The Israeli naval blockade of Gaza is legal. That is the most significant conclusion reached by a version of the Palmer Report posted on the New York Times web site.
The leaked report, formally known as the "Report of the Secretary-Generals Panel of Inquiry on the 31 May 2010 Flotilla Incident," provides its own assessment of the violence that ensued on the Turkish ship, the Mavi Marmara, on May 31, 2010, after Israeli commandos boarded it to enforce Israels naval blockade of Gaza. The inquiry panel, chaired by former New Zealand Prime Minister Sir Geoffrey Palmer and outgoing Colombian President Alvaro Uribe, also included both an Israeli and Turkish official and summarized the findings of separate investigations conducted by each country.
Concerning Israels naval blockade of Gaza, the Palmer Report determined:
Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.
Concerning the actions of the flotilla participants, the report found:
the flotilla acted recklessly in attempting to breach the naval blockade. The majority of the flotilla participants had no violent intentions, but there exist serious questions about the conduct, true nature and objectives of the flotilla organizers, particularly IHH. The actions of the flotilla needlessly carried the potential for escalation.
On the justification for Israel's resort to force:
Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection.
The report was critical of how the Israeli commandos reacted, accusing them of using excessive force. It recommended that
An appropriate statement of regret should be made by Israel in respect of the incident in light of its consequences. Israel should offer payment for the benefit of the deceased and injured victims and their families, to be administered by the two governments through a joint trust fund of a sufficient amount to be decided by them.
The Israeli government has proactively done what the panel recommended, but this offer was rejected as insufficient by the Turkish government, which on September 2 ordered the Israeli ambassador expelled from Turkey and threatened further repercussions.
Refuting the Arguments of Israel's Critics
The Palmer Report establishes that the naval blockade was imposed in January 2009, more than a year after land restrictions were imposed in June 2007. The panel recognized that the naval blockade "was imposed primarily to enable a legally sound basis for Israel to exert control over ships attempting to reach Gaza with weapons and related goods."
It then explained the context for the imposition of the naval blockade.
Israel has faced and continues to face a real threat to its security from militant groups in Gaza. Rockets, missiles and mortar bombs have been launched from Gaza towards Israel since 2001. More than 5,000 were fired between 2005 and January 2009, when the naval blockade was imposed ... . Since 2001 such attacks have caused more than 25 deaths and hundreds of injuries. The enormity of the psychological toll on the affected population cannot be underestimated ... The purpose of these acts of violence, which have been repeatedly condemned by the international community has been to do damage to the population of Israel. It seems obvious enough that stopping these violent acts was a necessary step for Israel to take in order to protect its people and to defend itself.
The panel's statement is striking in that not only does it deem the blockade legitimate, it finds it "necessary," suggesting that were Israel to fail to impose it, that would amount to shirking its responsibility to protect its people.
Israel's critics frequently contend that the blockade is illegal because Gaza is "occupied" by Israel. A blockade is legitimate as a measure against an external threat but not for domestic problems. The panel rejected this argument, determining
Hamas is 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 in Israel 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 Israels right to self-defence against armed attacks from outside territory. In this context, the debate on Gazas status, in particular its relationship to Israel, should not obscure the realities. The law does not operate in a political vacuum and it is implausible to deny that the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict.
The panel also refuted the accusation that "its imposition was intended to starve or to collectively punish the civilian population," and rejected "allegations that Israel had either of those intentions or that the naval blockade was imposed in retaliation for the take-over of Hamas in Gaza or otherwise."
The panel went even further, establishing that the measures were not imposed punitively.
On the contrary, it is evident that Israel had a military objective. The stated primary objective of the naval blockade was for security. It was to prevent weapons, ammunition, military supplies and people from entering Gaza and to stop Hamas operatives sailing away from Gaza with vessels filled with explosives. ... These factors alone indicate it was not imposed to punish its citizens for the election of Hamas.
The panel rejected the charge of disproportionality:
Perhaps a more difficult question is whether the naval blockade was proportional. This means to inquire whether any damage to the civilian population in Gaza caused by the naval blockade was excessive when weighed against the concrete and direct military advantage brought by its imposition. As this report has already indicated, we are satisfied that the naval blockade was based on the need to preserve Israels security.
It concluded that the charge of disproportionality is "unrealistic."
The panel noted that its conclusions in this regard contradicted both the Turkish investigation and the fact-finding mission established by the Human Rights Council.
The panel was critical of the manner by which Israeli forces acted, finding that
Israels 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.
Nevertheless, despite its criticism of how Israel conducted itself in the incident, the panel affirmed the basic principles Israel applied for intercepting and boarding the flotilla and more broadly affirmed the legitimacy of Israels blockade of Gaza. This represents a sharp rebuke of many critics of Israel who have stubbornly maintained that Israels blockade is illegal. It is also a rebuke of the one-sided condemnations of Israeli actions in the United Nations Human Rights Council.