Sari Bashi
Foreign Policy (Editorial)
September 2, 2011 - 12:00am

For months, since the contents of the report prepared by a UN panel charged with reviewing the May 2010 Gaza flotilla incident (the Palmer Report) began to appear in news media coverage, it has been clear that the report would not provide a credible legal analysis of the issue that was the reason for the flotilla in the first place -- Israel's closure of Gaza. Instead, the Palmer Committee sought a political outcome -- to facilitate rehabilitation of Israeli-Turkish relations, strained by the killing of nine Turkish citizens by Israeli commandos who boarded their ship as they protested Israel's closure of Gaza. To that end, the Committee offered a compromise: it determined that Israel's naval blockade of Gaza was lawful and that Turkey should have done more to stop the flotilla, but it also found that Israel used excessive force aboard the ship. The proffered solution was an Israeli apology, a compensation fund and the resumption of full diplomatic relations between Israel and Turkey.

The diplomatic upheaval in the wake of yesterday's publication of the report by the New York Times -- a day before it was to be presented to the UN Secretary General -- put an end to hopes that the report would achieve its political goal. Any chance for reconciliation seems lost in the storm of Israel's refusal to apologize and Turkey's decision to downgrade relations with Israel and to pursue international legal action.

In the meantime, Israel's policy of restricting civilian goods and civilians from entering and leaving Gaza has been pushed to the margins of the report and public attention. And so the opportunity for a credible evaluation, by a respected international jurist, of Israel's rights and duties vis a vis residents of Gaza has been missed, too.

In its failed attempt at rapprochement, the Palmer Committee limited the scope of its inquiry to the naval blockade of Gaza, choosing to analyze it in isolation, disconnected from the control Israel exercises over access to Gaza via land and air, access which has been especially restricted since the June 2007 Hamas rise to power. The Committee began its inquiry into the maritime closure of Gaza with Israel's Jan. 3, 2009 declaration of a naval blockade. But, with a brief exception in 2008, Israel has been preventing ships from reaching Gaza's shores continuously since it captured Gaza in 1967, including after its 2005 withdrawal of settlers and permanent military bases from Gaza.

Israel may have declared a naval blockade in 2009, but it has been claiming authority to block ships from reaching Gaza for the past 44 years.

For that reason, many legal scholars believe that it is not the declaration of a naval blockade, but rather the law of occupation that authorizes Israel to prevent ships from reaching Gaza. Had the Committee evaluated the maritime closure in reference to the law of occupation, it likely still would have determined that Israel has the authority to prevent ships from reaching Gaza, but would have noted that such authority creates responsibility to make sure that people and goods are permitted to enter and leave Gaza by other means, subject only to security checks.

In rejecting the possibility of linking the maritime closure to the overall restrictions on transfer of people and goods, the Palmer Committee noted that bringing goods and persons via the sea is not practicable, anyway, because Gaza lacks a deep sea port. But the Committee neglected to mention the reason that Gaza lacks a deep sea port: Israel bombed the site where construction had begun in 2001, and since then, despite a promise made in the 2005 Agreement on Movement and Access, has refused to allow its reconstruction. Blocking ships from reaching Gaza -- including by preventing the construction of a deep sea port -- is an integral part of Israel's enforcement of the overall closure policy.

It is the overall closure policy that was supposed to be the subject of the flotilla, a policy described by the Israeli Justice Ministry as "economic warfare" designed to cripple Gaza's economy by blocking raw materials, export, and any item beyond essential humanitarian supplies. It is the policy that embarrassed Israel when Freedom of Information litigation initiated by the Israeli human rights group Gisha revealed that senior Israeli generals pored over secret lists to determine that cinnamon would be permitted into Gaza but coriander banned, and that prepared hummus would be permitted, but not if seasoned with sesame paste or pine nuts.

Partial easing of the closure was a positive outcome of the flotilla fiasco; in July 2010, Israel canceled restrictions on raw materials and consumer goods entering Gaza. But Israel continues to ban the entrance of construction materials, export of finished goods, and travel of persons between Gaza and the West Bank, blocking economic and social recovery. A positive outcome of the Palmer report -- self-described as forward-looking -- could have been an affirmation of Israel's authority to stop ships linked to a clear statement of the responsibility such authority imposes, namely to allow the free passage of civilians and civilian goods by other means.

It was a Turkish ship that Israel intercepted, but its passengers were protesting a policy that harms 1.5 million civilians in Gaza.

Yes, the Palmer Report recommended that Israel continue "efforts" to ease the closure of Gaza. But the message headlined throughout the Israeli media -- in light of the report's decision not to link the authority to stop ships with responsibility toward civilians harmed as a result -- is that the UN has given its stamp of approval to Israel's closure of Gaza, and that there is therefore no need to lift it.

Sari Bashi is the executive director for Gisha (Legal Center for Freedom of Movement )


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