Mission & Name
US Foreign Policy (Dr. El-Najjar's Articles)
Gaza Not Represented in UN's Blockade Whitewash
By Stuart Littlewood
Al-Jazeerah, CCUN, September 12, 2011
Warped “inquiry” invites mega-mischief
Stuart Littlewood analyses the conclusions of the UN’s Palmer inquiry into
the fatal Israeli raid on the Gaza-bound Turkish aid ship Mavi Marmara: a
“bizarre reframing of the situation – that the illegal occupier, Israel, is
the victim of the Palestinians’ lawful resistance and that Israel’s security
must be given priority over everyone else’s”.
According to the
Palmer inquiry, brought to you by that freak-show, the United Nation, under
its Secretary-General Ban Ki-Moon,
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... the flotilla acted recklessly in
attempting to breach the naval blockade.
This is completely at odds with what other experts have said. The UN
itself has already accepted that Israel's blockade is illegal. One of its
own fact-finding missions declared that it constituted collective punishment
of the people living in the Gaza Strip and thus was illegal and contrary to
Article 33 of the Fourth Geneva Convention. The action by Israel’s military
in intercepting the Mavi Marmara on the high seas was "clearly unlawful" and
couldn’t be justified even under Article 51 of the Charter of the United
Nations [the right of self-defence]. “No case can be made for the legality
of the interception and the [UN fact-finding] mission therefore finds that
the interception was illegal”.
Centre for Constitutional
Rights also concluded that the Israeli blockade was illegal. It said:
Due both to the legal nature
of Israel’s relationship to Gaza – that of occupier – and the impact of
the blockade on the civilian population, amounting to “collective
punishment”, the blockade cannot be reconciled with the principles of
international law, including international humanitarian law... The
flotilla did not seek to travel to Israel, let alone “attack” Israel…
Israel could have diplomatically engaged Turkey, arranged for a third
party to verify there were no weapons onboard and then peacefully guided
the vessel to Gaza.
also knows a thing or two about such matters, having headed the Maritime
Section of Britain’s Foreign and Commonwealth Office. He was responsible for
giving political and legal clearance to Royal Navy boarding operations in
the Persian Gulf following the Iraqi invasion of Kuwait, to enforce the
UN-authorized blockade against Iraqi weapons shipments. He commented:
Right of free passage is
guaranteed by the UN Convention on the Law of the Seas... Israel has
declared a blockade on Gaza and justified previous fatal attacks on
neutral civilian vessels on the high seas in terms of enforcing that
embargo, under the legal cover given by the San Remo Manual of
International Law Applicable to Armed Conflicts at Sea.
But, he explains, San Remo only applies to blockade in times of armed
conflict. “Israel is not currently engaged in an armed conflict… San Remo
does not confer any right to impose a permanent blockade outwith times of
armed conflict, and in fact specifically excludes as illegal a general
blockade on an entire population.”
Furthermore, Security Council
resolution 1860 (2009) emphasizes "the need to ensure sustained and regular
flow of goods and people through the Gaza crossings" and calls for "the
unimpeded provision and distribution throughout Gaza of humanitarian
assistance, including of food, fuel and medical treatment". Israel has
imposed a land blockade for decades and until very recently had a hand in
keeping Gaza's land crossing with Egypt closed. The 2005 Agreement on
Movement and Access between the Palestinian Authority and Israel is also
ignored. So, the only sensible channel for "unimpeded provision and
distribution" is by sea.
Panel “cannot make definitive findings”
“Ban Ki-Moon didn't think it necessary to invite someone
from … the government of Gaza. Can you imagine, if the
tables were turned, the merry hell Israel would kick up if
not represented on an inquiry about the legality of a
blockade on one of its ports?”
The Terms of Reference for the Palmer inquiry handed down by Ban Ki-Moon
set out a “method of work”, which is described in the report this way:
The panel is not a court. It
was not asked to make determinations of the legal issues or to
adjudicate on liability...
The panel was required to obtain its
information from the two nations primarily involved in its inquiry,
Turkey and Israel, and other affected states... the limitation is
important. It means that the panel cannot make definitive findings
either of fact or law. The information for the panel’s work came
primarily through its interactions with the points of contact designated
by Israel and Turkey.
So, it could not summon individuals or approach individuals or
organizations direct. It could only do so through the points of contact
designated by Israel and Turkey.
The legal views of Israel
and Turkey are no more authoritative or definitive than our own. A
commission of inquiry is not a court any more than the panel is. The
findings of a commission of inquiry bind no one, unlike those of a
court. So, the legal issues at large in this matter have not been
authoritatively determined by the two States involved and neither can
they be by the panel.
The four-man panel included a representative each from the governments of
Turkey and Israel, and was headed by Sir Geoffrey Palmer (Chair) and Alvaro
Uribe, 58th president of Colombia. Palmer was the 33rd prime minister of New
Zealand if that's any consolation.
Note the absence of anyone to
represent the views of the party targeted by the blockade. Ban Ki-Moon
didn't think it necessary to invite someone from (horror of horrors) the
government of Gaza. Can you imagine, if the tables were turned, the merry
hell Israel would kick up if not represented on an inquiry about the
legality of a blockade on one of its ports?
Limited to this, couldn’t
do that – Ban Ki-Moon’s inquiry was warped from the start. "This panel is
unique. Its methods of inquiry are similarly unique," says the report,
slitting its own throat.
Key passages from Palmer's nonsensical 105
pages speak for themselves:
The naval blockade is often
discussed in tandem with the Israeli restrictions on the land crossings
to Gaza. However, in the panel’s view, these are in fact two distinct
concepts… the land crossings policy has been in place since long before
the naval blockade was instituted. In particular, the tightening of
border controls between Gaza and Israel came about after the takeover of
Hamas in Gaza in June 2007. On the other hand, the naval blockade was
imposed more than a year later, in January 2009. Second, Israel has
always kept its policies on the land crossings separate from the naval
blockade. The land restrictions have fluctuated in intensity over time
but the naval blockade has not been altered since its imposition. Third,
the naval blockade as a distinct legal measure was imposed primarily to
enable a legally sound basis for Israel to exert control over ships
attempting to reach Gaza with weapons and related goods.
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... 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.
Did they never consider the most obvious step of all – ending their
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.
blockade by definition imposes a restriction on all maritime traffic...
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.
The panel considers the conflict should be treated as an international
one for the purposes of the law of blockade. This takes foremost into
account Israel’s right to self-defence against armed attacks from
What about Gaza's right to similarly defend its territory and population?
It sounds like the panel regards Gaza and the West Bank as the aggressor.
It would be illegal if its
imposition [i.e. the blockade] 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 takeover 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… The earliest maritime interception operations to
prevent weapons smuggling to Gaza predated the 2007 takeover 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.
A catalogue of distortion
“…why doesn't Palmer … tell us how many Israeli bombs,
rockets, shells and prohibited ordnance have been fired at
the Gazan population by Israeli jets, tanks and warships?”
There are several things wrong with these assertions. Israel’s unending
acts of violence have also been repeatedly condemned by the international
community and there’s a string of UN resolutions to prove it. But they are
Israel slapped a naval blockade on Gaza long
before January 2009. Israeli gunboats were shelling Gaza and shooting up
Gazan fishing boats in 2007 when I was there. An interim agreement signed in
1995 allowed the Israelis to weave a tangled web of security zoning in
Gaza's coastal waters and to dictate what happens off-shore and who comes
and goes. It’s the sort of agreement no Palestinian would have signed except
with a gun to his head.
Being “interim”, these restrictions were not
expected to last beyond 1999. But they are still in force. They predate
rockets from Gaza, speaking of which why doesn't Palmer, instead of trotting
out details of these home-made missiles, tell us how many Israeli bombs,
rockets, shells and prohibited ordnance have been fired at the Gazan
population by Israeli jets, tanks and warships? Palmer talks about the 25
Israeli deaths and hundreds of injuries and “the enormity of the
psychological toll” on the Israeli population. Regrettable as those
casualties are, they are nothing compared with the mega-deaths and countless
thousands maimed, the wholesale destruction of infrastructure and the
psychological toll inflicted by Israel on the Gazans.
The people of Gaza couldn’t care less whether Israel keeps its policies
on land and naval blockades “separate”. It’s the combined effect that
As for the claim that the primary purpose of the blockade is
security, the panel clearly hasn’t studied the WikiLeaks cables from 2008,
one of which reads: “As part of their overall embargo plan against Gaza,
Israeli officials have confirmed to (US embassy economic officers) on
multiple occasions that they intend to keep the Gazan economy on the brink
of collapse without quite pushing it over the edge." Israel wanted it
"functioning at the lowest level possible consistent with avoiding a
And according to documents released under a
Freedom of Information petition by
Gisha, an Israeli law
centre, Israel operated "a policy of deliberate reduction" of basic goods in
the Gaza Strip. Gisha’s director accused Israel of “paralyzing normal life
in Gaza”. The documents confirmed that the siege was not for security
reasons but aimed at keeping Gazans at near-starvation level. Since around
half the population are growing children, this act of collective punishment
has meant that hundreds of thousands are undernourished.
might have asked why, since no rockets have been fired from the West Bank,
the shredded remains of that part of Palestinian territory is still under
occupation, blockade and cruel restriction?
Palmer, Uribe and Ban Ki-Moon
need to wake up to Israel’s never-ending campaign of disinformation. Palmer,
for example, repeatedly refers to “the takeover of Gaza” by Hamas when
Hamas, as everyone else knows, was democratically elected.
It is Hamas that is firing
the projectiles into Israel or is permitting others to do so. The panel
considers the conflict should be treated as an international one for the
purposes of the law of blockade. This takes foremost into account
Israel’s right to self-defence against armed attacks from outside its
There’s nothing about Gaza’s right to self-defence or even
self-preservation. Then this warning:
Once a blockade has been
lawfully established, it needs to be understood that the blockading
power can attack any vessel breaching the blockade if after prior
warning the vessel intentionally and clearly refuses to stop or
intentionally and clearly resists visit, search or capture. There is no
right within those rules to breach a lawful blockade as a right of
protest. Breaching a blockade is therefore a serious step involving the
risk of death or injury.
Given that risk, it is in the interests
of the international community to actively discourage attempts to breach
a lawfully imposed blockade.
The imposition of a blockade
involves the use of force, which can only be employed in the exercise of
a right of self-defence. Measures taken by states in the exercise of
their right of self-defence are required under Article 51 of the United
Nations Charter to be notified to the Security Council.
Occupier is the victim of resistance?
“At the outset, the inquiry panel said it couldn’t make
definitive findings and was not competent to determine the
legal issues, yet it immediately set about concocting its
own distorted judgement based especially on the dubious
legal views of Israel, which it admitted are ‘no more
authoritative or definitive than our own’.”
So, Palmer’s bizarre reframing of the situation – that the illegal
occupier, Israel, is the victim of the Palestinians’ lawful resistance and
that Israel’s security must be given priority over everyone else’s – will
have given Tel Aviv something to smirk about. Worse, it gives Israel and its
stooges around the world reason to think they have a green light for
imposing a permanent blockade, for Israel will always dream up bogus threats
to its security.
But the Palmer report, surely, cuts both ways. By
the same token it gives the green light to Palestine, if ever it obtains the
weaponry to impose a blockade of its own, and to Lebanon, Syria, Iran and
maybe Free Egypt, to play the naval blockade game against Israel, whose
unsupervised nuclear arsenal, scant respect for international law
and liking for armed trespass pose a much greater threat to the region than
random garden-shed rockets from Gaza ever did.
And what does this
whitewash mean for the Palestinians' UN bid for statehood? Is the newly
fledged state to begin its young life with a land and sea blockade in place
because Palmer and Uribe say it’s all legal and above board and Israel's
security comes first? Let us not forget that the West Bank and East
Jerusalem are under blockade too.
The Turkish representative on the
panel, Süleyman Özdem Sanberk, has rightly dissociated himself from some of
Palmer’s key 'findings':
On the legal aspect of the
blockade, Turkey and Israel have submitted two opposing arguments.
International legal authorities are divided on the matter since it is
unprecedented, highly complex and the legal framework lacks
codification. However, the chairmanship and its report fully associated
itself with Israel and categorically dismissed the views of the other,
despite the fact that the legal arguments presented by Turkey have been
supported by the vast majority of the international community. Common
sense and conscience dictate that the blockade is unlawful.
the UN Human Rights Council concluded that the blockade was unlawful.
The Report of the Human Rights Council Fact-Finding Mission received
widespread approval from the member states.
Freedom and safety of
navigation on the high seas is a universally accepted rule of
international law. There can be no exception from this longstanding
principle unless there is a universal convergence of views.
The Palmer report deserves condemnation and is getting it. Such dangerous
tripe belongs in the wastepaper basket. At the outset, the inquiry panel
said it couldn’t make definitive findings and was not competent to determine
the legal issues, yet it immediately set about concocting its own distorted
judgement based especially on the dubious legal views of Israel, which it
admitted are “no more authoritative or definitive than our own”.
what is the secretary-general’s mischievous game in setting this up?
As if we didn’t know.