What the Palmer Panel didn’t know about the laws of sea and land
By Professor Richard Falk, Middle East Monitor
When the UN Secretary General announced on 2 August 2010 that a Panel of Inquiry had been established to investigate the Israeli attacks of 31 May on the Mavi Marmara and five other ships carrying humanitarian aid to the beleaguered people of Gaza there was widespread hope that international law would be vindicated and the Israelis would finally be held accountable. With the release of the report this past week these hopes have been largely dashed as the report failed to address the central international law issues in a credible and satisfactory manner. Turkey, not surprisingly, responded strongly that it was not prepared to live with the central finding of the 105 page report to the effect that the Israeli blockade of the Gaza Strip is lawful and could be enforced by Israel against a humanitarian mission even in international waters.
Perhaps this outcome should not be surprising. The Panel as appointed was woefully ill-equipped to render an authoritative result. Geoffrey Palmer, the Chair of the Panel, although respected as the former Prime Minister of New Zealand and as an environmental law professor, was not particularly knowledgeable about either the international law of the sea or the law of war. And incredibly, the only other independent member of the Panel was Alvaro Uribe, the former President of Colombia, with no professional credentials relevant to the issues under consideration, and notorious both for his horrible human rights record while holding office and forging intimate ties with Israel by way of arms purchases and diplomatic cooperation that was acknowledged by ‘The Light Unto The Nations’ award given by the American Jewish Committee that should have been sufficient by itself to cast doubt on his suitability for this appointment. His presence on the panel compromised the integrity of the process, and made one wonder how could such an appointment can be explained, let alone justified. The remaining two members were designated by the governments of Israel and Turkey, and not surprisingly appended partisan dissents to those portions of the report that criticized the position taken by their respective governments.
Another limitation of the report was that the Panel was constrained by its terms of reference that prohibited reliance on any materials other than presented in the two national reports submitted by the contending governments. With these considerations in mind, we can only wonder why the Secretary General would have established a framework so ill-equipped to reach findings that would put the controversy to rest, which it has certainly not done.
Even this ill-conceived panel did not altogether endorse Israeli behavior on 31 May. They found that Israel used excessive force and seemed responsible for the deaths of the nine passengers on the Mavi Marmara, instructing Israel to pay compensation and issue a statement of regret. In other words the Palmer Report seems to fault seriously the manner by which the Israeli enforced the blockade, but unfortunately upheld the underlying legality of both the blockade and the right of enforcement, and that is the rub. Such a conclusion contradicted the earlier finding of a more expert panel established by the Human Rights Council, as well as rejected the overwhelming consensus that had been expressed by qualified international law specialists on these core issues.
While the Panel delayed the report several times to give diplomacy a chance to resolve the contested issues, Israel and Turkey could never quite reach closure. There were intriguing reports along the way that unpublicized discussions between representatives of the two governments had reached a compromise agreement on the basis of Israel’s readiness to offer Turkey a formal apology and to compensate the families of those killed as well as those wounded during the attack, but when the time for announcing such a resolution of this conflict, Israel backed away. In particular, the Israeli Prime Minister, Benjamin Netanyahu, seemed unwilling to take the last step, claiming that it would demoralize the citizenry of Israel and signal weakness to Israel’s enemies in the region. More cynical observers believed that the Israeli refusal to resolve the conflict was a reflection of domestic politics, especially Netanyahu’s rivalry with the extremist Foreign Minister, Avigdor Lieberman, who was forever accusing Netanyahu of being a wimpy leader and made no secret of his own ambition to be the next Israeli head of state. Whatever the true mix of reasons, the diplomatic track failed, despite cheerleading from Washington that made no secret of its view that resolving this conflict had become a high priority for American foreign policy. And so the Palmer Report assumed a greater role than might have been anticipated. After the feverish diplomatic efforts failed, the Palmer panel seemed to offer the last chance for the parties to reach a mutually satisfactory resolution based on the application of the international law and resulting recommendations that would delimit what must be done to overcome any violations that had taken place during the attack on the flotilla.
But to be satisfactory, the report had to interpret the legal issues in a reasonable and responsible manner. This meant, above all else, that the underlying blockade imposed more than four years ago on the 1.5 million Palestinians living in Gaza was unlawful, and should be immediately lifted. On this basis, the enforcement by way of the 31 May attacks were unlawful, an offense aggravated by being the gross interference with freedom of navigation on the high seas, and further aggravated by producing nine deaths among the humanitarian workers and peace activists on the Mavi Marmara and by Israeli harassing and abusive behavior toward the rest of the passengers. Such conclusions should have been ‘no brainers’ for the panel, so obvious were these determinations from the perspective of international law as to leave little room for reasonable doubt. But this was not to be, and the report as written is a step backward from the fundamental effort of international law to limit permissible uses of international force to situations of established defensive necessity, and even then, to ensure that the scale of force employed, was proportional and respectful of civilian innocence. It is a further step back to the extent that it purports to allow a state to enforce on the high seas a blockade, condemned around the world for its cruelty and damaging impact on civilian mental and physical health, a blockade that has deliberately deprived the people of Gaza of the necessities of life as well as locked them into a crowded and impoverished space that has been mercilessly attacked with modern weaponry from time to time.
Given these stark realities it is little wonder that the Turkish Government reacted with anger and disclosed their resolve to proceed in a manner that expresses not only its sense of law and justice, but also reflects Turkish efforts in recent years to base regional relations on principles of fairness and mutual respect. The Turkish Foreign Minister, realizing that the results reached by the Palmer Panel were unacceptable, formulated his own Plan B. This consisted of responses not only to the report, but to the failure of Israel to act benignly on its own by offering a formal apology and setting up adequate compensation arrangements. Israel had more than a year to meet these minimal Turkish demands, and showed its unwillingness to do so. As Mr. Davutoglu made clear this Turkish response was not intended to produce an encounter with Israel, but to put the relations between the countries back on ‘the right track.’ I believe that this is the correct approach under the circumstances as it takes international law seriously, and rests policy on issues of principle and prudence rather than opts for geopolitical opportunism. As Davutoglu said plainly, “The time has come for Israel to pay a price for its illegal action. The price, first of all, is being deprived of Turkey’s friendship.”
And it this withdrawal of friendship is not just symbolic. Turkey has downgraded diplomatic representation, expelling the Israeli ambassador and maintaining relations at the measly level of second secretary. Beyond this all forms of military cooperation are suspended, and Turkey indicated that it will strengthen its naval presence in the Eastern Mediterranean. As well, Turkey has indicated its intention to initiate action within the General Assembly to seek an Advisory Opinion from the International Court of Justice as to the legality of the blockade. What is sadly evident is that Israeli internal politics have become so belligerent and militarist that the political leaders in the country are hamstrung, unable to take a foreign policy initiative that is manifestly in their national interest. For Israel to lose Turkey’s friendship is second only to losing America’s support, and coupled with the more democratic-driven policies of the Arab Spring, this alienation of Ankara is a major setback for Israel’s future in the region.
What is more, the Turkish refusal to swallow the findings of the Palmer Report is an admirable posture that is bound to be popular throughout the Middle East and beyond. At a time when some of Turkey’s earlier diplomatic initiatives have run into difficulties, most evidently in Syria, this stand on behalf of the victimized population of Gaza represents a rare display of placing values above interests. The people of Gaza are weak, abused, and vulnerable. In contrast, Israel is a military powerhouse, prospering, a valuable trading partner for Turkey, and in the background the United States is ready to pay a pretty penny if it could induce a rapprochement, thereby avoiding the awkwardness of dealing with this breakdown between its two most significant strategic partners in the Middle East. We should also keep in mind that the passengers on these flotilla ships were mainly idealists, seeking nonviolently to overcome a humanitarian ordeal that the UN and the interplay of national governments had been unable and unwilling to address for several years. This initiative by civil society activists deserved the support and solidarity of the world, not a slap on the wrist by being chastened by the Palmer report’s view that their action were irresponsible and provocative.
Israel has managed up to now to avoid paying the price for defying international law. For decades it has been building unlawful settlements in occupied West Bank and East Jerusalem. It has used excessive violence and relied on state terror on numerous occasions in dealing with Palestinian resistance, and has subjected the people of Gaza to sustained and extreme forms of collective punishment. It attacked villages and neighborhood of Beirut mercilessly in 2006, launched its massive campaign from land, sea, and air for three weeks at the end of 2008 against a defenseless Gaza, and then shocked world opinion with its violence against the Mavi Marmara in its nighttime attack in 2010. It should have been made to pay the price long ago for this pattern of defying international law, above all by the United Nations. If Turkey sustains its position it will finally send a message to Tel Aviv that the wellbeing and security of Israel in the future will depend on a change of course in its relation to both the Palestinians and its regional neighbors. The days of flaunting international law and fundamental human rights are no longer policy options for Israel without a downside. Turkey is dramatically demonstrating that there can be a decided downside to Israeli flagrant lawlessness.
The author is the UN Special Rapporteur for Human Rights in the Occupied Palestinian Territories