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Posted by on Sep 2, 2011 in International, Law | 8 comments

The Palmer Report and Turkey’s Response

This is a combination of two posts I put up at The Debate Link.

* * *

The United Nation’s long-awaited Palmer Report on the Gaza flotilla incident has now been released, and, from Israel’s perspective it has to be seen as a major win. The committee firmly decides that the blockade is legal and notes that an essential element of a legal element is that it has to be enforced consistently (which means intercepting folks trying to breach it, and can entail forcibly boarding resisting vessels). It also notes that the the Israeli soldiers who boarded the Mavi Marmara did face violent resistance. The committee does believe that Israel used excessive force in boarding the vessel and in not pursuing more non-violent interception techniques prior to its forcible boarding action. Statements from the Israeli and Turkish representatives to the commission appended at the end are revealing: the Israeli representative quibbles with the excessive force findings, but the Turkish representative is forced to disassociate himself from virtually the entire document.

I think the committee report is generally solid. It’s analysis on the overall legality of the blockade is unquestionably superior to that forwarded by the UNHRC’s report, which (and this is true regardless of one’s ultimate perspective on the conflict) was frankly an embarrassment to the legal profession (how one even tries to undertake a proportionality analysis without even mentioning the objective in question, see paras. 51-61, compare Palmer Report pp. 38-45, is a mystery). So that’s good.

Of course, I remain exceptionally dubious of the utility of these reports or the international law frame at all. The Palmer Report had been delayed several times because everyone believed it would only hurt rapprochement efforts between Israel and Turkey (Turkey is hell-bent on a full apology and an end to the blockade, which Israel is far less likely to do now that a high-profile commission has deemed the blockade legal and vindicated many, albeit not all, of its actions). Folks opposed to Israel’s actions will simply cite the UNHRC report instead. Israel knows that, which limits whatever benefits it might reap from citing the Palmer Report. The conflict is political, and will be resolved politically. Whatever formal authority the Palmer Report has (and I’m not sure it has much anyway), formalism is not and should not be the primary lens for examining the issues in this controversy.

This older post by Kevin Jon Heller offers a good foil for some of what I’m trying to say here. Unlike the UNHRC opinion, Professor Heller provides a solid, well-reasoned argument for why the blockade is illegal (which isn’t to say I’m necessarily persuaded by it; indeed, Professor Heller is admirably forthright about his uncertainty on the question). Professor Heller’s basic claim is that the conflict between Israel and Hamas is not of an international character, and that international law does not contemplate the use of blockades in non-international conflicts.

The Palmer Report considers and rejects that point, instead holding that the conflict between Israel and Gaza is, for all intents and purposes, “international” for the purpose of the law governing blockades:

The Panel now turns to consider whether the other components of a lawful blockade under international law are met. Traditionally, naval blockades have most commonly been imposed in situations where there is an international armed conflict. While it is uncontested that there has been protracted violence taking the form ofarmed conflict between Israel and armed groups in Hamas-controlled Gaza, the characterization of this conflict as international is disputed. The conclusion of tPanel in this regard rests upon the facts as they exist on the ground. The specific circumstances of Gaza are unique and are not replicated anywhere in the world. Nor are they likely to be. Gaza and Israel are both distinct territorial and political areas. Hamis the de facto political and administrative authority in Gaza and to a large extent has control over events on the ground there. It is Hamas that is firing the projectiles inIsrael or is permitting others to do so. The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outsideterritory. In this context, the debate on Gaza’s status, in particular its relationship to Israel, should not obscure the realities. The law does not operate in a political vacuumand it is implausible to deny that the nature of the armed violence between Israel anHamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict. This conclusion goes no further than is necessary for the Panel to carry out its mandate. What other implications may or may not flow from it anot before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others. (p. 41, para. 73)

This sort of analysis appeals to my legal pragmatist streak generally. And specifically with it is hard to argue against the Palmer Report’s conclusion that the conflict bears the “trappings” of an international one in terms of actually describing the hostilities between Israel and Gaza. Even to the extent he’s right, Professor Heller’s analysis is another example of formalism and categories triumphing over descriptive and normative realities. That’s not a strike against Professor Heller — he’s doing what lawyers do. And perhaps in a world where international law was a stronger force and it didn’t seem like all aspects of the Israeli/Palestinian conflict were treated as sui generis anyway, it might be more important to rely on staid legalisms (though I’m not sure why participants in non-international conflicts should never be allowed to resort to blockades anyway. Their omission seems more a function of the rarity of situations where one would make sense — Israel/Palestine really being “unique” in this regard — than the result of some normatively sensible distinction). But that isn’t our world, and in the world we live in, the Palmer approach seems far, far more reasonable.

Meanwhile, Turkey has expelled the Israeli ambassador. It also announced that it considered the Palmer Report “null and void”, which makes sense, as the report sided with Israel over Turkey on most of the key points and its recommendations for reconciliation (a statement of regret) were considerably closer in line with what Israel had offered than what Turkey had been willing to except.

Turkey has a habit of being more than a little childish in the international arena, so I can’t say I’m surprised that their response to a major defeat in the UN is to simply announce that they’re ignoring it. Well, let me be a little more charitable: most UN states ignore UN recommendations that go against their interests or conduct, and I can hardly fault them for doing so given that the bodies in question generally lack basic credibility. What makes Turkey unique isn’t that it is rejecting a report that went against them; what makes them unique is their utter unwillingness to negotiate in good faith. They weren’t looking for a route towards rapprochement, they were looking for a path towards escalation. There were loads of ways Turkey could have indicated its dissatisfaction with the Palmer Report that didn’t entail expelling the ambassador of a friendly nation. As is per usual, it isn’t Israel who decided to up the diplomatic ante with its neighbors. Turkey made a conscious decision that it wanted to turn a fissure into a chasm, and it acted accordingly.

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  • Frosti7

    Very well balanced and articulated post,
    I for myself cant ignore the contradictions and illogical inconsistencies towards Israel in Palmer report,

    There are parts that say israeli soldiers were attacked and were forced to use weapons to self defens, althou, althou criticizing the soldiers for firing at close range,
    this is illogical because when someone hits you with a metal rode he tends to be pretty close,

    Another point is accusation of shooting in the “back”, there were soldiers being kidnaped, why its implausible that a soldier was trying to save his comrade?
    also, the terrorists acquired guns from the soldiers so the one who shot in the back might have been the one with the gun, anyway, i dont see a point to slap IDF for this, as its clear that they HAD TO SHOOT anyway.

    Another point when critisizing israels boarding – but one must understand that such naval operation are extremly complex and difficult, and the IDF was 100% convinced that there are peace activisits, and not terrorirsts, on board,
    blaming IDF for falling in the flo(p)tilla trap is not a reason to slap IDF

  • jdledell

    The deterioration of relations between Israel and Turkey has been simmering for a long time and the Palmer report is “the straw that broke the camel’s back”. The Turkish people are STRONGLY against the Gaza Blockade. They understand the need for Israel to prevent the transport of weapons to Gaza(they have the same problem with the Kurds). However, they do NOT understand Israel’s restrictions on humanitarian and personal goods. Even though Israel has liberalized the list it still is punitive, ie still no children’s toys etc.

    Israel wants to make the people in Gaza miserable whether they have anything to do with Hamas or not.The IDF and Israeli politicians make this abundantly clear. If you think Israel’s restrictions apply only to war making material – think again.

    You can read about my personal saga trying to get wheelchairs and crutches into Gaza to help all the civilians who were disabled in Cast Lead.—youve-gone-too-far-th.php/

    David – You make a comment about Turkey’s “childishness”. I hope you remember Danny Ayalon’s famous chair incident. Talk about childish!!!!!! Israel seems to think that as long as they have the US in their back pocket they don’t need anyone else. Sometimes I think Israel deliberately pisses other countries off so they can continue to cry “poor me” to their Us supporters.

  • rudi

    Even if ANY US POTUS ended aid to Israel. Their defense forces would still hold a “nuclear” advantage over ALL their neighbors. Israel builds all their arsenal except for minor items. The armaments sold to Arab nations lacks the technology of US and Israelis weaponry. The M1A1/M1A2/M1A2SEP tank is a good example. Egypt is getting old M1A1 technology. The GPS differences between M1A1 and M1A2SEP is decades in time and technology. Israel got help from the US and Chrysler/GDLS in R/D and production.

  • Allen

    The Israelis can be insulting and arrogant, but everybody had a right to defend themselves.

  • I do remember Danny Ayalon’s chair incident. It is testament to the wretched quality of the Israel’s current governing coalition, particularly with respect to foreign policy. You will find no more fervent critic of Israel’s current foreign ministry than I.

    But Turkey’s childishness is a quality they possess in matters other than Israel. It’s the temper tantrum they throw anytime someone tries to commemorate the Armenian genocide that originally stuck out to me (they also threatened to retaliate against Israel if American Jews supported such resolutions, which strikes me as deeply inappropriate). And in this case, Israel has offered a statement of regret and compensation — precisely the reconciliation parameters ultimately proposed by the Palmer Commission. Turkey rejected the offer, demanding instead a full apology, compensation, and a lifting of the blockade.

    The current government of Israel may specialize in self-inflicted wounds, but in this particular crisis it is Turkey that is hell-bent on ratcheting up tensions.

  • Frosti7

    There is as much humanitarian issue in gaza as there is in london,
    Gazans recive tons of goods every day thru israel (i cant account for egypt)
    they recive aid from US&UN,
    the West bank receiving various medical service from israel, while hamas does not allow its citizens to recive medical care in israel.

    There is a new hotel and shopping mall opened in gaza, so please, there is no humanitarian crisis.

    About the sige, you do understand that israel withdrew completly from gaza in 2005?
    in a move that was hoped for peace israel has recived a barrage of rocket firing on its civilians, henc the blockade

    You are critisizng a country which is being bombed daily by the same palestinians that attacked israel in 1948, since its first day of existance.

    Yet, the hamas goverment which is the most burtal, inhumane organization on earth (except iran) is getting free money and aid from world wide, almost as thanx for their war against existance of jewish state,
    In africa there are so many innocent mouths to feed and children are dying in starvation, and yet the world is aiding a terorrist organization, and a people who are set for war and not peace.

  • jdledell

    Frosti7 – Yes I understand Israel and the situation VERY WELL – I am a Jewish Israeli citizen. If you think there is no humanitarian need in Gaza – you are ill informed. You have bought the hasbara, hook, line and sinker. You do not have the foggiest idea what the real situation is in either Gaza or the West Bank. Go to Israel and learn first hand rather than write BS that you read somewhere.

  • Allen

    Again, it’s the Arab Muslim thing. They don’t know how to spend their courage in common sense purchases.

    Start violently attacking a well armed military force with sticks and bare hands and see what you get. You get dead, that’s what you get. Did the lives lost account for an equitable amount of world outrage against the Israelis?


    Why? Because the world said: “What a bunch of dumb arses”. Shook their heads and walked away.

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