By ANTHONY DiMAGGIOThere has been much intense discussion of Israel’s recent attack against a flotilla of aid ships that was travelling to Gaza, intent on violating the blockade imposed by Israel against the government of Hamas and the Palestinian people. Much of the debate, unfortunately, has taken place under limited, propagandistic pretenses.
The Israeli attack took place on May 31 in the Mediterranean Sea, approximately 80 miles off the coast of the Gaza Strip. More than 660 pro-Palestinian activists were detained, and another nine were killed as the Israeli military intercepted the flotilla to prevent it from reaching the Gaza shore. The activists were known to pose no military danger to Israel; instead they were carrying much needed humanitarian supplies to ease the suffering of Palestinian civilians who have been the subject to an unofficial Israeli siege policy, following their election of the Islamist group Hamas to power.
Reactions among U.S. officials and in the American media were predictably favorable to Israel. Obama and the press are largely ignoring or discounting international law. Obama refuses to condemn Israel, instead tepidly pushing it to conduct its own investigation (in which Israeli Defense Minister Ehud Barak opposes). In its recent editorial, "Israel and the Gaza Blockade," the New York Times mildly criticizes Israel for having "mishandled the incident." The blockade is deemed "unjust," although the paper’s editors seem more concerned with the PR fallout of the incident to Israel’s reputation than with the loss of civilian lives. This is evidenced in the Times’ own statement that "this is a grievous, self inflicted wound [for Israel]. It has damaged Israel’s ties with Turkey, once its closest ally in the Muslim world".
The Times generically calls for "an impartial international investigation" into the incident – pre-determined to lead to no punishments considering it would be undertaken by the same government guilty of war crimes.
Similarly, in "The Flotilla Fiasco," the Washington Post’s editors are even more hostile in their response to the activists challenging the Israeli blockade. The paper complains that "Israel’s response to the pro-Palestinian flotilla was both misguided and badly executed," but then admits that "we have no sympathy for the motives of the participants in the flotilla".
The famous Edward Said lambasted American and European media, and political and cultural discourse as heavily Orientalist, framing Muslims as dangerous and exotic others. This practice continues today, with U.S. media heavily privileging Israeli narratives over Palestinian ones. A Lexis Nexis database search finds that in 31 stories referencing Israel or the Gaza Strip that were printed in U.S. from May 31 to June 2 (the three days following the attack), 23 stories, or 74 percent of the total, contained a headline that led with references to Israel or Israel’s actions. In contrast, only 8 stories, or 16 percent of the total, were accompanied by headlines that led with references to the Gaza Strip or the actions of Palestinian officials.
Media outlets are more than happy to obfuscate international law in order to absolve Israel of criticism. Tellingly, neither of the editorials from the Washington Post and New York Times even bothers to reference the implications of international law for Israel’s attack on civilians travelling in the flotilla.
When the Washington Post does reference international law, the contents of such stories are hardly critical of Israel. In one story, "Israeli Flotilla Raid Revives Question of International Law," the Post argues that "international law experts differ over the legality of the Israel action, with some asserting that the raid constituted a clear cut violation of the Law of the Sea, while others maintain that Israel can board foreign vessels in international waters as part of a naval blockade in a time of armed conflict." The article goes on to cite the denials of illegality by Israeli officials, such as Mark Regev, spokesman for the Israeli Prime Minister, who argues that, under the San Remo Manual on International Law Applicable to Armed Conflicts at Sea: "if you have a boat that is charging a blockaded area you are allowed to intercept even prior to it reaching the blockaded area if you’ve warned them in advance, and we did a number of times, and they had a stated goal which they openly expressed, of breaking the blockade. That blockade is in place to protect our people." International law is generally not a salient theme for stories on Israel’s attack.
Just four of the 27 stories in the New York Times referencing Israel also mention the words "international law," while just one of 21 stories in the Washington Post contain those words, according to a Lexis Nexis analysis from May 31 to June 2nd. As a student of political science, international law has long been an area of interest – one in which I did much research as an undergraduate and graduate student. It’s worth reflecting briefly below on just what international legal agreements have to say on Israel’s Flotilla attack. After undertaking this analysis, it should be clear that the legal justification made by Israeli officials is unconvincing and self-serving.
Key Legal Points Regarding the Flotilla Assault
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The U.N. Security Council has already weighed in on the blockade (of which the flotilla attack is one part), attacking it in Resolution 1860 for collectively punishing the people of Gaza. The resolution calls for "the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including food, fuel, and medical treatment." The criticism of the embargo as illegal is heavily rooted in the logic of the Fourth Geneva Convention, Article 3 of which mandates that states take all possible steps (even when formal wars have not been declared between two states) to protect noncombatants. Behavior that is expressly prohibited includes any actions that are a threat to individual life (9 civilian activists were killed in the flotilla attack). The taking of hostages (including the more than 660 seized by Israel) for political or military purposes is also prohibited. The blockade is illegal in that it violates the legal principles behind the Geneva Conventions, which were created for the general purpose of prohibiting states from engaging in collective punishment against civilians during times of conflict. Israel’s collective attack on the civilians of Gaza (and its refusal to even acknowledge that they are under assault) represents a clear violation of the spirit and letter of the Geneva Conventions.
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The U.N. Charter is quite explicit that use of force is only allowed under two conditions: in the case of immediate self defense against an ongoing attack (not a theoretical one) or in the case of Security Council authorization. Israel could claim neither of these (for more details on the U.N. Charter and limits on the use of force, see my recent piece, "War Takes No Holiday." Any attacks against the flotilla have not been convincingly linked in any way to previous military conflicts between Hamas and Israel. Apologists for Israeli aggression like to argue that international law outlaws the use of force (outside of the two conditions listed in the U.N. Charter and discussed above), while also arguing that the U.N. Charter allows states like Israel to annex land in the West Bank and to control of Gaza’s territorial space, in light of the fact that the Occupied Territories are not formally states. Under this line of thinking, since the West Bank and Gaza Strip do not formally constitute a state, they are not parties to the U.N. Charter – hence Israel is not bound by to respect their sovereignty. There’s little reason to take these objections seriously. The U.N. Security Council has long deemed Israel’s occupation and control of Palestinian lands and territorial space as illegal under international law, despite the fact that Palestine is formally a nation, rather than a state (see Security Council resolutions 242, from 1967, and 338, from 1973, which declared the inadmissibility of occupying or annexing land by force).
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The U.N. Charter’s restrictions on the use of force are relevant in their relation to Israel’s illegal occupation of Palestinian lands, Israel’s longstanding efforts to demolish prospects for Palestinian sovereignty (in this case through the embargo and attacks on civilians), and Israel’s belligerence against foreign nationals who were assaulted on May 31st. The blockade and the attack on the flotilla are an integral part of Israel’s illegal occupation of the West Bank and Gaza and its unauthorized control over their airspace, waters, and borders. The Security Council’s condemnations of Israeli behavior must be understood in light of the country’s illegal 40-year campaign to deny Palestinian sovereignty (Israel has violated more than 90 Security Council resolutions in relation to its behavior in the Occupied Territories). Furthermore, Israel’s attack on the flotilla can be understood as an informal declaration of war against states such as Turkey, whose own nationals were on board the attacked ships.
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The much cited San Remo agreement, used by Israel to justify its attacks on the flotilla, is a non-starter as a legal permission slip. There is nothing in the San Remo agreement that allows a belligerent state to target and kill civilians who are known to be on a non-violent mission in international waters, especially when they are dedicated to opposing an illegal embargo. The San Remo agreement allows for countries to stop "merchant vessels" in international waters under the following conditions:
o If the vessels "are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture."
o If the vessels "engage[s] in belligerent acts on behalf of the enemy"
o If vessels are "act[ing] as auxillaries to the enemy’s armed forces"
o If vessels "are incorporated into or assist the enemy’s intelligence system"
o If vessels "sail under convoy of enemy warships or military aircraft"
o Or if vessels "otherwise make an effective contribution to the enemy’s military action."
There is no legitimate basis for invoking the San Remo agreement in regards to humanitarian shipments from the flotilla. There is no reason to believe the ships were contributing to Hamas’ military power; rather they were being provided needed relief to civilians targeted by Israel’s illegal siege strategy. This basic reality means that five of the six provisions above (B, C, D, E, and F) are inapplicable in terms of authorizing the Israeli flotilla attack. The only provision left, point "A," does not justify actions undertaken under an illegal embargo.
In the case of the Israeli flotilla attack, and as mentioned above, the legality of the blockade itself is clearly in question, as it represents a blatant violation of the Geneva Conventions’ protections of civilians during wartime.A more relevant international treaty in the case of this attack is the 1982 Law of the Sea Treaty. This agreement allows for the "innocent passage" of ships in international waters if their behavior is not deemed "prejudicial to the peace, good order or the security" of the respective coastal state. The Israeli attack took place 80 miles offshore, clearly outside of Israel’s sovereignty (which extends no further than 12 miles from Israel’s coast), and in a zone where the Law of the Sea Treaty is clearly applicable. Furthermore, it’s difficult to make an argument that humanitarian supplies sent to a population under an illegal siege are a threat to the national security of Israel – unless national security is defined through illegal aggression, illegitimate land expansion, and the terrorizing of civilians.
The comatose political debate over Israel’s actions is hardly surprising to those who critically follow U.S. public discourse on the Middle East. American narratives have long privileged Israel over its Arab neighbors, and this case is no exception. Still, the growth of domestic or international pressure may play a positive role in pushing the U.S. to take a more critical stance toward Israel. Whether this will happen, however, remains to be seen.
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