A Tale of Two Closures: Comments on the Palmer Report Concerning the May 2010 Flotilla Incident

A Tale of Two Closures: Comments on the Palmer Report Concerning the May 2010 Flotilla Incident

Tamar Feldman is an attorney and director of the Legal Department at Gisha – Legal Center for Freedom of Movement. She would like to convey her deepest gratitude to Sari Bashi and Yoni Eshpar for their insightful comments on an earlier version of this note and to Leora Garton for her excellent and timely edits.

On September 1, 2011, after months of repeated postponements, the Palmer Report was leaked to the media, obliging the UN Secretary-General to present the report officially the following day. The publication of the report was intended to calm the row surrounding its conclusions, but paradoxically served only to exacerbate the diplomatic crisis between Israel and Turkey. The bout of political arm wrestling that followed may one day be studied in faculties of international relations and conflict resolution as a classic example of bad diplomacy.

This wrangling is not only foolish, it is also dangerous. The principal danger is that it could lead to a regional conflagration that would certainly be of no benefit to the residents of Gaza, who are supposedly the subject of the dispute. However the row is also dangerous since it prevents serious discussion of the contents and conclusions of the Palmer Report.

As the committee itself notes at the beginning of the report, its recommendations are not legally binding and it is clear that the committee’s main goal was to resolve the diplomatic crisis between Israel and Turkey, rather than to draw conclusions on weighty legal issues. Nevertheless, of the five committees that have examined the events surrounding the Gaza Flotilla (the Eiland Committee, the Turkel Committee, the Turkish committee, the Committee of the UN Human Rights Council, and the Committee of the UN Secretary-General), the Palmer Committee is the most senior, and also the most balanced in its composition, since its members include representatives of both Israel and Turkey.

The comprehensive report submitted by the committee presents legal determinations, as well as detailed recommendations based on these determinations. A significant portion of the report (26 pages out of a total of 105) is devoted to a description of the legal framework applied by the committee in examining the legality of the naval blockade and the flotilla incident of May 31, 2010. Accordingly, the report’s conclusions and recommendations merit more serious examination. The present essay does not claim to provide a full analysis of the report, but rather to offer some comments and to highlight a number of aspects that have been sidelined by the power struggle waged by Israel and Turkey since the flotilla.

Firstly, it is interesting to note that attempts by each side to flaunt their “successes” in the Palmer Report have overshadowed one of its most important conclusions: the recommendation that the restrictions on the flow of goods and people into and out of the Gaza Strip should be removed. The committee reiterates previous findings by the UN and other international bodies that the humanitarian and economic situation in the Gaza Strip is unsustainable, unreasonable and does not serve the interests of the parties involved. Since Israel’s restrictions on the passage of people and goods to and from the Gaza Strip are the main cause of this situation in Gaza, the committee calls on Israel to continue to reduce the restrictions, leading to removal of the economic closure imposed on the Strip. The committee calls for a complete implementation of UN Security Council Resolution 1860, which was adopted in January 2009 during the course of Operation Cast Lead and which calls on Israel to permit the distribution of humanitarian aid in the Gaza Strip throughout the offensive. The resolution also addressed the closure in general, urging member states to support international efforts to improve the humanitarian and economic situation in the Gaza Strip, to help prevent the smuggling of weapons into Gaza, and to ensure the reopening of the crossings on the basis of the 2005 Agreement on Movement and Access (AMA) between Israel and the Palestinian Authority.

In comparison to the more general calls that have frequently been made by the international community to ease the closure, there is something more serious and functional to this reference to Security Council Resolution 1860. With this in mind, it is puzzling that the recommendation has not received greater attention, particularly from those working to end the closure and protect the rights of Gaza’s residents.

Equally, a careful reading of this recommendation and the associated arrangements reveals the basic flaw of the report: its artificial separation of the land closure and the maritime closure. The report opens with a description of the conclusions of the Israeli and Turkish committees, which disagree on almost every possible point, yet concur that the maritime closure must be examined against the background of the land closure. Despite this, the Palmer Committee decided to take a different route, examining the legality of the maritime closure without reference to the land closure. The report offers three reasons for this decision (section 70): The first relates to the different timeframe – whereas the land closure was imposed (according to the Palmer Committee) in June 2007, following the Hamas seizure of control in Gaza, the naval blockade was only announced in January 2009. The second reason states that while land restrictions have at various times been subject to change, maritime restrictions have been enforced fully and without change since the declaration of the naval blockade. The third reason concerns the different goals of each closure: the naval blockade was a concrete response to arms smuggling and intended to prevent the transfer of weapons to the Gaza Strip. In other words, the committee was convinced that the naval blockade is intended to serve a clear security purpose. The committee did not rule on the goals of the land closure, though, as already noted, it recommended that it be lifted.

However, the conclusions established by the committee justifying the separate legal examination of the maritime and land closures, are weak and, in part, incorrect. Firstly, it should be recalled that Israel has controlled the land, sea, and air space of the Gaza Strip since it occupied Gaza in 1967. Throughout this period, Israel has permitted the passage of people and goods by land only, with full control over all movement and in accordance with its policy of restrictions. As part of the Oslo Accords, it was agreed that Israel would permit the establishment of an airport and seaport in Gaza. Although an airport was duly constructed, and work on the seaport began, both were destroyed by Israel in 2000-2001. Accordingly, when Israel imposed restrictions on the passage of goods and people in 2000, following the Al-Aqsa Intifada, and tightened the closure following the Hamas seizure of control in Gaza, in 2007, it made no mention of sea or air traffic, for the simple reason that they did not exist. In other words, the fact that Israel declared a “naval blockade” in January 2009 does not alter the fact that Israel has actually imposed a maritime closure on the Gaza Strip since 1967.

Secondly, the maritime closure has been enforced consistently and continuously by Israel throughout its occupation of the Gaza Strip, including the period following the implementation of the “Disengagement Plan” in 2005. With a few isolated exceptions in 2008, Israel has never permitted vessels to enter or leave the territorial waters of the Gaza Strip, and it has also enforced significant restrictions on fishing activities along the Gaza coast (see the report of the UN Office for the Coordination of Humanitarian Affairs). The closure of the territorial waters enabled Israel to manage its control of the land crossings as it wished and, accordingly, the consistent enforcement of the maritime closure does not imply that it is a separate and distinct tool. If anything, it underlines the intimate connection between the two types of closure.

Thirdly, in relation to the goals of the closure, it is difficult to avoid a simple question: If the committee distinguishes between the maritime closure, which serves a military and security purpose, and the land closure, then what, in its opinion, is the purpose of the latter? The answer is implicit in the Palmer Report, and is described at length in the report of the Turkel Commission (paras. 50, 91-97): Although there is a need to prevent weapons reaching Gaza, and although some of the restrictions Israel imposes are intended to meet security needs, the general closure policy has broader aims. The closure policy, which is defined by Israel as “economic warfare”, is designed to harm the freedom of movement of residents of the Gaza Strip and the economy of Gaza, and to apply indirect pressure on Hamas to halt the firing of missiles at Israel and to release Gilad Shalit. This policy has patently not secured its objective, and also fails to meet the test of legality. More importantly for our purposes, however, the closure policy was, from the outset, not intended to serve solely as a tool for preventing the entry of weapons and ancillary equipment for Hamas. The closure policy was openly declared and intended as a means to prevent the movement of civilians and of civilian merchandise in order to apply pressure on the civilian population, and indirectly weaken Hamas rule. This was to be achieved not only by limiting movement by land, but by preventing any movement by any route or path. Therefore, to claim that the maritime closure can be examined independently of the land closure is to bury one’s head deep in the sand (or the sea).

How, then, was the impression created that the “naval blockade” is something new and distinct? In the summer of 2008, after a number of humanitarian flotillas sailed toward the Strip, the army, including the military Advocate General, realized that the flow of boats would not stop, and that the flimsy legal frameworks Israel had used until then to justify its total control of the sea would not hold water for much longer. The military Advocate General recognized that Israel would find it difficult to explain to the international community why it prevents boats carrying peace activists and humanitarian aid from reaching Gaza, and to reconcile this practice with Israel’s claim that, since “disengagement”, it no longer occupies the Strip. A new and stronger legal tool was therefore required, the kind that may be used during war. An opportunity soon presented itself in December 2008, when Israel launched a major military operation in Gaza – ‘Cast Lead’. According to the testimony of the military Advocate General before the Turkel Commission, it was then that he finally managed to convince the political establishment to declare a “naval blockade” as defined in the 1994 San Remo Manual. The San Remo Manual is not a binding legal source, but its provisions are considered to reflect international customary law in this field. According to the manual (sections 93-104), a state may impose a naval blockade during international conflict and in accordance with the following conditions: The borders and duration of the blockade are lawfully declared; the blockade is enforced effectively and equally against all vessels, whether military or civilian; it is not intended to starve the population; and it reflects a proportionate balance between military benefit and harm caused to the civilian population.

It is important to emphasize that the declaration of the “naval blockade” made very little difference to Israel’s control in operational terms. However, it made an enormous difference in terms of legal discourse, providing Israel with a normative hook on which to hang its authority to control the maritime area. In other words, the military Advocate General promoted the use of the “naval blockade” as a tool for securing legal legitimacy for Israel’s actions, and for diverting discussion from the legality of the closure in general to the question of the legality of the specific act of preventing civilian vessels from reaching the Gaza Strip. His tactic proved successful. Since Israel enforced the “naval blockade” against the flotilla in May 2010, the laws of naval blockade in general, and the provisions of the San Remo Manual in particular, have enjoyed unprecedented attention.  The legal debate has focused on procedural questions: Did Israel declare the blockade in the required manner? Should Israel specify its duration? And more substantive questions such as: Do the laws of naval blockade apply solely in the case of international armed conflicts (IAC), and if so – does the conflict between Israel and Hamas meet this criterion (e.g., Douglas Guilfoyle’s article in the British Yearbook of International Law and his recent post on the Palmer report on EJIL-Talk!)? What is the significance of this in other contexts (see Marko Milanovic’s post on EJIL:Talk! and Kevin Jon Heller’s post on Opinio Juris)? Has the closure secured significant security benefits? And in view of its duration, among other factors, is the harm it causes to the civilian population proportionate (for example, see the EJIL:Talk! post by Amichai Cohen & Yuval Shany)?

During the same period, criticism of the general closure has dwindled and acquired a somewhat amorphous nature, particularly in view of the easing of the policy for the entry of goods into Gaza following the May 2010 flotilla. It is not difficult to understand the appeal for jurists of this formalistic discussion. It is also easy to understand the political and diplomatic temptation to confine the dispute to a narrow and defined area that does not require decisions regarding the legal status of Gaza or the scope of Israel’s obligations toward the Strip. However, it is harder to understand the almost total reluctance to recognize that the “naval blockade” is not a new kid on the block, but the same old bully in new clothes.

The Palmer Committee also fell into this trap, addressing the maritime closure as if it began only in January 2009, or what justified Israel’s control of the maritime space until this point. It, too, distinguished between the ostensible security-oriented purpose of the maritime closure and the broader goals of the “land” closure. It, too, was drawn into a microscopic analysis of the procedural and substantive conditions for the legality of a “naval blockade,” while ignoring the context in which it is imposed. The absurdity is that in its attempts to navigate its way through stormy waters, the committee reached contradictory conclusions and formulated recommendations that are mutually incompatible. It found that the “naval blockade” is proportionate, in part since the harm caused to the residents of Gaza is not great, and also since Gaza does not in any case have a commercial seaport. At the same time, it advocates the full implementation of Security Council Resolution 1860, which, as noted, refers to the 2005 AMA, Naturally enough, the AMA connects the issues of land and maritime trade, and seeks to regulate the normal passage of people and goods to and from Gaza. It is therefore strange that the committee’s recommendations fail to note this connection.

It is important to emphasize that all the above does not imply that Israel is not entitled to prevent the entry of goods into the Gaza Strip by sea. Israel has the authority to transfer civilian goods via whichever route is more amenable to security inspection. It is legitimate to argue that Israel is unable to inspect goods arriving at a seaport in Gaza, and, accordingly, to demand that all goods enter the Strip through Israeli territory, via land crossings. Israel also has the right to prevent the transfer of weapons to armed groups operating against it, and to undertake security inspections of goods destined for Gaza, whether they arrive by sea or by land. However, Israel bears an obligation to facilitate normal life in the Gaza Strip and to permit the free movement of people and goods, subject only to individual security inspections. This is the legal framework in which Israel’s closure policy – in the air, at sea and on land – should be examined, rather than the restrictive framework of the rules of naval blockade, which ignore the broader context and history of the closure. In other words, before diving into an ocean of questions of secondary importance, such as issues of efficacy and proportionality, it should be examined whether the laws of naval blockade provide an appropriate framework for considering the legality of Israel’s closure policy, with reference to Israel’s legal obligations toward the residents of the Gaza Strip. Protracted “economic warfare” designed to reduce residents’ living conditions to a “humanitarian minimum” while creating almost complete economic dependence on Israel and the international community, as a means of applying indirect pressure on Hamas, is incompatible with international law. The International Red Cross has established that this policy amounts to collective punishment, which is absolutely prohibited by international humanitarian law. Any enforcement of a blockade or maritime closure must be examined as part of this policy. If the overall policy fails to meet the requirement of proportionality, the maritime closure also fails to meet this requirement, regardless of how it is packaged.