In September 2010 the United Nations Human Rights Council lashed out at UN Watch for exposing the failure of its flotilla inquiry to consider key facts that were submitted into evidence. Commission chair Desmond de Silvaaccused UN Watch of a “fundamental and undenying ignorance of the law.” He famously declared: “Even if Bin Laden himself were on the Mavi Marmara, Israel’s blockade would still be illegal.” This finding is flatly contradicted, however, by a separate UN panel commissioned by Secretary-General Ban Ki-moon. Read full report here. Headed by Sir Geoffrey Palmer, a former prime minister of New Zealand and law professor, the new commission of inquiry finds that Israel’s naval blockade of Gaza is lawful. Legal expert Trevor S. Norwitz explains.
The Importance of the Palmer Report
Trevor S. Norwitz
The United Nations report prepared under the leadership of former New Zealand Prime Minister Geoffrey Palmer on the Israeli interception of a Gaza-bound flotilla in which nine pro-Palestinian activists were killed is noteworthy for several reasons. It confirms long-standing and important principles of international law concerning the use of naval blockades in military conflicts, which had been under attack by parties with a political agenda. It injects a degree of moral clarity into the debate surrounding the legitimate use of force in asymmetrical situations by properly allocating the responsibility for violence to those who cause it. And it demonstrates the continuing vitality of the United Nations in international law and justice, by showing that where a fair and reasonable process for an international investigatory mission is established, including even-handed resolutions establishing the mission, appropriate staffing, and proper information-gathering techniques, the countries involved will likely cooperate, which will greatly enhance the legitimacy and quality of the end-product.
Although not as common as they once were, naval blockades have been an important part of military strategy since time immemorial. Rules governing the legality of sea blockades, including the principle that to be legal a blockade has to be effectively enforced, have been part of international law for over 150 years. The 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea contains the current standards for imposing and maintaining naval blockades. As the Palmer Report confirmed, Israel complied fully with all aspects of the San Remo Manual in imposing its naval blockade of Gaza in 2009 to prevent rockets and other military equipment reaching Gaza, a very real threat given the thousands of rockets that had been fired towards Israeli population centers and the capture of weapons-laden ships bound for Gaza. An earlier report on the flotilla incident rushed out at the request of the Human Rights Council concluded – without a single line of analysis – that the blockade was disproportionate and therefore unlawful. Such naked manipulation of international law principles for political purposes – an example of what has come to be known as “lawfare” – is not only a threat to Israel and other countries that may need to utilize naval blockades in the future, but to the integrity of international law itself. Fortunately the Palmer report, by acknowledging the legality of the blockade and the legal and practical necessity of its enforcement, and focusing instead on the manner of enforcement in this case, will limit the damage to established international law principles.
The argument is sometimes made that the rules governing armed conflicts have to be modified to take account of the increasing use of asymmetrical warfare and terrorist tactics. The main problem, however, has not been that the laws of war are outmoded, but that their application has been tainted by political motivation and bias. The Palmer report, although influenced by political forces to some degree, offers hope that the United Nations, the primary global institution responsible for enforcing international law, is still capable of rising to the challenge, even if its human rights organs are manifestly not.
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.
Excessive or unreasonable?
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.
The report’s criticisms of the treatment of the flotilla passengers after the battle are more troubling. Although the facts are contested and highly uncertain, it is clear that the Israelis did not treat the Mavi Marmara passengers with kid gloves. It is also clear that Israel needs to remember, should a similar situation ever arise again, both that its actions will be subject to a level of scrutiny not applied to anyone else, and that its own people and its supporters expect that it will adhere to the highest standards of decency. These standards should be applied (with appropriate security measures) even in the case of people who have chosen to provide moral and material support to terrorist organizations targeting Israeli citizens. It may not be fair but that is how it is if you want to be the state of the Jewish people. Israel would also do well to remember that people who have given up their vacations and even risked their lives to score a public relations coup can not always be counted on to tell the truth. Video cameras should be used both to enforce and to evidence appropriate treatment of prisoners.
Unfortunately, given Turkey’s response to the Palmer Report, it seems it may not achieve its primary objective of putting the flotilla matter to rest and facilitating the normalization of relations between Israel and Turkey. The report does however offer valuable and important lessons and provides a far better template for involvement in international disputes than other recent examples.
Trevor S. Norwitz is a partner at the law firm of Wachtell, Lipton, Rosen & Katz, and an adjunct faculty member of the Columbia University School of Law.