Tuesday, September 13, 2011

The Palmer Commission Report

In August 2010 the UN Secretary General established a “Panel of Inquiry” to investigate Israel’s May 31 attack on the international flotilla that sought to defy the Israeli blockade of Gaza to bring supplies—and moral support—to the Gazan people. Israeli commandoes attacked the main ship in the flotilla, the Mavi Marmara, killing nine people.

The Panel of Inquiry is widely known as the Palmer Commission after its Chair, Sir Geoffrey Palmer, a professor of law and former prime minister of New Zealand. There were three other members. The Vice Chair was Alvaro Uribe, the outgoing rightwing President of Colombia, whose administration was widely accused of systematic human rights violations, but who was a longtime favorite of both the U.S. and Israeli governments. In 2007 the American Jewish Committee gave Uribe its "Light Unto The Nations" award, and in 2009 George Bush awarded Uribe the Presidential Medal of Freedom, the highest U.S. civilian award. The other two members of the “investigation” were the interested parties in the conflict, representing Israel and Turkey, (from which the flotilla had departed, with a number of Turkish citizens aboard).

In July 2011 the Palmer Committee issued its report, the full text of which was leaked to the New York Times and subsequently became available on the internet: http://graphics8.nytimes.com/packages/pdf/world/Palmer-Committee-Final-report.pdf. The summary of the Report’s findings explained the limited scope and methods of the inquiry: “The Panel is not a court. It was not asked to make determinations of the legal issues….The Panel’s means of obtaining information were through diplomatic channels….[and it] had no coercive powers to compel witnesses to provide evidence. It could not conduct criminal investigations. The Panel was required to obtain its information from the two nations primarily involved in its inquiry, Turkey and Israel.”

The Report concedes that these limitations were important, for they meant that “the Panel cannot make definitive findings either of fact or law.” Still, it concluded: “But it can give its view:”—which was that while Israel’s methods in the attack on the flotilla were “excessive,” it did have the legal right to impose a naval blockade against Gaza and to use armed force (but not “excessive” armed force) to enforce it.

No doubt the Palmer Commission--no matter how limited the scope of its inquiry or its knowledge and/or impartiality concerning the plain facts about the Israeli occupation and repression of the Palestinians, as well as how little the legal or moral credibility of its Vice-Chair--had the right to express its “views.” But then, so can others: mine is that, whether because of its incompetence or the desire not to give too much offense to Israel (and, maybe the U.S. government as well), the Report’s conclusion that international law supported Israel’s right to impose and enforce a naval blockade of Gaza is, to put it mildly, unpersuasive.

To be sure, I’m no expert in international law. Nonetheless, a close examination of the Report clearly reveals the muddled, internally inconsistent, and intellectually as well as morally inept reasoning process by which Palmer and Uribe reached their conclusions. To begin, as the Commission explained, the highly constrained limitations on its fact-finding capabilities meant that it had to rely on the internal investigations carried out by Israel and Turkey, which unsurprisingly agreed on almost nothing of significance.

Here are the Palmer Report's summary of the Turkish commission's conclusions: "The restrictions imposed by Israel on goods entering Gaza by land, and the naval blockade over the waters off Gaza constitute a single blockade...intended as a form of economic and political warfare.  It was not restricted to items that could be used against Israel, but also included ordinary consumer items with no security purpose.  As such, it has a disproportionate and punitive impact on the civilian population [and] amounts to the collective punishment of civilians in Gaza, in breach of Article 33 of the Fourth Geneva Convention....In support of this conclusion, the Turkish Commission relies on statements by the United Nations High Commissioner for Human Rights, the United Nations Human Rights Council, and the International Committee of the Red Cross...[which have concluded that] Israel is the Occupying Power in Gaza, and cannot blockade the borders of territory it occupies."

The Palmer Report then summarized the report of Israel’s “National Investigation,” which argued that because of Palestinian rocket and mortar attacks on Israel, it had the right “to prevent weapons, terrorists and money from entering or exiting the Gaza Strip by sea.” As for the argument that the Palestinian attacks were a response to Israel’s ongoing de facto occupation and continuing repression of Gaza, the Israeli commission argued that “Israel’s effective control of the Gaza Strip ended when disengagement was completed in 2005.”

Finally, the Israeli commission stated that “the blockade did not constitute collective punishment of the civilian population of the Gaza Strip: there is no evidence that Israel deliberately imposed restrictions on bringing goods into Gaza with the sole or main purpose of denying them to the civilian population.” (my emphasis)

Though an interested party to the dispute, the Turkish Commission's conclusions are demonstrably true, and shared by an overwhelmingly large majority of all nonpartisan academic, legal, UN, and international (as well as Israeli) human rights ngos—nearly all of which have concluded that while Israel’s direct occupation of Gaza ended in 2005, it was replaced by a series of Israeli repressions and controls that turned Gaza, in the common description, into “an open air prison.”

In particular, the Israeli contention that neither the purpose nor effect of the blockade was to impose collective punishment to the people of Gaza is an outright lie--indeed a lie so breathtaking in its chutzpah that it could convince no knowledgeable observer.

In that case, how did Palmer and Uribe get around this problem? Simple: they argued that whatever the purposes of the Israel’s land blockade, the naval blockade was “separate and distinct”—“in fact two distinct concepts” that required “different treatment and analysis.” To be sure, they conceded, “important humanitarian considerations constrain the imposition of a naval blockade [which] would be illegal if its imposition was intended to collectively punish the civilian population,” but concluded that “there is no material before the Panel that would permit a finding confirming [such] allegations.”

“Allegations,” that is, only about the naval blockade, a dubious argument even if one accepts the absurd premise there were two entirely different Israeli policies, or “concepts.” Indeed, even the Report’s criticism of the land blockade--“actions taken by Israel have had severe impacts on the civilian population in Gaza”--concludes in a seriously odd fashion: “The situation in Gaza, including the humanitarian and human rights situation of the civilian population , [is] unsustainable, unacceptable and not in the interests of any of those concerned.”

“Unsustainable?” I don’t know, Israel has been successfully sustaining its occupation, repression, and collective punishment of the Palestinians for over four decades.  “Not in the interests of any of those concerned?” No, I suppose not—though one of the “concerned parties,” Israel, foolishly doesn’t agree. But yes, it does appear to be true that the Palestinians have an interest in not being killed and repressed by Israel.

Never mind. To repeat: the crucial conclusion of the Palmer Report is that while Israel’s land blockade is questionable, its naval blockade is a legitimate act of self-defense. To be fair, the Report did admit--in passing--that “there may be potential overlaps in the effects (emphasis in original) of the naval blockade and the land crossings policy,” However, it quickly dropped this line of thought, which of course would have led it to an entirely different conclusion.

The Flotilla’s Purpose

The Palmer report essentially denies the legitimacy of the flotilla’s mission. Despite its expressed humanitarian purposes, and despite the 10,000 tons of civilian supplies it was carrying, the report argues that the flotilla’s primary purpose was “to generate publicity about the situation in Gaza by attempting to breach Israel’s naval blockade”—clearly, in the view of Palmer and Uribe, an illegitimate purpose, though they don’t explain why.

In any case, on the basis of what evidence does the Palmer report support its contention that the purpose of the flotilla was less humanitarian than it was to generate publicity? There were a number of elements, they argue, that “raise questions concerning the objectives of the flotilla organizers.” For one thing, “there was little need to organize a flotilla of six ships to deliver humanitarian assistance if only three were required to carry the available humanitarian supplies [and] if the flotilla had been a purely humanitarian mission it is hard to see why so many passengers were embarked and with what purpose.” Anyway, “the quality and value of many of the humanitarian goods on board the vessels is questionable” and in any case “no adequate port facilities exist in Gaza capable of receiving vessels the size of the Mavi Marmara. Consequently, “the prospect of delivering significant supplies to Gaza by sea is very low.” Still further, “the number of journalists embarked on the ships gives further power to the conclusion that the flotilla’s primary purpose was to generate publicity.”

In another line of “reasoning,” the Palmer report gave great weight to the apparent fact that “preparations were made by some of the passengers on the Mavi Marmara well in advance to violently resist any boarding attempt” by the Israeli forces. These passengers, the report gravely noted, had donned “life or bullet proof vests and gas masks and assumed pre-agreed positions in anticipation of an attack,” and were armed with “iron bars, staves, chains, and slingshots,” though there was “some indication” that knives were also used.

In other words, no firearms, even for self-defense, let alone to deliver to Gaza. Indeed, the report seemed to consider as ominous or unjust that “firearms were taken from IDF personnel and passengers disabled at least one by removing the ammunition from it,” the apparent implication being that the passengers had no right to disarm some of the invading commandos.

The absence of firearms in the flotilla, let alone of heavier weapons, bears emphasis, though its implications seem to have escaped Palmer and Uribe, whose central argument is that “stopping the importation of rockets and other weapons to Gaza by sea” is necessary in order “to preserve Israel’s security.” In other words, even if one accepts the premise that Israel has two different policies--the one on land blockading the importation and exportation of civilian goods to and from Gaza, the other at sea blockading weapons-- the report’s argument is badly undermined by the fact that the flotilla was carrying only civilian supplies.

The overall conclusion of the Palmer report: “Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade.” In support of this argument, Palmer and Uribe engaged in two quite different lines of reasoning. The first was based on the premise that Israel--far from being a party to the conflict, let alone an illegitimate occupier and repressor—was a rightful authority which had engaged in a legitimate act of international law enforcement. By this reasoning one might also argue, say, that an uprising by a conquered Roman province would be a wrongful act in itself, and this injustice done to Rome would be compounded if the rebellion used armed force to resist the Roman legions sent to suppress it.

The second line of reasoning was that Israel was merely engaged in self-defense: “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….Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara, requiring them to use force for their own protection.”

To be sure, in one important respect the Palmer report was critical of the Israeli attack on the flotilla: while Israel had the right to use force, its force was “excessive” and “unreasonable” in several ways.  First, it was wrong of Israel “to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding.” Second, the Israeli forces wrongly killed nine people and “seriously wounded many others;” moreover, “most of the deceased were shot multiple times, including in the back,” for which “no satisfactory explanation has been provided.” Finally, “there was significant mistreatment of passengers by Israeli authorities after the take-over of the vessels had been completed until their deportation,” including “physical mistreatment, harassment and intimidation.”

Conclusion

Despite the significant criticisms of the Israeli methods in the flotilla affair, in most other respects the Palmer Report is so seriously flawed as to essentially make it useless. First, its notion that the purpose of the Israeli naval blockade of Gaza was “separate” from its land blockade (a contention made repeatedly throughout the Report) is a prima facie absurdity, especially in light of the Report's admission that the "effects" of both blockades may be “overlapping.”

Not to push the analogy too far, of course, but this reasoning is akin to arguing, for example, that the German siege of Leningrad during WWII was actually two separate and distinct “policies” or “concepts,” one an illegitimate land blockade intended to starve the city into submission, the other a legitimate sea blockade to prevent weapons from reaching it.

I don’t know if the Nuremberg tribunals examined the siege of Leningrad as a possible German war crime, but if so they clearly did not consider that Germany had the right to defend its sea blockade (albeit somewhat “excessively”) against Russian attempts to smuggle arms into Leningrad, but that the Russians had no right to defend themselves by breaking that blockade, even though it was Germany that had invaded and sought to conquer Leningrad, along with the rest of Russia.

Secondly, the Palmer Report’s criticism of Israel’s land siege of Gaza, which does not dismiss the argument that it amounted to collective punishment, is couched in weak, ponderous, and obscurantist language: “the procedures applied by Israel in relation to land access to Gaza are unsustainable and need to be changed,” are “not in the interests of any of those concerned,” and so on.

Third, the Report’s reasoning that the real purpose of the flotilla was not humanitarian is tortured and unconvincing, particularly in light of the fact that Palmer and Uribe accepted the Turkish investigation’s finding that the flotilla was in fact carrying 10,000 tons of humanitarian supplies and construction materials—but no weapons intended for delivery to Gaza.

Fourth, even if the flotilla had been bringing weapons to Gaza, the Palmer Report failed to examine its underlying premise that this would have been illegitimate. The Gazan authorities and people sought to arm themselves against the illegal and immoral Israeli occupation and various measures of repression, including extensive violence and repeated devastating armed attacks against Gazan civilians and their infrastructures. Indeed, in the pre-state era the Zionists themselves had also “illegally” armed themselves in order to create the state of Israel.

Victims have the right to defend themselves, including by armed force. To be sure, it is a separate question of whether the Palestinians are wise to exercise that right, in view of its repeated failure. Moreover, any serious analysis of the legitimacy of armed rebellion must also consider the methods used by the rebellion, particularly whether they include terrorism, such as the Gazan attacks on Israeli civilian population centers.*

In short, both the moral and legal issues are complicated, requiring detailed and sophisticated analyses. The Palmer Commission, however, had no analysis at all—it simply proceeded from the premise that the Israelis, but not the Gazans, had the right to defend themselves.

Fifth, even insofar as calling public attention to the plight of Gaza was one of the purposes of the flotilla--as indeed it was, for the flotilla organization made no bones about its intention to call world attention to the Israeli occupation and repression—the Palmer Report’s conclusion that this was mere “publicity,” strongly suggesting that it was therefore illegitimate, is odd indeed.

In sum, I don’t know whether the absurdities in the Palmer Report are the consequence of a political decision not to offend Israel—and maybe its US supporter?—or of breathtaking intellectual incompetence. Either way, it is a travesty.

 

 

*Recently, the Israeli journalist Larry Derfner created an uproar—and lost his job—because of a column in the Jerusalem Post in which he appeared to be defending the right of the Palestinians to use armed force against any Israeli targets, including civilians. Derfner was brave and right to defend Palestinian attacks against Israeli soldiers, but foolhardy as well as foolish to seemingly justify Palestinian terrorism.

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