular case, as to which the Special Committee has no competence, nor is it intended as a reversal of the findings of the Mixed Armistice Commission in the resolutions as to the facts."

(Signed) E. L. M. BURNS

Major-General,

Chief of Staff, of the Truce

Supervision Organization

Annex

EGYPTIAN-ISRAELI MIXED ARMISTICE COMMISSION

23 July 1953

The following is herewith agreed by both parties:

In the event a non-military vessel of either party, carrying non-military cargo, is forced by engine trouble, storm or any other reason beyond the control of the vessel and its crew, to seek refuge in the territorial waters of the other party, it shall be granted shelter therein and shall be allowed there-after to proceed on its way freely and at the earliest possible time, together with its cargo, crew and passengers.

Witnessed by the Chairman of the Egyptian-Israeli Mixed Armistice Commission.

(Signed) Colonel T. M. HINKLE

Notes

1/ See Official Records of the Security Council, Fourth Year, Special Supplement No. 3.

2/ Article III of the rules of procedure reads:

"1. Decisions of the Mixed Armistice Commission to the extent possible shall be based on the principle of unanimity.  The Mixed Armistice Commission will in each case make every effort towards reaching agreement between the two parties.  Only when it is clear beyond any doubt that no equitable and mutually satisfactory settlement can be reached, at this time the issue will be put to vote.

"2. In the absence of agreement between the two parties, decisions shall be taken by a majority vote of the members present and voting."