Another UN Failure: The Palmer Report on the Flotilla Incident of 31 May 2010

11 Sep


 

            When the UN Secretary General announced on 2 August 2010 that a Panel of Inquiry had been established to investigate the Israeli attacks of 31 May on the Mavi Marmara and five other ships carrying humanitarian aid to the beleaguered people of Gaza there was widespread hope that international law would be vindicated and the Israelis would finally be held accountable. With the release of the Palmer Report these hopes have been largely dashed as the report failed to address the central international law issues in a credible and satisfactory manner. Turkey, not surprisingly, responded strongly that it was not prepared to live with the central finding of the 105 page report reaching the astonishing conclusions that the Israeli blockade of the Gaza Strip is lawful and could be enforced by Israel against a humanitarian mission even in international waters.

 

            Perhaps this outcome should not be so surprising after all. The Panel as appointed was woefully ill-equipped to render an authoritative result. Geoffrey Palmer, the Chair of the Panel, although a respected public figure, being the former Prime Minister of New Zealand and an environmental law professor, was not particularly knowledgeable about either the international law of the sea or the law of war. And incredibly, the only other independent member of the Panel was Alvaro Uribe, the former President of Colombia, with no professional credentials relevant to the issues under consideration, and notorious both for his horrible human rights record while holding office and forging intimate ties with Israel by way of arms purchases and diplomatic cooperation that was acknowledged by ‘The Light Unto The Nations’ award given by the American Jewish Committee that should have been sufficient by itself to cast doubt on his suitability for this appointment. His presence on the panel compromised the integrity of the process, and made one wonder how could such an appointment can be explained, let alone justified.  Turkey’s agreement to participate in such a panel was itself, it now becomes clear, a serious diplomatic failure. It should have insisted on a panel with more qualified, and less aligned, members.

 

The other two members of the panel were designated by the governments of Israel and Turkey, and predictably appended partisan dissents to those portions of the report that criticized the position taken by their respective governments. Another unacceptable limitation of the report was that the Panel was constrained by its terms of reference that prohibited reliance on any materials other than what was presented in the two national reports submitted by the contending governments. With these considerations in mind, we can only wonder why the Secretary General would have established a formal process so ill-equipped to reach findings that would put the legal controversy to rest and resolve diplomatic tensions, which it has certainly failed to do. Such deficient foresight is itself one of the notable outcomes of this unfortunate UN effort to achieve the peaceful resolution of an international dispute.

 

            Even such an ill-conceived panel did not altogether endorse Israeli behavior on 31 May. The panel found that Israel used excessive force and seemed legally and morally responsible for the deaths of the nine passengers on the Mavi Marmara, instructing Israel to pay compensation and issue a statement of regret. In other words the Palmer Report seems to fault seriously the manner by which the Israeli enforced the blockade, but unfortunately upheld the underlying legality of both the blockade and the right of enforcement, and that is the rub. Such a conclusion contradicted the earlier finding of a more expert panel established by the Human Rights Council, as well as rejected the overwhelming consensus that had been expressed by qualified international law specialists on these core issues. A gross inadequacy of the report was to separate the assessment of the blockade as if exclusively concerned with Israeli security, and ignore its essential role in imposing an intolerable regime of collective punishment on the population of Gaza that has lasted for more than four years.

 

            While the Panel delayed the report several times to give diplomacy a chance to resolve the contested issues, Israel and Turkey could never quite reach closure. There were intriguing reports along the way that unpublicized discussions between representatives of the two governments had agreed upon  a compromise arrangement consisting of Israel’s readiness to offer Turkey a formal apology and to compensate the families of those killed as well as those wounded during the attack, but when the time for announcing such a resolution of this conflict, Israel refused to go along. In particular, the Israeli Prime Minister, Benjamin Netanyahu, seemed unwilling to take the last step, claiming that it would demoralize the citizenry of Israel and signal weakness to Israel’s enemies in the region. More cynical observers believed that the Israeli refusal to resolve the conflict was a reflection of domestic politics, especially Netanyahu’s rivalry with the even more extremist political figure, Foreign Minister, Avigdor Lieberman, who was forever accusing Netanyahu of being a wimpy leader and made no secret of his own ambition to be the next Israeli head of state. Whatever the true mix of reasons, the diplomatic track failed, despite cheerleading from Washington that openly took the position that resolving this conflict had become a high priority for American foreign policy. And so the Palmer Report assumed a greater role than might have been anticipated for what was supposed to be no more than a technical inquiry about issues of law and fact. After the feverish diplomatic efforts failed, the Palmer panel seemed to offer the last chance for the parties to reach a mutually satisfactory resolution based on the application of the international law and resulting recommendations that would delimit what must be done to overcome any violations that had taken place during the attack on the flotilla.

 

            But to be satisfactory, the report had to interpret the legal issues in a reasonable and responsible manner. This meant, above all else, that the underlying blockade imposed more than four years ago on the 1.6 million Palestinians living in Gaza was unlawful, and should be immediately lifted. On this basis, the enforcement by way of the 31 May attacks was unlawful, an offense aggravated by being the gross interference with freedom of navigation on the high seas, and further aggravated by producing nine deaths among the humanitarian workers and peace activists on the Mavi Marmara and by Israeli harassing and abusive behavior toward the rest of the passengers. Such conclusions should have been reached without difficulty by the panel, so obvious were these determinations from the perspective of international law as to leave little room for reasonable doubt. But this was not to be, and the report as written is a step backward from the fundamental effort of international law to limit permissible uses of international force to situations of established defensive necessity, and even then, to ensure that the scale of force employed, was proportional, respectful of civilian innocence, and weighed security claims against harmful humanitarian effects. It is a further step back to the extent that it purports to allow a state to enforce on the high seas a blockade, condemned around the world for its cruelty and damaging impact on civilian mental and physical health, a blockade that has deliberately deprived the people of Gaza of the necessities of life as well as locked them into a crowded and impoverished space that has been mercilessly attacked with modern weaponry from time to time.

 

            Given these stark realities it is little wonder that the Turkish Government reacted with anger and disclosed their resolve to proceed in a manner that expresses not only its sense of law and justice, but also reflects Turkish efforts in recent years to base regional relations on principles of fairness and mutual respect.  The Turkish Foreign Minister, realizing that the results reached by the Palmer Panel were unacceptable, formulated his own Plan B. This consisted of responses not only to the report, but to the failure of Israel to act responsibly and constructively on its own by offering a formal apology and setting up adequate compensation arrangements. Israel had more than a year to meet these minimal Turkish demands, and showed its unwillingness to do so. As Mr. Davutoglu made clear this Turkish response was not intended to produce an encounter with Israel, but to put the relations between the countries back on ‘the right track.’ I believe that this is the correct approach under the circumstances as it takes international law seriously, and rests policy on issues of principle and prudence rather than opts for geopolitical opportunism. As Davutoglu said plainly, “The time has come for Israel to pay a price for its illegal action. The price, first of all, is being deprived of Turkey’s friendship.”

 

            And this withdrawal of friendship is not just symbolic. Turkey has downgraded diplomatic representation, expelling the Israeli ambassador from Ankara and maintaining inter-governmental relations at the measly level of second secretary. Beyond this all forms of military cooperation are suspended, and Turkey indicated that it intends to strengthen its naval presence in the Eastern Mediterranean. As well, Turkey has indicated that it will initiate action within the General Assembly to seek an Advisory Opinion from the International Court of Justice as to the legality of the blockade. What is sadly evident is that Israeli internal politics have become so belligerent and militarist that the political leaders in the country are hamstrung, unable to take a foreign policy initiative that is manifestly in their national interest. For Israel to lose Turkey’s friendship is second only to losing America’s support, and coupled with the more democratic-driven policies of the Arab Spring, this alienation of Ankara is a major setback for Israel’s future in the region, underscored during the last several days by the angry anti-Israeli protests in Cairo.

 

            What is more, the Turkish refusal to swallow the findings of the Palmer Report adopts a political posture that is bound to have a popular resonance throughout the Middle East and beyond. At a time when some of Turkey’s earlier diplomatic initiatives have run into difficulties, most evidently in Syria, this stand on behalf of the victimized population of Gaza represents a rare display by a government of placing values above interests. The people of Gaza are weak, abused, and vulnerable. In contrast, Israel is a military powerhouse, economically prospering, a valuable trading partner for Turkey, and having in the background an ace in the hole– the United States ever ready to pay a pretty penny if it could induce a rapprochement, thereby avoiding the awkwardness of dealing with this breakdown between its two most significant strategic partners in the Middle East. We should also keep in mind that the passengers on these flotilla ships were mainly idealists, seeking nonviolently to overcome a humanitarian ordeal that the UN and the interplay of national governments had been unable and unwilling to address for several years. This initiative by civil society activists deserved the support and solidarity of the world, not discouragement from the UN and a slap on the wrist by being chastened by the Palmer report’s view that their actions were irresponsible and provocative rather than empathetic and courageous.

 

            Israel has managed up to now to avoid paying the price for defying international law. For decades it has been building unlawful settlements in occupied West Bank and East Jerusalem. It has used excessive violence and relied on state terror on numerous occasions in dealing with Palestinian resistance, and has subjected the people of Gaza to sustained and extreme forms of collective punishment. It attacked villages and neighborhood of Beirut mercilessly in 2006, launched its massive campaign from land, sea, and air for three weeks at the end of 2008 against a defenseless Gaza, and then shocked world opinion with its violence against the Mavi Marmara in its nighttime attack in 2010. It should have been made to pay the price long ago for this pattern of defying international law, above all by the United Nations. If Turkey sustains its position it will finally send a message to Tel Aviv that the wellbeing and security of Israel in the future will depend on a change of course in its relation to both the Palestinians, its regional neighbors, and to the international community. The days of flaunting international law and fundamental human rights are no longer policy options for Israel that have no downside. Turkey is dramatically demonstrating that there can be a decided downside to Israeli flagrant lawlessness. 

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13 Responses to “Another UN Failure: The Palmer Report on the Flotilla Incident of 31 May 2010”

  1. deepaktripathi September 11, 2011 at 2:41 am #

    Very insightful. I reported (as a BBC man) in 1989 from Nepal after the Indian Prime Minister Rajiv Gandhi’s government, angry with among other things Nepal’s growing ties with China, took the decision to blockade the Himalayan state. Serious doubts were cast over the lack of legality of that blockade. The Congress Party was defeated in 1990 and the new prime minister, V.P. Singh, and Nepal found a formula to end the blockade after a year. The period was one of extreme hardship for many Nepalis as I saw.

    What is going to be the impact of the Palmer report on the Gaza blockade on international law? Can future blockaders argue, and get away with it, by citing this report? And what would the ICJ likely do? It would be very useful to have your view on this.

    Deepak

    • edwin September 11, 2011 at 8:05 am #

      I too would like to thank you for this article. As well, I am interested in what the impact of the Palmer report will be.

      Are we moving towards a time of dismantling of international law or will the ICJ actually amount to more than a means of the powerful to control the weak?

      • Richard Falk September 12, 2011 at 1:29 am #

        I think the main impact of the Palmer Report has been and will be to create tension in the region by worsening Turkey/Israel relations.

        There is this crucial struggle in the background to move the international relations from a domain of violence and hard power to one of law and soft power. No one can say how this struggle will end, but its outcome will shape our prospects as nations, and even as a species.

    • Richard Falk September 12, 2011 at 1:33 am #

      Deepak: I had not known about this Nepalese blockade. Certainly relevant.

      You raise large questions about the impact of the Palmer Report on Gaza and the future, as well as how these issues would fare if presented to the ICJ. I must think further before attempting a response. With my greetings, Richard

  2. John September 11, 2011 at 4:43 am #

    P.S. By the way, why are we not paying more attention to the Palmer Report’s allusion to how the Israeli military seems to have executed most of the Turks — “Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not beenadequately accounted for in the material presented by Israel.“ I would say that good journalism would require allocating a little more real estate to that topic. Here is a piece of good journalism —

    “US Citizen Executed In Israeli Flotilla Raid?”

  3. Richard Fairbanks September 11, 2011 at 11:07 am #

    Thank you for such a passionate and articulate post, Richard! To ignore the right of a ship in international waters to defend itself against violent attack was also a glaring omission of the Palmer report.

    There is much debate about the recognition of Palestine at the UN this month, based on the 1967 borders. There is confusion as to which borders are being discussed, the pre- or post-6-day war borders. Your thoughts?

    • Richard Falk September 12, 2011 at 1:26 am #

      Thanks for your supportive comment.

      My understanding of the 1967 borders is what has been called ‘the green line,’ prevailing prior to the 1967 war. Of course, Israel calls those borders into question by the claim that they are ‘indefensible’ as if Israel faces a threat of invasion. And, of course, by continue with the settlement process. These 1967 borders, it should be remembered, are only 22% of historic Palestine, and less than half of the UN partition plan of 1947, which at the time seemed unfair to the Palestinians.

  4. Albert Guillaume September 11, 2011 at 11:44 am #

    Israel has singlehandedly made a mockery out of the UN,which it rendered a useless body by forcing the US to time and again the use its veto power on behalf of Israel.
    Israel does not have world opinion on its side,nor international law,only the physical military might and the abuse of it.
    I see this whole issue as a fight between two opposing ideologies and that fight unfortunately seems to be going for a final showdown,which will make Albert Einstein`s prediction come true when he said:”I don`t know,what weapons will be used in WW3,but WW4 will be fought again with sticks ans stones”.For once,for the sake of humanity,I hope he was wrong this time,but I can`t find much reason for optimism.I don`t want to end up envying the dead.

    • Richard Falk September 12, 2011 at 1:22 am #

      I share these concerns, and hope that some kind of unexpected intrusion on such a projection prevents the worst. I believe we are not smart enough as a species, even the great seer, Einstein, to be pessimistic.

  5. monalisa September 12, 2011 at 5:58 am #

    Dear Richard,
    thank you for your very indepth writing/essay.

    I fear too the worst this because if the UN is just working for superpower/s this means that sooner or later our wolrd is heading to a world war scenario of number III.
    Considering that there are drones already, that there are since the Gulf war warheads with DU material used, me too, I think we have maybe to face some terrible things coming.
    Our human species has fallen too much for greed, either power or money or both, and this will do no good neither for our species nor for our earth – we all share the air on our globe.

    However, I have some questions:
    1) Israel uses horrible punishments to Palestinian people.
    As long as they are taking their land, demolishing their houses, hospitals, schools and so on, doesn’t arise the question that the Israeli government can also be requested to show up at the Internatinal Courts and to be on trial for murder as well as inhuman and apartheit reasons against Palestinians ?
    How many Palestinians have been murdered ? How many have been in an open air prsion ? How many have to leave their homes ? their homeland ?

    2) Concerning the non-acceptance of a Plästinian state:
    in this case it is clear that Israelis are doing crimes to people in their own country.
    Wouldn’t this qualify for some deeper questions and the trial at International Courts ?
    I ask this because some Western countries are so very quick to damn other countries for similar reasons ?

    I am just wondering how long this will go on ..

    By the way I cannot hold back my opinion: I regard the Israeli government, or at least some people in it, for very unwise – nothing has been built to look forward for their own people, nothing.
    What would be if Israel doesn’t get so much support as it still gets and would have to stand on its own ?
    Do they think these supports will go on and go on …. especially in the light of some countries with very high debts …
    I wonder … to built a state on the support of other states and at the same time always willing to go on war with the surrounding states ? Very unbalanced way of thinking.
    This because we all don’t know what will be tomorrow or after tomorrow. To think that after tomorrow it will be the same as today is – in my opinion – a totally wrong way of thinking.

    There are several other powers emerging economically but who knows ? Seeing how much money a superpower puts into its military they will maybe start to spend also more on military expenses …

    monalisa

  6. phronos September 12, 2011 at 8:23 am #

    Thanks Richard,

    I’m just reading your first (?) book “Law, Morality and War in the Contemporary World”, where you often put “power” or “force” at the end of the triad. What I’m learning about is the intricate interplay you see between: International Law, Morality and the POWER of the Military-Industrial-MEDIA complex, of which the threat of war is a strong weapon.

    Only one of 5 in the Palmer Commission had the moral sensitivity and courage to stand up for Justice based on sound moral instincts.

    Why do so few react to and why do we hear so little about the illegal occupation in Palestine and the unlawful treatment of Palestinians?

    Because the M-I-M Complex is against justice being served, but in the long run, I think more and more members of the M-I-M Complex will end up supporting the Palestinians’ demand for justice.

    So keep informing as many as possible!

    If anyone isn’t familiar with the ongoing Russell Tribunal on Palestine, please visit their homepage :)

    Best regards,

    Karl Stefan Andersson

    (at the Bertrand Russell Archives at McMaster University working on a book about the War Crimes Tribunal on Vietnam, which Russell initiated. BTW Russell’s last message was taken down 3 days before he died on the 2nd of February 1970 and it was to the International Conference of Parliamentarians in Cairo.and he was very upset by the wickedness of the Israelis. Russell lived to be almost 98, so I hope you Richard have at least another 20 years ahead of you of informing the public about what goes on in the world in the light of International Law and our best moral judgement.)

  7. Maryam ruhullah September 12, 2011 at 12:29 pm #

    It is inportant that the truth of 911 comes forward as this truth could lead to the discovery of other acts of misconduct of the government. I am a survivor of Mk-Ultra which is a US government human experimentation program. Althought the government would state that Mk-Ultra ended in the 1970’s or a little later this is not a true fact because the survivors have anot been compensated nor acknowledged.

    In asking for a further investigation of 911, a great deal more could be uncovered. I sincerely and personall appreciate every effort toward any search for truth.

    Sincerely,

    Maryam Ruhullah

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