Why Israel’s blockade & piracy on high seas is illegal

7 Aug

One of Israel’s top secret units who patrol the Gaza coast enforcing the naval blockade of Gaza [Photo:BBC]

By Jonathan Ofir, Mondoweiss, 6 August 2018

Friday night, the Swedish Freedom Flotilla boat ‘Freedom’ heading towards Gaza lost all communication at 20:06 local time, merely 40 nautical miles away from the Gaza coast, with 12 crew members, activists and journalists from five countries. It has since been confirmed that the boat was seized.

This follows a predictable pattern. On the 29th of July, another, the bigger Norwegian boat ‘Al Awda’ was stormed by the Israeli navy. Although Israel systematically jams communications at the point of attack, the stories eventually come out. We have heard from leading crew member Zohar Chamberlain-Regev how the Israelis have “no wish that their criminal acts will be seen”; the other Israeli activist Yonatan Shapira described how, “like in a strange play”, Israeli soldiers were beating, tasering and threatening to kill crew members, all “done with a kind of psychotic tenderness”, with male and female soldiers “wearing white shirts with the national flag embroidered in a shiny blue color and wearing white masks on their faces”.

Israel has a system, it is well-oiled, and it is very PR concerned. By jamming the communications of the flotilla boats, it manages to prevent media coverage to a large degree in the first days. In this time slot, countries may express ‘concern’ or ask for an ‘explanation’ (as Norway did), but then Israel officially declares that it has intercepted a vessel according to international law, “without exceptional events”. As Israel gets the first word out, the testimonies of the crew inevitably end up second, as a kind of ‘dispute’. Many people are fooled by this and believe that it’s just a bit ‘complicated’. But the Israeli siege of Gaza is illegal, and it is important to understand just how Israel manages to claim that the enforcement of part of it – the naval blockade – is in itself legal.

Israel has acquired a certain stamp of international legitimacy for its naval blockade (enacted since 2009) by the UN Palmer Report, published in the wake of the 2010 Mavi Marmara assault, when Israeli navy commando forces killed 10 activists. An impeccable analysis of this case is to be found in Norman Finkelstein’s Method and Madness: The Hidden Story of Israel’s Assaults on Gaza, which I will be quoting extensively from. Finkelstein writes:

Whitewash

Although the Mavi Marmara bloodbath marked yet another data point in the decline of Israel’s global standing, still, public opinion has yet to be organized into an effective political force, and Israel was able to contain the immediate diplomatic and legal fallout. In a gesture designed to placate Turkey, UN Secretary-General Ban Ki-moon appointed on 2 August 2010 a Panel of Inquiry … to “examine and identify the facts, circumstances and context of the incident,” and to “consider and recommend ways of avoiding similar incidents in the future.” Israel initially opposed an international investigation but then reversed itself, proclaiming it had “nothing to hide,” after Ban Ki-moon eviscerated the proposed panel’s mandate and appointed as its vice-chair the singularly corrupt and criminal Colombian ex-president Alvaro Uribe, who is also an outspoken proponent of closer military ties between Colombia and Israel. It was predictable—and predicted at the time—that the panel would produce a whitewash. In the event, the report it produced, which vindicated Israel’s claim that its naval blockade of Gaza is legal, is probably the most mendacious and debased document ever issued under the aegis of the United Nations. 

He notes how, in order to justify the naval blockade, the Palmer panel had to assess it separately from the land blockade:

The critical first premise of the UN Panel is that the Israeli naval blockade was both conceptually and practically “distinct from” the land blockade. In fact, however, in design as well as implementation, the Israeli land and naval blockades constituted complementary halves of a unified whole: both served identical functions, while the success of each was essential to the success of the other. The Israeli government itself acknowledged these points.

Creating a false equivalence

Finkelstein summarizes the report’s mendaciousness, by pointing out how it vilified the activists, thereby creating a kind of false equivalence between their actions and the Israeli response:

The UN Panel “seriously questions the true nature and objectives of the flotilla organizers.” Why? Because it discovered that they intended not only to deliver humanitarian relief, but also “to generate publicity about the situation in Gaza.” To clinch its indictment, the UN Panel reproduces with a great flourish this incriminating document “prepared by” the organizers: Purpose: Purposes of this journey are to create an awareness amongst world public and international organizations on the inhumane and unjust embargo on Palestine and to contribute to end this embargo which clearly violates human rights and delivering humanitarian relief to the Palestinians. The UN Panel goes on to adduce yet more evidence of this sinister and nefarious plot: “The number of journalists embarked on the ships gives further power to the conclusion that the flotilla’s primary purpose was to generate publicity.” Not even the wretched Israeli Turkel Report dared impugn the passengers’ motive of publicizing the blockade’s dire impact. It must be a first, and surely marks a nadir, in the annals of the United Nations that a report bearing its imprimatur vilifies the victims of a murderous assault because they sought to cast light on a crime against humanity.

Myths and facts about the Palmer report

The Israeli Gisha human rights organization has published a list of myths and facts in this respect:

Myth: The [Palmer] commission determined that Israel’s closure of Gaza is legal.

Fact: The commission determined that Israel’s naval blockade is legal. The commission argued that an assessment of the legality of the naval blockade can be conducted independently of the question of the legality of the overall closure policy. We disagree with this assessment and believe that restrictions on movement, whether by land, sea or air, constitute a single policy, the components of which cannot be reviewed independently. The legality of the overall closure policy was left as an open question by the panel, however, a recommendation was made to Israel that it continue easing restrictions on movement “with a view to lifting its closure and to alleviate the unsustainable humanitarian and economic situation of the civilian population” in Gaza (par. 156).

Recommendations not legally binding

Myth: The Palmer Commission was a formal panel of inquiry, charged with the authority to summon witnesses and whose findings can be considered thorough and binding by law.

Fact: The commission was established by the UN Secretary-General on August 2, 2010, to review the “circumstances and context” related to the May 2010 flotilla incident. The panel stressed in its report that it was not “acting as a Court and was not asked to adjudicate on legal liability” (Summary, par. 1). Moreover, it states that, “its findings and recommendations are therefore not intended to attribute any legal responsibilities” much in the same way as the recommendations of the Goldstone report were not legally binding. The panel did not have a mandate to summon witnesses, it was meant to work by consensus and no live testimony was heard. The panel formed its report drawing from the information supplied from Turkish and Israeli domestic inquiries and representatives chosen by each country. 

Conclusion disputed

Shortly after the Palmer report was issued, a report to the UN Human Rights Council by five independent rights experts disputed the conclusion. They said in a joint statement,

“In pronouncing itself on the legality of the naval blockade, the Palmer Report does not recognize the naval blockade as an integral part of Israel’s closure policy towards Gaza which has a disproportionate impact on the human rights of civilians.”

One of the experts, Richard Falk, noted:

“The Palmer report was aimed at political reconciliation between Israel and Turkey. It is unfortunate that in the report politics should trump the law”.

It is somewhat macabre that the murderous assault on the Mavi Marmara could indirectly provide Israel with the legitimacy by which to continue its enforcement of an illegal and inhumane siege.

But that is what happened. As I had earlier reported, Israel now has a court order for the confiscation of the boats, where “their value will be paid to terror victims families as compensation”, because the activists are supposedly “assisting a terror organization”.

And that’s where I want to bring up that biblical story about King Ahab, in which the Lord condemns Ahab, with the famous charge, “Have you not murdered a man and seized his property?” It’s in 1 Kings 21:19 . The Israelite King Ahab was upset that a field near his palace would not be sold to him by Naboth the Jezreelite, since it was his family heritage. Ahab’s wife Jezebel plotted against Naboth with false witnesses, got him stoned to death, and provided Ahab with the coveted field. 

Israel is constantly doing this, in so many ways. In our very times it is murdering the Gazans who protest the theft of their land and their resultant incarceration in a concentration camp. And then it also inherits the boats of those who seek to protest that incarceration, in a psychotically-tender legitimation of piracy on the high seas.   

Jonathan Ofir: Israeli musician, conductor and blogger/writer based in Denmark.

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