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Tuesday, October 04, 2011

The Palmer report's moral clarity

You will recall the Palmer commission report, which was released a few weeks ago, which concluded that Israel's blockade of Gaza is legal, but which described actions taken by the Israeli Navy when boarding the Mavi Marmara as 'excessive.'

Now that the dust has settled and people have had time to read and digest the report, UN Watch provides an important analysis of the report by Trevor Norwitz, a lawyer at a large New York law firm. Norwitz says that the report is even more on Israel's side than was previously believed.
The Palmer report upholds the Israeli position on all of the important legal elements regarding the flotilla incident. This may come as a surprise to anyone following the press coverage, which ironically but not surprisingly emphasized its criticism of the Israeli operation. (Even the Wall Street Journal published its report under the headline “UN Calls Israel Force On Flotilla Excessive.”) The Palmer report found that Israel’s naval blockade of Gaza was legal and “was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea,” that its implementation “complied with the requirements of international law,” that Israel had a “right to visit and search the vessel and to capture it if found in breach of a blockade,” including in international waters, that the flotilla organizers planned “in advance to violently resist any boarding attempt” and that “Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara” and responded in self-defence. The commissioners also noted that they have serious questions about “the conduct, true nature and objectives of the flotilla organizers, particularly [the Turkish NGO] IHH,” and described the decision to breach the blockade as a “dangerous and reckless act,” which “needlessly carried the potential for escalation.”

In stating these legal conclusions and seemingly obvious facts, the Palmer report does something that recent reports emanating from the UN Human Rights Council have tragically failed to do, namely place the responsibility for bad outcomes where it belongs. By allocating primary responsibility for violence to the instigators – those who fire rockets at civilian towns, and who recklessly force violent confrontations to generate publicity – this report will discourage the manipulation of international law and its institutions for political ends. By contrast, reports recently produced under the auspices of the Human Rights Council could be said to have rewarded and encouraged such cynical behavior. For example, the Goldstone Report on Israel’s 2009 Gaza war, even though Judge Richard Goldstone has himself reconsidered its principal findings, was viewed as a great victory and exoneration by Hamas, which has subsequently replenished its supply of rockets and other weapons. Hopefully the Palmer report will discourage future reckless efforts to violently break the blockade.


Although the Palmer report upheld Israel’s legal position, it did criticize the execution of the flotilla interception. As it notes, Israel did not anticipate that there would be significant violent opposition to an attempt to board the ships. This intelligence failure hampered the proper preparation and execution of the mission. The report echoes criticism that had already been leveled at the operation by Israeli sources, including suggestions that, having encountered heavy resistance to their initial attempt to board the Mavi Marmara from speedboats, the Israelis should have reconsidered their plan to board immediately by helicopter, and that before actually boarding the Israelis should have given a fifth and final warning or fired a shot across the ship’s bow. These seem like sensible suggestions, especially to someone with no experience in planning complex naval operations. However it is hard to square such tempered and modest recommendations with the unequivocal legalistic terms “excessive and unreasonable,” which naturally provided the media with their favorite quotes and sound bites.

There is no question that mistakes were made and the operation was not a success, but it is hard to read the report and not feel that the phrase “excessive and unreasonable” is inconsistent with the actual findings made. That characterization is more likely explained by the commissioners’ desire to appear even-handed, and perception of their express policy imperative “to achieve a way forward”. In this same spirit, the Report suggests that Israel make an appropriate statement of regret and offer a payment for the benefit of the deceased and injured, not because of any legal obligation or liability but symbolically “to advance the interests of stability in the Middle East”. The former Israel has done and the latter is a reasonable suggestion that I expect Israel would be willing to comply with if that would put an end to the matter.
My problem is that I doubt that a relatively unbiased commission like the Palmer Commission will ever be allowed to be formed again when Israel is the subject. Norwitz tries to use the report to show that the UN can work, and the report would seem to show that. But now that the majority of the World body has seen what happens when an unbiased commission is appointed to deal with Israel, I doubt they will ever make the mistake of letting it happen again.

Read the whole thing.

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