The blockade which has suddenly become legal

In February 2006, the Israeli authorities tightened the siege on the Gaza Strip, reducing the movement of passengers and goods to and from the occupied territory; the excuse was the victory of Hamas in the Palestinian legislative elections. A few months later, after the Hamas government took control in the still-occupied West Bank and Gaza Strip, Israel imposed a stifling blockade and declared Gaza to be a hostile entity; the intention was clearly entity to put pressure on the population to make them feel that Hamas was responsible for bringing them woe and destruction down upon them. The blockade is still in place and has caused severe shortages of food and medical supplies, fuel and drinking water, reducing most of the residents of the Gaza Strip to extreme poverty to the extent that more than 80% are aid dependent. As the siege’s victims – children, the elderly, women and the sick – began to fall one after the other, the United Nations Relief and Works Agency (UNRWA) announced formally that there was a humanitarian catastrophe in the Gaza Strip. The response of the Israel government was to launch a war on the people of the Gaza Strip on 27 December 2008; in three weeks Israel killed around 1,400 men, women and children and wounded more than 5,000. Public and private properties were destroyed or seriously damaged, including around 60,000 homes.

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This brutality galvanised humanity and supporters of the Palestinian all over the world took action to break the siege imposed on Gaza and called for Israeli officials to be brought to justice so that such crimes could not be repeated. Land convoys to break the siege entered Gaza through Egypt and the maritime siege was broken by a small flotilla of boats. They were not enough to break the siege entirely, so at the end of May 2010 the Freedom Flotilla set sail from Turkey with humanitarian aid for Gaza and around 600 activists on board. The Israeli navy intercepted the vessels in international waters and killed nine Turkish citizens and wounded many others from the international group of passengers. The Mavi Marmara was the flotilla’s flagship and bore the brunt of the Israeli assault.

As has often been the case in such matters, the international community’s response was limited to verbal condemnation and fact-finding missions with which Israel did not cooperate. Despite the conclusions reached by these missions, their reports were never acted upon. The situation of the people of Gaza remained perilous. The most damning for Israel was the UN’s Goldstone Report, chaired by retired judge Richard Goldstone and commissioned in September 2009. Nine months later, the Human Rights Council established a committee to investigate violations of international law, including international humanitarian law and international human rights law arising from the assault on the Freedom Flotilla; this was chaired by Carl T. Hudson-Phyllis. In August 2010 the Secretary-General of the UN asked former New Zealand Prime Minister Sir Geoffrey Palmer to investigate the flotilla assault.

Israel agreed limited cooperation with the Palmer Commission, having been able to nominate one member and supply the list from which the others were chosen. Significantly, the first two investigation teams consisted of legal experts well able to carry out their work with full competence. Palmer, however, was more political in nature with no legal experts whatsoever; its role was to consider the reports submitted by Turkey and Israel about the flotilla incident; this was, no doubt, why Israel agreed to limited cooperation.

It is reasonable to ask why Palmer was commissioned just two months after the formation of the Human Rights Council mission to investigate the same issue. Nevertheless, when the HRC report was published they included condemnation of Israel for violating international law; the report was adopted by the United Nations.

Palmer’s report was leaked to the New York Times before it could be issued formally. Given its content it is perhaps no surprise that the report was made public in this way; it is undoubtedly shameful for the UN to be behind a report lacking in even the minimum of standards of internationally accepted legal standards and methodology. How much more shame can the UN bear following its inability to implement many resolutions condemning Israel and its occupation of Palestine over many decades? The Palmer report carries the stamp of the UN but essentially condemns the victims and condones the executioners. This has to be a new low for the UN which seems to have to avoid any criticism of Israel if it is to avoid a US veto.

To add insult to injury, in the face of a harsh blockade of the civilian population of Gaza (collective punishment); the killing of civilians during Israel’s war on Gaza, one-third of the children; and the flotilla massacre, Palmer’s report more or less legitimises what Israel as the occupying power has done and continues to do.

It was a grave error of judgement for the UN Secretary-General to form the Palmer committee while there was still a UN mission investigating the incident, compounded by making it a committee of politicians unfamiliar with international law. The very dangerous end-result is that international law which protects civilians in war and peace may be changed in order to fit in with Palmer’s conclusions. The Palmer Report is a recipe for disaster, sacrificing the rights of civilians on the altar of military might, and insulting the memories of those who gave their lives to establish laws and conventions safeguarding the innocent in times of conflict.

According to Palmer, the siege of the Gaza Strip is legal and Israel has the right to take action to protect its security against armed groups which fire rockets from the Gaza Strip. This places the rights of the occupying power over the rights of the people under occupation.

The legal status of the siege of the Gaza Strip dictates the legal status of attempts to break the siege. In calling the siege legal, Palmer gives legitimacy to Israel’s efforts to stop humanitarians attempting to break the blockade by land or sea.

What Israel is doing to the Palestinians in the Gaza Strip is collective punishment; Israel stands accused of grave breaches of the Geneva Conventions, war crimes, crimes against humanity and, most importantly, genocide.

The United Nations approved an agreement to prevent genocide and punish the perpetrators on 9 December 1948. The relevant Convention considers “genocide” as an international crime and the signatory states are obliged “to prevent it and to punish those who committed it”.

Collective punishment is also proscribed. Article 33 of the Fourth Geneva Convention of 1949 is clear: “No punishment of any protected person for a violation he did not commit himself. Collective punishment and likewise all measures of intimidation or of terrorism are prevented. Pillage is prohibited. Reprisals against protected persons and their property are prohibited.”

Article 55 of the same Convention: “The duty of the Occupying Power is to act, to the maximum allowed by its means available to provide the population with food and medical supplies, and should, in particular, bring in the necessary foodstuffs, medical supplies and other articles if the resources of the occupied territory are inadequate.

The Occupying Power may not take away foodstuffs, articles or medical supplies available in the occupied territories… and must take into account the needs of the civilian population…”

Article 54 of Protocol I of 1977 Additional to the 1949 Geneva Conventions states:

1. The starvation of civilians as a method of war is prohibited.

2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works. If the specific purpose of denying them for the civilian population or discount their sustenance value to whatever motive, whether in order to starve out civilians, to cause them to move, or for any other motive.

UN Security Council resolution 1860, dated 9 January 2009, calls for the opening of Gaza’s border crossings and to ensure the passage of humanitarian aid to the sector.

In addition, a presidential statement of the Security Council on 6 January 2010 stated: “The Security Council stresses that the situation in Gaza cannot continue and reiterates the importance of full implementation of resolutions 1850 and 1860 and in that context the Council reiterates its deep concern over the humanitarian situation in Gaza and stresses the need for the passage of goods and people regularly and permanently to Gaza.”

The UN General Assembly Human Rights Council noted the findings of the Goldstone Report on the conflict in Gaza on 25, paragraph 78: “The Mission is concerned about statements made by various Israeli officials who have made clear their determination to maintain the blockade… It is the opinion of the mission that this constitutes collective punishment of the civilian population in the Gaza Strip.”

In paragraph 1787 the mission states that the policy of the blockade imposed by the Israeli government deliberately reaches the level of collective punishment. Paragraph 1916 notes that “the international community has remained largely silent and failed so far to take action to ensure the protection of the civilian population in the Gaza Strip and the Palestinian territories in general.”

The Report of the Human Rights Council in September 2010, paragraph 61, points out that the mission considers that enforcement of an illegal blockade not only represents a violation of the laws of war, but also a violation of the neutrality laws establishing state responsibility. Paragraph 53 says that “when evaluating the evidence presented to the mission, including the provisions of the United Nations Office for the Coordination of Humanitarian Affairs in the Palestinian territories, which confirms the serious humanitarian situation in the Gaza Strip… the mission is convinced that this blockade leads to disproportionate harm to the civilian population and therefore intercepting the vessels [of the Freedom Flotilla] cannot be justified and therefore should be considered illegal.”

In paragraph 261, the mission came to the conclusion that there is a possible humanitarian crisis in Gaza and the large volume of evidence from reliable sources does not allow a contrary opinion. Any denial of this cannot be supported on any rational basis and one of the consequences of this is that for this reason alone, the blockade is illegal and cannot be supported legally. A couple of paragraphs later (paragraph 263), says that “Israel seeks to justify the siege on a security basis… but any action taken (in response to rocket fire) which represents a collective punishment of Gaza’s civilian population is unlawful whatever the circumstances.”

Richard Falk, the UN’s Special Rapporteur on human rights in the occupied territories, reported in June 2010 the deadly effects of the blockade and in paragraph 32 said, “the reality is represented in the illegality of the blockade and from this perspective, the blockade represents a fundamental violation of Israel’s responsibility to protect civilian populations in Gaza Strip.”

Also in June 2010, the International Committee of the Red Cross said: “All the civilian populations in the Gaza Strip are punished for actions they do not bear responsibility for. Therefore, the closure of the border constitutes a collective punishment imposed in a clear violation of Israel’s obligations under international humanitarian law.”

The San Remo Manual on International Law Applicable to Armed Conflicts at Sea dated June 1994 says:

“2 – The imposition of a siege is prohibited if:

A) The sole purpose envisaged is to starve the civilian population or to prevent them from access to other materials necessary for their survival, or

B) The damage to the civilian population is excessive or expected to be excessive in relation to anticipated concrete and direct military advantage from the blockade.”

Thus, the conclusion we can take from reading the Palmer Report is that it is in denial about what has happened and is still happening in the Gaza Strip, despite the accumulated evidence which confirms that the siege has destroyed the economic, social and political life of Palestinians therein. Importantly, the conclusion of the Palmer Committee violates the above-quoted basics of international law, making the Palmer Report virtually worthless.

When the Israelis hijacked the Freedom Flotilla and therefore kidnapped the crews and passengers on board the six ships, they took the ships to a port in Israel. Passengers and crew members were beaten, humiliated and robbed of their personal effects, especially electronic equipment such as mobile telephones, cameras, etc.

Palmer describes these activists as reckless and says that they should not have sailed. Although the report denounced the Israeli commandos’ use of force as “excessive”, it claims that the interception of the flotilla in international waters was lawful, and that the blockade of which the assault on the flotilla is part was also lawful.

This conclusion violates the established rules of international law and contradicts the findings of the Human Rights Council’s investigation of the assault on the Freedom Flotilla. The Israeli actions against the flotilla were in breach of the principles of international humanitarian law and, in particular, the Fourth Geneva Convention, and the customary rules of international humanitarian law; not only that, but they breached various conventions dealing with collective punishment and genocide, including the rules concerning the denial of life or causing bodily harm and those which guarantee freedom of navigation and safe passage for humanitarian convoys in the cases of siege and armed conflicts.

According to the Definition of Aggression adopted by the General Assembly of the United Nations in its resolution on 14 December, 1974, actions qualifying as aggression include the armed forces of a state launching an attack on the land, naval or air forces, or attacking commercial naval vessels of and civil aviation of another state. Accordingly, Israel’s attack on Turkish-flagged vessels constitutes “aggression” against the “state of the flag, in this case Turkey.

Article 18 of the second paragraph of Additional Protocol II to the Geneva Convention refers to and seeks to ensure that relief work of a humanitarian, neutral and pure character is conducted without any adverse distinction, in favour of the civilian population with the consent of the concerned High Contracting Party, not least when the civilian population is suffering from severe deprivation because of lack of supplies essential to their survival such as food and medical supplies. UNRWA had declared, of course, that there existed a “humanitarian crisis” in the Gaza Strip due to Israel’s blockade of the territory.

The passengers on board the Freedom Flotilla were supposedly “protected persons” who found themselves “in a certain moment and in any form under the authority of a party to the conflict” as per Article IV of the Geneva Convention.

Meanwhile, article VIII of the Convention of Rome establishing the International Criminal Court makes it clear that:

1 – The Court shall have jurisdiction in respect of war crimes, in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2 – For the purpose of this statute, “war crimes” means “Grave breaches of the Geneva Conventions of 12 August / August 1949, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention; murder and attacks which have been intentionally [directed] against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations as long as they use the protection given to civilians or civilian locations under the law of armed conflict.”

A number of aspects of international laws and conventions cover the right to life, including article 6 of paragraph 1 of the International Covenant on Civil and Political Rights refers to the “right to life inherent to every human being… and no one shall be deprived of his/her life arbitrarily.” Article 9, paragraph 1, of the International Covenant describes the right to liberty and security of self; Article 7 of the International Covenant and Article 1 of the Convention against Torture prevent the practice of torture.

The Human Rights Council’s statement in June 2010 condemned “with the strongest terms the terrible attack of Israeli forces on ships of the convoy of humanitarian assistance, which resulted in the death and injury of many innocent civilians from different countries. Two months later, the Council reported that, “The Mission is convinced that the convoy of ships did not constitute an imminent threat [to Israel] and that the objection was motivated by concerns about propaganda victory… In light of the testimonies of witnesses before the Turkel Committee, it is clear that there is no reasonable suspicion that the convoy of ships represents a military threat in itself and as a result there is nothing to base the interception of the ships in the exercise of the rights of a belligerent state or of Article 51 on self-defence and therefore supporting the legality of the interception cannot be done, therefore, the Mission considers that the interception is not lawful.”

Furthermore, the Council was clear that the Israel Defence Forces interception of the “Mavi Marmara on the high seas and in these circumstances for the reasons referred to is illegal and the procedure under these circumstances cannot be justified even under Article 51 of the Charter of the United Nations.” Moreover, “all the passengers who were on board the ships [of the flotilla] who appeared before the mission gave a sense that they are people who are really committed to the spirit of humanity and are filled with deep and sincere concern about the welfare of Gaza residents.”

From the foregoing it is obvious that the criminal attack on the flotilla was a violation of the Geneva Conventions and the rules of international humanitarian law (war crimes or crimes against humanity), which prohibits the use of military force against civilians on a humanitarian mission, which is also a crime of aggression against the state in which the boat is registered and whose flag it bears.

The Palmer Report therefore defies logic and is inconsistent with what has already been agreed on the basis of international law and justice. Palmer sought instead to discuss the rights of the belligerent state and disregarded the rights of protected civilians. The report’s flawed conclusion destroyed the victims’ rights and legitimised the brutality of the occupying power, Israel.

Before the report was leaked, ways and means were being sought to bring those Israelis responsible to justice. Palmer has basically legitimised the sense of impunity which the Israeli government has come to expect. Was that Palmer’s intention?

The world must be reassured that the Palmer report will not take precedence over international laws and conventions, nor invalidate the findings of previous, better qualified commissions of inquiry.

Mohammed Jamil is the Deputy Chairman of the Arab Organization for Human Rights in Britain

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.