The legal flaws of the Palmer Commission flotilla report

13 Sep

The post below is jointly written with Phyllis Bennis, outstanding  journalist, author, and public intellectual who long been concerned with Israel/Palestine conflict, as well as more generally with American foreign policy.  It also appears on the Mondoweiss blog.

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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.

 

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17 Responses to “The legal flaws of the Palmer Commission flotilla report”

  1. phronos September 13, 2011 at 8:28 am #

    Thanks!

    This is very upsetting! The UN should be ashamed. There should be a new and bigger investigation to set things right!

    Keep up the good fight!

    Dr Karl Andersson

    (working on a book about the Vietnam War Crimes Tribunal initiated by Bertrand Russell in 1967 and dedicated to the victims of Agent Orange and other illegal methods of war)

  2. monalisa September 13, 2011 at 10:47 am #

    Dear Richard and Phyllis,
    Thank you both for a more detailed viewpoint of this Palmer report.

    Could this outcome of a so-called investigation report used in future as a precedent ?
    Murdering people in international waters and not be put on trial because “a country doesn’t want that its inhabitants gets some humanitarian aid” (Gaza/Palästina doesn’t exist officially whereas Israel does – as I see it; neither Palaestina nor Gaza are officially as a country listed).

    monalisa

  3. RichardL September 14, 2011 at 1:24 am #

    Dear Prof Falk,

    It was encouraging to read that you and four other international experts of renown have written to publicly condemn the Palmer Mission’s findings. It is to be hoped that the issue of legality will soon be put before the ICJ so that this matter can be cleared up once and for all.

    Of the many failings of the Inquiry one of the most important was its acceptance of the Turkel Commission’s report as a factual document. In this regard I would like to draw to your attention to my analysis of Turkel which uses extensive use of photographs to assess the validity of some of the statements in that report.

    http://australiansforpalestine.net/wp-content/uploads/2011/03/A-Critique-of-Errors-and-Omissions-in-the-Report-of-the-Commission-for-Examining-the-Maritime-Incident-of-May-31.pdf

    This is of particular significance to Palmer’s dismissive coverage of the capture of the three Israeli commandos in para 125 which includes the sentence
    “It is established to the Panel’s satisfaction that the three soldiers in question were captured, mistreated and placed at risk during the incident.” The photographs that are available show that this is a serious misrepresentation of the facts, and that the Panel has unfairly bought the false Israeli narrative here.

  4. Ahmet Mustafa Osam September 14, 2011 at 8:28 am #

    September 14 th 2011
    London

    Dear Professor Falk,

    We read your comments with interest, and declare that your findings are as disturbing as ours on different grounds.

    Firstly the voting rights of the panel was very concerning .

    Secondly this is a panel which reported to United Nations Secretary General in a blessed unawareness of the role of the office it played in the transformation of the juristic concept of self-determination initially meaning non subjugation of people , to international juristic precept and therefore to an international legal norm over a twenty one year period with the Matter of South West Africa 1949-1971 not to mention Western Sahara , Burkina Faso vs. Mali and East Timor 1996.

    How can such a panel over look the fundamental breach of every legal norm that forms modern international law of state creation, succession and annexation and deprivation of fundamental rights and legal liberties?

    Opposition to subjugation of people by alien power should be pacifically made. But when negotiated settlement since 1948 and all the UN good offices attempts since 1948 led to no where one remembers Namibia ruling of International Court of Justice (1971) . Court righty rejected the argument of the Mandatory that she was still suing for an agreement to transfer the mandated territory to UN Trusteeship by pointing out that the Mandatory by her actions and declarations since the dissolution League of Nations and Creation of the United Nations, had no intention to agree for the transfer. Conclusion Mandatory sought was an implied assumption of sovereignty when grant was rejected by UN General Assembly as the Mandate did no bestow sovereignty.

    The entire decolonisation era was literally was synonymous with cold war and it was a contest between those who rejected alien subjugation and those attempted to perpetuate it .
    Since the panel rejects peaceful demonstration in international waters against alien subjugation then it runs contrary to purpose and principles of international law asserted by UN Charter.
    The panel rightly focused on rights of self-defence yet its findings were not helpful. If greater powers then Israel gather to assert the rights of the Palestinian’s rights to self-defence , whose right for self-defence are legitimate; those who breach humanitarian laws of war, as well as human rights of laws of peace, or of those who attempt to uphold them?

    The panel’s findings are not helpful if it leads to an escalation of tension in the region.
    This it has succeeded in achieving it .

    Yours respectfully
    Ahmet Mustafa Osam
    Global Mediation Reconstruction and Reconciliation

  5. Phillip Thomas September 14, 2011 at 2:51 pm #

    Dear Prof Falk,

    Whilst I have enjoyed your writings over many years, I can not see how you can be so subjective when you say that the humanitarian activitists on board the Mavi Marmara were peaceful!!! If they were so peaceful, why did they have immediate access to a wide variety of weapons when the Israeli soldiers made their way on board.

    With this in mind, I think the only way we can get to a just ending for Palestine is for both camps to let go of their subjective sacred cows and come together in an objective and reasoned way. Personally, I think the place to do this is at the UN next week, but that is just my opinion.

    On the Palmer report, I agree that the analysis of UNCLOS and humanitarian law and the impact of both on the Gaza blockade is deeply flawed.

    Phil

  6. Diane V. McLoughlin October 15, 2011 at 4:33 pm #

    Sharing, my analysis of the Palmer Report: http://www.mcloughlinpost.com/Palmer-Report–Not-Definitive-In-Fact-or-Law.html

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