PALMER REPORT'S FATAL FLAWS

2 September 2011, Palestine Chronicle http://palestinechronicle.com (USA)

By Julie Webb-Pullman* - Gaza

The most fundamental fault of the Palmer Report on the 31 May 2010 Flotilla Incident(1) is its one-eyed view of security. The second is its exceeding of the Terms of Reference (TOR).

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 Israeli’s since 2001, it COMPLETELY IGNORES Gaza’s – or the Palestinian - right to security, it ignores the innumerable military attacks on Gaza by Israel which according to an Israeli Human Rights group (2) have killed more than 4500, with 41 Israeli air strikes in the last week alone killing another 17, and it ignores Israel’s continuous invasions and incursions into Palestinian territory contrary to international law, and in breach of some 80 UN Security Council Resolutions.

If the claimed purpose of the Palmer Report is in fact to “avoid similar incidents in future” it would be more appropriate to address the ROOT CAUSE of the incident, which is Israel’s illegal occupation of Palestinian territories, and ongoing military assaults on Gaza, even the weapons for which are disproportionate - while Gazan groups use homemade, inaccurate and usually ineffective weapons rarely resulting in injury, let alone death, Israel favours extremely high-tech, accurate, brutally effective – and ILLEGAL – weapons that almost always maim and kill.

Cause and Effect
The Palmer Panel, and the United Nations, would do better to prevail upon Israel to observe international law, as embodied in some 80 UN Security Council Resolutions and numerous international conventions, than do irrelevant book reviews that do nothing but give Israel more ammunition to legitimise its genocide.
It needs to be re-stated – rockets fired into Israel from Gaza, and efforts by international civil society to alleviate the suffering caused by the illegal siege of Gaza, are EFFECTS directly flowing from the ROOT CAUSE, Israel’s persistent and ongoing refusal to observe international law, or even internationally-determined borders.

Enforcement of UNSC Resolutions, not a glorified “book review,” are what is required to “avoid similar incidents in future.”

The TOR
The TOR makes it clear the Report was never intended to be anything but a Clayton’s exercise. They state: (and I don’t know where number 1 disappeared to – it was not in the copy I have)

The panel:

2 (a) will receive and review interim and final reports of national investigations into the incident; that is, do a “book review” and call it a Report, which the international community is expected to swallow, and “move on”.

(b) may request such clarifications and information as it may require from relevant national authorities. Not obtain or assess original or direct evidence, not even obtain witness testimonies or examine or cross-examine witnesses – merely have a chat to the ‘points of contact’ of the ‘relevant national authorities’.

3. In the light of the information so gathered the panel will:

(a) examine and identify the facts, circumstances and context of the incident; – which given the limited TOR can only be what the two national authorities ‘reported’ they were – a veritable exercise in Chinese Whispers (not sure of the politically-correct term for this, if there is one), which is not only a poor substitute for due process, but it is also very unlikely to establish the facts, circumstances and context of the incident such that any meaningful recommendations could be made;

(b) consider and recommend ways of avoiding similar incidents in the future. – the most obvious recommendation of all being OBSERVANCE BY ISRAEL OF ALL SECURITY COUNCIL RESOLUTIONS, AND INTERNATIONAL LAW, such that defensive actions by Gaza, and humanitarian convoys to alleviate their suffering, 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 them to this, the most obvious recommendation of all.

Did the Report Find the Naval Blockade is Legal?
While Israel, and lazy mainstream media, touts the Palmer Report as finding Israel’s naval blockade of Gaza is legal, a closer reading shows no such thing.

If anything, the report shows that the Palmer panel exceeded their Terms of Reference (TOR) by the two chairs taking it upon themselves to lay the so-called “secure legal foundation” that served as the basis for their findings and recommendations despite acknowledgement they had no grounds to do so, then attributing legality to their subsequent considerations, findings or determinations.
In its own words, the panel states in paragraph 5 of its Introduction:

“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
6. “It means that the Panel cannot make definitive findings either of fact or law.”
So why did it go on in Para 73 to make a determination that:
“The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade.”

And in paragraph 81, to state that:

“The Panel therefore concludes that Israel’s naval blockade was legal.” –
These findings are clearly outside the TOR, and are findings on which subsequent statements rely, such as in the Summary at:

ii, “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.”

And,

viii. Attempts to breach a lawfully imposed naval blockade.

Appendicitis
These painful contradictions can be explained by the first appendix in the Report, stating 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 rest their findings and recommendations “on a secure legal foundation.” – of their own invention.

Of considerable importance is that they do not even require Israel to have fulfilled its obligation to declare this blockade by notifying it to the UN Security Council according to the processes outlined in Article 51 of the Charter, instead accept their posting it on a few Israeli websites!

This makes a mockery of both the TOR, and the considerable body of highly-qualified international legal opinion that disagrees with their position, and that they explicitly chose to ignore in preference to their own. This ensures that the supposed secure legal foundation for the Report, thus all finding and recommendations based on it, are but a Palmer/Uribe house of cards.

The Palmer Report not only exceeds its TOR, but it is internally inconsistent, and in conflict with other reputable legal bodies and opinions, including those of other UN agencies.

In keeping with the TOR, therefore, any legal determinations and findings should, like an acutely-inflamed appendix, be immediately removed from the final report before they irreparably harm the host.

Extra-territoriality of the Application of the Naval Blockade
A curious omission from their legal deliberations on the legitimacy of the naval blockade, inappropriate as they were, 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, into extra-territorial application of the Gaza blockade into international waters.

This has serious - and extensive - implications in international law, which the panel chooses not to discuss, but which are directly relevant to the prevention of further incidents.

Curious – and Unsupportable - Justifications
An example of one of the more curious justifications for not finding the 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.

That the port facilities were destroyed by Israel in 2001 appears to them too insignificant to mention. That Gaza port has been used for literally THOUSANDS OF YEARS for the delivery of “bulk supplies” through Gaza to Europe, and back again. Large ships moored offshore and smaller vessels, of which there thousands here, transferred the goods to port. Gazans were doing this long before New Zealand even had human habitation, and they continued doing it up until late last century - I have spoken to Gazan men in their 50’s who recall watching this as a favorite past-time as children.

There is no reason such methods could not be occurring now – but for the naval blockade. That they might be “inefficient” methods in the panel’s view speaks more to their first world arrogance and failure to appreciate the conditions on the ground in Gaza, than it does to the need to get bulk supplies in to meet the very real desperate need that exists, as repeatedly and continuously stated by the numerous international NGOs and UN agencies working in Gaza.

Recommendation to Use Established Procedures
Any remaining shred of credibility is totally destroyed by this bizarre statement in paragraph 154 which flies in the face of all available evidence, that:

“... the Government of Israel has taken significant steps to ease the restrictions on goods entering Gaza since the 31 May 2010 incident.”

And with regard to future prevention, the even more bizarre recommendation in paragraph iv 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.”

The panel has completely ignored not only the reality on the ground in relation to the so-called easing of restrictions, as reported by numerous NGOs (3), but also UN assessments such as that of OCHA published in March 2011, the Executive Summary of which stated:

“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.”

And went on to say that despite 100 water and sanitation, education and health services. projects since 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.”(4)

Finally, statements from both the Israeli and Turkish participants contained in the Appendix indicate that far from coming to the consensus decisions required of it, the Palmer Report is a Palmer/Uribe house of cards based on selective – and self-determined – legal determinations that exceed their TOR, and are one-eyed in the 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 Gaza homemade rocket attacks, while failing to condemn Israel’s use of prohibited weapons against civilian targets in a clear and incontrovertible exercise of the collective punishment of a trapped population, beggars belief.

* Julie Webb-Pullman is a New Zealand activist and writer currently based in Gaza. She has written on social and political justice issues for New Zealand Independent News website SCOOP since 2003, as well as for websites in Australia, Canada, the US, and Latin America, and participated in several human rights observation missions. She contributed this article to PalestineChronicle.com.


Notes:

(1) Palmer Committee Final Report (2011) Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident.

(2) B'TSELEM - The Israeli Information Center for Human Rights in the Occupied Territories – Statistics. http://www.btselem.org/statistics.

(3) Amnesty International UK et al (2010) Dashed Hopes: Continuation of the Gaza.

(4) OCHA (2011) Special Focus: Easing the Blockade.