Drowning in the Law of the Sea

Within an hour after Israel commandos hijacked the Free Gaza Movement flotilla on the high seas and killed at least nine relief workers, Israel’s Foreign Ministry posted to its Web site a “legal background” to the attack. The short, 12-point statement makes a low-key, matter of fact argument why the law is on Israel’s side. Israel claims that international law respecting naval blockades permits everything it did. Including, apparently, the execution-style slaying of a 19-year-old Turkish-American boy.

With the exception of the United States – no surprise there – nearly every nation unequivocally denounced Israel’s assault. Contrary to some paranoid thinking, worldwide condemnation of Israel’s conduct probably does not reflect global anti-Semitism. Even with all the troubles in the world, civilization apparently still views with opprobrium the killing of innocent people engaged in acts of charity to alleviate suffering.

States always claim some right to commit a wrong. The government of Israel is no better or worse than any other government in that respect. More than most, however, Israel has had prodigious experience in crafting legalese to defend the indefensible. In doing so, it is under no illusion that it will persuade many nations. Instead, its fabrication of a legal justification serves the public-relations purpose of blunting criticism in Israel itself and the United States, the only constituencies it needs to be concerned with.

U.S. public opinion has marinated for decades in pro-Israel conditioning from the government and corporate media. Even when the basic, abhorrent facts are not in dispute – an Israeli bulldozer crushes a 23-year- old American girl, the IDF shoots a peaceful American protester in the head, a video captures Israeli bombardment of dense civilian centers with white phosphorus-flaming missiles – critics of the Jewish state’s actions have to overcome a very steep presumption of Israeli rectitude ingrained in U.S. media and culture just to inform Americans about the facts. As a result, pro-Israeli legal arguments do not need to aim high. They do not have to be correct. They do not even have to have merit. In fact, to succeed, these arguments only need to be made. The trick is to refocus attention from the moral question “How could they do such a thing?” to the legal question “Does the law permit them to do such a thing?”

Almost any legal argument in capable hands can sound reasonable. The great Art Buchwald, late newspaper columnist and humorist, described this phenomenon in a piece from 1978, where he only half-jokingly [.pdf] explained why then-Chief Justice Warren Burger had been wrong to complain about too many incompetent lawyers in American legal practice. “It isn’t the bad lawyers who are screwing up the justice system in this country – it’s the good lawyers. The competent trial lawyers know how to postpone a case and string it out twice as long as necessary. They know how to file every conceivable motion, and eventually make every known and unknown appeal. A competent, first-class lawyer can tie a case up in knots, not only for the jury but for the judge as well. If you have two competent lawyers on opposite sides, a trial that should take three days could easily last six months. And there isn’t a thing anyone can do about it.”

What Buchwald was on to is the practice of “polishing the turd,” an indispensable art of the legal advocate. When two accomplished turd-polishers are pitted against one another, the jury – or the public – will not know what to believe. Further, when dealt a hand of bad facts by his client, an experienced and creative defense counsel will ply this skill by converting obvious and incriminating facts into an impossible puzzle of uncertainty.

In its many trials in the court of public opinion, Israel and its supporters have become adept at polishing turds. The process begins with asking and answering the question, “Did the law allow us to do this?” If the answer is “yes,” as it always will be, its critics are terrified of leaving that claim un-rebutted. And so, like moths to a flame, they respond. Once they do, the defenders of Israel’s actions are on safe ground. They don’t need to prove ironclad, irrefutable legal justification. All they need to do is persuade the target audiences that the law, the facts, or both are so complicated that anyone, especially in the heat of battle, could have made a mistake.

So it is the case with the Jewish state’s interdiction of the Turkish vessel Mavi Marmara and its five companion ships, en route to deliver humanitarian aid to the people of Gaza, who by all credible accounts have been held captive for several years in a virtual – and not so virtual – open cesspool, in near-starvation subsistence, dependent upon their captors for survival. As ridiculous as it may sound to ordinary people, Israel argues that it was entirely within its rights under international law for its warships in the dead of night to surround unarmed civilian vessels laden with crayons and medicine, 80 nautical miles out at sea, disrupt their communications, send ninja-like armed commandos sliding down ropes from helicopters to the decks, kill at least nine passengers, kidnap the rest back to Israel, deny them access to lawyers, and then “deport” them, but not before confiscating anything they may have used – cameras, cell phones, laptops, etc. – to record the attack.

While this sounds absurd, there is an even greater absurdity. The legal argument in support of Israel’s brutality is not obviously wrong.

QED: Invoking the “San Remo Manual on International Law Applicable to Armed Conflicts at Sea” and the U.S. “Commander’s Handbook on the Law of Naval Operations” – neither of which, by the way, are “laws,” but rather interpretations of different sources of law, written and unwritten, scattered across the centuries – Israel maintains a relatively simple-appearing position: (1) The state has a “blockade” on anything going in to Gaza, which is run by a regime with which Israel is in armed conflict; (2) a “blockade” is a “legitimate and recognized measure under international law that may be implemented as part of an armed conflict at sea”; (3) once a blockade is in place and duly declared, no vessel, civilian or military, enemy or neutral, may violate or attempt to violate the blockade; (4) a state may take action to enforce a blockade, including by attacking a vessel attempting to breach it; (5) a vessel attempts to breach a blockade the moment it leaves its own port with the “intention of evading the blockade” – and there’s no doubt about that here, since the “Free Gaza” flotilla group said that is what it intended to do; and (6) since the flotilla was attempting to breach Israel’s blockade, it makes no difference that interdiction took place on the high seas.

Sound reasonable?

Having posted its talking points, Israel’s legally trained apologists in the U.S. and elsewhere were primed for an expert-hungry media. The Washington Post began a June 2 piece with what must have read like poetry to Israel’s spin ministry: “But has Israel broken any laws? 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” (emphasis added). The Post quotes a Northwestern University law professor, one of “those who believes the raid was illegal,” that the law “is very clear, for a change.” In counterpoint, a former State Department lawyer opined that it is “okay for Israeli ships to operate in international waters to enforce [the legal blockade].” The story also quotes an Israeli spokesman that “international law is very clear” that Israel acted “totally within [its] rights.”

The Post piece illustrates how “framing” the Israeli atrocity as a legal issue virtually guarantees its exoneration in the U.S. media. If experts with opposing views find that the law “clearly” supports directly conflicting positions, how in the world could tiny Israel, under intense psychological and political pressure from omnipresent “existential threats,” possibly be certain that its actions would not violate complicated laws?

The Israelis’ “case” is helped by more overtly partial press coverage, of course. A Reuters piece on June 2, picked up by several mainstream outlets, for example, reads like a legal FAQ written up by AIPAC. In the form of a “Q&A,” Reuters asked putative legal experts such questions as “Can Israel Impose A Naval Blockade On Gaza?” (of course!) Was the ship in “international waters”? (yes, but it doesn’t matter). “Can Israel Use Force When Intercepting Ships?” (naturally). Although there are probably over 50 million lawyers on earth, each more willing than the next to opine in public, the Reuters reporter apparently could not find one who thought that Israel was out of bounds.

Except on TV legal dramas, it is the rare litigant who can come up with that single, simple, sharp counter-argument to destroy his opponent’s case. Perhaps because of TV, however, the public consumer of legal fare demands the “silver bullet.” Those who disagree with Israel’s legal claims have not found that projectile, nor are they likely to. Instead, the Internet and other media have proliferated scores of arguments disputing Israel’s “blockade” contention. There may be as many reasons why Israel acted illegally or criminally as there are critics  – and maybe even more, since most have articulated several reasons on their own. You can read or hear that:

  • Under international law, Israel’s blockade is not a blockade, but a closure, whose primary objective is collective punishment, and which therefore cannot justify attacking the flotilla [.pdf].
  • The “San Remo Manual” applies only to hostilities between states; Gaza (and Hamas) is not a state; therefore, only the Geneva Conventions apply (and would not permit the conduct).
  • Under the Law of the Seas Convention, a non-belligerent Turkish flag vessel in international waters is Turkish territory, which means Israel attacked Turkey, thereby committing a war crime.
  • Even if it were otherwise valid, this “blockade” is not cognizable, since Israel has never specified its duration, in violation of paragraph 94 of the “San Remo Manual.”
  • The flotilla’s cargo, inspected by Turkish officials before it was allowed to leave port and found to contain only humanitarian aid, would not have made any effective contribution to any Hamas military action, and its interdiction would not have given Israel any definite military advantage; therefore, it was not subject to attack or capture.
  • As is all too often the case, Israel’s conduct transgressed the fundamental concept in the modern law of war of proportional response.
  • Last but not least, the following analysis: “Israel’s defense of the blockade … appears to create a serious dilemma for it. Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an [international armed conflict or IAC] with Hamas. And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza. Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas. But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention.”

The earnest souls who consider both sides of the legal dispute in quest of an answer will find little clarity and certainly no clear conclusion in the mass of contention accumulating in the media. Moreover, unlike their opponents, who received talking points from the government of Israel and simply riff off of them, the contra-Israel case lacks organization or centralized guidance. The result is an incoherent battery of legal barbs that due to sheer volume takes on an appearance of mean-spirited and spiteful piling-on. If Israel did something truly criminal, would it really take 24 different reasons under a dozen different bodies of law to explain why? Would it really require brilliant legal minds to demonstrate subtle internal contradictions in Israel’s position? Wouldn’t all the experts independently arrive at the same, objective explanation?

If Israel truly acted with malice, where is the “silver bullet”?

The irony in discussing Israel’s assault on the Free Gaza flotilla as a legal issue at all is that the law is completely irrelevant. There is no international court or tribunal with any effective authority over the Jewish state. No judgment issued by any judicial authority would ever be enforced against it. It will never be held to account by any jury or other fact-finder following the presentation of evidence. The “legal framework,” however, has served its purpose. If Americans just focused on the question “How could they do this?” the public might have rallied in moral outrage and in sufficient numbers to finally pressure its political leadership to end its blind and self-injurious support of this “special ally.” The moment to do that probably is past. How can Americans believe that Israel has betrayed its own moral superiority when it is not even clear that it violated the law?

Author: Peter Casey

Peter Casey lives in New Hampshire.