Archive for ‘Hamas’

June 5, 2010

The Gaza Blockade and International Law

by Gedalyah Reback

The Gaza Blockade and International Law
Israel’s position is reasonable and backed by precedent.

by Eric Posner as published in the Wall Street Journal

Israel’s raid on a fleet of activists bound for the Gaza Strip has led to wild accusations of illegality. But the international law applicable to the blockade eludes the grasp of those in search of easy answers.

The most serious charge is that by seizing control of the flotilla, Israel violated the freedom of ships to travel on the high seas. The basic law here is that states have jurisdiction over a 12-mile territorial sea and can take enforcement actions in an additional 12-mile contiguous zone, according to the 1982 Law of the Sea Convention (which Israel has not ratified, but which is generally regarded as reflecting customary international law). Outside that area, foreign ships can sail unmolested.

But there are exceptions. Longstanding customary international law permits states to enforce publicly announced blockades on the high seas. The Gaza blockade was known to all, and certainly to those who launched the ships for the very purpose of breaking it. The real question is whether the Israeli blockade is lawful. Blockades certainly are during times of war or armed conflict. The U.S.-led coalition imposed a blockade on Iraq during the first Gulf War.

The catch here is the meaning of “armed conflict.” Traditionally, armed conflict can take place only between sovereign states. If Gaza were clearly a sovereign state, then Israel would be at war with Gaza and the blockade would be lawful. If, however, Gaza were just a part of Israel, Israel would have the right to control its borders— but not by intercepting foreign ships outside its 12-mile territorial sea or contiguous zone.

Gaza is not a sovereign state (although it has its own government, controlled by Hamas) and is not a part of Israel or of any other state. Its status is ambiguous, and so too is the nature of the armed conflict between Israel and Hamas. Thus there is no clear answer to the question whether the blockade is lawful.

However, the traditional idea of armed conflict involving only sovereign states has long given way to a looser definition that includes some conflicts between states and nonstate actors. The international rules governing blockades attempt to balance belligerents’ interest in security and other countries’ economic interests in shipping. During war, security interests prevail.

War-like conditions certainly exist between Israel and Hamas. And because Israel intercepts only self-identified blockade runners, its actions have little impact on neutral shipping. This balance is reflected in the traditional privilege of states to capture foreign pirates on the high seas.

So Israel’s legal position is reasonable, and it has precedent. During the U.S. Civil War, the Union claimed to blockade the Confederacy while at the same time maintaining that the Confederacy was not a sovereign state but an agent of insurrection.

When the Union navy seized ships trying to run the blockade, their owners argued that a country cannot interfere with shipping on the high seas except during war, and one cannot be at war except with another sovereign state. The U.S. Supreme Court approved the captures in an ambiguous opinion that held that an armed conflict existed, even though one side was not a sovereign state. The opinion suggests a certain latitude for countries to use blockades against internal as well as external enemies.

Human Rights Watch argues that a blockade to strike at a terrorist organization constitutes a collective penalty against a civilian population, in violation of Article 33 of the fourth Geneva Convention. This argument won’t stand up. Blockades and other forms of economic sanction are permitted in international law, which necessarily means that civilians will suffer through no fault of their own.

Most attention has focused on the question whether Israeli commandos used excessive force while taking control of one of the flotilla ships, which resulted in nine deaths. Human Rights Watch says that Israel’s actions violated the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. However, that document is not international law; its principles are akin to a set of “best practices” for advising countries with poorly trained police forces. It is also vague and it would not apply to a military operation.

Military operations must respect the principle of proportionality, which is a fuzzy, “know-it-when-you-see-it” test. But one thing is clear. Ships that run blockades may be attacked and sunk under international law. If Israel had exercised that right, far more than nine people would have been killed.

Mr. Posner, a professor at the University of Chicago Law School, is the author of “The Perils of Global Legalism” (University of Chicago Press, 2009).

June 5, 2010

For Many, it’s about Much More than Just a Blockade

by Gedalyah Reback

The best step to ending the blockade is the invasion and overthrow of Hamas once and for all. That is not a guaranteed result of any invasion, and any invasion as necessary as it is would never get the support it deserves. Israel has not been given a choice vis a vis its war with Hamas. There is no buffer zone the country can make to protect Sderot, Ashkelon and Ashdod from rocket attacks from the strip – all those cities are within range from any position in the Strip.

Occupying the strip would be the next best option, but would put the country in a further diplomatic bind. International peacekeepers have failed to prevent the rearmament of Hezbollah in southern Lebanon, and remain as useful as they were in the prelude to the Six Day War in 1967, when the President of Egypt Gamal Nasser demanded the UN force there abandon their positions so Egypt could establish a springboard position for invasion of Israel from within the Sinai.

What form of self-defense is legitimate here? Israel is being pushed against a wall when even its limited use of military power is considered illegitimate. The diplomatic pressure on the Israelis to end wars as soon as they begin – such as accusations of disproportionate use of force before evidence of such even presents itself – compels a mentality that Israel would have to use even heavier firepower in greater quantities in order to deter future attacks on Israelis – symmetric or asymmetric. In other words, rather than a careful campaign that can focus on tactical targets, Israel is given a time limit that encourages sloppiness and increases the likelihood of mistakes.

Israel has long faced irrational international pressure over its combat efforts – the Soviet Union cut off relations with Israel after the Six Day War, and the UN censured Israel’s use of force on that occasion (in the face of public threats by Arab leaders to annihilate the country) as well as following the Entebbe Raid in 1976.

The accusation that Israel’s siege mentality is unjustified, as has been repeated ad nauseum over the past week, is itself baseless. Israel has responded with heavy military operations in response to great threats to its citizens, and has consistently pocketed several victories – Operation Defensive Shield in 2002, I would argue the deterrence factor following the 2006 invasion of Lebanon, and the near-total lack of rockets fired from the Gaza Strip following Operation Cast Lead.

Yet, with every military operation, come some amount of diplomatic fallout be it based on propaganda or political considerations. The IDF was exonerated after an investigation of a massacre in Jenin – the casualty numbers cited by accusers were inflated 10 times the correct count and all casualties were combatants. Israel was accused of targeting civilians in 2006, when in fact Hezbollah has never been forthcoming about how many “combatants” died during the war. And of course, last year Turkey decided to consider its political opening in the Middle East by publicly using every opportunity possible to attack Israeli policies in order to earn favorable public opinion (never mind Turkey’s own stated policies of military occupation of the Kurds).

European pressure to immediately accuse Israel of war crimes before such evidence of them having occurred is available – notably the idea of disproportionate force – has diluted European credibility in Israel to absurd lows. The term was even used incorrectly on several occasions, as if using air power against inaccurate rockets was illegal. Any enemy target is legitimate in war. But European politicians’ description deliberately misleads, as if it required a state to act in self-defense in a tit-for-tat and any expanded campaign against hostile targets that went beyond, say, merely eliminating rocket launchers.

This combination of factors has forced Israel into a siege mentality. Perhaps my own perspective of the situation is worth a psychological analysis, but these are undeniable facts relating to Israel’s defense policies over the last 10 years – since the rebuff at Camp David.

This has become an issue about more than just the international community’s demands to compel Israeli withdrawals from hostile territory. More and more, the right wing in Israel is seeing its narrative reaffirmed as to the unfair treatment Israel’s defense policies have gotten. It is encouraging further self-reliance. feeding into the present cycle of military action and diplomatic fallout.

What this is leading to is not a breaking point for the Palestinians – as claimed by Mahmoud Abbas, or a breaking point for Turkey – which took its own initiative to downgrade ties with Israel and upgrade with Iran on its own. Israel feels that it has to further increase its military prowess. This is the mentality in the country, not necessarily the strategy that military brass will outline if any fundamental changes are to some to national defense strategy.

Israel will be wise to fix its reputation by changing many domestic policies and its attitude within the West Bank and vis a vis Gaza, as well as its diplomatic situation. But expect Israel to start preparing to move harder and faster than it ever has before. More and more, Israel will be forced to act in the dark, which means a jolt to Israel’s intelligence strategy and secret operations. Most of all, it will prepare itself to go beyond limited military confrontations in order to fully eliminate threats that put Israel in these diplomatic binds in the first place.

January 30, 2010

Between Gulf War IV and Revolutions

by Gedalyah Reback

In 1980, Saddam Hussein started the first Gulf War by invading Iran, starting an eight-year melee that left 2 million dead between the two countries. In 1990, Hussein invaded Kuwait, underestimating the resolve of dozens of countries that launched Operation Desert Storm to expel the Iraqis. In 2003, the Bush Administration toppled the Hussein regime, igniting a massive civil war between Arab Sunnis and Arab Shiites, exposing Iraq to Iranian sabotage, and bringing Turkey to the brink of war with Iraqi Kurdistan.

In 2010, the real possibility that Iran could be attacked in a pre-emptive strike by Israel, or Iraq and other Arab states may defend themselves from an Iranian offensive, arguably has the Middle East on the brink of the fourth major war in the Persian Gulf in 30 years.

But after years of nuclear anxiety and headlines ad nauseum about negotiations, has the novelty of such a threat worn off? Much of the talk of war seems passé. But I am going to make the effort to say that the threat of a massive regional war is very real, and will reel in the major UN Security Council powers, plus Germany.

Israel has attacked hostile states’ nuclear programs before – Iraq’s and Syria’s. Any attack by Israel would have to have some level of approval from both the United States and neighboring Arab countries. The entire region would have to be in sync and ready for the attack. That is approval that Saudi Arabia, as reported by a local report by the Heritage Foundation, is willing to give to Israel when the time is right.

The US would not be able to avoid the retaliation, and would be dragged into a war with Iran. An Iranian response would involve proxies not just in Lebanon and Israel, but in Iraq and throughout the Persian Gulf. Britain, Germany and France would operationally support Israel and the United States, if not actually deploy troops into the Middle Eastern theater.

With the window closing on the opportunity for a concerted hit, it is vital that Iranian access to nuclear weapons be categorically denied immediately. But that does not imply the only option, or the best option, would be to attack Iran. On the contrary, the best case scenario there would be a delay in nuclear development. The elimination of the regime is the only guarantee that the Tehran we know and despise would acquire nuclear capabilities. If a different government ran the country, especially a democracy, the West and Israel would accept an Iranian nuclear program as non-hostile and uninterested in creating a nuclear warhead.

AS BEST IT CAN, the world needs to support the opposition movement in Iran. Estimations that a revolution usually belittle the historical memory of young Iranians, whose parents are reminding them day in and day out that a revolution is possible. They know how to do it. This is the grand fear in Tehran, a primary reason the regime there has lashed out publicly against “soft” and “velvet” revolutions, patronizing them in an effort to stigmatize any such campaign. Both Iran and China have accused the US of waging “cyber warfare,” signaling that not only is it a significant tactic – it’s something they fear.

Any revolution on the ground there will be their own. Nothing the US, Europe, Israel or anyone else could do would launch a massive revolt. But these countries can provide the tools – or at least keep them online.

In June, bloggers and hackers the world over attacked government firewalls in order to keep cell phones, the internet and Twitter afloat. Reports varied on how effective the effort was, but the fact it made any impact was significant.

Certain features, like Facebook, have been inoperable in Iran since the elections. The organizational power the website offers represents enough of a threat it is worth Tehran’s time to shut it down. Keeping these lines of communication open, not just during massive demonstrations but in the days before they are organized, is essential to protesters.

IN THE MEANTIME, this is not an option the world can count on. There are subtleties to American and European diplomacy that would help pressure Iran, plus make Syria and Hezbollah think twice about being lockstep in line with Tehran’s policies.

A prevalent idea in recent years has been an Israeli-Syrian peace agreement that would sever the Iranian-Syrian military alliance. All this assumes Syria would actually break its military alliance with Iran and the region’s prominent terrorist organizations. Syria will not do such a thing, even if Israel were willing to trade the Golan Heights for a peace deal. This entire line of thinking assumes Syria is the weak link in the chain and can be diplomatically parleyed off, when in fact it is Iran facing domestic instability.

Damascus has used the diplomatic breathing room by the Obama Administration’s warmer policies to increase pressure on Lebanon. Prime Minister Saad Hariri has been reduced to humiliating gestures like meeting with his father’s murderer and acquiescing to Hezbollah’s arsenal in coalition talks. Hariri’s March 14th alliance has relinquished these things despite having a larger margin of the vote in 2009 than 2005, when Syria was weak and isolated by the Bush Administration.

It is a combination of inability and unwillingness that make Syria just as weak under threat or American economic and diplomatic sanctions. Iran does not need Syria to send weapons to Hamas and Hezbollah, as it has proven with shipments that were caught in the Red Sea in 2002 and Sudan during Operation Cast Lead. Shipments like the one captured in Cyprus in 2009 did not need to pass through a Syrian port to reach Lebanon.

POLICY needs to be made more consistent to fully pressure the Syrians and Iranians, otherwise the countries will continue using diplomatic patience as a window for nuclear development and weapons smuggling. No amount of US and French support for Lebanon will mean anything as long as either Syria or Iran exploits weakness in Western foreign policy. The only guarantee that this alliance will crack is via a combination of domestic and foreign pressure.

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