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A couple of weeks ago the UN Secretary General's office published the findings of an inquiry, headed up by former New Zealand Prime Minister Geoffrey Palmer and former Colombian President Alvaro Uribe, into the Gaza flotilla incident (i.e. the incident last May in which Israeli commandos forcibly boarded a flotilla of ships full of activists bound for Gaza, killing nine and injuring many).

The Report made clear that its investigations were largely restricted to the national reports submitted by Israel and Turkey, and that its principle goal was not to establish what happened but to find a way for normal diplomatic relations between Israel and Turkey to be restored. Nonetheless, its finding that the naval blockade of Gaza is legal - a finding based on the claim that it is possible to assess the legality of the blockade in isolation from Israel's broader policy of closure towards Gaza, which it condemned - caused a stir, and was inevitably cited with glee by some as proof of the legitimacy of Israel's actions.

In fact the Report's legal conclusions are highly eccentric, contradicting the consensus view of UN inquiries and human rights organisations, which condemns the Gaza closure, of which the blockade is taken to be a part, as illegal collective punishment.

For the benefit of readers here, I am republishing a useful factsheet on the Palmer Report and the Gaza closure produced by Gisha, an Israeli human rights organisation. I do so with the permission of Gisha. Gisha is a highly respected NGO, which specialises in analysing the Israeli government's policy towards Gaza and holding it up against the standards of international law. Those wanting to base their position on an informed understanding of the situation, or at least to have a conversation that proceeds from a shared understanding of the facts, would, I think, do well to read Gisha's factsheet.

Please see the Tip Jar for links to further useful reading.

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This week we address some common myths and misconceptions which have emerged over the past days following the release of the Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (in other words, the Palmer Report). These are myths which we identified in the report itself, in the Israeli and Turkish positions as they are summarized in the report, as well as in public debate (mainly in the media) sparked by the report.

Myth: The commission determined that Israel’s closure of Gaza is legal.
Fact: The commission determined that Israel’s naval blockade is legal. The commission argued that an assessment of the legality of the naval blockade can be conducted independently of the question of the legality of the overall closure policy. We disagree with this assessment and believe that restrictions on movement, whether by land, sea or air, constitute a single policy, the components of which cannot be reviewed independently. The legality of the overall closure policy was left as an open question by the panel, however, a recommendation was made to Israel that it continue easing restrictions on movement “with a view to lifting its closure and to alleviate the unsustainable humanitarian and economic situation of the civilian population” in Gaza (par. 156).

Myth: The Palmer Commission was a formal panel of inquiry, charged with the authority to summon witnesses and whose findings can be considered thorough and binding by law.
Fact: The commission was established by the UN Secretary-General on August 2, 2010, to review the “circumstances and context” related to the May 2010 flotilla incident. The panel stressed in its report that it was not “acting as a Court and was not asked to adjudicate on legal liability” (Summary, par. 1). Moreover, it states that, “its findings and recommendations are therefore not intended to attribute any legal responsibilities” much in the same way as the recommendations of the Goldstone report were not legally binding. The panel did not have a mandate to summon witnesses, it was meant to work by consensus and no live testimony was heard. The panel formed its report drawing from the information supplied from Turkish and Israeli domestic inquiries and representatives chosen by each country.

Myth: The maritime closure began in January 2009.
Fact: Israel did indeed declare a naval blockade in 2009, but it has blocked sea access to Gaza since 1967 by virtue of its authority as an occupying power. Gisha’s position is that the laws of occupation 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, however they also impose upon Israel an obligation to allow movement, subject to specific security inspections, and to facilitate normal life in the occupied territory.

Myth: “Israel is the Occupying Power in Gaza, and cannot blockade the borders of the territory it occupies” (Summary of the Interim and Final Reports of Turkey’s National Investigation, par. 23e).
Fact: Gisha’s position is that Israel has the authority (under the law of occupation and not the law of naval blockade!) to determine by which routes goods and people enter and leave the occupied territory, while at the same time bearing an obligation to allow movement and access in such a way that facilitates normal life.

Myth: Bringing in goods via the sea isn’t possible anyway because there is no deep sea port in Gaza, and therefore the naval blockade is not related to the restrictions on movement of civilians and civilian goods (see par.78).
Fact: While it’s true that there is currently no deep sea port, the report fails to note that Israel bombed the site of a planned seaport in September 2001, where construction had already begun. Since that time, and despite a promise made in the 2005 Agreement on Movement and Access, Israel has refused to provide guarantees to the international donors who wish to fund construction of a port that it will not bomb the site again, thus preventing it from being built. Blocking access via the sea is an inherent part of Israel’s overall closure policy.

Myth: “The blockade did not constitute collective punishment of the civilian population of the Gaza Strip: there is no evidence that Israel deliberately imposed restrictions on bringing goods into Gaza with the sole or main purpose of denying them to the civilian population” (from the Summary of the Report of Israel’s National Investigation, par. 47e).
Fact: Sweeping restrictions on movement of people and goods to and from Gaza were imposed in June 2007 and articulated in a September 2007 decision by the Israeli Security Cabinet. The cabinet decision refers to a need to restrict movement in order to respond to Hamas’ rise to power in Gaza and the firing of rockets from Gaza into Israel, however the restrictions are not imposed in order to confront a concrete security threat but rather as a means to exert pressure on the Hamas government in the Gaza Strip. The concept of using “economic warfare” as a means of pressure has been confirmed on numerous occasions in statements made by public officials, as well as by the Israeli Justice Ministry in a statement to the Israeli Supreme Court.

Israel’s closure of the Gaza Strip impacts each and every one of its residents, more than half of whom are children, regardless of whether they are personally involved in violent acts against Israel or not. For this reason, the closure constitutes collective punishment, in violation of international law.

Myth: Israel ended its closure of Gaza after the 2010 flotilla incident.
Fact: Some key aspects of Israel’s closure policy have been eased. In July 2010, Israel removed a ban on the entrance of consumer goods and raw materials, however, it continues to restrict export, entrance of construction materials and movement of people between Gaza and the West Bank. These restrictions continue to paralyze the economy of Gaza and cause substantial damage to key aspects of civilian life. In so doing, Israel continues to violate its obligations under international law, rendering its policy of closure – including the maritime closure – unlawful. In order to bring its policy into compliance with international law – meaning that security interests are protected while obligations to civilians in Gaza are maintained – Israel must allow export, entrance of construction materials, and travel between Gaza and the West Bank, subject only to individual security checks.

Originally posted to Heathlander on Mon Sep 19, 2011 at 11:43 AM PDT.

Also republished by Adalah — A Just Middle East.

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