June 8, 2010
[From the Editor-in-Chief, Craig Scott: On June 4, I posted a piece entitled "Israel's seizure of the Gaza-bound flotilla: applicable laws and legality", including links to other recent opinion pieces or blog entries on this issue (found at the end of the post). My colleague, Leo Adler, who is Adjunct Professor teaching Osgoode's International Criminal Law and ICC Moot courses, has contributed an eloquent response to my and some of the other legal analyses. We publish that response below. Readers are welcome to continue the conversation in the comment section after either of these posts, in what I referred to as the court of juridical opinion that stands in for the lack of a functioning international court system.]
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I have been following the ebb and flow of academic thought about the "flotilla" incident. Being interested in the issue, but not wishing to debate the scholastic or legalistic aspects of what occurred, I thought that perhaps readers woulld be interested in a brief "layman's" perspective of why there even is a blockade of Gaza, let alone a "flotilla".
My perspective has its roots in biblical and modern history, especially in the era after World War 1 and the San Marino conference, the League of Nations' adoption of the Balfour Declaration of November 2, 1917 and the 1947 United Nations General Assembly resolution, passed in the aftermath of the Holocaust, which, despite ferocious objections, recognised the legal, fundamental right of the Jewish people to have their own State in that part of the former Ottoman Empire known as Palestine.
Notwithstanding that formal acknowledgement, my perspective is also shaped by the ongoing failure of so many nations (both those which existed prior to 1947 and those which came into being subsequently) to positively answer the fundamental question which underlines those resolutions, namely: "do Jews have a right to their own independent homeland / nation?". The response -- which should be an obvious and resounding "yes", should be that, yes, the matter has been resolved and settled by League of Nations and UN resolutions and that therefore there ought not to be any more debate on the issue -- instead seems to be more obfuscated and more in dispute than 90 or even 63 years ago.
The 1947 refusal of the Arab / Moslem countries (many of which were also products of the same Versailles Treaty) to accept even the original boundaries, because they simply would not tolerate a Jewish nation in their midst, has meant that a state of war and a state of conflict, inevitably, continues to this day. The resulting 1948 War of Independence and the armistice which followed set the stage for yet other wars (Suez, Six Day War, Yom Kippur War, Lebanon Wars, Intifada 1 and 2, Gaza, etc.) as the desire to destroy Israel qua Israel continued.
The failure of many non-Arab and non-Moslem nations to, explicitly and without equivocation, tell and re-tell the Islamic world that Israel's existence as a Jewish State in the Middle East is simply not negotiable and not a matter that can or should be debated is also a cause of concern. The seeming indecisiveness on the part of such countries has been seen as a "green light" for the continued delusions of an Israel-free Middle East by Arabs and others. Because of that lack of clarity, somehow, some way, the situation has morphed from one of wars which pitted many nations against one, as the many attempted to destroy the one, to a scenario which depicts the founding and existence of Israel as somehow being the sole cause for the failure of Arab Palestine to be formed.
This not-so-subtle shift of the international focus has turned history upside-down and obliterated the reality of how the current crisis came into being. It is ironic that what is forgotten is that for 20 years (1947-1967) the actions of Egypt, Jordan, Syria, Iraq and others were directed only towards the destruction of Israel, without any thought or desire to create an Arab Palestine. It is ironic that what is overlooked is that which was accepted and agreed to by the League of Nations, the Peel Commission, the UN, as well as the Jewish inhabitants of the Mandate in 1919, 1937 and 1947, namely: the creation of an Arab Palestine. And that this was always objected to by the Arab people and the Arab States.
In other words, the Arab States' insistence that Israel be still-born in 1948, and wiped off the map after 1948, seems to have been whitewashed and completely forgotten. While Egypt and Jordan have since formally signed peace treaties with Israel, and while Fatah (the Palestinian Authority) has somewhat modified its position since the death of Yasser Arafat, such progress has only been due to Israeli resoluteness in the face of war and/or terror attacks. The current situation, though, still remains dire for Israel as it faces Hamas, Hezbollah, Syria, Iran, al-Qaeda and others.
In place of the previous state of active war between nations is the much more insidious plea to "punish" Israel for its alleged failure to abide by "international law" - however that's interpreted by usually well-intended professors and scholars. These calls for "justice" are then linked to attempts to counter Israel's alleged breaches with sanctions, boycotts, disinvestments, false descriptions of Israel as an "apartheid" state that should be destroyed, and relentless condemnations and attempts to delegitimize this Jewish, Zionist entity.
As a result, this flotilla is yet another example of what has become a cynical, politically-correct, end run to get around and avoid spotlighting the still-on-the-books Charters of Hamas and others that explicitly call for the destruction of Israel, the incendiary oratory of Iran and the discriminatory practices of virtually every Arab and/or Moslem country vis-a-vis Israelis or those who have Israeli stamps in their passports.
When Israel pulled out of Gaza, and especially after Hamas took control, there was no effort by Hamas to tone down or renounce its stated goal of annihilating Israel. To the contrary, this only served to "crank up" their rhetoric. If those words would not have been accompanied by action (the launching of thousands of rockets into Israel), and if there would have been no consistent, continuous efforts by Iran and Syria to re-arm Hamas, perhaps then the necessity of a blockade (one of several presently in force around the world involving other countries) could be questioned. But surely Israel has the right to take seriously the implacability of Hamas, its insistence on the destruction of Israel and its insatiable appetite for arms. Surely Israel has the right to look at history in the eye and not ignore what took place and, more importantly, why it took place.
Israel's sea-blockade, like its (and Egypt's) land-blockade, is predicated on a need to inspect deliveries to Gaza. This, in turn, is based on national security needs. Such preventive measures are logical, necessary and unimpeachable. The fact that ships of the "flotilla" deliberately decided to break that blockade, despite offers to have them transport their goods to Gaza after inspection stops in either Ashdod or in an Egyptian port, places some responsibility of what next happened upon them, as well as upon Israel.
But the background of why there is a Gaza blockade, and why the "flotilla" was rightly seen as a possible attempt to smuggle arms, armaments and offensive supplies to Hamas, must be viewed in the context of the refusal of Hamas, Hezbollah, Iran, Syria, al-Qaeda and the bulk of Arab and Moslem countries to still accept Israel's right to exist as a Jewish State in the middle of the Middle East. It is wrong and intellectually dishonest to isolate this unfortunate incident from history.
In this instance, Israel may be guilty of poor planning and a failure in intelligence-gathering. But it cannot and should not be found guilty of trying to protect its very existence from an implacable, untrustworthy enemy. And it surely shouldn't be subjected to a double standard in the face of what was clearly a public relations "set-up" by groups aligned with or sympathetic to Hamas and its ilk.
3 Comments
I have found that in these debates about Israel and the Middle East, your point of view is largely dependent on choosing a point in time at which the history begins, and assuming that the state of affairs at that point in time was justifiable, and that only the transgressions that have occurred since that point in time are in need of redress.
Those who support Israel choose a point of time after Israel's creation. Those who do not typically choose a point in time prior to it. Those who support settlements choose a point in time after their creation, those who do not choose a time prior to them.
I've never been compelled that there is some objectively "good" point in time to start from.
As for whether or not the altercation on the flotilla was in violation of international law, it seems sort of academic. What, in the Middle East, is not?
The eloquence of this post aside, its logic only holds if we continue to accept the conflation of "states" and "nations" with "everyday citizens." The actions and wishes of the former do not--in fact, often do not--coincide with the actions and wishes of the latter. Israel is punishing the regime of Hamas, but it's everyday Gazans who suffer--just like everyday Israelis suffer every time their government's "poor planning" and "failures in intelligence" end up killing people, including Israeli soldiers.
Keeping the debate at the level of nationhood and statehood, which this post does throughout, is rhetorically convenient, because it obviates any need to confront the very human effects of government policy. But it is also dangerously misleading, because it glosses over the very complicated political realities that exist within every country.
Indeed, the debate average Israelis continue to have about Gaza and the West Bank and their government's military policy is informed, passionate and decidedly mixed--a fact that is borne out by even the most cursory glance at that country's newspapers and local media. It has become a cliché, though nonetheless true, that the political dialogue within Israel itself is more open, fluid, and honest than that which occurs in places like Canada and the United States--whose media tend to limit opportunities for debate to times of crisis, such as the war in Lebanon and the recent killings aboard the Gaza-bound ship. Such narrow, crisis-inspired arguments are inevitably distorted, and as such reduce enormously complex problems to a matter of two, utterly intractable (and thus false) positions: one that is either pro-Israeli or pro-Hamas.
If only human beings were so simple. If only their motivations, thoughts and everyday needs could be so easily and casually placed on one side of a grand either/or divide. But surely our historical understanding of the world is more subtle than this. Surely we are beyond referring to a group of human beings as an "implacable, untrustworthy enemy". Such language never hits its intended target; you aim for Hamas, but your salvo inevitably strikes the people of Gaza. But then, imprecision is guaranteed when you focus your ire on nations and governing parties--which are, when it comes down to it, invisible, intangible entities. It is easy to condemn the actions of a state; it is much harder to hate an actual person.
OK, I have no issue with people circulating opinions on political issues. But I do have a problem when a law-based resource such as the court.ca, which I and many of my colleagues turn to for respectable information about ongoing legal issues in Canada, including news about cases pending in or released by the SCC and other appellate courts, starts getting bogged down with other material (in this moment, the Gaza blockade). I do have my own views on that particular issue, but I don't think this is the right forum for that discussion
Thecourt.ca is an excellent forum and resource for me and many of my criminal law colleagues -- I cannot speak to non-criminal law types -- and I can tell you that we have frequently drawn upon the useful commentary on the site in preparing our written materials for the courts of appeal or SCC.
I guess I am suggesting that you should reconsider the focus of thecourt.ca, and apply some firm editorial control. Your website and blog have been excellent resources to date and I would not like to see them watered down to the point of being just another internet entity that ends up being of no particular use to anyone. Stay focused!
David Schermbrucker
Halifax