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Israel Given Two Bites of the Apple

Why the Palmer Report Deserves No Deference

by AUDREY BOMSE

Almost all the factual findings, as well as the legal analysis and conclusions of the recently leaked UN Secretary General’s Panel of Inquiry into the “Flotilla Incident” on May 31, 2010 (Palmer/Uribe Panel) directly contradict those of an earlier UN report of the Human Rights Council Fact-Finding Mission (FFM, whose conclusion that Israel’s blockade of Gaza, including the naval blockade is illegal, was just reaffirmed on September 13, 2011 by five independent UN rights Special Rapporteurs. In line with all statements Secretary- General Ban Ki-moon has made about Gaza, the Goldstone report, and statements by other international agencies, including the International Committee of the Red Cross (ICRC), these UN international law experts rejected the Palmer/Uribe conclusions and demanded that “[t]he Israeli blockade of Gaza must end immediately and the people of Gaza must be afforded protection in line with international law.”

For this reason, until a dispositive ruling by the International Court of Justice (ICJ) is issued on the legality of Israel’s closure of Gaza, including its naval blockade, and therefore on the lawfulness of Israel’s attack on the Mavi Marmara and other flotilla vessels, the findings, conclusions and recommendations of the Palmer/Uribe Panel deserve no deference.  States need not heed its recommendation to “dissuade” their citizens from trying to break the blockade.   The Free Gaza Movement and other civil society initiatives to challenge the blockade certainly do not intend to abandon our mission; our boats will sail again.

Turkey has declared its intention to submit the issue to the world court, while Israel unsurprisingly has indicated that it would not join in such a submission. This means that the only route to the ICJ would be referral by the UN General Assembly for an advisory opinion. All states sincerely interested in justice and respect for the rule of law should support Turkey’s initiative.

A serious point of contention between the two UN reports – a point of obvious concern to the Free Gaza Movement and our international partners – is the analysis of the conduct and motives of the Flotilla organizers and, more importantly, the appropriateness of civil society interventions in situations of long-standing humanitarian and human rights crises where States and international agencies are unwilling or unable to take positive action.

According to the Human Rights Council FFM, based on over 100 interviews: “All the passengers on board ships comprising the flotilla who appeared before the Mission impressed the members as persons genuinely committed to the spirit of humanitarianism and imbued with a deep and genuine concern for the welfare of the inhabitants of Gaza.”  On the other hand, the  Palmer/Uribe Panel, which did not interview anyone so could make no judgment concerning credibility, decided that while “[t]he majority of the flotilla participants had no violent intentions, there exist serious questions about the conduct, true nature and objectives of the flotilla organizers, particularly IHH,” the Turkish charity that owns the Mavi Marmara.

Concerning the role of civil society organizations, both those interested in alleviating crises and those addressing the causes that created the crises through political action, the FFM concluded that “too often they are accused as being meddlesome and at worst as terrorists or enemy agents.” The Palmer/Uribe Panel did exactly that when it concluded: “Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade… The actions of the flotilla needlessly carried the potential for escalation.” 

The FFM ended its report with a call for “an examination… to clearly define humanitarianism as distinct from humanitarian action so that there can be an agreed form of intervention and jurisdiction when humanitarian crises occur.”  It made clear that it understood the term ‘humanitarianism’ to refer to  both those interested in alleviating crises and those who, through political action, seek to address the causes that created the crises.

Free Gaza, the human rights activist organization that initiated the Flotilla and organized all previous attempts to sail to Gaza – but is not mentioned in the P/U report, so intent is it to demonize the Turkish participants  -  and its partners around the globe await such a definition. While we coordinate with groups primarily interested in delivering supplies to the people of Gaza, Free Gaza’s avowed purpose is to raise awareness of the blockade with a view to its removal.  Like the Freedom Riders before us, we consider it a moral responsibility of civil society to take direct action to confront longstanding injustice when our governments (and the UN) fail to do so.

In order to determine how much weight should be given to each of these contradictory reports, it would be useful to compare their composition and mandate.  The Palmer/Uribe Panel was comprised of politicians: Geoffrey Palmer, former Prime Minister of New Zealand was chairman, Alvaro Uribe, former president of Colombia, vice-chairman, a representative appointed by Turkey and one appointed by Israel.

The selection of ex-Colombian President Uribe as the Panel’s vice-chair brings into question the integrity and impartiality of the Panel, given allegations from human rights organizations concerning his intimate association with the military and paramilitary practice of murdering civilians in Colombia and his disdain for human rights defenders. Also troubling are Uribe’s associations with Israel which, during his term of office was Colombia’s top weapons supplier, an apparent conflict of interest not addressed in the Panel’s report.

Most importantly, representatives of the two the countries involved made up 50% of the panel. As the Human Rights Council FFM report observed, “…public confidence in any investigative process in circumstances such as the present is not enhanced when the subject of the investigation either investigates himself or plays a pivotal role in the process.”

The FFM, on the other hand, was comprised of international law experts: Judge Karl T Hudson-Phillips, retired Judge of the International Criminal Court as chairman, Sir Desmond de Silva, former Chief Prosecutor of the UN-backed Special Court for Sierra Leone and Ms Mary Shanthi Dairiam, founding member of the Board of Directors of the International Women’s Rights Action Watch. The mission was assisted by specialists in forensic pathology, military issues, firearms, the law of the sea and international humanitarian law, and was briefed by the UN Office for the Coordination of Humanitarian Affairs (OCHA), the UN Relief and Works Agency for Palestinian Refugees (UNRWA) and the Office of the Special Coordinator for the Middle East Peace Process (UNSCO).

Israel refused to cooperate with this independent fact-finding Mission, once again declining to participate in an inquiry not appointed by it or on which it was not significantly represented so that it could exert influence over the outcome.

The mandate of the FFM was “to investigate violations of international law, including international humanitarian law and human rights law” resulting from the Israeli interception of the Gaza bound flotilla. The limited mandate of the Palmer/Uribe Panel was not to perform its own investigation, but merely “to receive and review the reports of the national investigations [of Turkey and Israel]” with the ultimate aim “to positively affect the relationship between Turkey and Israel, as well as the overall situation in the Middle East” — a political goal it colossally failed to achieve.

In fact, the Panel was of the opinion that “[t]oo much legal analysis threatens to produce political paralysis. Whether what occurred here was legally defensible is important, but in diplomatic terms, it is not dispositive of what has become an important irritant not only in the relationship between two important nations but also in the Middle East generally.” As the Panel admitted, because its means of obtaining information were through diplomatic channels, it “cannot make definitive findings either of fact or law. But it can give its view.”

Since it was unable to reach consensus, the Palmer/Uribe Panel’s conclusions and recommendations represent no more than the view of two politicians, at least one whose objectivity is questionable.

The Panel report, with a strong dissent from the Turkish representative, essentially adopted Israel’s view, finding that the ‘naval blockade was legal,” that it “was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea,” that the blockade’s implementation “complied with the requirements of international law,” and that Israel had a “right to visit and search the vessel and to capture it if found in breach of a blockade”, including in international waters.  The Human Rights Council FFM, analyzing the same law and authorities as did the Palmer/Uribe Panel ( the UN Law of the Sea Convention (UNCLOS), the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (SRM) and the laws of armed conflict, in general), as well as evaluating evidence submitted to it by UN OCHA confirming the severe humanitarian situation in Gaza, concluded, on the contrary, that “the  blockade was inflicting disproportionate damage upon the civilian population in the Gaza Strip and as such the interception could not be justified and therefore has to be considered illegal.” 

The FFM called the existence of the humanitarian crisis in Gaza “totally intolerable and unacceptable in the 21st century,” and found that “for this reason alone the blockade is unlawful… regardless of the grounds on which it is sought to justify the legality…” The blockade “constitutes collective punishment of the civilian population in Gaza [which] is not lawful in the present or any circumstances.”  That conclusion was just reinforced by the five UN independent rights experts who stated that the blockade had subjected Gazans to collective punishment in “flagrant contravention of international human rights and humanitarian law.”

The Palmer/Uribe Panel limited the scope of its inquiry to the naval blockade of Gaza, disconnecting it from the control Israel exercises over access to Gaza via land and air. Although it called Israel’s policy on land access to Gaza “unsustainable,” the report failed to provide a credible legal analysis of the issue that was the reason for the Flotilla in the first place – Israel’s near hermetic closure, designed to restrict people and goods from entering or leaving Gaza.

The FFM, on the other hand, determined that the naval blockade was an integral part of the closure of Gaza intensified by Israel shortly after Hamas took control in the summer of 2007.

Blocking ships from reaching Gaza – including by preventing the construction of a deep sea port – was seen as part and parcel of Israel’s enforcement of the overall closure policy. The FFM’s understanding of the blockade of Gaza is shared by most international law experts and international agencies, including the five independent UN experts, the ICRC, which in June 2010, just days after the Flotilla was intercepted, declared that “the closure constitutes a collective punishment imposed in clear violation of Israel’s obligations under international humanitarian law” and that the only sustainable solution is the lifting of the closure.

Concerning the use of force against the flotilla, the FFM stated: ”Insofar as the Israeli interception of the flotilla was unlawful – and the Mission considers that it was unlawful – the use of force by the Israeli forces in seizing control of the Mavi Marmara and other vessels was prima facie unlawful…”  as was the detention of passengers and crew and the destruction or appropriation of passenger property. It found the confiscation of extensive video and photographic footage recorded by passengers was “a deliberate attempt by the Israeli authorities to destroy evidence” related to the interception.

The overall conclusion of the FFM was that “a series of violations of international law, including international humanitarian and human rights law were committed by the Israeli forces” and that, the victims of those violations have a right to an effective remedy.

About the only point of agreement between the two reports  – therefore the only established finding of fact – is that Israel used excessive and unnecessary violence against passengers. Israel’s decision to board the vessels with such substantial force, causing loss of life and injuries, was, in the words of the Palmer/Uribe Panel “excessive and unreasonable,”unacceptable.”  However, the Panel simply expressed its dismay at Israel’s inability to provide “adequate explanation” for the nine deaths or and its failure to explain, “why force was used to the extent that it produced such high levels of injury.” The FFM, on the other hand, finding it “difficult not to conclude that once the order to use live fire had been given, no one was safe,” concluded that “there is clear evidence to support prosecutions of the following crimes: wilful killing; torture or inhuman treatment; wilfully causing great suffering or serious injury to body or health.”

The Palmer/Uribe Panel found that “[t]here was significant mistreatment of passengers by Israeli authorities after the take-over of the vessels had been completed through until their deportation.”  The FFM determined that the treatment of passengers on board the Mavi Marmara, and in certain instances on the other vessels and later in detention by the Israeli military and police personnel “amounted to cruel, inhuman and degrading treatment,” and constituted criminal behaviour.

Israeli guns and inhuman treatment did not deter us; misguided condemnation by politically-motivated UN reports will not either. In conclusion, we reject the recommendation of the Palmer/Uribe Panel that all humanitarian missions wishing to assist the Gaza population should do so through established procedures and the designated land crossings in consultation with the Government of Israel and the Palestinian Authority.”

Freedom cannot come to Gaza through established Israeli procedures.

Audrey Bomse is co-chair of the National Lawyers Guild Free Palestine Subcommittee; she practiced law in the US for 20 years, worked in Jerusalem and Ramallah for six years as a human rights lawyer, and is now Legal Adviser to the Free Gaza Movement.