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The Facts, the Law and the Table

June 4th, 2010by Gershom Gorenberg · 21 Comments · Politics and Policy

Reading Shaul Magid, Kevin Jon Heller, MJ Rosenberg, Leon Wieseltier, Daniel Gordis

Gershom Gorenberg

An older journalistic colleague of mine, now retired, studied law in his youth. He regularly quoted the advice of one of his professors: “When you have the facts on your side, pound on the facts. When the law is on your side, pound on the law. When neither the law nor the facts are on your side, pound on the table.”

The Gaza flotilla affair has produced some excellent reading for those interested in the law and facts. It has also led some of the usual suspects to pound even harder on the table. A brief guide:

At Zeek, Shaul Magid makes a strong argument that Israel’s leaders are undermining the argument against an anti-Israel boycott  by maintaining the blockade of Gaza:

One reason ordinary Gazans have turned to smugglers is that Israel determines what does and does not constitute “humanitarian aid” and can be allowed through the blockade to reach Gaza. While to my knowledge there is no exhaustive list of items refused entry into Gaza, UNRWA, the UN relief agency for Palestinian refugees, has compiled a list of items that have been refused entry at one time or another, including light bulbs, candles, matches, books, musical instruments, crayons, clothing, shoes, mattresses, sheets, blankets, pasta, tea, coffee, chocolate, nuts, shampoo and conditioner. …

… Israel claims to be innocent of human rights abuses, yet strictly controls all items in and out of Gaza, including items that are necessary for a war-torn society to function (and may items that have nothing to do with security). In other words, Israel is creating or at least contributing to a human rights crisis while claiming to be innocent of human rights abuses.Israel’s counter-argument that it needs to blockade Gaza to protect its own security is real and should not be minimized by the international community. However, one can also justifiably question its sincerity when it turns down an offer of diplomatic relations with a moderate Arab country over the quantity of cement that country wants to import. …

Shaul is right to stress the point about Israel’s right to protect itself. The argument is over the means that the government has chosen toward that end – the blockade of Gaza in general, and the raid on the ship in particular.

As I noted in my American Prospect article, the Israeli government is arguing that stopping civilian vessels in international waters is legal under the laws governing naval blockades. Australian legal scholar Kevin Jon Heller doesn’t dismiss this argument, but he raises some very serious questions. Key point:

If the conflict between Israel and Hamas is an international armed conflict (IAC), there is no question that Israel has the right to blockade Gaza. …  The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), the first international instrument to acknowledge the legality of blockades, specifically recognized the right of belligerents to blockade their enemy during time of war.  Article 97 of the San Remo Manual does likewise.  And there is certainly no shortage of state practice supporting the legitimacy of blockades during IAC (the US blockade of Cuba, for example).

However, this rule applies to wars between states. Heller says there’s little evidence “to support the idea that a blockade is legally permissible” in a conflict between a state and a non-state actor. In fact, when the Union used a naval blockade against the Confederacy during the Civil War, it led to European recognition of the Confederacy as a belligerent state. Is the Netanyahu government ready to take the risk that the Hamas government in Gaza will gain recognition as an independent state?

At Media Matters, MJ Rosenberg shows his usual ability to cut through the nonsense:

The first thing you need to know about the Gaza flotilla disaster is that the intention of the activists on board the ships was to break the Israeli blockade.  Delivering the embargoed goods was incidental.

In other words, the activists were like the civil rights demonstrators who sat down at segregated lunch counters throughout the South and refused to leave until they were served.  Their goal was not really to get breakfast.  It was to end segregation.

That fact is so obvious that it is hard to believe that the “pro-Israel” lobby is using it as an indictment.

MJ cites “the facts about life in Gaza today — facts that only can be changed by breaking the blockade.  These data come from the American Near East Relief Association (ANERA), which provides relief to Gazans to the extent permitted by the Israeli (and American) authorities.” Some selected points:

8 out of 10 Gazans depend on foreign aid to survive.

The World Food Program says Gaza requires a minimum of 400 trucks a day to meet basic nutritional needs – yet an average of just 171 trucks worth of supplies enters Gaza every week,

95% of Gaza’s water fails World Health Organization standards leaving thousands of newborns at risk of poisoning.

Anemia for children under the age of 5 is estimated at 48%.

Maybe, if Humpty Dumpty gets to define “humanitarian crisis,” this isn’t a humanitarian crisis. But I think you have to pound on the table, rather than the facts, to make that argument.

Leon Wieseltier looks at the psychology of the Netanyahu government, and the particularly pernicious tradition that underlies it:

It is hard not to conclude from this Israeli action, and also from other Israeli actions in recent years, that the Israeli leadership simply does not care any longer about what anybody thinks. It does not seem to care about what even the United States—its only real friend, even in the choppy era of Obama—thinks. This is not defiance, it is despair. The Israeli leadership seems to have given up any expectation of fairness and sympathy from the world. It is behaving as if it believes, in the manner of the most perilous Jewish pessimism, that the whole world hates the Jews, and that is all there is to it. This is the very opposite of the measured and empirical attitude, the search for strategic opportunity, the enlistment of imagination in the service of ideals and interests, that is required for statecraft.

The complication … is that there is a partial basis in the actually existing world for a degree of Israeli pessimism. There are leaders, states, organizations, and peoples whose hostility to the Jewish state is irrational and absolute and in some cases murderous….  I do not see how any of this can be denied, or shunted aside, or explained entirely in terms of Israeli behavior. But it is emphatically not the whole picture, except for those Israelis and Jews whose political interests and ideological inclinations prefer it to be the whole picture. For there are forces in Israel, and in its government, that have a use for Jewish hopelessness.

There is a verse in Numbers that Jewish pessimists like to cite: “the people shall dwell alone, and not be reckoned among the nations.” It is Balaam’s divinely inspired description of the Israelites—Balaam, who came to curse and stayed to bless. But I have always regarded it as a curse, this promise of loneliness…. It chills me to the bone. It is a locution for prophets, not prime ministers. The Jews cannot dwell alone. In fact, their history shows that they never did dwell alone. It is not a tale of insularity and isolation. The apartness of the Jews was never a complete secession from their environment. The engagement of the Jews with the world was a matter not only of practical necessity, but also of theological conviction. And not even the darkest and most dire adversity succeeded in driving them entirely into themselves.

What I particularly like here is that Wieseltier has demolished the claim that pessimism is realism. It is the opposite. It is a pathological refusal to see reality and the opportunities that reality offers.

Now if you want to see someone pound on the table, read the Shalem Center’s Daniel Gordis in the New York Times. Gordis writes with more sincerity and coherence than the official propagandists defending the raid, but he is reciting the same arguments.

Gordis comments that the era of international sympathy for Israel  is “gone, of course, because of the world’s impatience with the ‘occupation’ of the West Bank and Gaza.” Why, precisely, does he put quotation marks around occupation? The arm of the State of Israel responsible for the West Bank is the military. A military panel recently ruled that the Basic Laws of Israel don’t apply to settlers because they are living in territory subject to the international laws of occupation. But if the West Bank isn’t under military occupation, what – in Gordis’s view – explains the fact the Palestinian residents do not enjoy the rights of Israeli citizens? Would he prefer to define the territory as a colony or protectorate? Or to label it as part of the state, and justify the disenfranchisement of the Palestinians within that state?

Gordis asserts that “most Israelis want peace with two states — one Jewish and one Palestinian, living side by side,” which is probably true. He fails to note that the Netanyahu government is dedicated to continued construction of settlements in the West Bank and East Jerusalem, settlements intended to block the creation of a viable Palestinian state.

Gordis notes that the Hamas regime in Gaza is repressive. He does not remember the argument of  the French Jewish philosopher-journalist Raymond Aron in his classic 1957 essay, “The Algerian Tragedy”: The fact that independent Algeria would be undemocratic did not justify France’s attempt to continue to rule that country by force. It was impossible to defend imposed rule of another nation in the name of liberal ideals, Aron said. The same is true of Israel’s attempt to control Gaza indirectly.

Most importantly, Gordis writes as if the blockade of Gaza has been aimed solely at interdicting arms, with no limitations on civilian goods. He asserts that “there is no humanitarian crisis in Gaza…” He does not give any source for this assertion. It appears that he believes it so because the government says it’s so.

Israel most definitely has the right to defend itself. In a wide strategic view, the defense of Israel includes Israel’s relations with other nations and the pursuit of peace. No matter how much you pound on the table, the economic blockade of Gaza is failing as means of defending Israel.

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