Israel-Gaza-Turkey Special: Taking Apart the UN Report on the Attack on the Freedom Flotilla

The United Nations' Palmer Report on Israel's deadly raid on the Gaza-bound Freedom Flotilla in May 2010 says that Israel's naval blockade is legal  as "Israel faces a security threat from violent groups in Gaza". However, the report concludes that, although Israeli commandos were met with "organized and violent resistance from a group of passengers" and were "forced to use self defense", they acted with "excessive and unreasonable force".

So what does Turkey, the country from where the Freedom Flotilla sailed, the country who had nine citizens killed in the assault, do now? On Thursday, Foreign Minister Ahmet Davutoglu said that Israel had only three days left to offer a formal apology unless they want to face further sanctions. Indeed, Ankara would go to the United Nations to get international support.

In paragraphs 71 and 72, the Palmer Report says:

The United Nations Charter, Article 2 (4) prohibits the use of force generally, subject to an exception under Article 51 of the Charter for the right of a nation to engage in self-defence. Israel has faced and continues to face a real threat to its security from militant groups in Gaza. Rockets, missiles and mortar bombs have been launched from Gaza towards Israel since 2001. More than 5,000 were fired between 2005 and January 2009, when the naval blockade was imposed. Hundreds of thousands of Israeli civilians live in the range of these attacks.As their effectiveness has increased, some rockets are now capable of reaching Tel Aviv. Since 2001 such attacks have caused more than 25 deaths and hundreds of injuries. The enormity of the psychological toll on the affected population cannot be underestimated. In addition, there have been substantial material losses. The purpose of these acts of violence, which have been repeatedly condemned by the international community, has been to do damage to the population of Israel. It seems obvious enough that stopping these violent acts was a necessary step for Israel to take in order to protect its people and to defend itself. Actions taken by Israel in turn have had severe impacts on the civilian population in Gaza, which we discuss further in Chapter 6.

The Panel notes in this regard that the uncertain legal status of Gaza under international law cannot mean that Israel has no right to self-defence against armed attacks directed toward its territory. The Israeli report to the Panel makes it clear that the naval blockade as a measure of the use of force was adopted for the purpose of defending its territory and population, and the Panel accepts that was the case. It was designed as one way to prevent weapons reaching Gaza by sea and to prevent such attacks to be launched from the sea. Indeed there have been various incidents in which ships carrying weapons were intercepted by the Israeli authorities on their way to Gaza. While the attacks have not completely ceased since the time of the imposition of the naval blockade, their scale and intensity has much decreased over time. While this decrease might also be due to other factors, a blockade in those circumstances is a legitimate exercise of the right of self-defence. Although a blockade by definition imposes a restriction on all maritime traffic, given the relatively small size of the blockade zone and the practical difficulties associated with other methods of monitoring vessels (such as by search and visit), the Panel is not persuaded that the naval blockade was a disproportionate measure for Israel to have taken in response to the threat it faced.

So, according to the Panel, Israel's naval blockade is "legitimate" due to the threats that it is facing and there are no political considerations, as opposed to those of security, behind the restrictions on gaza. The United Nations thus contributes to Israel's presentation while covering its political challenge with a simple emphasis on "security" and "legitimate exercise of self-defence", not taking into account the political, economic and social dimensions of this conflict.

The Palmer Report continues with the declaration that West Jerusalem has had no intention of "collective punishment" of Gazans. So it is certain that this naval blockade has a military objective:

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. On the contrary, it is evident that Israel had a military objective. The stated primary objective of the naval blockade was for security. It was to prevent weapons, ammunition, military supplies and people from entering Gaza and to stop Hamas operatives sailing away from Gaza with vessels filled with explosives. This is regardless of what considerations might have motivated Israel in restricting the entry of goods to Gaza via the land crossings, an issue which as we have described above is not directly related to the naval blockade. It is also noteworthy that the earliest maritime interception operations to prevent weapons smuggling to Gaza predated the 2007 take-over of Hamas in Gaza. The actual naval blockade was imposed more than one year after that event. These factors alone indicate it was not imposed to punish its citizens for the election of Hamas.

What about the Gazan population? Having re-emphasised that "the naval blockade was based on the need to preserve Israel’s security", the Panel says:

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 as its own consequences—either alone or by compounding the restrictions imposed by Israel on the entry of goods to Gaza via its border crossings—are slight in the overall humanitarian situation. Smuggling weapons by sea is one thing; delivering bulky food and other goods to supply a population of approximately 1.5 million people is another.

Put simply, the Panel says that, since the current use of sea routes for supplies is low --- assuming this has nothing to do with the Israeli restrictions --- there is no need to consider the rights of Gazans in this case: "The specific circumstances of Gaza are unique and are not replicated anywhere in the world. Nor are they likely to be."

In Paragraph 80, the Palmer Report reaches its crescendo with the balance that Gazans' "survival" --- nothing more --- need to be set along the condition that "humanitarian missions must respect the security arrangements put in place by Israel. They must seek prior approval from Israel and make the necessary arrangements with it. This includes meeting certain conditions such as permitting Israel to search the humanitarian vessels in question." West Jerusalem is vindicated:

The fundamental principle of the 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.

In an important extension, the Panel puts the stigma of confrontation on the passengers of the Freedom Flotilla which, rather than humanitarian aims, was organized to "generate publicity":

Other elements also raise questions concerning the objectives of the flotilla organizers. If the flotilla had been a purely humanitarian mission it is hard to see why so many passengers were embarked and with what purpose. Furthermore, the quality and value of many of the humanitarian goods on board the vessels is questionable. There were large quantities of humanitarian and construction supplies on board the Gazze 1, Eleftheri Mesogeio and Defne-Y. There were some foodstuffs and medical goods on board the Mavi Marmara, although it seems that these were intended for the voyage itself. Any “humanitarian supplies” were limited to foodstuffs and toys carried in passengers’ personal baggage. The same situation appears to be the case for two other of the vessels: the Sfendoni, and the Challenger I. 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. The number of journalists embarked on the ships gives further power to the conclusion that the flotilla’s primary purpose was to generate publicity.

So blames lies with the organisers and the Turkish government:

People may, of course, freely express their views by peaceful protest. But to deliberately seek to breach a blockade in a convoy with a large number of passengers is in the view of the Panel a dangerous and reckless act. It involves exposing a large number of individuals to the risk that force will be used to stop the blockade and people will be hurt.

It was foreseeable to the flotilla organizers as it was to the Turkish Government that there was a possibility of force being used against the ships to enforce the blockade. While the level of lethal force that was actually used may have been unforeseen, the organizers did anticipate that there would be an altercation with Israeli forces. 

Just before listing Israel's "mistakes", the Panel concludes:

For Israel to maintain the blockade it had to be effective, so it must be enforced. That is a clear legal requirement for a blockade. Such enforcement may take place on the high seas and may be conducted by force if a vessel resists. To this point in the analysis no difficulty arises.

These assertions should be set alongside the opinion by lawyer Dina Biygishieva, published in EA last year, "The Occupying Power Had to Facilitate the Passage". Biygishieva argues that, as an occupying power, Israel were obliged to meet humanitarian needs of the people of occupied territories to the fullest possible extent, according to the Fourth Geneva Convention. 

The Palmer Report sets aside any consideration of this for the specific criticism that the Israeli navy made a "mistake" by not issuing the last warning: "Although four warnings had been issued to the vessels, the fifth and final warning set out in the operation order stating that the navy “[was] obliged to take all necessary measures” was never issued." It continues:

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, and the finding contained in Israel’s report that significant violent resistance to boarding was not anticipated. It seems to us to have been too heavy a response too quickly. It was an excessive reaction to the situation.

But it is here, in this narrow condemnation of Israeli actions, that the Palmer Report undermines its wider absolution of West Jerusalem. If the vessels and the passangers on board were not a "direct military threat" to Israel's "security needs", then why could the vessels not arrive in Gaza? Even if the purpose was to "generate publicity", there was no necessity to board the Flotilla, killing nine people in the assault.

The Palmer Report cannot have it both ways. It cannot sweep aside the political context of the Gaza situation and the Flotilla and then, by default, sanction an Israeli operation which --- in the conclusion of the Report --- was motivated by political rather than military considerations.

Back to today and "What is Ankara going to do now?" The Palmer Report is not binding, but it will limit Turkey's room for manoeuvre on the international legal level. So Ankara is likely to change its focus from the United Nations to bilateral relations, playing hardball with Israel. The Turkish Ambassador is already back home, and on Friday, hours before the report was due to be published Ankara announced the expulsion of the Israeli Ambassador. Turkish officials also said they were suspending all remaining military agreements with Israel.