Friday, September 2, 2011

Gisha and Free Gaza Movement respond to the Palmer Report's whitewash of the Israeli attack on the 2010 Gaza Freedom Flotilla

Dear friends,
as you will have probably heard, a leaked copy of the Palmer report has been obtained by the New York Times. The Palmer Commission was appointed by the UN Secretary General to investigage events surround the murderous attack on the Gaza flotilla in 2010.

According to the New York Times, the Palmer report makes the following assertions:

* Israel's naval blockade of Gaza is "both legal and appropriate".
* the report "takes a broadly sympathetic view of Israel’s sea blockade of Gaza"
* the report takes a hard line on the flotilla, asserting it “acted recklessly in attempting to breach the naval blockade.”
* But the Israeli navy boarded the flotilla was "excessive and unreasonable"
* that there was “organized and violent resistance from a group of passengers” and were therefore required to use force for their own protection.
* the loss of life due to the Israeli military's "excessive and unreasonable" force was "unacceptable" and that the Israeli military treatment of passengrs was "abusive"

You can access the full NYT article here.

However, it is important to note that New York Times states the "report noted that the panel did not have the power to compel testimony or demand documents, but instead had to rely on information provided by Israel and Turkey. Therefore, its conclusions cannot be considered definitive in either fact or law".

In other words, the Palmer Commission written after assessing from any of the flotilla participants or even from any of the media upon the flotilla. Thus as the NYT notes, it can not be classified as definitive in relation to either FACT or international LAW, instead it relies upon the deeply biased report by the Israeli military and state, with their assertions that the blockade is legal and that they acted appropriately.

Amnesty International pointed out in January this year, that the Israeli Turkel report was deeply flawed. Amnesty International also pointed out that the Turkel Report used "Highly contentious legal arguments were used by the Commission to argue for the applicability of international humanitarian law to the raid, rather than international human rights law or law enforcement standards" (see Amnesty International report here)

Gisha, the Israeli based Legal Centre for Freedom of Movement and the Free Gaza Movement has issued the following statement and briefing papers in relation to the media reportage of the leaked Palmer Report. Gisha's briefing paper in particular address the legal issues relating to Israel's blockade. The FGM address the broader political whitewish of the report.

I have also included two videos, which include raw footage shot by Iara Lee that was taken at the time of the Israeli attack on the Mari Marmara. As Lee, outlines in the first video which includes an interview with Democracy Now, she had to smuggle out her footage, as Israel confiscated nearly all the footage and discs and refused to return it. This footage and photographs stolen the Israeli military were not made available to the UN Palmer Commission.

In solidarity,

Q&A on the Palmer report
by Gisha

The Palmer Commission, appointed by the UN secretary-general to investigate the events surrounding the Gaza flotilla in 2010, is supposed to publish its report tomorrow (we’re not holding our breath or putting much weight on it, since it’s been delayed several times already to give Israel and Turkey a chance to come to “an agreement on language”). According to media reports, the commission is likely to find that Israel was within its rights to stop the vessels on their approach to Gaza, but will criticize the excessive use of force during the operation. Below, Gisha offers responses to several questions regarding legal status of the flotilla, the closure, and the connection between the two.

1. According to international law, is Israel permitted to block sea access and stop vessels heading for the Gaza Strip?
Yes, but at the same time it must allow the free passage of goods by alternative channels. Israel has prevented maritime access to the Gaza Strip since 1967 by virtue of its authority as an occupying power and in accordance with the laws of occupation as defined by international law. These laws continue to apply to the Gaza Strip following the implementation of Israel’s Disengagement Plan in 2005, since Israel still controls key aspects of life in the area. The laws of occupation permit Israel to decide through which channels goods and people will enter and leave the Gaza Strip. Although Israel has invited vessels to unload their cargo at Ashdod Port, it does not allow all the civilian goods on board to enter the Gaza Strip by land after security inspection.

2. Does that imply that Israel’s maritime closure of the Gaza Strip is lawful?
No. In our opinion, the legality of the maritime closure must be considered in the context of the overall closure of the Gaza Strip, which is also enforced by air and land. In this context, Israel has failed to meet its legal obligations. It is a fundamental principle of international law that with control comes responsibility; this in order to avoid a situation where no side takes responsibility for the protection of civilians during wartime or in situations of occupation. Accordingly, the substantial control Israel exercises over the crossings into the Gaza Strip imposes an equally substantial responsibility to permit the movement of people and goods at the level required in order to maintain the proper functioning of the economy, the health and education systems, and other aspects of civilian life. Israel is permitted to prevent the passage of merchandise or people only if there is a concrete security reason for doing so, and even then it must strike a balance between its security needs and its obligation to maintain normal life in the occupied territory. By preventing the passage of civilians and goods of a civilian nature to and from the Gaza Strip, Israel has paralyzed the economy of the area and caused substantial damage to key aspects of civilian life. In so doing, it has violated its obligations under international law, rendering its policy of closure – including the maritime closure – unlawful.

3. So according to this principle, during a violent conflict it is not permissible to use sanctions and other economic tools that hamper the enemy’s war effort but which also injure the population?

Not exactly. The case of the Gaza Strip differs substantially from sanctions imposed by one state on another. The closure of the Gaza Strip does not merely restrict the commercial relations of the area with Israel, but with the entire world. Accordingly, the closure cannot be considered to be the realization of Israel’s sovereign right not to maintain commercial relations with the area. The imposition of sanctions on commerce between the Gaza Strip and third countries is permissible only with the agreement of these countries, or in accordance with a binding resolution of the United Nations. Such action certainly deviates from Israel’s authority. Moreover, the closure does not meet the legal definition of a siege, which may be imposed in accordance with international law for a fixed period and in order to secure a defined military objective. To the best of our knowledge, the protracted closure has no defined military objective; additionally, it does not permit the free passage of civilians from the besieged area as required by law.

4. But after the flotilla, the restrictions were relaxed. Doesn’t that mean that the closure is lawful now?
No. Following the 2010 flotilla, the State of Israel introduced certain relaxations in the closure policy. The prohibition against the transfer of consumer products and raw materials was abolished; Israel permitted approximately 1,000 exits per month by merchants from the Gaza Strip to Israel and the West Bank; and certain localized gestures were announced, including allowing entrance of building materials for international organizations and the export of negligible quantities of merchandise produced in the Gaza Strip. The sweeping prohibitions on the passage of people between the Gaza Strip and the West Bank apart from “humanitarian exceptions”, on the entrance of building materials for the private sector and export or sale of goods outside the Strip remained in force. The relaxations which were implemented are important, but fall far short of what is needed in order to permit economic and social recovery in the Gaza Strip, and fail to meet Israel’s legal obligations, as we have explained. In order to render its policy toward the Gaza Strip lawful, Israel must lift the sweeping restrictions that remain and allow transfer of construction materials, export of goods and travel of people between Gaza and the West Bank, subject to individual security inspections.


Iara Lee speaks with Democracy Now about the Israeli attack on the Marvi Marmara and the release of her raw footage of the shot on the Mari Marimara and smuggled out.
Warning: footage may cause distress to some viewers.

The Palmer/Uribe Report: Another attempt by Israel to whitewash murder
by The Free Gaza Movement on September 1, 2011

On May 31, 2010, Israeli commandos brutally attacked Freedom Flotilla 1, killing eight Turkish and one American passenger on board the Mavi Marmara, most having been killed at close range, execution style.. They injured more than 50 other passengers, both on the Mavi Marmara and on the other four boats sailing to the embattled territory of Gaza to bring the attention of the world to Israel’s illegal blockade of 1.6 million Palestinians. Not only were our passengers murdered and maimed, but the Israeli government has refused to return over $1 million in money and equipment, including cameras and videos which are of evidential value.

In the 15 months since Israel’s unwarranted attack on five boats carrying human rights watchers, Israel has been trying to spin the story that their well-armed soldiers were the victims and we were the aggressors. Several reports have already been written, most squarely blaming Israel for its attack on unarmed civilians.

The UN Human Rights Council Fact-Finding Mission took evidence from 112 eyewitnesses, reviewed forensic evidence, including autopsy reports and inspected the Mavi. It found that, because a humanitarian crisis exists in Gaza, Israel's blockade is ulawful and ‘cannot be sustained in law…regardless of the grounds” used as justification. Israel’s blockade is collective punishment and in violation of article 33 of the Fourth Geneva Convention, inflicting civilian damage disproportionate to any military advantage. Therefore, since Freedom Flotilla 1 neither presented an imminent threat to Israel nor was designed to contribute to any war effort against Israel, intercepting the flotilla was ‘clearly unlawful’ andcould not be justified as self-defense.

Israel refused to cooperate with this UN panel even though the United Nations and governments all around the world called for just such an independent investigation of the events.

Instead, the Israeli government set up its own investigatory panel, The Turkel Commission, led by Israeli retired Supreme Court Judge Jacob Turkel and three other Israelis issued a report on January 23, 2011 exonerating the commandos, then saying the blockade was legal. The commission did not interview a single passenger or crew member from any of the boats but only received testimony from the Israeli military.

On January 28, 2011, Amnesty International condemned the Turkel findings as no more than a whitewash. “Despite being nearly 300 pages long, the report crucially fails to explain how the activists died and what conclusions the Commission reached regarding the IDF’s specific actions in each case.”

Free Gaza shares Amnesty International's analysis that the conflict between the Israeli armed forces and unarmed civilians was NOT armed conflict, making international humanitarian law (IHL) the wrong framework; international human rights law and law enforcement norms should have been applied, which would have made the use of force – and especially lethal force –an act of last resort.

Now there is the Palmer/Uribe report due to be released tomorrow, which apparently adopts the same faulty IHL framework. According to Audrey Bomse, Board member and Legal Adviser to Free Gaza: “If the leaks we've heard from Israeli officials are correct, the holes in this report are big enough to sail a flotilla of ships through. There are serious problems with the Panel’s composition, mandate and legal analysis. But most disturbing of all is the fact that the Secretary General’s Panel apparently condones Israel’s gross violations of the human and national rights of the Palestinian people and the rights of those in solidarity with them.”

The Panel has 4 members, one from Israel and one from Turkey, plus Geoffrey Palmer, former prime minister of New Zealand and ex-president of Colombia, Alvaro Uribe. The choice of Uribe as vice-chairman is suspect, given his intimate association with the military and paramilitary practice of murdering civilians in Colombia. The Panel, was only tasked to review the reports of the national investigations by Turkey and Israel (the Turkel Committee), not to conduct an in-depth objective investigation. Its ultimate goal, was to “positively affect the relationship between Turkey and Israel.”

International humanitarian law (IHL, the law of armed conflict) is the wrong legal framework to be used as the basis for judging the lawfulness of the actions taken by Israel both against the civilian population of Gaza (the blockade) and against those resisting the boarding of the MM. The conflict between the Israeli navy and unarmed civilians on the Mavi Marmara was not armed conflict. International human rights law and law enforcement norms should have been applied, which would have made the use of force – and especially lethal force –an act of last resort. Nor should the legality of the blockade of occupied Gaza be analyzed in the framework of the law of armed conflict.

If indeed the Uribe Rport has concluded that the Israeli naval blockade on Gaza - a serious measure of war - is legal and in accordance with international law, then this Report will contradict numerous other UN reports and resolutions, most recently that of the Human Rights Council Fact-Finding Mission, on the issue of the legality of the Gaza siege.

As the Human Rights Council Fact‐Finding Mission observed, “public confidence in any investigative process ... is not enhanced when the subject of the investigation either investigates himself or plays a pivotal role in the process.”


Raw footage shot by Iara Lee on the Mari Marmara (approx 62 minutes)
Warning: footage may cause distress to some viewers.