Palmer Report: manifestly ill-founded and a shame on the UN
by Dr. Mutaz M. Qafisheh*

As an international lawyer, I am not going to comment on the political aspects of the Palmer Report. I would rather confine this review to the legal points as expressed in Appendix I of the report, titled “The Applicable International Legal Principles,” pages 76-102. This appendix is referred to in this review as “the study.”

The first striking point that one might sight by going through the 27 pages of the study is that nowhere does it refer to Gaza or to the blockade over Gaza. Thus, one might wonder, from the outset, how the writers of the report can arrive at the conclusion that “Israel’s naval blockade [on Gaza] was legal” (page 44) and that the blockade is “legitimate … and its implementation complied with the requirements of international law” (page 4).

In its paragraph 1, the study stated that it is going to examine “the law of the sea, the law of armed conflict … and human rights law.” In fact, the study has only examined the law of the sea and the so-called “law of blockade.” It did not examine human rights in Gaza at all. Nor did it tackle international humanitarian law, or other works of the United Nations regarding the situation in Gaza. Consequently, the study became theoretical, out of touch with the reality of the case at hand and, above all, misleading. The study might be suitable as a scholarly paper that can be published in a refereed academic journal, but not as part of a UN, presumably legal/diplomatic, document. A UN intern probably prepared it; or, perhaps an Israeli scholar was writing a paper for publication (as its format and size suggests) but he instead preferred to sell it to the UN. It seems that the writer was not paid enough (or lacked the adequate experience) to adjust the language of the study to the situation in Gaza or to the sensitive language that the UN tends to use in its documents, especially in relation to human rights.

Although the study mentioned the “right of visit,” enshrined in Article 110 of the 1982 Convention on the Law of the Sea, which gives the right for a warship to board a foreign flagged vessel “in certain limited circumstances” (paragraph 5), it did not enumerate these circumstances. This is because none of the circumstances listed in Article 110 (namely piracy, slave trade, unauthorized broadcasting, ship without nationality and manipulation of the flag) are relevant to the Turkish flotilla under consideration. It follows that “the right of visit” is irrelevant to the present case.

In paragraph 7, the study stated clearly that states are prohibited from using force in the high seas, citing Article 88 of the Convention on the Law of the Sea. In the following paragraphs (8-15), however, the study artificially attempted to legitimize the use of force on the high seas. It contradicted itself in this attempt by, for example, citing Article 301 of the Convention that obliged states to refrain from “any threat or use of force against the territorial integrity or political independence of any State.” Palmer was probably told that Gaza is part of Israel and the flotilla formed an act of force against the territorial integrity and independence of Israel!

The study failed, too, when it presumed that international humanitarian law (“lex specialis”) is applicable to Israel-Turkey relations (paragraph 15), while ignoring the fact that the two states had peaceful relations to which the law of the sea (“lex generalis”) applies. Both Turkey and Israel are not party to the 1982 Convention on the Law of the Sea and, therefore, there was no point to discuss the obligations thereof.

By referring to outdated declarations that were developed during the colonization era (i.e., the 1856 Paris Declaration and the 1909 London Declaration) and military manuals of single states, Palmer endeavored to defend the Israeli blockade (paragraphs 19-39). He justified the blockade, claiming, “as long as the international armed conflict exists,” which may last, in his view, for “several years” (paragraph 26). This constitutes a plain incitement for further human rights violations.

Still more miserable for Mr. Palmer, the manuals cited in the report go against his attempt of legitimizing the blockade. The San Remo Manual, which is mentioned 96 times in the report, for example, makes it clear that, as the study itself pointed out (paragraph 36) “a blockade as a method of warfare is ‘illegal’ if the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage obtained by the imposition of the blockade.

Any damage to a civilian population must thus be weighed against the military advantage to be secured” (emphasis added -- it seems that Palmer thought that “il” is a typo in the word “illegal” so he corrected it and made it “legal”). It appears that Palmer, or those who conducted the study for him, have never heard in the news or read in any UN report (e.g., the 2009 Goldstone Report or the UN Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories’ reports) about the damage that the blockade has been causing to the civilians in Gaza.

As the study itself admitted, “a blockade is illegal if its imposition runs counter to other fundamental rules of international humanitarian law. Of importance in this regard is the prohibition of collective punishments, provided in the Fourth Geneva Convention, as well as Additional Protocols I and II, and by now an accepted part of customary international law” (paragraph 37). Mr. Palmer just needed to read relevant provisions of the instruments that he cited in footnotes 129-132 of the study, or maybe to just leaf through the 2006 International Committee of the Red Cross (ICRC) study or the ICRC’s particular position on the Gaza blockade, to understand the International Humanitarian Law (IHL) violations that the blockade is sustaining.

The reference to Article 51 of the UN Charter, in paragraphs 40-42 of the study, constitutes a self-evident contradiction. None of the Article 51 requirements have been met by Israel, if one considers that Israel is the party that was exercising self-defense. In fact, if Article 51 or the logic of self-defense recognized in domestic laws worldwide was properly applied, it would be seen that those individuals on the Mavi Marmara, and not the Israeli soldiers, were acting in self-defense, whose actions were as the facts show proportionate.

The study did not refer to the legality of the use of force procedures set out in Chapter VI or VII of the UN Charter, save to the notification of the Security Council. “The imposition of a naval blockade as an action in self-defense should be reported to the Security Council under the procedures set out under Article 51 of the Charter” (page 5). Israel never informed the Security Council as Article 51 requires. It seems that the writers of the report do not understand that self-defense has been set to apply between states.

At the same time, the writers admitted (page 4) that the “flotilla was a ‘nongovernmental’ endeavor, involving vessels and participants from a number of countries” (emphases added). And it is clear that the writers have forgotten to read that Article 51 allows for self-defense in cases where an “armed attack occurs against a member of the United Nations”; they might have thought that the flotilla was an “armed attack” and not the party that has come under attack! Even worse, how could the report claim that the attack was self-defense, while it says on page 4 that “Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable”?

Mr. Palmer did not mention the illegality of the Israeli occupation of the Occupied Palestinian Territories, including the Gaza Strip. He writes as if Israel’s occupation is legal or as if it does not even exist. This does not even deserve a reply -- first year students in any law school in the world would know such a fact.

Palmer did not even bother to address the human rights violations that human beings in Gaza are suffering, including the loss of life, restrictions on movement, and the right to health, food and education -- to name just a few. He has probably never heard that the responsibility to protect human rights is an “erga omnes” rule of international law (Article 48 of the International Law Commission’s Articles on State Responsibility) that paves the way for all states to take part in their protection, including by sending humanitarian aid vessels and convoys. New Zealand is probably too far for Palmer to understand what is going on regarding global legal developments such as human rights and the law of state responsibility. Or, perhaps, just those who paid him wanted him to say so.

The UN secretary-general assignment to Mr. Palmer was “ultra vires” as the Human Rights Council had already examined the same question and made a decision on the issue (U.N. Doc. A/HRC/15/21, Sept. 27 2010). The council represents the international community, while the secretary-general is an employee. The secretary-general should never have commissioned and paid someone to carry out a job that had already been done. Such conduct is superfluous. It should be considered an “ultra vires” mission and void. It was a waste of money and time of the organization.

Moreover, the report has no power to decide on the legality of the blockade of Gaza. If one revises the terms of reference (page 11 of the report), no point relating to the legality or illegality of the blockade was requested to be decided upon by the panel of inquiry. The report itself admitted that “we must stress we are not asked to determine the legality or otherwise of the events. The panel is not a court; its report is not [performing] an adjudication.” One may then wonder why Mr. Palmer tackled the legality of the blockade of Gaza. But it was not surprising for Israel to welcome it.

Finally, the report concluded that “an appropriate statement of regret should be made by Israel in respect of the incident in light of its consequences.” And it added that “Israel should offer payment for the benefit of the deceased and injured victims and their families” (page 6). Why should Israel “regret” and “offer payment” for a “lawful blockade” and for “self-defense?” I am sorry, but c’est ridicule!

*Dr. Mutaz M. Qafisheh holds a Ph.D. in international law from the Graduate Institute of International and Development Studies, Geneva. He is currently a professor of international law at Hebron University, Palestine. He previously served as a UN Human Rights Officer in Geneva and Beirut.