The Palmer Report's fatal flaws
The authors of the Palmer Report into the Israeli attack on the 2010 Peace Flotilla to Gaza have blinkered themselves to the most obvious recommendations of all, writes Julie Webb-Pullman from Gaza
The most fundamental flaw of the Palmer Report on the Israeli attack on the Peace Flotilla sailing to Gaza on 31 May 2010 is its one-eyed view of security, and the second is its exceeding of its own terms of reference.
While the report upholds, and goes into considerable detail about, Israel's right to security and the firing of weapons into Israel from Gaza and the killing of 25 Israelis since 2001, it completely ignores Gaza's -- or the Palestinians' -- right to security and the innumerable military attacks on Gaza by Israel.
According to an Israeli Human Rights group, these have killed more than 4,500 people, with 41 Israeli air strikes in recent weeks alone killing another 17. It also ignores Israel's continuous invasions and incursions into Palestinian territory, which are against international law and in breach of some 80 UN Security Council Resolutions.
If the claimed purpose of the Palmer Report is to "avoid similar incidents in future," it would be more appropriate to address the root cause of the Flotilla incident, which was Israel's illegal occupation of Palestinian territories and its ongoing military assaults on Gaza. Even the weapons Israel uses for the latter are disproportionate: while Gazan groups use home-made, inaccurate and usually ineffective weapons that rarely result in injury, let alone death, Israel favours high-tech, brutally effective -- and illegal -- weapons that almost always maim and kill.
The Palmer panel and the United Nations would do better to prevail upon Israel to observe international law, as embodied in UN Security Council Resolutions and international conventions, than do "book reviews" that do nothing but give Israel more ammunition to legitimise its genocide of the Palestinians.
It needs to be clearly stated that rockets fired into Israel from Gaza, and efforts by international civil society to alleviate the suffering caused by the illegal Israeli siege of Gaza, are effects that directly flow from the root cause of Israel's persistent and ongoing refusal to observe international law, or even internationally-determined borders.
The report's terms of reference make it clear that it was never intended to be anything other than a whitewash. In Article 2, the authors state that the panel drawing up the report "will receive and review interim and final reports of national investigations into the incident" -- in other words, do a book review and call it a report, and "may request such clarifications and information as it may require from relevant national authorities."
Note that this does not say that the panel will obtain or assess original or direct evidence, nor even obtain witness testimonies or examine or cross-examine witnesses. Instead, its "points of contact" will be the "relevant national authorities".
Article 3 states that "in the light of the information so gathered the panel will examine and identify the facts, circumstances and context of the incident." Given its limited terms of reference, this can only be on the basis of what the national authorities report -- a veritable exercise in Chinese whispers and a poor substitute for due process. This is very unlikely to establish the facts, circumstances and context of the incident such that any meaningful recommendations can be made.
Article 3 continues that the panel will "consider and recommend ways of avoiding similar incidents in the future." The most obvious recommendation it could make would be that Israel observe UN Security Council Resolutions and international law, such that defensive actions from Gaza, and humanitarian convoys to alleviate suffering in the territory, are no longer necessary.
The Palmer panel's limited assessment of the evidence, and obsession with Israel's right to security, seems to have blinkered it to this, the most obvious recommendation of all.
A LEGAL NAVAL BLOCKADE? While Israel and the mainstream media have touted the Palmer Report as finding Israel's naval blockade of Gaza to be legal, a closer reading shows no such thing.
If anything, the report shows that the Palmer panel exceeded its own terms of reference, with the two chairs taking it upon themselves to lay the so-called "secure legal foundations" that served as the basis for their findings and recommendations, despite acknowledging that they had no grounds to do so.
In its own words, the panel states in paragraph 5 of the Introduction to the report that "it needs to be understood from the outset that this Panel is unique. Its methods of inquiry are similarly unique. The Panel is not a court. It was not asked to make determinations of the legal issues or to adjudicate on liability." And this "means that the Panel cannot make definitive findings either of fact or law."
Why, then, does a later paragraph, number 73, say that "the Panel considers the conflict should be treated as an international one for the purposes of the law of blockade"? And paragraph 81 to state that, "the Panel therefore concludes that Israel's naval blockade was legal"?
These findings are clearly outside the report's terms of reference, even if they are findings on which subsequent statements rely, such as that "the naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law."
Such contradictions can be explained by an appendix to the report, which states that "the Chair and Vice-Chair provide our own account of the principles of public international law that apply to the events under review" -- in order to put their findings and recommendations "on a secure legal foundation" of their own invention.
Yet, they do not even require Israel to fulfil its obligations to declare a blockade by notifying it to the UN Security Council according to processes outlined in Article 51 of the UN Charter. Posting news of the blockade on a few Israeli Websites is apparently good enough. This makes a mockery of both the report's terms of reference and of the considerable body of highly-qualified international legal opinion that disagrees with the position of the authors of the report, which they explicitly choose to ignore, preferring their own. It ensures that the supposed secure legal foundations of the report, and all the findings and recommendations based on them, are nothing but a house of cards.
In sum, the Palmer Report not only exceeds its own terms of reference, but it is also internally inconsistent and in conflict with other reputable legal opinions, including those of other UN agencies.
EXTRA-TERRITORIALITY OF THE BLOCKADE: A curious omission from the legal deliberations on the legitimacy of the Israeli naval blockade, inappropriate as they are, is the attack on the Mavi Marmara 72 nautical miles from the coast and 64 nautical miles from the blockade zone. This goes way beyond enforcing a legitimate naval blockade, which extends at most 20 nautical miles from the coast, making the Israeli action into an extra-territorial application of the Gaza blockade in international waters.
This has serious implications in international law, which the panel chooses not to discuss in the report, but that are directly relevant to the prevention of further incidents.
A further example of one of the Report's more curious justifications for not finding the Israeli naval blockade disproportionate is the statement in paragraph 78 that "the prospect of delivering significant supplies to Gaza by sea is very low" because of the lack of port facilities.
The fact that these same port facilities were destroyed by Israel in 2001 appears to be too insignificant to mention. Gaza's port has been used for thousands of years for the delivery of "bulk supplies" through Gaza to Europe, and back again. Large ships used to moor offshore, and smaller vessels, of which there are thousands, transferred the goods to port. Gazans were doing this until late in the last century, and many Gazan men recall watching this as a favorite pastime as children.
There is no reason why such methods could not be used today, except for the Israeli naval blockade. That these methods might be "inefficient" in the panel's view speaks more of its arrogance and failure to appreciate the conditions on the ground in Gaza, than it does of the need to get supplies into the territory to meet the very real needs that exist, as has been repeatedly stated by the numerous international NGOs and UN agencies working in Gaza.
USE OF 'ESTABLISHED PROCEDURES': Any remaining shred of credibility of the Report is destroyed by a bizarre statement in paragraph 154, which flies in the face of all available evidence. This statement says that "the Government of Israel has taken significant steps to ease the restrictions on goods entering Gaza since the 31 May 2010 incident."
With regard to future prevention, there is an even more bizarre recommendation in paragraph iv to the effect 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."
In making these statements, the panel has ignored not only the reality on the ground in relation to the so-called easing of restrictions, as reported by numerous NGOs, but also UN assessments such as that of the Office for the Coordination of Humanitarian Affairs, published in March 2011.
This stated that "the partial lifting of import restrictions... increased the availability of consumer goods and some raw materials...
However, due to the pivotal nature of the remaining restrictions, this relaxation did not result in a significant improvement in people's livelihoods."
It went on to say that despite 100 water and sanitation and education and health projects being approved, "while the potential benefit of these projects, once implemented, is significant, due to the recurrent delays in implementation, the population has so far not experienced any improvement in the quality of services."
Finally, statements from both the Israeli and Turkish participants contained in the Report indicate that far from coming to the consensus decisions required of it, the Palmer Report is based on selective, and self-determined, legal views that are arrived at despite the panel's terms of reference. The report's authors are one-eyed in their application of rights -- to security, to self-defence and to provide humanitarian aid as, when and where it is needed.
Most significantly, the selective condemnation of homemade rocket attacks from Gaza, while failing to condemn Israel's use of prohibited weapons against civilian targets in a clear exercise of the collective punishment of a trapped population, almost beggars belief.
The writer is a New Zealand activist based in Gaza who has participated in several human rights observation missions.
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