The Raq Rega E-Mail Project Issue 9

The Gaza Embargo and the Boarding of the Flotilla

This Raq Rega concerns the Israeli storming of the flotilla of ships that set sail from Turkey in an attempt to break the blockade that Israel and Egypt have thrown around Gaza. 

PLEASE NOTE THAT NOTHING IN THIS RAQ REGA SHOULD BE TAKEN AS ADVOCATING ANY POSITION VIZ A VIZ THE APPROPRIATENESS OR EFFECTIVENESS OF THAT EMBARGO/BLOCKADE, NOR THE APPROPRIATENESS, LEGALITY OR EXECUTION OF THE BOARDING OF THE SHIPS IN THE FLOTILLA.  

The intent of this Raq Rega, as all other Raq Regas, is to offer a few facts in the hope that they will help keep discussions within the realm of truth, rationality and civility.  Ideologues, who can never admit any fault or error in their side or in their arguments, rarely serve their issues well. 

So with that in mind, let's turn to just a few observations and set forth a few facts that we hope can serve the ends of meaningful discussion.

WHETHER THE ISRAELIS USED DISPROPORTIONATE FORCE IN BOARDING THE SHIPS.

It is always fair, and often desirable, to look back on military actions taken to ask if disproportionate force was used.  How else are we to learn and to progress morally?  Of course concluding that Israel used disproportionate force does not answer the question as to how it or anyone else should react to the incident. 

Many questions need to be considered and "instant (uninformed) analysis" does a disservice to all of us (as does a refusal to permit an independent examination into the facts). For example, is it not useful/necessary to ask what the soldiers encountered?  Would not your conclusion be affected by whether they encountered peaceful protestors rather than un unexpected violent trap or a spontaneous crowd reaction that turned violent?  Did the soldiers reasonably fear for their lives or that they were in imminent danger of serious physical harm?  Was deadly force used as a first reaction or a last resort?

Only after considering these, and other, questions, can or should conclusions be reached as to whether disproportionate force was used and then considerations can begin as to what the proper reaction should be if Israel were found to have acted with disproportionate violence. 

For example wouldn't/shouldn't the world's (and the Israeli people's) reaction to a conclusion that disproportionate force was used vary with factors as whether Israel's intent in planning the action was to cause serious injury or loss of life; whether, if Israel did not act intentionally in this regard, the planning nevertheless did not properly consider the risk of serious injury or loss of innocent life, and whether, in executing the plan, even assuming a proper regard for life in the planning stage, Israel's soldiers were properly trained, and properly led, or whether the soldiers panicked?

But in saying that judgement should be withheld pending answers to these questions doesn't mean we won't/can't/shouldn't form some tentative judgments based on the facts as they are revealed.  

Israel asserts that those boarding the boats were armed only with paintball guns and, as a precaution, sidearms with live ammunition, and not rifles or automatic weapons.  If so, this seems relevant as to the state of mind and planning on the part of the Israeli forces.  It seems to indicate that they anticipated, and planned for, only non-violent reactions (e.g., protestors locking arms to block the wheelhouse, or yelling or refusals to follow the orders of the commandos).  This, of course, is not strictly relevant to the question of whether disproportionate force was used, but rather, if that conclusion is reached, what the reaction should be.

Also, the violence seems appeared to have been confined to only one of the six boats.  This also seems relevant to the state of mind and planning on the part of the Israeli forces.  If they intended a violent confrontation it would be expected that would have been the fact on all the boats. The fact that it happened on only one seems to indicate something unique, and perhaps pre-planned by the people on that ship, happened.

The Israelis claim they faced armed and violent people who appear to have planned a trap for them.  The organizers of the flotilla deny that.  If it turns out that the Israelis are substantially correct, then the fact that as many as 9 civilians were killed and no Israelis were (although 7 were injured, 2 seriously) seems to be of little value in trying to figure out whether the Israeli force was disproportionate. It may be that it was the result of better training of the Israeli soldiers than the training given armed and violent protestors who planned a trap for the Israelis or at least planned violent resistance to the Israelis.  On the other hand if it turns out the organizers of the flotilla are substantially correct, then the numbers would have greater relevance. 

Nevertheless some look at the numbers alone, without regard to the facts which resulted in the numbers.  Consider the following from Der Spiegel, a leading German newspaper:

"The pro-Palestinian organizers had described the fleet with which they had hoped to break through the Israeli sea blockade of the Gaza Strip on Monday morning as a "humanitarian aid convoy." But as the Israeli army stormed the largest ship, the Mavi Marmara, the activists they encountered were in no way exclusively docile peaceniks. Some of the "peace activists" received the Israelis with crow bars and sling shots. Some of the self-professed "human rights activists" reportedly even tore the weapons from soldiers and began to shoot.

That's not what a peaceful protest looks like.

But the reaction from Israel, a state which proclaims to adhere to the rule of law, was far from appropriate. Regardless how prepared to engage in violence the organizers of the ship convoy might have been: With at least 15 dead, all on the side of the activists, and more than 30 injured, some seriously, one thing is certain: Israel carelessly threw one of the most important principles of the application of military violence overboard: the proportionality of military force."

While the use of such numbers alone is certainly not, as Der Spiegel would have it, conclusive as to the issue of proportionality, it is difficult to say the fact is not at least potentially relevant.

WHETHER THE ISRAELI'S ACTIONS, EVEN IF NOT DISPROPORTIONATE, WERE ILLEGAL.

Regarding the legality of Israel's actions, The Times of London had these observations:

"Israel may face problems justifying the legality of its decision to storm the Turkish aid ship in international waters (writes Deborah Haynes, Defence Editor). Under the United Nations Convention on the Law of the Sea, the high seas are regarded as not belonging to any nation

Boarding a vessel is acceptable in certain circumstances, such as when a boat is suspected of terrorist activities or carrying weapons of mass destruction, but even then Israel, for example, would need to seek permission from the country where the boat is registered, in this case Turkey 

Jason Alderwick, a maritime analyst at the International Institute for Strategic Studies, said that the Israeli raid did not appear to have been conducted lawfully under the convention

Israel declared a 20-mile exclusion zone off its shores, warning pro-Palestinian activists to stay away. Yesterday’s raid took place some 40 miles outside the exclusion zone

Ultimately, it is a gray area, with Israel expected to claim self-defence"

Israel has pointed out, however, that "A state may take action to enforce a blockade. Any vessel that violates or attempts to violate a maritime blockade may be captured or even attacked under international law. The US Commander's Handbook on the Law of Naval Operations sets forth that a vessel is considered to be in attempt to breach a blockade from the time the vessel leaves its port with the intention of evading the blockade. . . . Given the large number of vessels participating in the flotilla, an operational decision was made to undertake measures to enforce the blockade a certain distance from the area of the blockade. "

But how many people are seriously interested in such legalisms? Should the location of the acts take center stage?  For both those who support the embargo/blockade and/or those who regard as necessary and appropriate the Israeli reaction to the attempt to break the blockade and those who don't, is it relevant or persuasive for any of their purposes whether the boarding and deaths took place 40 miles at sea or 20 miles or 12 miles or 2 miles? Or whether the Israeli's said "May I?" before they boarded?

IS THERE A HUMANITARIAN CRISIS IN GAZA BY REASON OF THE EMBARGO/BLOCKADE?

While the issue of the embargo/blockade is separate from that of any issue surrounding Israel's reaction to the attempt to break the embargo/blockade (see below), the fact is that it seems inevitable that the issue of whether or not the embargo/blockade is causing a humanitarian crisis is going to arise in any discussion of that reaction.  But how relevant is this to whether the embargo/blockade should be lifted?  If the embargo/blockade is causing such a crisis, then clearly the embargo/blockade should be lifted.  But what if it is not?

Wikipedia defines a humanitarian crisis as "an event or series of events which represents a critical threat [emphasis supplied] to the health, safety, security or wellbeing of a community or other large group of people, usually over a wide area. Armed conflicts, epidemics, famine, natural disasters and other major emergencies may all involve or lead to a humanitarian crisis."

Does the situation in Gaza that has resulted from the Israeli/Egyptian embargo/blockade constitute a humanitarian crisis?  Al-Jazeera says:

"It's true that [nobody starves in Gaza and that] Israel allows basic necessities - which Israeli officials often term "humanitarian aid" - to enter the blockaded Gaza Strip. But it tightly controls both the type and quantity of goods allowed into the territory. . . . Israel usually allows 81 items into Gaza, a list which is subject to revision on a near-daily basis. It is riddled with contradictions: Zaatar, a mix of dried spices, is allowed into the territory; coriander and cumin are not. Chick peas are allowed, while tahini was barred until March 2010.  "Luxury goods," things like chocolate, are prohibited altogether. So are most construction materials, though Israel has relaxed this prohibition slightly over the last few weeks. The United Nations refugee agency has resorted to constructing houses out of mud because other building material are unavailable.

And those products allowed to enter Gaza are permitted only in modest quantities. In January 2007, Gaza received more than 10,000 truckloads of goods each month; by January 2009, that number was down to roughly 3,000.

A 2008 report from the International Committee of the Red Cross (ICRC) found that 70 per cent of Gaza's population suffered from "food insecurity." As Al
Jazeera's Sherine Tadros reported last week, the Israeli authorities allow little meat and fresh produce into Gaza, leading to widespread malnutrition in the territory [Israel disputes this allegation about malnutrition].   Medical goods, too, are in short supply. The World Health Organisation says dozens of basic medicines are unavailable in Gaza because of the blockade.. . . "The situation is deteriorating due to the closure - there are restrictions of movement, restrictions of food - it causes problems in areas of health, water, [and] sanitation," Cecilia Goin, a spokeswoman for the ICRC, said on Monday.

Fuel, too, is heavily restricted, with many Gaza residents facing hours of power cuts each day. The blackouts force many families and businesses to buy generators, and their widespread use has serious consequences: An Oxfam report released in March concluded that 15
Gazans have died from "generator-related accidents" since January."

Haaretz reporting on Gaza notes similar facts and speaks editorially of the distress in Gaza (although disagreeing with any conclusion as to the creation of a humanitarian crisis).

Israel denies that there is a humanitarian crisis in Gaza.  It points out no-one is starving and that Hamas even has rejected accepting the goods shipped on the flotilla because they passed through Israeli hands (hardly the reaction of a responsible government in the midst of a humanitarian crisis).  Israel also points to the existence of fine, expensive restaurants in Gaza that are thriving, and  the ready availability of new expensive cars.

People can (and do) disagree about whether the foregoing constitutes a humanitarian crisis.  But based on our research, it is difficult to dispute the facts presented by as reported by Al-Jazeera and the Israeli and Western press.  So should the real debate concerning the embargo/blockade, that is the one that centers on whether it should be continued, depend on whether the facts constitute a humanitarian crisis?  Consider what Peter Beinart does with these facts.

"As the Israeli newspaper Haaretz has reported, the Israeli officials in charge of the embargo adhere to what they call a policy of “no prosperity, no development, no humanitarian crisis [the point of which is to turn the people of Gaza against Hamas].” In other words, the embargo must be tight enough to keep the people of Gaza miserable, but not so tight that they starve.

This explains why Israel prevents Gazans from importing, among other things, cilantro, sage, jam, chocolate, French fries, dried fruit, fabrics, notebooks, empty flowerpots and toys, none of which are particularly useful in building Kassam rockets. It’s why Israel bans virtually all exports from Gaza, a policy that has helped to destroy the Strip’s agriculture, contributed to the closing of some 95 percent of its factories, and left more 80 percent of its population dependent on food aid. It’s why Gaza’s fishermen are not allowed to travel more than three miles from the coast, which dramatically reduces their catch. And it’s why Israel prevents Gazan students from studying in the West Bank, a policy recently denounced by 10 winners of the prestigious Israel Prize. There’s a name for all this: collective punishment.

Israel does not deserve all the blame for Gaza’s impoverishment. Gaza’s other neighbor, Egypt, imposes an embargo of its own, though less effectively. And Hamas has been known to confiscate goods meant for Gaza’s poor. But none of that excuses Israel’s role in keeping Gaza destitute. . . .

If all this were actually turning the people of Gaza against Hamas, perhaps—perhaps—it might have a cold-blooded justification. But if there is anything that the U.S. has learned from its half-century long embargo of Cuba, it is that policies of collective punishment don't turn people against their regimes. To the contrary, they usually offer those regimes an excuse for their inability to govern."

It seems in part that Beinart is making a moral, not a legal argument using the facts presented.  But Beinart uses the legal term "collective punishment" and thus seems to move the argument from the legal concept of  "humanitarian crisis" to that of "collective punishment."

WHETHER THE EMBARGO/BLOCKADE OF GAZA CONSTITUTES A FORM OF COLLECTIVE PUNISHMENT

The underlying assumption or charge in many of the arguments against the embargo/blockade is that the embargo/blockade is a form of collective punishment against the people of Gaza. 

Israel, however, has stated that the actions it has taken are a set of sanctions the purposes of which are to persuade Hamas, a governing power, to cease its rocket attacks on Israel and to stop Hamas from building or buying or otherwise obtaining arms. Israel insists actions are directed against Hamas, as governing power, and not the people living in Gaza (without denying that they are affected by the actions). Israel notes that Hamas has refused to recognize Israel, has stated that it is determined to destroy Israel if it can, and has for years taken violent actions directed against Israel's civilian population.  Therefore, Israel insists, its actions against Hamas are both reasonable and prudent.

In court papers filed in Israel,government of Israel has stated that "The limitation on the transfer of goods is a central pillar in the means at the disposal of the State of Israel in the armed conflict between it and Hamas."  However it also stated that the disclosure of what is allowed in and why would, in their words, "damage national security and harm foreign relations".  It is difficult, then, to evaluate Israel's specific actions in connection with the embargo/blockade in light of the ends it says justify it.

Actions against a state, a government or governing power are not regarded as collective punishment.  Collective punishment is a legal concept referring to the punishment of a group of people as a result of the behavior of one or more other individuals or groups.

Any series of sanctions or actions against a country or government or governing power inevitably is going to have some effect on the civilian population.  So how is it to be determined if a set of actions are directed against a governing power or its people?   Perhaps that question is best left to the lawyers, since arguments regarding whether a set of actions constitutes collective punishment (or, for that matter, whether a military response is disproportionate) seem always to refer whether this or that legal standard is met .  

Perhaps the rest of us should not get caught up the legalisms but rather should be asking whether, irrespective of whether a legal standard is met or not, are the actions in question morally correct, just, fair, and humane?  Do they conform to the way we would act, and would want our children to act, under similar provocations? 

We don't need lawyers for that.  For guidance, perhaps the best places to look are the Old Testament, the New Testament and the Koran.  The question of whether something is legal or illegal is not necessarily related to whether it is moral or immoral or even acceptable, and vice versa.  Too often people forget that. So perhaps we should all first decide, when discussing these issues, whether we desire to have a legal argument or a moral one.

AN AFTERWORD ABOUT DISCUSSING ISSUES RELATING TO ISRAEL'S ACTIONS REGARDING THE FLOTILLA AND ISRAEL'S EMBARGO/BLOCKADE/SANCTIONS 

Clearly it is possible for a person to support the embargo/blockade yet be critical of the manner in which Israel reacted to the attempt to break through the blockade.  And of course it is possible for a person to oppose the blockade yet not be critical of the manner in which Israel reacted to the attempt to break it. And in a rational world a person's views on one of these issues should not be predictable based on his or her views on the other.

Discussions about Israel, unfortunately, seemingly rarely proceed on a rational plane and the reality is that many, if not most, people will, in an unthinking fashion, reach their conclusions concerning the manner in which Israel acted regarding the flotilla on the basis of whether or not they support the embargo/blockade. 

Where both sides to a discussion reach their conclusions in this manner, concerns about the manner in which Israel acted in fact, irrelevant to them, no matter how much energy and passion they expend on them.  The  real issue for them is the embargo/blockade.  Discussions of the recent Israeli actions among these people are exercises in talking at, not with, others.  Only where at least one side does not reach their conclusions in this manner, is a true discussion about the Israeli actions regarding the flotilla possible. 

And by true discussion we mean a genuine exchange of ideas where each side is really interested in what the other has to say and is willing to be persuaded. 


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