The legal flaws of the Palmer Commission flotilla report

Israel/Palestine

The latest United Nations report on last year’s lethal flotilla incident – in which nine people were killed and many injured by Israeli commandos on board a humanitarian ship bound for Gaza – was released at the beginning of September, and generated much controversy. On the one hand, the report makes clear that Israel’s use of force on board the Mavi Marmara and in the treatment of those detained on the ship was excessive and unreasonable. It acknowledges that forensic evidence indicates at least seven were shot in the head or chest, five of them at close range, and recognizes that Israel still refused to provide any accounting of how the nine people were killed. It calls on Tel Aviv to compensate the families of those killed, eight Turks and one American, and also those who were seriously injured during and after the incident, passengers roughed up while in Israeli custody and whose cameras, cell phones and other belongings were confiscated .

The unusually small inquiry panel itself lacked credibility. It was chaired by former New Zealand prime minister and international environment law expert Geoffrey Palmer. Astonishingly, the only other independent member was its vice-chair, the former president of Colombia. Alvaro Uribe’s notorious history as a human rights abuser who called human rights advocates such as Amnesty International “rats,” as well as his legacy of seeking out the closest possible ties to and defense of Israel while in office, make him wildly inappropriate for such an assignment. The panel was rounded out with two members appointed by Israel and Turkey, each of whom appended a partisan dissent to the report.

It is therefore particularly significant that the report, despite several notable shortcomings, still confirmed several longstanding criticisms of Israel’s policies, especially the habitual reliance on excessive and unreasonable force when dealing with Palestinian issues.

Overall, however, the report of the Palmer Commission is severely flawed from an international law perspective. The most significant finding of the report is its most dangerous and legally dubious: the conclusion that Israel’s blockade of Gaza, in effect since mid-2007, was somehow, despite being severely harmful to the 1.5 million Palestinians living in Gaza, a legitimate act of self-defense. The report gives considerable attention to the illegal rockets fired into Israel by Palestinian militants mainly associated with Hamas, and notes, appropriately, that “stopping these violent acts was a necessary step for Israel to take in order to protect its people.” But while that justifies protective action, it does not make the case for a valid claim of self-defense under international law.

The report ignores altogether the crucial fact that a unilateral ceasefire had been observed by Hamas ever since the end of the Gaza War in early 2009. An earlier joint Israeli-Palestinian ceasefire had been declared in July 2008, and had led to a virtual halt in rocket attacks until it was broken by Israel in November of that year, in a lethal assault on Gaza that led to a crumbling of the ceasefire and thereafter to Israel’s Operation Cast Lead on December 27, 2008. The Palmer report cannot be legally persuasive on the central issue of self-defense without addressing the relevance of these ceasefires that gave Israel a viable security alternative to blockade and force. The fact that the word “ceasefire” does not even appear in the 105-page document underscores why this report is so unconvincing except to Israel’s partisans.

Instead of trying diplomacy, which had shown itself effective, Israel relied on a naval blockade, which prevented every boat from reaching the Gaza Strip, establishing a military siege, cruelly confining all Gazans, children, women and men (more than 50 percent of Gaza’s population is below the age of 15) living under occupation in what amounts to an open-air prison. Such a blockade is a massive and sustained example of collective punishment, unequivocally prohibited by Article 33 of the Fourth Geneva Convention.

The main goal of the flotilla was to bring desperately needed humanitarian goods, primarily medical equipment, to Gaza’s hospitals and clinics. But a second important goal was to challenge the illegal blockade, end the siege, and protect the rights of the people of Gaza. According to the Universal Declaration of Human Rights, every human being has the right to freedom of movement both within and between all countries yet for more than four years Israel’s siege of Gaza has denied Gazans their right to leave this crowded, impoverished territory, and denied entry to foreign visitors and even to family members. With all land borders closed and the UN and neighboring states unwilling to do more than call repeatedly but futilely on Israel to fulfill its obligation toward an occupied people, the flotilla movement was a peaceful and powerful way to expose the criminality of the siege and blockade of Gaza.

We should not lose sight of the essential nature of the incident. Israel launched a naval attack in the middle of the night on a humanitarian flotilla in international waters, whose six ships had been publicly inspected by harbor and police officials in a number of European countries to ensure there were no weapons on board before heading into international waters and had been tracked from the time they left port. It was neither reasonable nor necessary to mount such an attack for the sake of Israeli security. Allowing a naval blockade – which the Palmer Commission acknowledges to be an act of war – to be imposed by Israel against the helpless civilian population of Gaza and then accepted as ‘legal’ by the UN, it is a sad day for both the global rule of law and the well-being of some of the most vulnerable and abused people on the planet.

Richard Falk is a professor of international law and serves as the UN Special Rapporteur for Human Rights in the Occupied Palestinian Territory; Phyllis Bennis is a Fellow of the Institute for Policy Studies and author of Understanding the Palestinian-Israeli Conflict: A Primer.

About Adam Horowitz

Adam Horowitz is Co-Editor of Mondoweiss.net.

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12 Responses

  1. Les
    September 12, 2011, 7:52 pm

    From Germany’s invasion of Poland in 1939 to their defeat at the end of WWII, everything the Nazis did was justified as self-defense. The US has all sorts of wars going on against Muslims in the name of self-defense against terrorists though our wars are all too obviously creating more terrorists at a faster pace than we can expand our war machine.

  2. Real Jew
    September 12, 2011, 8:07 pm

    The Palmer Report is atrocious with about as much legitimacy as Pam Geller’s claim that Obama is Malcom X’s lovechild.

    How on Earth can they claim the Israeli imposed blockade legal when multiple UN resolutions and international law experts has stated otherwise?? And how do these sneaky zionists always end up getting their side accepted by the international community? Can somebody explain that to me?

    • MLE
      September 13, 2011, 2:11 pm

      It was supposed to be an attempt to make Turkey and Israel kiss and make up.

      If the report was critical of both the blockade and the flotilla incident, Israel would be upset. If it gave credibility to both the blockade and the flotilla incident, then Turkey was upset. It took what Israel and Turkey wanted to hear and mashed it together.

      I’m not going to get into the actual legal arguments for either because I don’t think the commission gave a damn one way or the other. They just want two former allies to make up.

      • annie
        September 13, 2011, 2:14 pm

        It took what Israel and Turkey wanted to hear and mashed it together.

        oh please

  3. Richard Witty
    September 12, 2011, 8:14 pm

    “The main goal of the flotilla was to bring desperately needed humanitarian goods, primarily medical equipment, to Gaza’s hospitals and clinics. But a second important goal was to challenge the illegal blockade, end the siege, and protect the rights of the people of Gaza.”

    I believe, as do most advocates of the flotilla, that the primary purpose was to bring public attention to the blockade, moreso than to bring humanitarian supplies.

    The problem that I see with the dissent against the blockade is the absence of proposal of path that would accomplish the simultaneious goals of port services for Gazans with the Israeli need to prevent assaults on its civilians.

    Both the dissenting position AND the Israeli position are used to rationalize less than humane treatment of the other. The shelling by Hamas and other factions of Israeli towns is not inconsequential (continuing, including the assault on a school bus six months ago, for which Hamas took credit, delayed. Maybe acknowledged is a more accurate word).

    And, obviously the isolation of Gazans is not inconsequential, though conditions are different currently than in 2009.

    The best proposal that I’ve heard came from Meshal, which is to authorize international supervision of a Gaza port. He suggested Turkey, but that I don’t think that would be consented currently. His proposal was never taken up by the EU, by the US, by Israel, nor by pro-Palestinian dissent.

    The civil disobedience was desired, more than the objective change in Palestinians’ condition.

    I differ with the report on their statement that the ground access to Gaza through either Israeli border crossings, or through Egyptian, should be open.

    I’ve had numerous of experiences of borders being closed between contending, even periodically between friendly nations, extended closing.

    It is a country’s right to manage its borders.

    And, where an entity has only three access paths (Egypt, Israel, sea), it is important to maintain good international relations. Even currently, the Egyptian government is working to close the tunnels between Gaza and Egypt, and to restrict cross border transit, even more restrictive than through the Israeli crossings.

    Its not so simple.

    • Donald
      September 12, 2011, 10:10 pm

      In other words, Palestinian rights are at the mercy of Israel and Richard likes it that way. Israel and the Egyptian military can block land access and the UN (with Richard’s evident approval) says Israel can block sea access. Still, if the Palestinians behave themselves, he might allow them access to the sea they live on.

      I wonder what it might take to get Israel to behave itself. Perhaps something similar.

      • Richard Witty
        September 13, 2011, 7:20 am

        Its a “realist” perspective.

        There are many countries that are land-locked, and have borders with only one or two countries.

        Its like if you are a company and sell to only two customers. You have to maintain good relations with them. You can’t simultaneously provoke and keep the good relations.

        It is an appeal of the federal solution (more border relations), but if you desire that, you have to map out the path to it, and pursue it. You can’t rationalize going off-road thinking that it will be shorter and more reliable.

      • Chaos4700
        September 13, 2011, 9:18 am

        Witty, you were forced to put “realist” in air quotes. I think that tells us just how real your perspective is.

      • James North
        September 13, 2011, 10:00 am

        Richard Witty said, ‘Richard Falk and Phyllis Bennis are distinguished scholars. I don’t know the difference between “its” and “it’s.” But you should disregard them, and listen to me chime in once again.’

      • Richard Witty
        September 13, 2011, 10:48 am

        People can disagree with aspects of what “distinguished scholars” present. They are people, not God.

        I hope they would comment.

  4. piotr
    September 12, 2011, 8:34 pm

    I can imagine Uribe accepting the job of making a complete whitewash, and then fuming:

    “My people were making false positives for years [shooting civilians and collecting medals for killing terrorists] and I never seen such inept job! ”

    I followed some links about Uribe and it is more frightening than I thought. He is much admired for squashing a guerilla with a good dollop of atrocities. That would make him your average little fascist, perhaps more competent than most. The goons doing the job apparently were the newest reincarnation of Madellin cartel who took over large swaths of the country. OK, so he is a narco-fascist. Killing campesinos, unionists and local leftist officials just befits “average little fascist” although the scale makes one wonder if so average.

    Where the picture seems to blur is that after his presidency Colombia started to investigate the atrocities and some highly ranking deathsquad honcho were about to testify. Basically, amnesty in exchange for “whole truth”. At this point they were given to USA as narco traffickers. It seems that “we” have people who can testify against Uribe which could lead to him spending his declining years in prison.

  5. seafoid
    September 13, 2011, 8:15 am

    The Palmer report is about political power, not law.
    Israel was created from political power, not law.
    Israel’s oppression of the Palestinians is about political power, not law.

    Israel has gone so far beyond the ethnical boundary it couldn’t be lawful.

    Now it seems as though the paradigm is shifting. New political realities.
    Best of luck, Israel.

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