Opinion Editorials, September 2011

Gaza Not Represented in UN's Blockade Whitewash

By Stuart Littlewood

Stuart Littlewood analyses the conclusions of the UN’s Palmer inquiry into the fatal Israeli raid on the Gaza-bound Turkish aid ship Mavi Marmara: a “bizarre reframing of the situation – that the illegal occupier, Israel, is the victim of the Palestinians’ lawful resistance and that Israel’s security must be given priority over everyone else’s”.

According to the Palmer inquiry, brought to you by that freak-show, the United Nation, under its Secretary-General Ban Ki-Moon,

Israel faces a real threat to its security from militant groups in Gaza. 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... the flotilla acted recklessly in attempting to breach the naval blockade.

This is completely at odds with what other experts have said. The UN itself has already accepted that Israel's blockade is illegal. One of its own fact-finding missions declared that it constituted collective punishment of the people living in the Gaza Strip and thus was illegal and contrary to Article 33 of the Fourth Geneva Convention. The action by Israel’s military in intercepting the Mavi Marmara on the high seas was "clearly unlawful" and couldn’t be justified even under Article 51 of the Charter of the United Nations [the right of self-defence]. “No case can be made for the legality of the interception and the [UN fact-finding] mission therefore finds that the interception was illegal”.

The Centre for Constitutional Rights also concluded that the Israeli blockade was illegal. It said:

Due both to the legal nature of Israel’s relationship to Gaza – that of occupier – and the impact of the blockade on the civilian population, amounting to “collective punishment”, the blockade cannot be reconciled with the principles of international law, including international humanitarian law... The flotilla did not seek to travel to Israel, let alone “attack” Israel… Israel could have diplomatically engaged Turkey, arranged for a third party to verify there were no weapons onboard and then peacefully guided the vessel to Gaza.

Craig Murray also knows a thing or two about such matters, having headed the Maritime Section of Britain’s Foreign and Commonwealth Office. He was responsible for giving political and legal clearance to Royal Navy boarding operations in the Persian Gulf following the Iraqi invasion of Kuwait, to enforce the UN-authorized blockade against Iraqi weapons shipments. He commented:

Right of free passage is guaranteed by the UN Convention on the Law of the Seas... Israel has declared a blockade on Gaza and justified previous fatal attacks on neutral civilian vessels on the high seas in terms of enforcing that embargo, under the legal cover given by the San Remo Manual of International Law Applicable to Armed Conflicts at Sea.

But, he explains, San Remo only applies to blockade in times of armed conflict. “Israel is not currently engaged in an armed conflict… San Remo does not confer any right to impose a permanent blockade outwith times of armed conflict, and in fact specifically excludes as illegal a general blockade on an entire population.”

Furthermore, Security Council resolution 1860 (2009) emphasizes "the need to ensure sustained and regular flow of goods and people through the Gaza crossings" and calls for "the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment". Israel has imposed a land blockade for decades and until very recently had a hand in keeping Gaza's land crossing with Egypt closed. The 2005 Agreement on Movement and Access between the Palestinian Authority and Israel is also ignored. So, the only sensible channel for "unimpeded provision and distribution" is by sea.

Panel “cannot make definitive findings”

The Terms of Reference for the Palmer inquiry handed down by Ban Ki-Moon set out a “method of work”, which is described in the report this way:

The panel is not a court. It was not asked to make determinations of the legal issues or to adjudicate on liability...

The panel was required to obtain its information from the two nations primarily involved in its inquiry, Turkey and Israel, and other affected states... the limitation is important. It means that the panel cannot make definitive findings either of fact or law. The information for the panel’s work came primarily through its interactions with the points of contact designated by Israel and Turkey.

So, it could not summon individuals or approach individuals or organizations direct. It could only do so through the points of contact designated by Israel and Turkey.

The legal views of Israel and Turkey are no more authoritative or definitive than our own. A commission of inquiry is not a court any more than the panel is. The findings of a commission of inquiry bind no one, unlike those of a court. So, the legal issues at large in this matter have not been authoritatively determined by the two States involved and neither can they be by the panel.

The four-man panel included a representative each from the governments of Turkey and Israel, and was headed by Sir Geoffrey Palmer (Chair) and Alvaro Uribe, 58th president of Colombia. Palmer was the 33rd prime minister of New Zealand if that's any consolation.

Note the absence of anyone to represent the views of the party targeted by the blockade. Ban Ki-Moon didn't think it necessary to invite someone from (horror of horrors) the government of Gaza. Can you imagine, if the tables were turned, the merry hell Israel would kick up if not represented on an inquiry about the legality of a blockade on one of its ports?

Limited to this, couldn’t do that – Ban Ki-Moon’s inquiry was warped from the start. "This panel is unique. Its methods of inquiry are similarly unique," says the report, slitting its own throat.

Key passages from Palmer's nonsensical 105 pages speak for themselves:

The naval blockade is often discussed in tandem with the Israeli restrictions on the land crossings to Gaza. However, in the panel’s view, these are in fact two distinct concepts… the land crossings policy has been in place since long before the naval blockade was instituted. In particular, the tightening of border controls between Gaza and Israel came about after the takeover of Hamas in Gaza in June 2007. On the other hand, the naval blockade was imposed more than a year later, in January 2009. Second, Israel has always kept its policies on the land crossings separate from the naval blockade. The land restrictions have fluctuated in intensity over time but the naval blockade has not been altered since its imposition. Third, the naval blockade as a distinct legal measure was imposed primarily to enable a legally sound basis for Israel to exert control over ships attempting to reach Gaza with weapons and related goods.

Israel has faced and continues to face a real threat to its security from militant groups in Gaza. Rockets, missiles and mortar bombs have been launched from Gaza towards Israel since 2001. More than 5,000 were fired between 2005 and January 2009, when the naval blockade was imposed. Hundreds of thousands of Israeli civilians live in the range of these attacks... Since 2001 such attacks have caused more than 25 deaths and hundreds of injuries. The enormity of the psychological toll on the affected population cannot be underestimated. In addition, there have been substantial material losses. The purpose of these acts of violence, which have been repeatedly condemned by the international community, has been to do damage to the population of Israel. It seems obvious enough that stopping these violent acts was a necessary step for Israel to take in order to protect its people and to defend itself.

Did they never consider the most obvious step of all – ending their illegal occupation?

The Israeli report to the panel makes it clear that the naval blockade as a measure of the use of force was adopted for the purpose of defending its territory and population, and the panel accepts that was the case.

Although a blockade by definition imposes a restriction on all maritime traffic... the panel is not persuaded that the naval blockade was a disproportionate measure for Israel to have taken in response to the threat it faced.

The panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outside territory.

What about Gaza's right to similarly defend its territory and population? It sounds like the panel regards Gaza and the West Bank as the aggressor.

It would be illegal if its imposition [i.e. the blockade] was intended to starve or to collectively punish the civilian population. However, there is no material before the panel that would permit a finding confirming the allegations that Israel had either of those intentions or that the naval blockade was imposed in retaliation for the takeover of Hamas in Gaza or otherwise. On the contrary, it is evident that Israel had a military objective. The stated primary objective of the naval blockade was for security. It was to prevent weapons, ammunition, military supplies and people from entering Gaza and to stop Hamas operatives sailing away from Gaza with vessels filled with explosives… The earliest maritime interception operations to prevent weapons smuggling to Gaza predated the 2007 takeover of Hamas in Gaza. The actual naval blockade was imposed more than one year after that event. These factors alone indicate it was not imposed to punish its citizens for the election of Hamas.

A catalogue of distortion

There are several things wrong with these assertions. Israel’s unending acts of violence have also been repeatedly condemned by the international community and there’s a string of UN resolutions to prove it. But they are never implemented.

Israel slapped a naval blockade on Gaza long before January 2009. Israeli gunboats were shelling Gaza and shooting up Gazan fishing boats in 2007 when I was there. An interim agreement signed in 1995 allowed the Israelis to weave a tangled web of security zoning in Gaza's coastal waters and to dictate what happens off-shore and who comes and goes. It’s the sort of agreement no Palestinian would have signed except with a gun to his head.

Being “interim”, these restrictions were not expected to last beyond 1999. But they are still in force. They predate rockets from Gaza, speaking of which why doesn't Palmer, instead of trotting out details of these home-made missiles, tell us how many Israeli bombs, rockets, shells and prohibited ordnance have been fired at the Gazan population by Israeli jets, tanks and warships? Palmer talks about the 25 Israeli deaths and hundreds of injuries and “the enormity of the psychological toll” on the Israeli population. Regrettable as those casualties are, they are nothing compared with the mega-deaths and countless thousands maimed, the wholesale destruction of infrastructure and the psychological toll inflicted by Israel on the Gazans.

The people of Gaza couldn’t care less whether Israel keeps its policies on land and naval blockades “separate”. It’s the combined effect that counts.

As for the claim that the primary purpose of the blockade is security, the panel clearly hasn’t studied the WikiLeaks cables from 2008, one of which reads: “As part of their overall embargo plan against Gaza, Israeli officials have confirmed to (US embassy economic officers) on multiple occasions that they intend to keep the Gazan economy on the brink of collapse without quite pushing it over the edge." Israel wanted it "functioning at the lowest level possible consistent with avoiding a humanitarian crisis".

And according to documents released under a Freedom of Information petition by Gisha, an Israeli law centre, Israel operated "a policy of deliberate reduction" of basic goods in the Gaza Strip. Gisha’s director accused Israel of “paralyzing normal life in Gaza”. The documents confirmed that the siege was not for security reasons but aimed at keeping Gazans at near-starvation level. Since around half the population are growing children, this act of collective punishment has meant that hundreds of thousands are undernourished.

The panel might have asked why, since no rockets have been fired from the West Bank, the shredded remains of that part of Palestinian territory is still under occupation, blockade and cruel restriction?

Palmer, Uribe and Ban Ki-Moon need to wake up to Israel’s never-ending campaign of disinformation. Palmer, for example, repeatedly refers to “the takeover of Gaza” by Hamas when Hamas, as everyone else knows, was democratically elected.

It is Hamas that is firing the projectiles into Israel or is permitting others to do so. The panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outside its territory.

There’s nothing about Gaza’s right to self-defence or even self-preservation. Then this warning:

Once a blockade has been lawfully established, it needs to be understood that the blockading power can attack any vessel breaching the blockade if after prior warning the vessel intentionally and clearly refuses to stop or intentionally and clearly resists visit, search or capture. There is no right within those rules to breach a lawful blockade as a right of protest. Breaching a blockade is therefore a serious step involving the risk of death or injury.

Given that risk, it is in the interests of the international community to actively discourage attempts to breach a lawfully imposed blockade.

The imposition of a blockade involves the use of force, which can only be employed in the exercise of a right of self-defence. Measures taken by states in the exercise of their right of self-defence are required under Article 51 of the United Nations Charter to be notified to the Security Council.

Occupier is the victim of resistance?

So, Palmer’s bizarre reframing of the situation – that the illegal occupier, Israel, is the victim of the Palestinians’ lawful resistance and that Israel’s security must be given priority over everyone else’s – will have given Tel Aviv something to smirk about. Worse, it gives Israel and its stooges around the world reason to think they have a green light for imposing a permanent blockade, for Israel will always dream up bogus threats to its security.

But the Palmer report, surely, cuts both ways. By the same token it gives the green light to Palestine, if ever it obtains the weaponry to impose a blockade of its own, and to Lebanon, Syria, Iran and maybe Free Egypt, to play the naval blockade game against Israel, whose unsupervised nuclear arsenal, scant respect for international law and liking for armed trespass pose a much greater threat to the region than random garden-shed rockets from Gaza ever did.

And what does this whitewash mean for the Palestinians' UN bid for statehood? Is the newly fledged state to begin its young life with a land and sea blockade in place because Palmer and Uribe say it’s all legal and above board and Israel's security comes first? Let us not forget that the West Bank and East Jerusalem are under blockade too.

The Turkish representative on the panel, Süleyman Özdem Sanberk, has rightly dissociated himself from some of Palmer’s key 'findings':

On the legal aspect of the blockade, Turkey and Israel have submitted two opposing arguments. International legal authorities are divided on the matter since it is unprecedented, highly complex and the legal framework lacks codification. However, the chairmanship and its report fully associated itself with Israel and categorically dismissed the views of the other, despite the fact that the legal arguments presented by Turkey have been supported by the vast majority of the international community. Common sense and conscience dictate that the blockade is unlawful.

Also the UN Human Rights Council concluded that the blockade was unlawful. The Report of the Human Rights Council Fact-Finding Mission received widespread approval from the member states.

Freedom and safety of navigation on the high seas is a universally accepted rule of international law. There can be no exception from this longstanding principle unless there is a universal convergence of views.

The Palmer report deserves condemnation and is getting it. Such dangerous tripe belongs in the wastepaper basket. At the outset, the inquiry panel said it couldn’t make definitive findings and was not competent to determine the legal issues, yet it immediately set about concocting its own distorted judgement based especially on the dubious legal views of Israel, which it admitted are “no more authoritative or definitive than our own”.

So, what is the secretary-general’s mischievous game in setting this up?

As if we didn’t know.

Opinions expressed in various sections are the sole responsibility of their authors and they may not represent Al-Jazeerah & ccun.org.

editor@aljazeerah.info & editor@ccun.org