The UN will release the Palmer Report about the Mavi Marmara massacre tomorrow. One of my readers has offered me an advanced copy (thanks LL). Though the report is written in extremely guarded, cautious language not meant overly to inflame passions on either side, it is clear that while it is critical of Israeli actions during the incident, it overwhelming endorses the underlying strategy Israel employs in pursuing its blockade.
But before I delve into this I wanted to examine some of the assumptions of the report with which I take strong issue. It finds that the Israeli blockade of Gaza is legitimate as a measure in self-defense because it supposedly prevents bringing weapons into Gaza which may be used against Israel:
…Freedom of navigation on the high seas is subject to only certain limited exceptions under international law. 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.
This is a specious claim as Hamas imports all the weapons it needs through tunnels from Egypt to Gaza. Further, Israel could maintain a much looser blockade which allowed all goods into Gaza by ship and provided for inspection of cargo to make sure they do not carry armaments. I do not accept the premise of any blockade of Gaza, but if one wants to view it from Israel’s perspective it could easily review all incoming cargo and not embargo all shipping into the enclave.
Palmer argues that rockets and missiles from Gaza are a legitimate security threat because militants there “increased their effectiveness,” now being able to reach Tel Aviv. The fact that Gazan weaponry is highly ineffective and that no rocket has ever been launched from there that has reached Tel Aviv, seems lost on the members. Further, the report considers that 25 Israelis have died since 2001 from missiles and an “enormous psychological toll” has been inflicted on those living in southern Israel. There is no countervailing consideration of the thousands of Gazans killed and wounded in the same period and the “psychological toll” this has taken on Gaza’s 1.5 million residents. If the panelists had considered this they would understand more fully the crime that is the siege and why it is legal to protest against it by breaking it.
The Report uses a tortured methodology in considering whether the naval siege is legal. It decides that Israeli policy regarding land crossings is independent of the sea blockade (p.39). It does so by trying to argue that the land blockade predated the sea blockade by a year. What this does, is to allow the panel to treat the latter as a fact in its own right, having no bearing on the overall context of conditions in Gaza. It would be as if the Nazis laid siege to Leningrad by sea and land, and a war crimes investigation attempted to argue that the sea blockade was legal because it had little to do with starving a million or two Russians to death. All that devastation was apparently caused by the land siege alone. I’m not arguing that the Stalingrad siege is of comparable severity to the Gaza siege. But I am arguing that a siege is a siege is a siege. When it has two components those must be taken together in order to understand the full context of the suffering they cause.
There is also an inference, in discussing the land crossings, that they are sometimes open to Palestinians, when in truth they almost never are (and they were even more fully sealed during the period of the flotilla massacre). The panel seems to accept the IDF claims that the crossings are open when in fact they aren’t and nothing can cross.
Under international law, in order for a blockade to be legal it must be “effective.” As part of its argument, Palmer makes a telling, and major error:
There is nothing before the Panel that would suggest that Israel did not maintain an effective and impartial blockade. Ever since its imposition on 3 January 2009, Israeli authorities have stopped any vessel attempting to enter the blockaded area.
There seems to be a bit of hocus pocus going on here. There was a Gaza naval siege before January 3, 2009. Proof of the matter is that the Free Gaza Movement broke that siege on August 24, 2008 when Ehud Olmert was prime minister (a leader who seemed less inclined to shed the blood of peace activists than Netanyahu). The news report confirms the existence of such a blockade:
Arriving to a boisterous reception, the international activists aboard the boats said they hope their symbolic breaking of the Israeli blockade on the territory is just the beginning.
Israel’s declaration of a naval blockade during Operation Cast Lead was a mere formality since such a state had existed before the war. So I’m not sure what is the basis of Palmer’s distinction unless it’s merely to support its finding that the land blockade is separate from the sea, which we’ve already rebutted forcefully.
In fact, Sari Bashi, director of the Israeli human rights NGO Gisha, writes in an excellent critique published in Foreign Policy, that Israel has essentially imposed a naval blockade on Gaza not since 2009, but since 1967 (that is, for 44 years)! If this information was available to an Israeli human rights professional should it not have been available to “eminent” specialists like Geoffrey Palmer and Alvaro Uribe, compiling a major UN report?
Returning to the 2008 running of the blockade, in that instance, when Israeli determined that political considerations forced it to allow a vessel to break the siege, it did so. The successful voyages then indicate that the siege again was not security in nature. This invalidates the entire siege regimen under international law.
Further, the Report errs in dismissing the clearly evident claim by human rights activists that the blockade is not a security measure at all, but rather a political one that is meant to punish not just Hamas or Palestinians militants there, but the entire population because it voted in 2006 for Hamas to rule the Territories:
Important humanitarian considerations constrain the imposition of a naval blockade. For one, it would be illegal if its imposition 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 take-over of Hamas in Gaza or otherwise.
Palmer proceeds with another specious argument with its claim that the land and sea blockades were independently implemented and hence cannot be considered collective punishment. The land blockade did commence after Hamas’ 2006 victory in the PA elections. As such it clearly was a political, and not security motivated act. The commission argues however that the sea blockade, begun a year later was not punitive. In fact, the sea blockade began after Fatah planned a political putsch, which Hamas pre-empted, in the process taking complete control of Gaza. The sea blockade that followed was a direct political and punitive response to the Hamas takeover.
The panel then considers whether the blockade was “proportional” to the danger it prevented to Israel. Here is some more twisted logic used to skirt the issue:
…A more difficult question is whether the naval blockade was proportional. This means to inquire whether any damage to the civilian population in Gaza caused by the naval blockade was excessive when weighed against the concrete and direct military advantage brought by its imposition…The specific impact of the naval blockade on the civilian population in Gaza is difficult to gauge because it is the land crossings policy that primarily determines the amount of goods permitted to reach Gaza. One important consideration is the absence of significant port facilities in Gaza. The only vessels that can be handled in Gaza appear to be small fishing vessels. This means that the prospect of delivering significant supplies to Gaza by sea is very low. Indeed, such supplies were not entering by sea prior to the blockade. So it seems unrealistic to hold the naval blockade disproportionate…
The fact is that Israel prohibited Gaza from building a port. See this research by B’Tselem on the subject:
In the agreements signed by the parties since the beginning of the Oslo peace process, the sides repeatedly agreed to work toward building and operating a seaport in Gaza. In the summer of 2000, infrastructure work for the port began, but in October of that year, following the outbreak of the second intifada, Israel bombed the seaport construction site. As a result, the donor states ceased funding the project, and no work has been done on the seaport since then. In the AMA of November 2005, mentioned above, Israel agreed to allow renewal of the construction work. Moreover, in order to assure that foreign donors and investors would be willing to invest in the project, Israel promised that it would not strike the port again and would cooperate in establishing the security and other arrangements needed to operate it. To date, no action has been taken in this matter.
If Israel had not refused to allow such a port, Gaza would already have a seaport and airport. Barring that, had there been no sea blockade and only a land blockade, of course Gaza would’ve developed infrastructure necessary to replace the land crossings with port infrastructure. So arguing that a sea blockade is proportional because Israel had prevented Gaza from developing a seaport and Gaza didn’t use its sea coast to import goods, is circular, false reasoning.
There are some extremely awkward locutions which also betray a deep insensitivity to Gaza’s plight. Among them this:
…The Panel emphasizes that if necessary, the civilian population in Gaza must be allowed to receive food and other objects essential to its survival. (p.44)
Last I checked, human beings did indeed find it necessary to receive food and other objects essential to their survival. Is there any question about this in the minds of the Palmer authors?
The UN document is full of these “on the one hand, on the other hand” statements which allow it to claim that it is being fair to both sides when in actuality it is really being fair to one, which means it is being fair to none:
…The Panel emphasizes, however, the fundamental importance of the principle of the freedom of navigation, particularly in areas such as the eastern Mediterranean, and recommends that this be borne in mind by Israel with respect to the ongoing application and enforcement of its naval blockade.
They’ve just essentially nullified the principle of freedom of navigation related to Gaza and yet somehow believe they can chide Israel by reminding it that they must really learn to be fair and decent about implementing blockades.
To read this report, the motivation of the flotilla organizers to “generate publicity” (Palmer’s language, p.47) on behalf of Gaza’s plight would seem to be entirely treif. But again, this means you accept the contention underlying it, that the only legitimate reason to be breaking the blockade would be bringing humanitarian assistance to Gaza. I’ve made clear that I, and most human rights activists involved on this issue reject this thinking summarily. On the contrary, protesting both the siege, Israel’s Occupation, and Gaza’s humanitarian crisis are political issues tightly bound up with each other.
Another example of Palmer’s circular reasoning is its criticism of the IHH for not specifically warning passengers that they might be subject to violence if they participated in the flotilla. The fact that such a warning was lacking is used by the authors to blame the organizers for putting activists in harm’s way. But the plain fact of the matter is that the violence was caused by Israel and that contrary to the language of the report, violence was in no way predictable:
…There was no indication that violence was a risk despite the fact that the possibility of it was reasonably foreseeable.
Yes, in hindsight now the world understands better that Israel is willing to use lethal force on unarmed humanitarian activists. The world understands that Israel is capable of showing a depraved indifference to human life (more specifically, of Arabs and their supporters). But should the IHH have anticipated that Israel might use live fire on its ships even before they boarded them as the report speculates with some justifying evidence (p.53)?
In this passage (p.50), Palmer again presents the evidence solely from Israel’s point of view, pretending the flotilla was solely a humanitarian, and not political enterprise. It “buys” Israel’s contention that its offer to off-load the ship’s cargo in Ashdod and convey it to Gaza showed a good faith effort to resolve the impasse diplomatically. Nothing could be farther from the truth:
The Panel is satisfied that extensive and genuine efforts were made by Israel to facilitate the delivery of humanitarian supplies from the flotilla to Gaza thus obviating the need to challenge the blockade and thereby avoiding the prospect of violence.
At this point, Palmer has lost its moral bearings and any validity as a credible document.
Returning to the Mavi Marmara activists, in response to Israel’s political act of collective punishment, they took the counter-measure of protesting by engaging in a legitimate political act of their own–attempting to break the siege. Here Palmer tries to have it both ways, but judges in the end that any political expression should take lower priority to Israel’s “legitimate” security concerns:
Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade.
The problem with this formulation is that those who participated in the Gaza flotilla flatly reject the premises of the argument in terms I noted above. If the naval blockade is NOT a security measure then attempting to break it is not “reckless” but an expression of protest against an unjust, immoral Israeli policy.
The Report makes it easy on itself by conceiving of the Mavi Marmara flotilla project as a solely humanitarian enterprise. In doing so, it is able to isolate any political element to the project. Since the flotilla was, in its view, solely a humanitarian enterprise there is no reason the organizers should have persisted in breaking the siege. They should have been willing to deliver the aid through Israel-approved channels. This avoids the issue of the flotilla being a political expression (and a humanitarian one), whose goal was not just to deliver aid, but to subvert an illegal blockade and make the point to the world that Israel was wrong in inflicting it on Gaza.
I understand that writing this Report was incredibly difficult and that compromises had to be made in order to satisfy each side–or at least rile up each side as little as possible. That is why there will be elements that will anger Israel and Turkey; and other elements that will please them. But it’s important to understand that just because Palmer accepted certain points as givens, doesn’t mean that the public need do so.
Here are some of the more damning passages concering Israel from the introductory Summary:
Israel’s decision 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 was excessive and unreasonable:
a. Non-violent options should have been used in the first instance. In particular, clear prior warning that the vessels were to be boarded and a demonstration of dissuading force should have been given to avoid the type of confrontation that occurred;
b. The operation should have reassessed its options when the resistance to the initial boarding attempt became apparent.
…The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable. Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the Panel by Israel for any of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel.
There was significant mistreatment of passengers by Israeli authorities after the take-over of the vessels had been completed through until their deportation. This included physical mistreatment, harassment and intimidation, unjustified confiscation of belongings and the denial of timely consular assistance.
…States enforcing a naval blockade against non-military vessels, especially where large numbers of civilian passengers are involved, should be cautious in the use of force. Efforts should first be made to stop the vessels by non-violent means. In particular, they should not use force except when absolutely necessary and then should only use the minimum level of force necessary to achieve the lawful objective of maintaining the blockade. They must provide clear and express warnings so that the vessels are aware if force is to be used against them.
I was greatly disappointed that the recommendations for conciliation were entirely framed from Israel’s point of view and included a request that Israel express “regret” for the incident, pay victims’ families for their suffering, and that in turn Turkey resume full diplomatic relations with Israel. All these were points accepted by Israel in previous negotiation. But Turkey has rejected the offer of a message expressing “regret” and demanded a full apology, which Israel has refused. It has also demanded that Israel end Gaza’s “imprisonment” in order for Turkey to normalize relations.
The Report itself noted a severe limitation that faced it. Nations were not compelled to cooperate or produce specific witnesses or documentation. The panel could not demand such information and so had to make due with what was offered. In fact, it could not approach any organization such as IHH independently, which severely limited the mandate and scope of the findings. Also, the panel relied heavily on the reports produced by Turkey and Israel. In the latter case, this is deeply problematic, as the Israeli findings were made by three heavily-biased individuals inclined to produce a report to maximize benefit to Israel and minimize damage.
In the case of Israel, which is known for attempting to spin virtually every element of its foreign and military policy, this would mean refusing to provide any information that made it look bad and offering any information that would make it look good. While all nations do this to a certain extent, Israel has perfected this to a high art.
Another oddity of the mandate of the panel was that it was not so much supposed to determine who violated the law, but rather how to resolve the dispute in as satisfactory a way as possible allowing the contending parties to move on:
The Panel will not add value for the United Nations by attempting to determine contested facts or by arguing endlessly about the applicable law. Too 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.
…The legal issues, while a necessary element of the Panel’s analysis, alone are not sufficient. We must probe more widely. Were the actions taken prudent? Were there practical alternatives? In the wider context of the situation in the Middle East, are there steps that could be taken to improve the situation that the blockade deals with so that the existence of the blockade is no longer necessary? These are issues of importance to the wider international community.
The Panel has searched for solutions that will allow Israel, Turkey and the international community to put the incident behind them…A new diplomatic paradigm must be developed in order to move on. The Panel is particularly conscious of what the Secretary-General told us at the outset of our task. He told us that he counted on our leadership and commitment to achieve a way forward. Such is the purpose of everything that follows.
It follows therefore that the panel was not one meant to truly plumb the knotty questions presented by the Mavi Marmara attack. Rather, it was meant to give each side as much as it could in the hopes they could move on from there. As such, the mandate is hopelessly flawed. It would be as if South Africa appointed a commission to figure out how to tell each side of the apartheid dispute what it did wrong and what it did right in order to allow each side to move on without assigning any real blame to anyone.
Here are some further comments worth noting that impeach Israel claims regarding its attack:
The Panel questions whether it was reasonable for the Israeli Navy to board the vessels at the time and place that they did…The boarding commenced at approximately 4.30 a.m., before dawn had broken. The distance from the blockade zone was substantial—64 nautical miles. There were several hours steaming before the blockade area would be reached. Then there is the fact that the boarding attempt was made by surprise, without any immediate prior warning. The last radio warning had been transmitted at some point between 12.41 a.m. and 2.00 a.m.—at least two and a half hours prior to the boarding commencing. The vessels were never asked to stop or to permit a boarding party to come on board. No efforts were made to fire warning shells or blanks in an effort to change the conduct of the captains…Nothing was communicated [to the MM] about the immediate intentions of the IDF to board the vessels by force. (p.52)
The resort to boarding without warning or consent and the use of such substantial force treated the flotilla as if it represented an immediate military threat to Israel. That was far from being the case and is inconsistent with the nature of the vessels and their passengers…
It was foreseeable that boarding in the manner that was done could have provoked physical resistance from those on board the vessels.
…The Panel also concurs with the comment in the Israeli report that the operation should have withdrawn and reassessed its options when the resistance to the initial boarding from the speedboats occurred…
…The Panel is struck by the level of violence that took place during the take-over operation. Many witness statements describe indiscriminate shooting, including of injured, with some referring to shooting even after attempts had been made to surrender. By the IDF’s account, 308 live rounds…were discharged. Seventy-one fully armed naval commandoes were deployed during the take-over, which lasted for over 45 minutes.(p.53 ff.)
In the following passage, the report documents what can only be described by a reasonable observer as assassinations, noting that Israel at no point provided a satisfactory explanation as to how or why these people were killed in the manner that they were:
Seven of the nine persons killed received multiple gunshot wounds to critical regions of the body…
Five of those killed had bullet wounds indicating they had been shot from behind: Cengiz Akyüz, Çetin Topçuoğlu, Necdet Yıldırım, Furkan Doğan and İbrahim Bilgen. This last group included three with bullet wounds to the back of the head: Cengiz Akyüz, Çetin Topçuoğlu and Furkan Doğan. İbrahim Bilgen was killed by a shot to the right temple.
Two people were killed by a single bullet wound: Cevdet Kılıçlar was killed by a single shot between the eyes; and Cengiz Songür was killed by a shot to the base of the throat.
At least one of those killed, Furkan Doğan, was shot at extremely close range. Mr. Doğan sustained wounds to the face, back of the skull, back and left leg. That suggests he may already have been lying wounded when the fatal shot was delivered, as suggested by witness accounts to that effect.
No evidence has been provided to establish that any of the deceased were armed with lethal weapons. Video footage shows one passenger holding only an open fire hose being killed by a single shot to the head or throat fired from a speedboat
Tell me honestly, do you think Israel even wants to know which of its commandos killed which of these passengers? Do you think they even tried to investigate this? And if they didn’t, how can they claim to have done a proper, thorough and independent investigation?
Upon completing this Report the main conclusion that I had is that the international human rights community needs to protest its contents by planning more Gaza flotillas until either Israel relents on its cruel policy or the world forces Israel to relent. There can be only one answer to nonsense like this:
There is no right within those rules to breach a lawful blockade as a right of protest. (p.71)
The response must be: yes, there is such a right and if you deny it to us we will take it anyway. As some of the truly great human rights heroes have said, if you don’t stake out your rights then someone will take them away from to you.