Incredibly (and stupidly), Israeli officials believed the protesters’ claims that they were mere humanitarian peace activists with no violent intent (in fairness to both Israel and the protesters, it appears that the violent passengers were on only one of six boats). An embedded reporter with YNet News sets the scene:
Officials estimated that passengers will show slight resistance, and possibly minor violence; for that reason, the operation’s commander decided to bring the helicopter directly above the top deck. …
Navy commandoes slid down to the vessel one by one, yet then the unexpected occurred: The passengers that awaited them on the deck pulled out bats, clubs, and slingshots with glass marbles, assaulting each soldier as he disembarked. The fighters were nabbed one by one and were beaten up badly, yet they attempted to fight back.
However, to their misfortune, they were only equipped with paintball rifles used to disperse minor protests, such as the ones held in Bilin. The paintballs obviously made no impression on the activists, who kept on beating the troops up and even attempted to wrest away their weapons.
One soldier who came to the aid of a comrade was captured by the rioters and sustained severe blows. The commandoes were equipped with handguns but were told they should only use them in the face of life-threatening situations. When they came down from the chopper, they kept on shouting to each other “don’t shoot, don’t shoot,” even though they sustained numerous blows.
The Navy commandoes were prepared to mostly encounter political activists seeking to hold a protest, rather than trained street fighters. The soldiers were told they were to verbally convince activists who offer resistance to give up, and only then use paintballs. They were permitted to use their handguns only under extreme circumstances.
The planned rush towards the vessel’s bridge became impossible, even when a second chopper was brought in with another crew of soldiers. “Throw stun grenades,” shouted Flotilla 13′s commander who monitored the operation. The Navy chief was not too far, on board a speedboat belonging to Flotilla 13, along with forces who attempted to climb into the back of the ship.
The forces hurled stun grenades, yet the rioters on the top deck, whose number swelled up to 30 by that time, kept on beating up about 30 commandoes who kept gliding their way one by one from the helicopter. At one point, the attackers nabbed one commando, wrested away his handgun, and threw him down from the top deck to the lower deck, 30 feet below. The soldier sustained a serious head wound and lost his consciousness.
Only after this injury did Flotilla 13 troops ask for permission to use live fire. The commander approved it: You can go ahead and fire. The soldiers pulled out their handguns and started shooting at the rioters’
legs, a move that ultimately neutralized them. Meanwhile, the rioters started to fire back at the commandoes.
UPDATE: Have trouble believing Israeli officials could be so naive? Back during the Second Intifada, I was talking to a reporter who consistently referred to International Solidarity Movement activists as “peace activists.” I told him that he should call them what they are, Pro-Palestinian activists, if they were “peace activists” they would be riding Israeli buses targeted by bomb attacks as well as accompanying Palestinian demonstrators. He responded, “you know, you’re right, but the Israeli soldiers I deal with call them ‘peace activists’ so I just adopted their lingo.” I guess it’s a lot easier to believe that your enemies are just naive peace activists than that they hate you and want you dead. Israel can’t afford such naivete, as today’s violence suggests. Anyone involved in planning this fiasco’s head should roll.
FURTHER UPDATE: A “peace activist” aboard the ship, courtesy of Pajamas Media. Note the rather large, sharp dagger, perfect for, oh, spreading hummus or something.
And here’s the ever prescient Juan Cole, last seen predicting that Israel would use the 2006 war in Lebanon to permanently depopulate the south of the country, on what he calls the “peace activists” before the video above was released: “There are two possible reasons for the violence. One is that the Israeli troops boarding the vessels met some sort of resistance and over-reacted. Aid volunteers are unlikely, however, to have posed much real challenge to trained special forces operatives.” Or, more likely, “the deaths and woundings may have been a brutally frank warning to any future Gaza aid activists.”
And finally: Look, if you think that Israel’s blockade of Gaza is illegitimate, and the “Free Gaza” movement has the moral or legal right to ship whatever materials it wants there and to use whatever violence is necessary to resist Israeli attempts to stop them, neither this video, nor anything I am going to post here, is going to persuade you otherwise. But the Free Gaza folks and their supporters (Juan, call your office) have portrayed the violence today as an unprovoked Israeli massacre of nonviolent civilian peace activists. I think the video above pretty much rebuts that story.
Meanwhile, why is the N.Y. Times still repeating this nonsense on its website, without pointing out that it’s contradicted by video evidence?:
Greta Berlin, a leader of the pro-Palestinian Free Gaza Movement, speaking by telephone from Cyprus, rejected the military’s version.
“That is a lie,” she said, adding that it was inconceivable that the civilian passengers on board would have been “waiting up to fire on the Israeli military, with all its might.”
“We never thought there would be any violence,” she said.
FURTHER UPDATE: Glenn Greenwald, showing his usual perspicacity about all things Israeli, still has on his website, without correction: “Those on the ships emphatically state that the IDF came on board shooting.” But cf. video above. Nothing like useful idiots to help you with your propaganda, but at least we have a documentary record of Greenwald’s credulity. (Greenwald has now updated his post to add a caveat, without acknowledging that he did so.)
Anonsters says:
How come they didn’t put yellow circles around the rappelling commandos and put in big yellow text, “Trained soldier with assault weapons?”
May 31, 2010, 12:47 pmDavid Bernstein says:
Maybe because (a) the soldiers came on board woefully unprepared with paintball guns; and (b) the Israel navy doesn’t claim to be “unarmed peace activists who absolutely wouldn’t engage in violence”
May 31, 2010, 12:50 pmhilzoy fangirl says:
So they defended themselves against an armed force attempting to illegally seize their property? I thought that was the sort of thing that was supported here at the VC…
May 31, 2010, 12:50 pmKevin! says:
I’m amazed Bernstein thinks that this exculpates Israel. Did Command expect the soldiers to be met on board with flowers and hugs? There were something like 600 people on board that ship. Of course some were violent. Armed men wearing masks were assaulting the boat via helicopter in the middle of the night. So why did Israel voluntarily put its own soldiers in a situation where it was going to be kill or be killed?
Isn’t this a lot like the Kent State shootings? A failure of command as well as unexpected resistance led to mass killings.
May 31, 2010, 12:51 pmOrenWithAnE says:
Illegal according to what law? They were in international waters …
May 31, 2010, 12:53 pmHippos Go Beserk says:
Professor Bernstein,
I’m torn. I’ve largely given up trying to talk sense to people like Hilzoy fangirl and Anonsters – they aren’t open to it.
On the other hand, you provoke some truly hilarious statements, like Hf’s, that help make the lemonade.
Still, I think the reasoned argument thing gives them too much respect. Look at Sullivan today not understanding how “acceptable level of violence” precisely explains the need to Cast Lead. There is not discussion if the other side isn’t open to questioning their reasoning or assumptions or (best) both.
HGB
May 31, 2010, 12:55 pmAnonsters says:
ORLY? I direct you to my comment here.
But yes, some of us do push back against what another commenter called the “knee-jerk pro-Israel” position often taken by Bernstein.
May 31, 2010, 12:58 pmOrenWithAnE says:
Historically, when confronted with a demand for surrender by a superior force on the open seas (and lacking the speed to escape), sailors would peacefully give over control of the vessel.
It is particularly galling that the protesters struck their colors (and raised a white flag, in fact) in false surrender.
May 31, 2010, 12:58 pmIR Student says:
This Ynet News Article contains pretty good information on Israel’s military strategy. Assuming the facts of the article are true, Israel’s use of force appears to be lawful. Specifically from the article:
Later on, the story explains how live began to be used
The story criticizes the IDF for not trying to neutralize the protesters with tear gas before the IDF attempted to board the ship. And there’s always the criticism that boarding the ship in the first place was a mistake. But all these accusations of unlawful use of force are a bit premature. It’s responsible to investigate the incident, but one should do so with an open eye to all possibilities.
May 31, 2010, 12:59 pmAndrew J. Lazarus says:
Win the battles, lose the war.
May 31, 2010, 12:59 pmAnonsters says:
If that’s true, I agree that it’s not cool, and they should be condemned for what was in effect perfidy.
May 31, 2010, 1:02 pmAllan Leedy says:
They were supposed to be greeted as liberators.
May 31, 2010, 1:03 pmrfgs says:
“However, to their misfortune, they were only equipped with paintball rifles used to disperse minor protests”.
Except that handguns, and stun grenades, materialize in the next few paragraphs. The use of “only” seems problematic…
May 31, 2010, 1:08 pmlgm says:
Clearly there is no fog of war for Bernstein. But just for balance, you might look at other sources, such as Juan Cole. And for reference, the Israeli blockade of Gaza is considered by many to be a war crime.
May 31, 2010, 1:08 pmJaimeInTexas says:
So, it is OK to
board a shipenter private property without the owner’s or its agent’s consent as long as the uninvited “guests” are uniformed government workers and they are doing their job in international waters.Because there is no right to private property or to self-defense in international waters?
And who says that “humanitarian peace activists with no violent intent” means no right to self-defense against an intruder?
May 31, 2010, 1:11 pmbee says:
Next I assume we’ll be hearing that the folks on the boat killed themselves in an act of asymmetrical warfare.
May 31, 2010, 1:17 pmKevin! says:
Why were the protesters treated as a unified force under command? The video certainly doesn’t show a coordinated response by the crew. It does show an ad hoc attack.
At the point of attack, there were really two possible outcomes. EITHER the protesters were — UNIFORMLY — nonviolent supine resistors OR people were going to die.
And doesn’t the “oh, they’ll be nonviolent” point of view require taking the Israeli view of the situation? From the point of view of the crew, they were authorized by international law and moral urgency. They were under assault in a pretty real sense. Isn’t it obvious that a percentage would consider themselves — under the circumstances — justified as acting in self-defense? When both sides consider themselves acting in self-defense, people are going to get killed pretty quick.
May 31, 2010, 1:17 pmColin says:
I am also not a fan of Israeli soldiers invading my private property without the permission or cooperation of my government, and were they do so, imagine I would react in a thoroughly unfriendly manner.
The fact that you find this video decisive speaks volumes towards the degree of tunnel-vision involved.
May 31, 2010, 1:19 pmef says:
I think their estimation of the activist’s intent could be attributed to their expectation that this was a PR trap with exactly the sort of material that the flotilla claimed to be carrying, rather than a group that seemed intent on taking prisoners, or lives.
Or they just completely missed this one.
May 31, 2010, 1:19 pmtwoducks says:
A couple of observations here:
The blockade of Gaza is probably a war crime. There are people starving. On about 1/4 of the basics necessary to sustain life are being permitted to enter. I don’t recall a single post by Mr. Bernstein about that. Apparently under certain circumstances Mr. Bernstein believes it is appropriate to herd people into a ghetto and quarantine them. Disgusting.
Second, anyone who believes that that the Israeli armed forces are going to go into an operation armed only with paintball guns demonstrates a profound ignorance. As the story made clear later, that was not the case.
May 31, 2010, 1:20 pmef says:
the Israeli blockade of Gaza is considered by many to be a war crime.
Shouldn’t the bar be set at what “is” a crime, rather than what “many” people consider it to be. Many people consider the entire state of Israel to be illegitimate as well. I suspect a significant level of overlap in the two groups.
May 31, 2010, 1:21 pmDavid Bernstein says:
Do you seriously think that heading for a war zone to run a blockade is the equivalent of riding your car down I-95 with a cooler and a picnic lunch?
May 31, 2010, 1:23 pmAnonsters says:
Ah, so Bernstein inadvertently lets slip his true opinion. If you’re a pro-Palestinian activist, then you hate Israelis and want them dead.
May 31, 2010, 1:24 pmef says:
Do you seriously think that heading for a war zone to run a blockade is the equivalent of riding your car down I-95 with a cooler and a picnic lunch?
The answer is probably a yes, in his particular case.
May 31, 2010, 1:25 pmrachel says:
This whole incident is disheartening. It’s not as if the Israelis didn’t have adequate notice to more competently plan tactics, diplomacy and publicity.
Perhaps they should have intercepted and boarded the ships as Somali pirates and taken the well-to-do peace provocateurs’ laptops, Rolexes and Mercedes keys.
May 31, 2010, 1:29 pmJaimeInTexas says:
“Do you seriously think that heading for a war zone to run a blockade is the equivalent of riding your car down I-95 with a cooler and a picnic lunch?”
No, but that the principle still stands.
May 31, 2010, 1:30 pmColin says:
Do you seriously believe that is a response to his point?
May 31, 2010, 1:30 pmhopper says:
One would have to be pretty naive not to see this for what it is: a cynical p.r. stunt.
The only reason to send soldiers down without improper armaments is to encourage the crowd to rush them and attack them. Then after a few soldiers are beaten or killed, the IDF can claim that they were acting in self-defense and employ lethal methods. Then the deaths of the activists is just a regrettable by product of self defense.
The headline here is: “Nine activists on board Gaza-bound flotilla killed in violent clashes when Israel Navy commandos boarded ships; 7 commandos hurt, 2 seriously.”
As intended, the spin on this story is “Gee look at how gentle and caring the IDF forces were, it’s a shame that despite their best efforts they had to defend themselves.”
May 31, 2010, 1:30 pmnicehonesty says:
Funny how the people designating themselves as responsible for “push[ing] back” against the “knee-jerk pro-Israel” posts don’t seem familiar with the facts of the situation.
But despite their ignorance, they’re absolutely certain it was
May 31, 2010, 1:31 pmBush’s, er, Israel’s fault!Anonsters says:
Good trolling effort, dude.
May 31, 2010, 1:34 pmOrenWithAnE says:
The logical conclusion of that perfidy was the death of the protesters.
Surrender means surrender, even if you are in the right (or morally urgent).
I think Israel should have waited till they were in territorial waters, thus establishing their actions as the lawful right of any sovereign to seize and inspect a vessel.
For those that want to quibble, the US has a similar provision, 19USC1581, ruled constitutional . Under US law, the seizure would have been unquestionably legal:
May 31, 2010, 1:35 pmnicehonesty says:
Good effort to belatedly hide your antisemitism, dude.
May 31, 2010, 1:36 pmColin says:
Let me get this straight.
You’re under the belief that Israel intentionally sacrificed the lives of 7 soldiers as a PR move?
Wow.
May 31, 2010, 1:36 pmMartinned says:
Maritime Law.
Equivalent how? Both the cooler and the ship are private property, though they are protected by different legal systems due to the fact that – in this hypothetical – they are located in different jurisdictions.
May 31, 2010, 1:39 pmMartinned says:
Agreed.
Logical how? A false surrender is a serious offense, and certainly worthy of ample punishment after the military operation is over. In the meantime, the Israeli soldiers would be entitled to proceed with maximum care for their own safety once they discovered the truth.
May 31, 2010, 1:42 pmOrenWithAnE says:
Yes. To spell it out for you, there is no right to private property in a war zone. You don’t seriously think a confederate soldier could hide in a private house and demand that the union army not seize the place?
Even more to the point, the seizure and inspection of the vessel would have been lawful even in peacetime in the US (see my 1:35PM for cites to US law and SCOTUS opinion).
May 31, 2010, 1:43 pmDavid Bernstein says:
Surely would have made the diplomatic implications less fraught.
May 31, 2010, 1:43 pmCornellian says:
The soldiers pulled out their handguns and started shooting at the rioters’
legs, a move that ultimately neutralized them.
You keep starting out to make a legitimate point then undermining it with absurd euphemisms like “neutralized.”
May 31, 2010, 1:46 pmhopper says:
“You’re under the belief that Israel intentionally sacrificed the lives of 7 soldiers as a PR move?”
From the reports I’ve seen 7 soldiers were _not_ killed. I think your number is off.
But, more importantly, if you don’t think that countries routinely send soldiers to die for p.r. reasons, you are naive.
May 31, 2010, 1:47 pmIR Student says:
To be fair to the article, it does clarify the issue you bring up. In the paragraphs I omitted inbetween the two quotes, the article explains:
As a matter of logic, you are correct the use of only is improper as it is later revealed the Israelis were carrying handguns. In context, the reporter appears to be using the word only in the context of ‘primary weapons that could be used at the soldiers discretion’ whereas live ammunition needed to be authorized. It is always possible to disagree with this interpretation. But even if there is a disagreement, the “improper” use of the word only is hardly a devastating blow the accuracy and overall legitimacy of the article.
May 31, 2010, 1:50 pmrachel says:
hopper,
Re what you deem a “cynical p.r. stunt” by Israel:
The spin you claim hasn’t taken. Nearly all of the “peace activists” took up non-fire power implements to appear like hapless self-defenders. Surely, the IDF could’ve anticipated that their uniforms with sidearms would look jack-booted compared to “heroic” civilians wielding whatever to fend off their attackers.
A picture may be worth a thousand words, but an AP photo, even a freeze-frame of the IDF’S own footage, will always be selected and slanted to be worth a thousand words for the putative Pali underdog (rock-throwing and often armed to the teeth but stashed under flowing robes and head scarves assailants and bomb-belted terrorists.)
Legitimate grievances both sides of the Israeli-Pali conflict be damned.
May 31, 2010, 1:56 pmrachel says:
Has our State(ment) Department issued a stateme(a)nt, yet?
May 31, 2010, 2:00 pmEH says:
Bernstein already stated in the other post that this was a propaganda move by the flotilla.
Yes, those wily activists carefully selected their cargo so as to match their stated mission. Canny move, but ultimately a transparent strategy to maximize sympathy and disguise their real goals.
And paintball guns: we’re supposed to believe that? Really?
May 31, 2010, 2:01 pmdr.bilbo says:
“The spin you claim hasn’t taken.”
Mr. Bernstein, among other, appears to be buying it.
My favorite part is the picture of the guy with the knife up above and how Mr. Bernstein seems to believe that some goofball with a knife presents a real threat to highly trained Israeli commandos. (Except of course, when the commandos are offered as a sacrifice by their commanders.)
May 31, 2010, 2:05 pmMartinned says:
True. However, international waters are not a war zone. (Certainly not if only one of the belligerents has a navy.)
May 31, 2010, 2:05 pmOrenWithAnE says:
Maritime law absolutely allows the seizure of neutral cargo ships carrying the implements of war en-route to a belligerent under blockade.
In fact, under US maritime law, the blockading force may condemn and sell as prize any ship so seized. During the civil war, the US condemned a number of Confederate blockade runners.
Logical in the sense of “following logically from this action”. The Israeli forces, having viewed the white flag, were entitled to proceed onto the ship expecting a full surrender. They did so.
May 31, 2010, 2:07 pmlgm says:
I agree with DB that Cole can be a little kooky in his analysis and predictions. However, I think his reporting is as accurate as anyone’s (not a high bar in the middle east).
May 31, 2010, 2:07 pmMartinned says:
No press briefing yet, today. The Secretary herself appears to be thinking about Samoa. Otherwise, no word from her or from the White House.
May 31, 2010, 2:15 pmOrenWithAnE says:
Any idea why they did it out on IW then?
(1) Blockade runners can be seized far away from the port being blockaded. See (linked above) The United States vs. The Schooner Joanna Ward and her Cargo. She was captured hundreds of miles from Charleston but the Court noted:
and condemned both cargo and vessel.
(2) The belligerent’s lack of a Navy is hardly dispositive of whether a neutral-flagged ship that is evading a blockade may be lawfully seized.
May 31, 2010, 2:15 pmTerenceMcM says:
The Israelis were stupid. Full stop. There were other ways to stop this flotilla but they blundered into a total cock-up, and now they are reaping the whirlwind. The diplomatic consequences of this disastrous operation cannot be overstated. The Israeli government should apologize to the world and establish an impartial inquiry into the matter.
May 31, 2010, 2:16 pmMartinned says:
It does indeed. (Or at least some the laws of war do.) Which is why the relevant question is whether this ship was carrying implements of war or – if not – whether the Israelis nonetheless had reasonable grounds to believe that it did.
I’m not sure if I would use the word “logically” in quite that way, but OK. Agreed.
May 31, 2010, 2:18 pmColin says:
Did you just declare international waters a war zone? And compare it with the jurisdictional borders of the United States during the Civil War?
And the U.S. law you cite also does not deal with international waters.
Apples and oranges.
May 31, 2010, 2:19 pmMartinned says:
Are you kidding me? That’s a Civil War era US case. It’s been overtaken by almost 150 years of maritime and belligerency law, not to mention that it’s the wrong jurisdiction.
You’re the one talking about a “war zone”. The high seas are not ever a war zone in the legal sense, but as long as both belligerents have a navy, the high seas can be a location where those belligerents shoot at each other.
May 31, 2010, 2:22 pmJaimeInTexas says:
That settles it. We have rights, except when the government says it can do whatever it wishes … per their own rules, of course.
And who says might does not make right?
May 31, 2010, 2:22 pmOrenWithAnE says:
Why would that be relevant? The very existence of the blockade empowers Israel to seize and search any ship, without qualification, inside the blockaded zone.
I am not aware of any instance in the history of maritime law (of which I’ve read quite a bit) in which a Navy implementing a blockade was subject to such “reasonable grounds” scrutiny.
A ship that enters into a part of international waters that are subject to blockade is subject to seizure (actually condemnation of both vessel and cargo, which is much stronger still).
May 31, 2010, 2:26 pmwhit says:
it’s got a beat and i can dance to it. i give it an “8″
May 31, 2010, 2:27 pmrachel says:
“The Israeli government should apologize to the world and establish an impartial inquiry into the matter.”
The Israelis absolutely should NOT apologize to the world (only mutter one to themselves for having been gotten the better of by media bias and Prog non-geniuses, yet again.)
May 31, 2010, 2:27 pmMartinned says:
Because this seizure took place on the high seas, where under CIL/maritime law no state may seize a ship flying under another state’s flag except to catch pirates, etc. If Israel wants to carry out a blockade, they should do so in territorial waters. At law there is no such concept as “a part of international waters that are subject to blockade”.
May 31, 2010, 2:32 pmef says:
Yes, those wily activists carefully selected their cargo so as to match their stated mission. Canny move, but ultimately a transparent strategy to maximize sympathy and disguise their real goals.
Not intelligent enough to game the Israelis because they are brown?
May 31, 2010, 2:32 pmDavid Bernstein says:
Several Israeli naval commandos are hospitalized in serious condition. Anyway, the question I’m raising is not whether Israel could “take” the ship easily; obvious it could, not even a contest. The question I’m addressing is whether the passengers on the ship were “unarmed non-violent peace activists who were massacred by Israeli commandos”, or “pro-Palestinian activists intent on meeting an inevitable Israeli show of force with weaponry to provoke a violent incident that at best would lead to the capture of a few Israeli soldiers, and at worst could be portrayed in the compliant media as an Israeli massacre.”
May 31, 2010, 2:32 pmArthur Kirkland says:
No doubt an Israeli Yoo or Bybee or Addington can develop a legal theory that claims to justify Israel’s actions, whatever they might be.
But Americans have already had a bellyful of their own troops unapologetically wandering about the world, shooting anything that moves on scant foundation as part of a boundless “war.” How many of Israel’s checks will the American public be willing to cash? Aligning with a particular pole of American politics has been a dumb move for Israel. Compounding that error by straining Israel’s call on American generosity seems a poor choice. All the right-wing love in the world won’t be enough for Israel if a substantial number of Americans become unwilling to continue to shoulder the substantial tab for supporting Israel.
May 31, 2010, 2:37 pmJaimeInTexas says:
Cool knife. Would not mind carrying that knife with me, except that in the “land of the free” it would illegal for me to do so.
May 31, 2010, 2:38 pmMartinned says:
OK, I’ll bite: Why does the answer to that question matter?
May 31, 2010, 2:39 pmTy says:
Why did the “peaceful protestors” have stun grenades and fire bombs? I guess they could have taken a stun grenade off the soldier they beat up, but fire bombs?
It makes a lot more sense that the soldiers were only armed with paint ball guns (which can be amped up to be fairly painful) letting the protestors continue to attack then that the soldiers had assault rifles and the protestors were immune to those bullets until the handguns came out.
May 31, 2010, 2:40 pmDavid Bernstein says:
Because, Martined, while you think this is all an issue of international law, the real conflict here is a propaganda war, of which resort to international law claims is only a sideshow.
May 31, 2010, 2:42 pmrarango says:
I am having a difficult time understanding why the IDF wandered into what, in retrospect, appears to be a PR trap. Perhaps I have been ascribing too much prescience to Israeli intelligence. That said, I am solidly on the side of the Israeli’s.
May 31, 2010, 2:44 pmRich Rostrom says:
twoducks says: “The blockade of Gaza is probably a war crime. There are people starving. On about 1/4 of the basics necessary to sustain life are being permitted to enter.”
Israel allows anyone to ship goods to Gaza provided that they (Israel) may inspect the shipments and exclude armaments (or proto-armaments). They explicitly stated that all goods in this flotilla would be passed on to Gaza after inspection at Ashdod.
The Palestinian gangsters (such as Hamas) and their enablers consistly deny this fact.
Furthermore, the Gaza Strip borders Egypt. Anyone who wants to ship goods to Gaza can send them via Egypt. The Egyptians do make an effort to block arms and similar contraband, which is why there are smuggling tunnels at the Gaza-Egypt border.
(The tunnels were built with cement supplied by international aid groups for housing construction in Gaza, and stolen by Hamas. This is consistent with Hamas’ other behavior. For instance, the sewage system in part of Gaza ruptured, spewing millions of gallons of filth into streets and houses. The steel pipe which had been provided for repairs to the system had been stolen by Hamas and used to make rocket launchers.)
“herd people into a ghetto and quarantine them…”
The Gaza Strip was established in 1948 when the area was occupied by Egyptian troops and held by them against Israeli counterattack. The Palestinians in Gaza were kept there by Egypt and all the other Arab governments, which denied them entry. (Gaza was under Egyptian military occupation for two decades.)
Israel’s “quarantine” of Gaza is that they prevent Gazans from going to Israel to kill any and all Jews they find – something many Gazans openly proclaim their desire to do. They also try to prevent Gazans from obtaining weapons to kill Jews with. This sometimes leads to obstruction in the shipment of food or other non-military goods, because Palestinian gangsters frequently conceal arms in such shipments.
In short, Israel’s “war crimes” are acts of self-protection, made necessary by the continual attempts by Palestinian gangsters to kill Israelis.
Israel has provided electricity to Gaza. Thousands of Gazans have received medical care in Israeli hospitals. Hamas has responded with rocket attacks, suicide bombings, and endless complaints about “the blockade”.
May 31, 2010, 2:46 pmOrenWithAnE says:
(1) According to whom? Everything I’ve read gives only three conditions for a blockade:
(a) A state of hostilities between the belligerents.
(b) A public declaration of the blockade.
(c) Actual effective control over the ports being blockaded.
I have not read anything that suggests that one may not subject an area of international waters to blockade. One may not impinge on the rights of neutral nations to trade through neutral ports, but that does not appear to be the case here (as the blockade does not cover the normal passages to/from Egyptian or Cypriot ports).
(2) Let’s suppose you are right, there is still ample precedent for the seizure of a blockade runner far from the actual zone of blockade. You need only to convince a prize court that the ship did, in fact, evade the blockade in order to condemn her and her cargo.
May 31, 2010, 2:47 pmMartinned says:
Fair enough. Personally, I think the question of what is lawful should come first, certainly on a law blog. Only when the legal issue is doubtful should our policy preferences come into play. Imho, as long as the Israelis acted lawfully, which on the whole I think they did, the Palestinians can sh*ve it.
If, instead, you want to discuss propaganda, I suggest you rethink your strategy. For one thing, the Israeli-Palestinian conflict isn’t really one where propaganda really convinces anyone. (The only people worth convincing here are the US state department and the EU, both of which certainly do care about international law.) Secondly, I’d argue your propoganda strategy needs a little work. Hint: what were those 700 people going to do once they got to Gaza?
May 31, 2010, 2:47 pmDavid Bernstein says:
I’m not affirmatively trying to put out propaganda here, just pointing out that the propaganda line emanating from the usual suspects, that Israel engaged in an unprovoked massacre of peaceful humanitarian activists, is blatantly false.
May 31, 2010, 2:50 pmOrenWithAnE says:
I can assure you this blockade goes down under any conceivable Israeli administration.
Per the rules created by the First Congress (who wrote 19USC1581) and, conveniently, also explicitly codified our rights with this handy Constitution thing. That the very same people that established our rights wrote this statute is quite telling.
May 31, 2010, 2:52 pmOrenWithAnE says:
International Law by Henry Maine, linked here.
May 31, 2010, 2:58 pmMnZ says:
Actually, the IDF has video of them informing the Turkish ship that there was a blockade. The Turkish ship responded that they were proceeding to Gaza.
In other words, the IDF was taking action against a ship that stated it intended to run the blockade. I am no expert on maritime and international law. However, I don’t think there is a wholesale prohibition against taking military action against obvious blockade runners.
May 31, 2010, 3:06 pmSammy Finkelman says:
You think that’s not true? One thing is certain: If you are a “pro-Palestinian activist”, you are a liar. Because you see, much of their case is based on lies.
May 31, 2010, 3:07 pmAnonsters says:
I think the problem people (Martinned at least) are having with your citations is that they’re all to really old law, when there’s been a lot of intervening water under the bridge. You keep citing to laws before IHL really significantly developed and to laws before the major modern treaties relating to the sea were signed.
May 31, 2010, 3:07 pmLupus Wonderboy says:
On this our US Memorial Day, it is important to remember that,
“Violence is the last refuge of the incompetent.”
http://en.wikipedia.org/wiki/Salvor_Hardin
There’s room for blame on each and every side here.
May 31, 2010, 3:07 pmWe should regret, on this day, the death of so many
for human stupidity.
OrenWithAnE says:
The right to blockade is accepted at international maritime law as within the rights of sovereigns engaged in hostilities.
Show me something more modern then? I’ve provided citations while everyone claiming that this is bad law have not provided.
May 31, 2010, 3:08 pmMartinned says:
According to the most basic principle of maritime law, as repeated in UNCLOS:
Unless you have a source of law that trumps this CIL rule, the high seas are free for everyone. One such source is the law of self-defense, as stated in art. 51 UN Charter. From that it follows that states are allowed to seize ships on the high seas to the extent that their self-defense requires it. Do you have any other suggestions?
May 31, 2010, 3:09 pmAnonsters says:
Yes, you’ve convinced me. I’m a liar, and I hate Israelis and want to see them dead. Mea culpa.
May 31, 2010, 3:10 pmSteven Appelget says:
It is interesting to observe the rapid descent into conspiracy theory here.
May 31, 2010, 3:11 pmJJ says:
But you, personally, cited a more modern source (Yoram Dinstein, The International Law of Belligerent Occupation 192–93 (2009)) which basically confirms what Oren is claiming. Can you clarify what you were citing Dinstein for?
May 31, 2010, 3:12 pmSammy Finkelman says:
No. There was no resistance at Kent State and certainly no attack on the National Guard troops.
The failure here was in understanding what they would be confronting.
Had they known they would have come up with some other plan altogether, including maybe not boarding the ship, but perhaps disabling it so that the passengers would have to disembark.
They thought the people on the ship would want to make themselves look good and because of that would not engage in any violence, but rather would play dead, etc.
May 31, 2010, 3:13 pmMartinned says:
Actually, that specific one seems to correctly state the law to this day: states may stop ships from neutral states from transporting military supplies to the enemy, even on the high seas. But yes, when the question concerns the legitimacy of a general blockade, and the question of whether that blockade may be positioned on the high seas, I’d like to see something more recent. In the other thread, I quoted statements regarding the Iraq/Iran war and the Cuban missile crisis, both of which are highly doubtful of the concept of a general blockade on the high seas.
May 31, 2010, 3:15 pmMartinned says:
The more I think about this, the more I think this is the part that’s really interesting. What were those people planning on doing there? And why isn’t Israel explaining that, whatever the legitimacy of the blockade against Gaza, they’re certainly allowed to stop people from entering the Gaza strip?
May 31, 2010, 3:17 pminterested says:
Question (not rhetorical, I genuinely don’t know): would it have been lawful to route these materials through Egypt? Does Egypt allow such goods to reach Gaza?
And what are Egypt’s reasons?
In these threads, I keep reading from pro-Israel posters, that Egypt blocks all commerce via its border with Gaza, but turns a blind eye to some smuggling. I’m curious why Egypt does block its border, and why there is zero condemnation of Egypt for this.
May 31, 2010, 3:22 pmAnderson says:
why is the N.Y. Times still repeating this nonsense on its website?
Um, because that’s what she said? Is the quotation inaccurate?
May 31, 2010, 3:23 pmMartinned says:
You may want to look at the New Yorker article I linked to earlier. It tells you all you need to know about this stuff, if you have the time. In a nutshell, the issue is one of Egypt-Israel diplomacy, where Egypt does not want to offend Israel too much, and – more importantly – one of Egyptian domestic policy, where everything that helps Hamas also helps the Muslim Brotherhood.
May 31, 2010, 3:26 pmnicehonesty says:
Because Egypt knows that Israel’s assessment of the Gazans is correct, and because Egypt is not a Jewish state.
May 31, 2010, 3:32 pmColin says:
So a law professor is saying that legality is to be taken as of only secondary importance, and resort to it should be considered only as a sideshow. Got it.
I assume he would apply the same standards to US law, right? Unless he were to admit that Israel is a special case in his mind, where the rule of law needn’t be applied to the state, while in the US, it should be. Right?
Professor, you may want to duck into the nearest restroom. Your bias is showing.
May 31, 2010, 3:36 pmAnonsters says:
You need a hat with bells on it.
May 31, 2010, 3:40 pmnicehonesty says:
Perhaps you could lend me yours, the next time you crawl out from under your rock?
May 31, 2010, 3:41 pmnicehonesty says:
To recap:
Anonsters was wrong on the law, and wrong on the facts. But dammit, he’s not going to give up trying to blame Israel for something in this incident, so that poor table is going to take quite a pounding.
May 31, 2010, 3:43 pmJust Wondering says:
Only if you think that “international law,” is “law,” even when the country has issue has not signed any treaty binding itself to this “law.” Perhaps it’s more like a cult. Anyway, if Israel’s detractors really took international law seriously, they wouldn’t be trying to aid Hamas, given that international law makes it illegal to aid terrorists.
May 31, 2010, 3:44 pmMnZ says:
IDF has released more video. Clearly the initial story painted to the public by the “peace” activists and certain biased media sources was a lie:
http://www.youtube.com/watch?v=gYjkLUcbJWo&feature=channel
http://www.youtube.com/watch?v=0LulDJh4fWI&feature=channel
I don’t know about you…but I hate being lied to.
May 31, 2010, 3:44 pmAnderson says:
Martinned’s New Yorker article also mentions that Egypt “usually” opens the border for a couple of days each month, allowing Gazans to buy stuff from border merchants.
Does Israel do anything comparable?
May 31, 2010, 3:45 pmBob from Ohio says:
According to Wikipedia, Israel has not signed the UNCLOS, Martined. So how can it be bound by its rules?
By the way, Turkey has not signed it either.
May 31, 2010, 3:46 pmBob from Ohio says:
For those who think that this will sour US-Israel relations. It happened on Memorial Day weekend so in reality did not happen for most Americans.
May 31, 2010, 3:49 pmBob from Ohio says:
The rules of engagement were horrible. It should have been a boat assault from several points not one guy at a time from a helicopter.
The officers who approved the tactics should be dismissed immediately.
May 31, 2010, 3:51 pmnicehonesty says:
Martinned had that pointed out to him a few hours ago on the earlier thread, Bob.
It doesn’t seem to have phased him.
May 31, 2010, 3:53 pmAnderson says:
It should have been a boat assault from several points not one guy at a time from a helicopter.
Punching a hole in the boat sounded best to me. No one’s a badass when you’re pulling him out of the ocean.
May 31, 2010, 3:54 pmJaimeInTexas says:
A topic for another day but … like the 1st Congress would not anything to violate the Consitution, right? Heck, not that the Founding Fathers would violate their charter and construct a whole new Consitution instead of proposing amendments to the AofC.
Again, why is it that I have a right to be secure in my person, against my governemnt, except when I am sailing?
May 31, 2010, 3:55 pmAnonsters says:
I guess Martinned is just another anti-Israel troll.
May 31, 2010, 3:55 pmSally says:
Wow, this is really bad. Now everyone is going to think poorly of Israel and it will be condemned and ostracized by the international community.
Turkey’s role in all of this is interesting. Apparently it’s going to try and get NATO involved. Yet another distraction for Obama.
May 31, 2010, 3:57 pmEH says:
Overconfidence from the Dubai Hamas assassination?
May 31, 2010, 4:01 pmColin says:
Just Wondering: a fair point.
Does Professor Bernstein regard international law, at least as far as UNCLOS goes, to be irrelevant? Or as irrelevant for any nation that did not sign UNCLOS? That would admittedly be at least internally consistent.
May 31, 2010, 4:05 pmAngus says:
There’s a whole bunch of unjustified and justified actions in this situation.
Justified: people on board the boat resisting the IDF by force
Justified: the IDF opening fire when they felt their life was threatened
Unjustified: the IDF embarking on the raid of the ships in the first place
Look, if the people on board those ships had really intended to kill IDF soldiers in all of this, they would have been carrying AK-47s instead of chairs and metal pipe.
May 31, 2010, 4:07 pmArthur Kirkland says:
If Israel’s conduct, policies and association with one segment of the American political continuum diminish the United States’ support of Israel, it will likely be a long and slow process largely independent of any particular stimulus.
May 31, 2010, 4:08 pmThumbcruncher says:
The responses to this post have proven again three terrible facts.
1) The Greeks should never have invented democracy.
2) A little information is a dangerous thing.
3) Quakerism is still alive and well in this country (the USA).
Why do I say these things. Going back to the start we have had people rewrite the events at Kent State to fit this event. For decades the story had been that the NG fired without any provocation. Now the peace activists were throwing stones and assaulting the guard with lead pipes.
Not more then a year ago Obama was dealing with an armed takeover of an American ship by Somali pirates. Show me anyone who thinks the ship crews, then or now, should forceably resist a seizure at sea. The present argument, which goes with the international views on self defense, states they should surrender and await either release or rescue by proper forces. So why all the support for the “passengers” on this ship that attacked the commandos. It wasn’t their ship, and they weren’t paid crew, so they were not protecting their property and are not internationally sanctioned to defend their lives or others.
Going back to the 80′s when Palestinian terrorists seized the Achille Lauro, should the passengers have resisted. I suspect that if any passenger resisted and was still alive after the terrorists were allowed to disambark they would have been charged with assault against one of the Palestinians in the world court. As it is we know what happened to the killers of Mr. Klinghoffer and he was neither armed or able to standup.
May 31, 2010, 4:09 pmMnZ says:
Angus, are you saying that Israel should have sunk the vessels or that military blockades are unjustified?
May 31, 2010, 4:11 pmGordo says:
A modest suggestion:
Why don’t the rich countries of the world (which includes Israel), create a fund pool which will offer any Palestinian who wishes to emigrate permanently from Gaza, the West Bank, and perhaps even Israel proper, a sum of money per person to get a new start in another land. And then have all nations in the world willing to participate open up a “quota” for the number of Palestinians they accept. Strong-arm the Arab nations in the vicinity to set up a quota too, with the requirement that any Palestinian accepted be offered a path to full national citizenship with a few years.
If the amount offered were $10,000 per person, and a family of six agreed to leave, they would get $60,000, which is a fair amount of money to get a new start in a new land and escape the wretchedness of their current lives. Say one million Palestinians took the world up on the offer, that would mean a payout of $10 billion dollars (with perhaps another smaller amount paying for the moving) – I bet the rest of the world could come up with that amount of money.
There would have to be a mechanism to prevent Hamas thugs from initimidating people taking up the world on the offer – but I would be willing to suggest that quite a few Palestinians would be happy to permanently leave their current state of misery.
May 31, 2010, 4:18 pmLou Gots says:
One of the blockade-runners was named the “Rachel Corrie,” so what could possible have gone wrong?
May 31, 2010, 4:19 pmpc says:
The people on the boats should feel lucky the IDF didn’t board the ship with bulldozers.
May 31, 2010, 4:32 pmAngus says:
I’m saying that Israel’s blockade of Gaza is unjustified, and this raid on the ship convoy is part of that.
May 31, 2010, 4:38 pmArthur Kirkland says:
A flip side, which I support: Offer every Israeli a new life in the United States, with incentives for migration to west Texas or West Virginia. The Israelis would be safe (would even the dumbest Jew-hater try to climb through Pennsylvania, Virginia or Ohio to get at ‘em?) and in a location from which they could flourish; the relevant (and currently lagging) areas of the United States would be elevated greatly and immediately; every American taxpayer would benefit; America’s strategic flexibility would be enhanced; and America would have a fine chance to vindicate its claim to be a haven for the world’s yearning.
May 31, 2010, 4:39 pmAngus says:
Gordo,
May 31, 2010, 4:44 pmJust as for Jews and Christians, that same land has immense religious significance for Muslims as well. That’s why neither side really wants to compromise, and both sides like to kill people on the other.
Martinned says:
Indeed. Those parts of UNCLOS that merely codify CIL are binding on non-parties as well. It is difficult to imagine a better example of that than the freedom of the high seas.
The problem is to tell the codification parts of UNCLOS from the “new law”. I’d say that the parts of UNCLOS dealing with the deep seabed are in the latter category, while the rest is in the former absent any showing to the contrary.
Huh? Since when does anyone need anyone’s permission to exercise their right to self-defense?
May 31, 2010, 4:51 pmCB says:
Oh sure, I’m sure they’d love to be living with those hated fundamentalist Christians!
May 31, 2010, 4:54 pm/
That had to be the most f’d up ship boarding ever! What were they thinking? Like I said, IQ isn’t everything.
Thumbcruncher says:
Check British, French, or most European laws on Self-Defense or home invasion. If your home is invaded by unknowns you are to leave by another entrance and await proper/lawful forces. This is particularly true of British law in which you can be prosecuted for disobeying.
But the real issue is why is it that one group has the right to “Self-defense” while another doesn’t simply because the first group is the present political flavor of the decade for the liberal left.
May 31, 2010, 5:05 pmzuch says:
Yes, “[d]emonstrators throwing soldier off of boat”….
You know, like, “boat owners throwing armed boarders, who are trying to assault and commandeer their vessel in international waters, overboard”. Imagine that.
Cheers,
May 31, 2010, 5:06 pmnicehonesty says:
It’s not a “problem” at all. Anything in the UNCLOS that you claim is “merely codif[ied] CIL” should have a prior source outside of the UNCLOS.
That you keep citing to the UNCLOS, and not to prior outside sources, gives your game away.
May 31, 2010, 5:07 pmrachel says:
I admit, as a token non-far right but logically and ethically bound gentile: I support the state of Israel, despite its lapses and corruptions which are close to or on par with the rest of the world’s.
The permanently aggrieved Palis, their Arab “supporters” and western defenders are eminently less sympathetic insofar as they work toward destruction of themselves, as well as of their “enemies.”
They don’t do a damn thing constructive or ethically consistent. Perception of victimization is the all. They game and don’t do real life. Only death.
May 31, 2010, 5:10 pmyay Israel says:
Good for Israel:
May 31, 2010, 5:10 pmhttp://palsolidarity.org/2010/05/12604/
nicehonesty says:
I should say I am (pleasantly) surprised at Oren’s non-predictability in this thread.
I would have bet that he’d have joined Anonsters / Martinned / Anderson / Arthur Kirkland / Angus in the fact-free, legal-basis-free, blame-Israel camp. And I would have been wrong.
I apologize for expecting the worst from him on this subject.
May 31, 2010, 5:13 pmA. Zarkov says:
Then Egypt is guilty of a war crime. Note Egypt borders Gaza. Use Google Earth and zoom down on the border and you will see a line. If Egypt were willing to allow commerce to Gaza their would be no need for ships to supply Gaza.
How do you know there is starvation in Gaza? What about the markets full of food?
May 31, 2010, 5:15 pmwhit says:
note that in this video, you can clearly see a paintball gun.. at 00:52 seconds. that at least supports the israeli contention that they did give them paintball guns and also amazing that after all the assaults prior to this point on the tape by the boat occupants, the guy raises a PAINTBALL gun
unless of course, it’s an actual gun disguised as a paintball gun (cue: conspiracy theorists)
http://www.youtube.com/watch?v=gYjkLUcbJWo
May 31, 2010, 5:28 pmMartinned says:
Now you’re confusing the question of whether you can act in reasonable self-defense with the question of whether you can shoot someone who’s in your house without your permission just because they won’t leave. If you can withdraw safely, you’re not in danger, so you have no right to claim self-defense. (For the record, I’m not sure how you’re supposed to withdraw from a ship in the middle of the Mediterranean, but since you’re the one who brought it up, I might as well set the record straight as to the basic premise.)
May 31, 2010, 5:35 pmArthur Kirkland says:
Other Americans seem to survive it. Is there any reason to believe Israeli-Americans would be less hardy?
May 31, 2010, 5:38 pmThumbcruncher says:
Hey everyone still reading, check this out.
You definately know this was planned, a full set of Wickipedia sections already in existence. Not just this one, but this one too.
May 31, 2010, 5:39 pmMnZ says:
Also, it turns out that the other 5 flotilla boats were seized without incident. Isn’t it just a bit coincidental that the ship with the most belligerent passengers happened to have Al Jezeera and several hundred global activists aboard?
May 31, 2010, 5:40 pmMartinned says:
You do realise that the concept of customary law implies that it doesn’t have a written source? (Or at least not necessarily.) The written sources that are evidence of CIL are diplomatic statements, like the British one about the Iraq/Iran war that I quoted in the other thread, and writings by prominent IL scholars. Only rarely will there be an ICJ ruling on point, given that the ICJ only hands down a couple of judgements each year. Because this causes a lot of confusion, states sometimes get together to codify international law. When they do, the resulting treaty is prima facie evidence of the existence of a rule of CIL, though not necessarily of its exact formulation.
So I ask again: do you have any proof that the basic rule of free navigation on the high seas is not a rule of CIL, binding on all states?
May 31, 2010, 5:41 pmMartinned says:
Clearly you haven’t noticed – it may have gotten muddled up in other arguments – but I actually think Israel acted reasonably and lawfully here.
May 31, 2010, 5:43 pmAnderson says:
Martinned, you are wasting your time with “nicehonesty,” who has neither quality.
For instance, I seem to recall suggesting upthread that IDF should’ve put a hole in the boat’s hull.
May 31, 2010, 5:49 pmArthur Kirkland says:
I believe Israel’s recent course is counterproductive. I believe Israel is following a trajectory that is unsustainable. I believe Israel relies almost entirely on the United States, and that the United States will at some point become unwilling to provide the support Israel requires.
The situation is a clustermuck, with no one occupying moral high ground and nearly everyone involved suffering for decades. The original decision to jam Israel into its current location was sketchy, and its results have been disastrous. Israel’s neighbors have acted shamefully, in a manner disproportionate to original provocations. Israel often makes a bad situation worse, emboldened by America’s indemnification. The situation has cost and is costing the United States greatly, in many ways. Plenty of people on all sides are hurt, killed, stifled or uprooted.
The Saudis, Iranians and likely others will obtain nuclear weapons, creating international strife along the way. The Israelis already possess them, operating disingenuously and outside international norms (again, an exceptionalism granted by the United States’ favor and might).
The Israelis can’t kill their way out of this, just as the United States can’t kill its way out of its ever-expanding current folly in the sand. Absent a major change in situation, Israel’s future seems unpleasant, expensive, brutish, dangerous and eventually unsustainable. It is difficult to perceive anyone as a winner in current circumstances.
If these conclusions brand one anti-Israeli, the plea is guilty.
May 31, 2010, 5:58 pmAnonsters says:
As the quotes I provided from Dinstein illustrate, or should have illustrated, I also suspect that Israel acted lawfully in this particular case. Perhaps I differ from Martinned in questioning the reasonableness of the act. Someone earlier suggested simply surrounding the vessels, ordering them to heave to, and disabling them if they failed to comply. Then tow them into port. That would’ve been more reasonable than this, to me, and probably more effective (on numerous levels).
But why am I defending myself against a troll?
May 31, 2010, 6:16 pmMartinned says:
That’s pretty much what Gideon Rachman wrote in the Financial Times:
May 31, 2010, 6:31 pmnicehonesty says:
Other than the last cite by Oren made in his May 31, 2010, 2:58 pm comment – which remains uncontested? No. Did you find something to contradict him (outside of something interpreted from the UNCLOS)?
May 31, 2010, 6:38 pmwanderer says:
Who cares?
Neither Israel nor Palestine (whatever that is) have any strategic importance to the U.S.
I guess if you hate the jews or the palestinians, you might give a crap about this stuff.
May 31, 2010, 6:42 pmnicehonesty says:
Given your first comment in the earlier thread that drew out people like Anonsters and the fact that you’re still asking for proof that the basic rule of free navigation on the high seas is not a rule of CIL, binding on all states (despite it having been provided earlier), yes, I think it’s fair to say your arguments and conclusions on whether Israel acted reasonably and lawfully have been a bit muddled.
May 31, 2010, 6:44 pmAnonsters says:
Try reading.
May 31, 2010, 6:46 pmnicehonesty says:
I have been reading.
May 31, 2010, 7:11 pmleo marvin says:
As Martinned explained, CIL is unwritten. It’s extrapolated from customary practice, thus the “Customary” in Customary International Law. Not that UNCLOS is necessarily dispositive here, but considering that treaties like UNCLOS are among the few written sources from which to infer common understandings of customary practice, your “outside of something interpreted from the UNCLOS” is the exception that swallows your rule.
May 31, 2010, 7:24 pmnicehonesty says:
Then, leo marvin, can you offer some examples of the customary practices that the UNCLOS was intended to codify? Or are you saying that there’s no written record, and also no historic examples of these practices?
(Anything that might contradict what has been cited regarding the “customary practices” regarding blockades would be pertinent.)
May 31, 2010, 7:42 pmleo marvin says:
Doesn’t that sound like a recipe for different disastrous consequences?
With the benefit of hindsight it’s easy enough to see what a monumental screwup the actual plan was, and it was certainly that, but I don’t know what the idiot-proof, resistance-proof alternative was. The disabling and towing that anonsters suggested? The towing should be manageable enough, but the disabling part sure sounds fraught with risk.
May 31, 2010, 7:53 pmMartinned says:
What is it exactly that you dispute? That a blockade is an act of war? (Cf. subsection 2(c) of the proposed definition of the Crime of Aggression for the purposes of ICC law, or art. 3(c) of the definition of Aggression given in GA Resolution 3314 (XXIX). In fact, that was one of the side-aspects of the Cuban Missile Crisis: They called it a “quarantine” in order to give the Soviets an excuse not to notice that this was an act of war.
May 31, 2010, 7:56 pmJonathan says:
Translation: please prove this negative.
If your position is that certain actions violate rules of CIL, the burden of proof is on you. You can’t just make wild claims and then challenge everyone else to prove you’re wrong.
Surely if it really were a customary practice, there would be actual evidence of its use, no? And surely if someone were to insist that it is a customary practice, they would have access to this evidence, no?
May 31, 2010, 8:05 pmnicehonesty says:
Martinned,
I dispute your claim (which you phrase as a question):
Your claim conflicts with the historical practice of legitimate blockade enforcement, which (as previously cited) has customary allowed seizures even in “international” waters. Those seizures may indeed interfere with the “free navigation on the high seas”.
May 31, 2010, 8:06 pmleo marvin says:
nicehonesty,
The passage Martinned quoted is the first I’ve seen of UNCLOS in 20 years, and I’ll be happy if I go another 20 without seeing that much again. No, I don’t remember what else is in UNCLOS, I don’t know what might be out there in the way of court opinions, and I have no idea whether, and if so how consistently other countries imposing blockades have limited enforcement to territorial waters. I was only reinforcing Martinned’s point that even a treaty to which an affected nation isn’t a signatory can inform a common understanding of CIL that’s enforceable on the non-signatory nation.
May 31, 2010, 8:09 pmAngus says:
The next time nicehonesty is honest in his interpretation of someone else’s remarks will be a first. He’ll always just make up what he thinks someone said and work off that.
May 31, 2010, 8:09 pmzuch says:
… as in “killed”. They shot at the thicker “legs”, I guess. Use of the word “rioters” also seems a bit strange, under the circumstances.
Cheers,
May 31, 2010, 8:11 pmnicehonesty says:
Then you must have missed the earlier thread and much of this one where Martinned keeps referring to it as if it’s controlling over this Israel-Turkey incident, even though it’s been pointed out to him that neither Israel nor Turkey has signed that particular treaty.
May 31, 2010, 8:14 pmzuch says:
Prof. Bernstein:
If those on the ships emphatically stated that, what complaint do you have with Greenwald?
Speaking of perspicacity about all things Israel, it seems you have a curious notion as to what constitutes such, as evidenced by your posts over the years here. This latest is just a bit too “over the top” for me. Major mistakes were made by the Israelis, from top to bottom and start to finish (and nine people are dead), regardless of what “side” you’re on. You’ve really lost it here, and ought to take a deep breath.
Cheers,
May 31, 2010, 8:21 pmnicehonesty says:
Angus, I interpreted your
comment as a fact-free, legal-basis-free blaming of Israel because, well, you provided no factual or legal basis for your statement blaming Israel for this incident.
If you’re embarrassed to have signed up for Anonsters’s push back brigade, that’s understandable – especially since DB turned out to be completely right and in need of no push back. But I didn’t have to make up anything you said here in this thread.
May 31, 2010, 8:23 pmThe Unbeliever says:
I’d like to see your marksmanship scores improve in the middle of a hundred-odd people trying to bash your brains out with metal poles and deck chairs.
If the escalation of force listed in YNet News’ article is accurate, and judging by the embedded videos above, I’m not inclined to fault the Israeli commandos for “excessive neutralization”.
May 31, 2010, 8:27 pmleo marvin says:
I think he agrees. He clearly faults the Israelis for not anticipating the response to the boarding. All he disputes is how some are characterizing the motives, the provocations, “Who fired first?”, etc. How did he lose it?
May 31, 2010, 8:32 pmleo marvin says:
How that’s responsive to anything I said is beyond me.
May 31, 2010, 8:43 pmjones says:
should have sunk the boat and killed every last one of those frickers!
May 31, 2010, 8:43 pmMartinned says:
Indeed, the burden of proof is on me. To meet this burden, I offered the provisions of a codifying treaty, which is prima facie evidence that the matters stated therein are, in fact, rules of CIL. Given that, the burden of proof shifts to my interlocutors to prove that a given rule is not, in fact, CIL even though it is in UNCLOS.
Whenever this has happened this was either an act of war or authorised by a Security Council resolution.
May 31, 2010, 8:45 pmnicehonesty says:
“Whenever this has happened” is whenever a legitimate blockade was declared (meeting the three criteria Oren laid out in his May 31, 2010, 2:47 pm comment). We seem to be in agreement on this point.
So I guess I don’t understand why you keep repeating your claim/question
No. Because in the course of legitimate blockade enforcement under CIL – which, again, we seem to agree on – this rule may be violated if the ship is suspected of running a blockade.
May 31, 2010, 9:12 pmOrenWithAnE says:
‘Basic principles’ that seem to have been invented a scant few decades ago, contrary to centuries of practice and rejected by a substantial fraction of nations.
Freedom of navigation now includes the right to run blockades? How do you get from freedom of navigation to freedom to supply belligerent forces with contraband of war?
No objection.
How about we respect centuries of customary law, ratified by the unbroken historical conduct of nations, to deny neutral shipping the right to supply belligerents with the contraband of war.
Recall that “military supplies” has historically been extended to include things like coal and provisions when such would further the cause of war.
You have the burden backwards, the traditional rights of sovereigns are preserved unless otherwise abridged.
Some of the goods are permissible (food, medicine, water), others are forbidden (concrete, construction materials).
That would be illegal under actual CIL (not the few-decades-old, widely-rejected stuff such as the UNCLOS but the centuries-of-precedent kind). The ships had surrenders and were entitled to, at minimum, be transferred to another ship before their ship is seized or sunk.
Centuries of contrary precedent is certainly a “showing to contrary”.
(1) CIL is recognized by State action over a long period of time. The provision you cite are very novel. Read the history of cargo raiders in the S. Atlantic during WWII for very recent contrary actions that undermine the ‘widespread repetition’ prong.
(2) CIL is recognized by widespread acceptance, the interpretation of “free navigation” = “right to supply belligerents with contraband” is not widely accepted. UNCLOS is affirmatively rejected by large number of States.
Quoting Rosenne:
(3) Why don’t you quote a source indicating that CIL recognizes the right to supply belligerent with contraband? There is no longstanding practice of this right, while there is longstanding CIL on blockades.
Again, what common understanding of customary practice? When has any belligerent ever recognized a right to supply their enemy?
It is most certainly an act of war. Of course, hostilities between Israel and Hamas long predate this, so there’s nothing to it.
The act of war was against Cuba, not the USSR.
Or perhaps we dispute that the phrase in the codifying treaty is to be interpreted in a way that would make centuries of customary international practice into a violation of the rules.
Remember, you are not making new law, you are codifying existing practice — you therefore cannot adopt an interpretation that would making large amounts of historical practice contrary to the rule.
May 31, 2010, 9:34 pmOrenWithAnE says:
No one has ever asserted that a nation can blockade during peacetime. Israel is in a state of hostilities with Hamas, which controls Gaza.
If they weren’t, it would certainly be an act of war against Hamas to do so.
May 31, 2010, 9:36 pmreality check says:
Your cite of UNCLOS was rather unconvincing. Yes, all parties have freedom of navigation of the sea – but there are accepted exceptions to that principle (i.e. – a blockade). Your cite failed to broach the topic of blockade or situations where they might be justified. As such, your cite seems to be woefully under inclusive.
To this naval officer (and practitioner of self defense principles), it seems pretty simple. Israel is repeatedly attacked by rockets from Gaza. Exercising the right to self defense, they “blockade” or “quarintine” arms from being shipped to Gaza.
Too much focus is on the demonstrator’s right to freely navigate unmolested. The relevant right to self-defense is Israel’s. The demonstrators cede thier right to freely navigate once they engage in travelling to and conducting commerce with a belligerent to Israel.
Israel’s right to self defense extends to the reasonable inspection of neutrals en route. It appears as if Israel tried to deter the ships by lesser means (radio warnings/orders to turn away), and they escalated only in incremental proportion to the circumstances as they understood them.
The naval commandos had a legal right to be present on the ships pursuant to Israel’s self defense. Once on the ships, the commandos were placed in harm’s way. Further escalation and resort to firearms was then exercised only as a matter of the commando’s own personal right to self defense.
Even if Israeli naval commandos were on the ships illegally (not pursuant to Israel’s resonable self defense against rocket attacks), then that does not justify the demonstrator’s violent response. If a cop pulls me over illegally to inspect my cooler on I-95, I do not have the right to beat and stab him. If did beat and stab him, I should fully expect to get shot, even if he lacked probable cause and jurisdiction over the contents of my cooler.
May 31, 2010, 9:38 pmBob from Ohio says:
One of the many reasons why international “law” is a farce. Treaties, like real law, binds only those who consent.
On a broader point, if the
May 31, 2010, 9:45 pmleading dominantall powerful maritime power did not ratify it, then it is not worth the paper it is written on.David Bernstein says:
That he’s a useful idiot. If he didn’t creduously believe it, he wouldn’t have posted it without caveat. As for the rest of what you wrote, if you weren’t consistently so belligerent a commenter, I might have more interest in your opinion.
May 31, 2010, 9:47 pmDavid Bernstein says:
And, btw, the fact that Greenwald was wrong in his view that the Gaza operation in 12/08 wouldn’t have any substantial effect on rocket fire from Gaza hasn’t led him to retract any of the nonsense he wrote back then, nor to refrain from equivalent nonsense now.
May 31, 2010, 9:49 pmAngus says:
nicehonesty, a defining feature of your posts is that they are fact-free and thought-free. A country should not be blockaded short of a formal declaration of war. Even with that, neutral nations should be free to trade with either belligerent unless one belligerent or another works out an agreement with each other nation, or by gaining United Nations support. The right of neutral nations to trade with both sides in a conflict has been the American position as far back as the Napoleonic Wars, and, for example, again in the years leading up to U.S. entry in WWI and WWII.
May 31, 2010, 9:56 pmnicehonesty says:
Your ignorance is appalling.
May 31, 2010, 10:00 pmJonathan says:
Yes, yes. You’ve already said that. What you seem to be missing is that you’ve given those of us non-IL-experts absolutely no reason to accept that a rule’s formulation in a treaty is prima facie evidence that it was traditionally customary practice. Statements of law, including what constitutes prima facie evidence, require citations.
This is particularly troubling, given that the UN specifically noted in an earlier resolutions concerning the Laws of the Seas that the Conference made historic contributions to the “codification and progressive development of international law” in its preparation of draft articles of the Law of the Seas.
May 31, 2010, 10:00 pmOrenWithAnE says:
In what way does the conflict between Hamas and Israel fail to satisfy this requirement? Hamas has publicly stated their desire to destroy Israel, Israel Hamas. They have already traded rocket/missile fire.
Should seems bizarrely out of place. There is no such right, certainly not in the customary practice of nations in the last 300 years.
Does the blockade of Charleston ring a bell? It should.
May 31, 2010, 10:09 pmMartinned says:
I realise that this thread has gotten pretty long, not to mention that it is the second one, but that’s exactly the position I took on several occasions in both threads: states are allowed to stop supplies of weapons (and other materials that directly support the war effort) from reaching the enemy, even by boarding ships on the high seas. Self defense trumps free navigation. This is exactly why I don’t think Israel acted unlawfully here. They could reasonably suspect that these ships were carrying weapons and/or military supplies.
May 31, 2010, 10:18 pmMnZ says:
This is what is so kooky about this entire situation. A blockade is an act of war against Gaza, but clearly Israel and Gaza are in a state of hostilities. Are people saying that blockades are no longer valid tools of war? If so, what is their justification?
May 31, 2010, 10:26 pmOrenWithAnE says:
Then we are in complete agreement on the substance (although I would dispense with the reasonable suspicion part, if you concede it I won’t argue). This is a rare treat indeed.
I do think that self defense, in this instance, is circumscribed by the traditional maritime law and practice regarding blockade, specifically the prohibition on “paper blockade” and, except for the unfortunate violence in this instance (which I attribute to the ships’ perfidy), the absolute requirement that the crew members be released as soon as they give a deposition.
The extent to which their unlawful resistance to the boarding (especially after, but not wholly due to, flying a flag of truce) negates the traditional protection afforded the crew is unclear to me but should probably be resolved by prudential concerns not to aggravate the issue by charging them with perfidy.
May 31, 2010, 11:17 pmDavid M. Nieporent says:
I don’t think anybody disputes that as a general principle; indeed, it was the very act of war which led to Israel ending up in control of Gaza.
But in this case? Act of war against whom?
May 31, 2010, 11:46 pmDavid M. Nieporent says:
Sorry, but you’re bootstrapping. An unsigned treaty can’t be prima facie evidence that the things it forbids would actually be forbidden if the treaty didn’t exist at all.
(Even if it were, people have posted numerous citations showing that in fact the practice here was accepted. Something that has only been accepted for a few decades can’t be CIL.)
June 1, 2010, 12:07 amOrenWithAnE says:
Especially when a substantial number of nations affirmatively reject it (including the US, Israel and Turkey — all the main players here).
June 1, 2010, 12:25 amzuch says:
You’re going for a reduced charge of negligent homicide/manslaughter? I doubt it will fly.
Cheers,
June 1, 2010, 1:14 amzuch says:
When you grapple/rappel on board a vessel with weapons in hand in the Gulf of Aden, it’s piracy.
They should have confronted the vessels on entering
GazaIsraeli waters, told them to stop, and sent boarding parties.As best, Israel’s failure in “anticipating the response” was culpable negligence (as well as monumental stoopidity and disregard for international law). They brought this on themselves. They deserve the bad press they’re getting, and Prof. Bernstein ought to suck it up.
Cheers,
June 1, 2010, 1:21 amzuch says:
If we assume arguendo that some state of war exists and that in fact the ships belonged to (or were aiding) the “enemy belligerent”, then the commandos would have a legal right to have been shot or hacked to pieces on attempting to board. But both assumptions are quite arguable.
Cheers,
June 1, 2010, 1:27 amOrenWithAnE says:
How about a charge of murder against the organizers? Or at least those that first perfidiously assaulted the commandos?
After all, if you go to rob a bank and your co-conspirator is killed by the guard, you will be charged with murder. If you go to violate a blockade, raise a flag of surrender and then violate that surrender by attacking the boarding forces, why should you be off the hook?
June 1, 2010, 1:29 amzuch says:
He’s saying they said what they said. Does he not, in your mind, have a right to do that?!?!? I suspect your real complaint with Greenwald is somewhat different (or you’re simply not good at saying what it is you mean), but feel free to elaborate.
Cheers,
June 1, 2010, 1:31 amzuch says:
If you weren’t consistently so belligerent a poster, I might bother to read and comment on your posts more often. Perhaps this is your strategy. ;-)
Cheers,
June 1, 2010, 1:33 amThe Unbeliever says:
More like “clean shoot”. You were implying they didn’t shoot for legs.
“Justified self defense” also works, but I don’t want to start another screaming match about illegal blockades, illegal occupations, and all the unjustifiable acts which we’re told arise from them. There’s enough of that already.
June 1, 2010, 1:35 amOrenWithAnE says:
Unless you have established a blockade by the longstanding procedures and terms of maritime law and the vessel in question is engaged in the act of running that blockade.
There is no requirement in maritime law that a blockading force must wait until the blockade runner enters territorial water, lest they encourage the runners to loiter with impunity while waiting for a favorable opportunity.
It is the protesters that have disregarded the blockade (which complies in all respects that I can see with the applicable maritime law) and international law on perfidy.
That said, I agree that the Israelis were strategically stupid to accept at face value the surrender of activists they knew were untrustworthy and tactically wrong to assault the ship in the manner they did. That doesn’t transform into legal wrong, especially when the two underlying wrongs were committed by the other side.
June 1, 2010, 1:35 amzuch says:
“[P]rogressive development” doesn’t mean abrogation, much less reversal, of previous law, contrary to what you might be imagining. Such may have been done for some instances, but it would have to be explicit in doing so.
Cheers,
June 1, 2010, 1:37 amzuch says:
How many people did they kill? How many commandos were killed? You’re really living on some other planet here.
Cheers,
June 1, 2010, 1:41 amzuch says:
Where does applicable maritime law provide for blockades?
They might have had a right to stop the vessels, board them, and check documentation, look for contraband, etc.. On finding none, they should have left (and paid for any damages they caused).
Cheers,
June 1, 2010, 1:45 amDavid M. Nieporent says:
Greenwald himself has been super-critical (does he have any other tone?) of reporters and pundits who act as stenographers. If someone says something which is false, a reporter should not blandly report it as though it were a matter of legitimate dispute. (If the point of the quote in question in a given situation is to show that the speaker is lying, then the reporter should make it clear that the speaker is lying.)
June 1, 2010, 1:47 amDavid M. Nieporent says:
By Jove, I think he’s got it!
Unless they were attacked while in the process…
June 1, 2010, 1:49 amJonathan says:
Might it include the genesis of new law, where no customary practice traditionally existed? I wasn’t saying that the treaty reversed customary practice, merely that I have trouble using the treaty as prima facie evidence of a traditionally customary practice wherein the drafters specifically pat each other on the back for progressive development of the law.
I wasn’t making any positive statement about the treaty at all. Maybe it does codify CIL and create nothing new, maybe it doesn’t. I haven’t done the research on the issue. But that’s not the point.
I was asking for legal authority. If someone says “X is prima facie evidence,” it should be followed with a citation. Which is all I was getting at. I find it difficult to accept at face value his assertions without question when he doesn’t list the relevant authority. When added to the fact that the drafters specifically noted that they had helped progessively develop the laws they were working with, his unsourced assertions seem even more difficult to swallow.
June 1, 2010, 1:59 amtomcj says:
One reason I read Volokh Conspiracy is to hear reasoned conservative arguments. I want to listen.
However, Volokh Conspiracy is only marginally better than Glen Beck. If one reads Daniel Larison at Eunomia, one learns something. If one reads David Frum, one learns something. If one reads Volokh Conspiracy, one sees a Pravda-like Journal which reflects the Glen Beck Party Line of the deeply right wing.
There is a blog called neoneocon, populated by similar knee jerk defenses of Israel, there is The Washington Post’s “Our Country right or wrong” ledger of neo con right wing warriors, who feel American Foreign Policy must have at its center defense of any Israeli actions (The “my country” for Post writers is Israel, and Israel first, then Poland for Ann Applebaum), and there is The Volokh Conspiracy.
This blog is totally predictable, and very much a home for ideologues not thinkers.
What a fraud that this is supposed to be a Law Professor engaging his fellow conservatives in a strong intellectual examination of issues. The writers here start with FoxNews opinions and argue backwards.
I feel sorry for law students who pay money to be taught by close-minded propagandists like this crew here.
June 1, 2010, 2:39 amtomcj says:
Here is Amos Harel, writing on Haaretz.com: “The situation in the international arena, though, is the diametric opposite. No matter how much effort it invests, Israel will never be able to explain to the world how nine civilians were killed, without a single death on our side – and the dead are citizens of the country that was until recently our best friend in the region.”
Unlike a Volokh Conspiracy, Glen Beck caliber thinker like David Bernstein, Mr. Harel is trying to think, understand, and reason, not spread knee jerk pro Israel Propaganda. What a useless blog Volokh Conspiracy has become.
source:http://www.haaretz.com/print-edition/news/straight-into-the-trap-1.293421
June 1, 2010, 2:51 amadvisory opinion says:
San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Art. 67:
Art 98:
June 1, 2010, 2:51 amOrenWithAnE says:
Again, if you go to rob a bank and the guard shoots your conspirator, you go to jail for murder.
That is to say, on this planet (and certainly in this country on this planet), the act of engaging in a criminal activity that results in death is known as murder.
Quoting International Law by Henry Maine:
Zuch writes:
First, it’s odd that you believe that they will find none since the activists have explicitly stated that they had concrete on board. That said, you are right, if there is no contraband, the ship must be released.
Second, given that Israel has the power to search the boat for contraband, that would make the activist attack of the searching forces unlawful.
Even worse, if they were attacked by a ship that had already flown a flag of surrender. Maritime law looks very poorly on false surrender …
June 1, 2010, 2:55 amAngus says:
Oren,
June 1, 2010, 3:02 amYou keep referring to the “fake surrender.” I’ve now read about two dozen articles on the incident, and the only one I saw mention a white flag was someone on one of the ships saying they raised the flag after the IDF opened fire. Can you link a story that explores that further?
The Unbeliever says:
You said it yourself: criminally negligent homicide/manslaughter. It’s not just for Israeli soldiers any more!
Since IANAL, I’m not sure if there is some additional charge that equates to “knowingly sending civilians to commit belligerent acts during a state of war”. But it would make for a decent episode of Law & Order… if it hadn’t just been cancelled, anyway.
June 1, 2010, 3:12 amOrenWithAnE says:
According to the AJ account, the ship raised the white flag after the commandos first started firing. From the video, we can see that even after this point, the crew members continue to assault the commandos. Assuming that the accounts are truthful, that would mean that the crew members committed perfidy by not immediately ceasing their resistance after the surrender was called.
OTOH, if you want to claim that there was no surrender then Israel was entitled to use force to subdue hostile blockade runner that would not heed their call to stop and be searched. In centuries past, this would be accomplished by cannon, the activist should be thankful that the Israelis used only pistols. Of course, in centuries past no blockade runner would ever lack the common sense to surrender peaceably to a superior force and so such violence was rarely, if ever, used.
June 1, 2010, 4:01 amSkeptic Hank says:
Here’s a side of Gaza that doesn’t get much press:
http://www.rootsclub.ps/index.php
“Starving”
June 1, 2010, 5:56 amAngus says:
This, however, assumes that everyone on board would instantly know that the white flag is being raised by someone in charge and that they should stop fighting, and that a group of civilians from many different nations would know what it meant and would act with military precision in stopping. However, in the dark, and in the chaotic conditions on deck with activists beating the Israeli soldiers and the IDF eventually opening fire, even basic communication is darned near impossible.
June 1, 2010, 7:36 amSteveLaudig says:
remember “The Liberty” and the line of the Israeli government then? I’ll wait a bit before forming an opinion but Israeli government credibility seems to be an issue here and also in connection with Israeli involvement with apartheid South Africa. And the cowards in Congress didn’t even investigate the Liberty.
June 1, 2010, 7:58 amGritsforbreakfast says:
Hmmmmm … soldiers rappel onto a boat to commandeer it but those who resist them are responsible for the violence? Even Israeli soldiers – the comrades of the fallen – consider them “peace activists” but Mr. Bernstein can’t accept the term. Nine civilians killed, no soldiers died, but not a word of regret or mourning in the post for their demise. Two words come to mind: Cognitive dissonance.
June 1, 2010, 8:26 amhaha rimshot says:
Only if you like irony.
Only because the soldiers fired back in self defense after they were attacked first and beaten to within an inch of their lives.
June 1, 2010, 9:25 amAZ Grad says:
Greenwald has his facts as wrong as you do Bernstein. Israel committed and act of piracy. There was no legal authority to board the ship in international waters, regardless of stated intent of running the blockade.
Israel, as it has been for the last ten years, is the aggressor and in the wrong.
June 1, 2010, 10:23 amJonathan says:
Citation?
June 1, 2010, 10:29 amKen Brooks says:
The only means to peace is through strength. Therefore, any peaceful demonstration requires weaponry to ensure peace.
June 1, 2010, 10:32 amOrenWithAnE says:
That is a very charitable way to view the video.
June 1, 2010, 11:36 amiconoclast says:
The only way to view this incident is to realize that the Israelis were suckered. There was no significant contraband on the ship other than a gang of genocidal jihadists. They were bait for the IDF in the hopes that some of them would die for PR purposes. The Israelis were boxed in–if they allowed this ship through then ships with arms would have then started arriving. They had to stop and divert this ship through Israel to ensure that the insane killers in Gaza would not get even more rockets and mortars to bomb Israel with (as they do every day).
But instead of simply disabling the “peace” ship when it refused to divert and towing it, the IDF chose to board and ended up having to kill a number of the pro-Palestinian fighters.
June 1, 2010, 11:44 amzuch says:
Just so the situation is clear here:
Prof. Bernstein still hasn’t show why this needs “correction”. As I said above, Greenwald’s comment is that “[t]hose on the ships emphatically state…”, and Greenwald gives links to support this.
Adding further to Prof. Bernstein’s dishonesty, he leaves out the rest of what Greenwald posted. Here it is in fuller context, unedited:
Those with the sentience to read plain English, and to click through, will see that Greenwald presents as well an opposing view on the nature of the violence.
The discerning reader may decide for themselves who has the most integrity here, Greenwald or Bernstein.
Cheers,
June 1, 2010, 11:47 amreality check says:
Even if a surrender is offered by the captain of a ship, or commanding officer of an engaged unit, hostilities against the “surrendered” forces can continue until they recieve the message and stop fighting.
Afterall, the need to self-protect against steel rods, handguns, and knives is dependent upon actual hostilities and not officially declared hostilities.
For instance, the last casualty of WWII occured in 1972. Japanese soldiers had not recieved the surrender message, so they continued guerilla fighting resulting in deaths long after the official “surrender.”
What alternative would you have the victors seek? To allow the holdouts to kill, rape, and pillage in thier guerilla war until they might be convinced of their country’s surrender?
June 1, 2010, 11:53 amAnderson says:
It’s curious to imagine this blog’s commenters having the same tolerance for ATF at Waco as they do for IDF in this or any other instance.
June 1, 2010, 11:54 amzuch says:
But you haven’t. I expected the Mexican navy picket to stop our yacht on entering Mexican waters (as the guidebooks said they’d do), and “do their thing”. This would involve hailing us on VHF16 (or by megaphone) and asking us to heave to, and asking permission to send a boarding party over. And this in state waters. This would have been granted, of course. Asking permission to board is simple naval courtesy, and a good idea all around.
And I expected the U.S. Coast Guard to do the same on re-entering U.S. waters, and I even told them when I’d be doing so.
If people carrying weapons started grappling on board without warning in the middle of the night, I would have been inclined to offer rather different hospitality.
If this is too difficult for you to understand, let me know, and I’ll see if I can explain it better, perhaps in terms that the KABA/libertarian-inclined readership here might understand.
I’d note in passing that the Israeli-defined “blockade” extends 20 nm. out.
Even assuming arguendo that such transpired here, and that everything else was lawful, why would that make a difference?
Cheers,
June 1, 2010, 12:23 pmJonathan says:
Sort of like the Israeli navy warning the six ships not to approach Gaza, followed by broadcasting the following:
“If you ignore this order and enter the blockaded area, the Israeli navy will be forced to take all the necessary measures in order to enforce this blockade.”
June 1, 2010, 12:45 pmKamal says:
I’m *so* glad we have a rational president now. Hopefully he will handle Israel appropriately.
June 1, 2010, 12:52 pmDavid Bernstein says:
I suppose it never occurred to you that Greenwald might have updated his post without acknowledging that he did so? Here’s the original version (and his original column was reprinted many other places, too, if you google it). Commenters almost never apologize when they disparage me and turn out to be wrong, but here’s your chance to man up.
June 1, 2010, 12:55 pmAngus says:
What we see in the night vision video, accompanied by the Israeli government narrative, is not necessarily how the people on board the ship saw things in the dark and without someone telling them how to interpret it.
If you look at the video with an open mind, what you see is absolute chaos with no one seeming to be in control of anyone or anything. That’s why I don’t think the “fake surrender” case has much bite to it since that assumes that there was some organized plot to sucker the IDF into a pre-planned ambush. I don’t see any evidence of this, especially since the weapons the people had on board ship were pretty pitiful. No firearms used against IDF. That’s a pretty awful planned ambush if you ask me.
A simpler explanation is that people on board ship didn’t understand what was going on, panicked thinking that they were under attack, that panic spread, and people ended up attacking the IDF soldiers. The IDF then justifiably defended themselves with lethal force.
June 1, 2010, 1:01 pmzuch says:
Assuming arguendo they did the traditional full “shot across the bow” scenario (which you have given no evidence for), they still would be justified only in boarding and searching for contraband.
But they thought they could use force to immediately commandeer the vessels (and take them to Israel), which is beyond what is allowed.
And the “blockaded area” was 20 nm. out.
Cheers,
June 1, 2010, 1:17 pmzuch says:
Thanks for the link. He may have added stuff later as more information and accounts came in. It’s hard to indicate a deletion when you don’t delete anything, and I’m not sure of the proper etiquette/format for indicating a subsequent addition. In any case, what he said was factual, and he did post the contrary views at some point. Did you update your post to indicate this? Oh … nevermind:
Now isn’t that a bit hypocritical?
Cheers,
June 1, 2010, 1:29 pmDavid Bernstein says:
Zuch, you were just plain wrong, and you refuse to admit it, and indeed, instead of admitting you were wrong, much less apologizing, you go on the attack again. That makes you a troll, and you will be treated as such.
June 1, 2010, 1:41 pmnicehonesty says:
It’s curious to imagine this blog’s commenters having the same tolerance for ATF at Waco as they do for IDF in this or any other instance.
We get it, Anderson, you hate the Jooooooooooooooooos! Your push back brigade credentials are fully recognized. You can stop polluting the thread with inapposite analogies now.
June 1, 2010, 1:56 pmFluffy says:
I would have to take issue with the characterization of the people on the ship as “violent” because they attempted to repel boarders.
If Somali pirates attempted to board my ship and I hit them with a stick, would that make me a terrorist?
If I’m sailing to Gaza with humanitarian supplies, and intend only to travel there, drop off the supplies, and leave, I think that makes me a “nonviolent activist” – because my planned activity does not include attacking anyone. I don’t see how that changes if I resist the boarding of my ship by a hostile military in international waters. I’m entitled to resist acts of piracy, particularly if my worst available weapon of resistance is a SLINGSHOT.
June 1, 2010, 2:55 pmFluffy says:
It’s hard to indicate a deletion when you don’t delete anything
Deletions themselves are dishonest.
If you make an error at a commentary website, you should leave the error up, and add a correction.
Otherwise you’re muddying the documentary record of your position. Probably with an intent to cover up your initial mistake.
I don’t know if Greenwald provided a correction or not, but judging from his past practice if he decided to correct he’d add an Update and not delete a single word of anything he previously wrote. That’s just his practice, and it’s the right practice.
June 1, 2010, 3:00 pmFluffy says:
OrenWithAnE,
How about a charge of murder against the organizers? Or at least those that first perfidiously assaulted the commandos?
After all, if you go to rob a bank and your co-conspirator is killed by the guard, you will be charged with murder. If you go to violate a blockade, raise a flag of surrender and then violate that surrender by attacking the boarding forces, why should you be off the hook?
Your citations don’t prove what you wish them to prove.
International law acknowledges the right of belligerents to announce blockades. But this is merely legally protects naval personnel who enforce blockades from being treated as criminals. It doesn’t criminalize the conduct of neutrals who refuse to respect blockades.
“Running a blockade” is not analogous to “robbing a bank” because the latter act is criminal in itself and therefore concepts of felony murder can be applied. There is no criminal act involved in merely being on board a ship in international waters transporting concrete.
June 1, 2010, 3:14 pmJonathan says:
You clearly haven’t been reading the news as it comes in, zuch. I’ve seen the quoted portion above reported numerous times, already, but here’s a link to an AP story with the relevant quotation about halfway down the page.
http://www.breitbart.com/article.php?id=D9G1JQ9G0&show_article=1
Also: http://www.youtube.com/watch?v=qKOmLP4yHb4
This wasn’t some suprise attack. They knew there was a blockade. Israel requested they put into port elsewhere and deliver the goods over land. Before the voyage, they emphatically stated that they would only be stopped from reaching Gaza by force. Many of the passengers carried weapons, including knifes, swords, sledgehammers, firebombs, slingshots, spikes, clubs, and axes. They decided to run the blockade. The Israeli navy approached them (which the passengers knew, evidenced by their tweets). The navy instructed them to not attempt to breach the blockade. The navy again offered to put them into port and deliver the goods over land (with the activists overseeing such delivery). They decided to run the blockade. When they were boarded, despite the fact that a white flag was raised and that the passengers were being instructed by the ship’s loudspeakers to stop resisting, the passengers attacked the boarding party.
Except that, upon boarding, they were brutally attacked. At such time, they were certainly justified in defending themselves, particularly given the fact that they waited to use live rounds (using paintball guns, instead) until their own pistols were taken and used against them.
This thread’s commentors seem to have covered this already.
June 1, 2010, 3:18 pmleo marvin says:
nicehonesty,
Accusing Anderson of anti-Semitism is arrant nonsense. I’ll join OrenWithAnE to say Israel’s defense is better off without that kind of help.
June 1, 2010, 5:24 pmcls says:
Any ship in international waters that is boarded by hostile, armed men has the right to fight back. If I were on a ship being attacked I would fight back. There is a natural right to do so. Israel was in the wrong here but they have a history of hysterical, overreaction and violence that is appalling. I am particularly bothered because I consider myself a Judeophile, with immense respect for Jewish culture and values. But I do not support Israel or the Zionist impulse. I believe it time for the US to cut Israel off completely.
June 1, 2010, 5:49 pmnicehonesty says:
leomarvin,
Can you explain a rational basis for his comment:
?
June 1, 2010, 5:50 pmOrenWithAnE says:
That’s correct. In fact, international law specifically grants the blockade runner crew absolute protection against punishment or detention — they must be rendered to a neutral third party as soon as practical after the capturing power takes a deposition.
On the other hand, the blockade enforcers have the right to seize by force (including sinking, should the ship prove recalcitrant — in practice most captains had the decency and valor to surrender to a militarily superior force instead of martyring themselves) any ship violating the blockade. They are analogous to the guard who has the right to shoot armed bank robbers if they refuse to surrender peaceably.
You might want to add “to a port under a blockade that conforms with maritime law”. In that case, it becomes clear that while it is not criminal, it is a hostile act that entitles the blockading nation to respond in kind.
Seriously? You don’t think that Israel has warned them they will be seized in every bloody newspaper for weeks before they sailed?
The protesters were hailed and informed they could chose to turn back, follow the ships to Ashdod or be boarded. They chose to continue on course, which is a hostile act.
Despite the fact that every previous ship attempting to reach Gaza was seized, you seriously think it was reasonable not to expect the Israelis to seize this boat?
They knew exactly what was going on because Israel warned them that’s exactly what would happen. It does not take a mind of any serious cognitive ability to understand what is going on if you:
(1) are on a blockade runner
(2) are heading towards a blockaded port
(3) have been warned that you are subject to seizure if you do not turn back or to an approved port
(3b) and remember that similar ships were seized by the Israeli navy
(4) continue to the blockaded port
(5) have spotted the blockade-enforcing navy on your radar
(6) hear the distinctive noises of helicopters and speed boats
(7) notice strange men shouting in hebrew coming down from the helicopter and up from the boats
I do not believe that any sentient person on that ship could fail to realize precisely what was going on — that the Israeli navy was moving to seize the vessel precisely as it happened last time and they promised to do this time?
Boarding requires the full acquiescence of the crew. If a blockade runner refuses to be boarded peacefully, the navy is entitled to use force.
Oh absolutely. On the other hand, there is a sovereign right of the Israeli navy to enforce the blockade.
Sometimes I feel like the folks on this blog are uncomfortable with a situation where both parties have the right to use violence with the winner determined by that contest. Such is the reality of a hostile action at sea (and running a blockade is most certainly a hostile act, albeit one that provides certain protections for the crew of the runner) or really in any armed conflict.
June 1, 2010, 6:21 pmClayton says:
It’s really quite irrelevant if the “peace activists” were violent or not. They were obviously baiting the Israelis to do something they always do, respond to minor threats (or in this case, the imitation of a threat) in an excessive and violent manner.
The battle here was a PR one, the Israelis lost. Israel boarded another nation’s ship in international waters with combat personnel. The crew of these ships reacted defensively. Israel had no jurisdiction and the crew was under no obligation to acquiesce, this was not a matter of law enforcement. Its irrelevant if the passengers and crew hated Israel because they did nothing wrong. They did not enter Israeli waters. They covered their asses and are blameless. We all knew what they were doing, and so did they, and so (you would think) did Israel. If they HAD crossed into Israeli territory, then Israel could have boarded the ship with much haste or sunk it outright, then they would have covered their ass as well.
They would have still lost the PR battle though.
Israel did something stupid here, and you can chastise them for it (and should) regardless of how you feel about their policies.
June 1, 2010, 6:53 pmleo marvin says:
I’m not going to make Anderson’s argument since I disagree with it. (I think his examples are more distinct than similar.) But it’s not an unreasonable argument. And even if it was unreasonable, the likeliest explanation for him making it wouldn’t be anti-Semitism.
June 1, 2010, 7:28 pmOrenWithAnE says:
The existence of the blockade gives the Israeli navy the right to seize any vessel engaged in a mission of violating that blockade.
The crew was under no obligation to surrender, of course, but the navy has the right to stop them by force in order to enforce the blockade.
June 1, 2010, 7:37 pmnicehonesty says:
Anderson didn’t make an argument, and neither did you. A slur is not an argument.
June 1, 2010, 7:49 pmnicehonesty says:
Interesting juxtaposition.
June 1, 2010, 7:57 pmleo marvin says:
That’s pretty ironic, considering your baseless smear of Anderson as an anti-Semite.* When you back that up with some actual, you know, “argument,” I’ll think about elevating my own to your standards.
(* It’s also untrue. Anderson’s argument, which again I disagree with, is implied, and mine follows on his.)
June 1, 2010, 9:11 pmnicehonesty says:
leo marvin,
I invited you to offer a rational basis for his comment when you defended it.
You declined.
Please, make your “implied” argument explicitly.
If you won’t, I’m satisfied with letting both Anderson’s comment and mine stand for everyone else to judge on their own.
June 1, 2010, 9:19 pmleo marvin says:
Works for me.
June 1, 2010, 9:37 pmnicehonesty says:
You chimed in to “defend” what Anderson said, rather than just leave my comment and his comment to stand on their own.
When asked to actually defend what Anderson said, you claim his argument and your argument are somehow “implied”.
When asked to explicate your “implied” argument so it could be properly judged or rebutted, you decline.
The most likely explanation I can see for your evasive behaviour is that you reflexively defended his comment, but upon further consideration realized it’s pretty indefensible and didn’t want to be associated with it. That’s cool, but a pretty big waste of time, though – you could have just left our two comments to stand on their own to begin with rather than throwing up all this faux-defense chaff.
June 1, 2010, 10:22 pmleo marvin says:
I never ‘chimed in to “defend” what Anderson said’. I rejected what Anderson said. Twice. I chimed in to defend Anderson from your obnoxious, groundless accusation of anti-Semitism.
LOL. You’re right in one respect. It serves me right for wasting my time trying to engage you in good faith in the first place. Well, fool me once…. Just to be clear, lest you think I’m soliciting any more of your nonsense, I decline in advance to answer whatever you come up with next. I’m done with you.
June 2, 2010, 12:01 amEH says:
This has to be a legalistic definition of “hostile.”
June 2, 2010, 12:07 amOrenWithAnE says:
On the comports with centuries of maritime law. I will quote Maine once again:
June 2, 2010, 1:07 amDave says:
Yes, they were in international waters. That is specifically why it is illegal for Israel to attack them. When anyone, notion or private force, boards another ship forcefully and without permission in international waters, we have a word for it: piracy. That is according to generally recognized maritime law.
June 2, 2010, 1:34 amDavid M. Nieporent says:
Once more, that’s false. By definition, piracy involves only private individuals, not states.
June 2, 2010, 4:09 amnot-Dave says:
According to generally recognized maritine law, “[m]erchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.” Art. 98, San Remo Manual on International Law Applicable to Armed Conflicts at Sea. “In exercising their legal rights in an international armed conflict at sea, belligerent warships and military aircraft have a right to visit and search merchant vessels outside neutral waters where there are reasonable grounds for suspecting that they are subject to capture.” Art. 118.
Since the boarding took place in international waters — outside neutral waters — as opposed to the waters of neutral states (see Art. 14), Art. 118 would apply, and accordingly, interdiction would be legal.
June 2, 2010, 7:20 amOrenWithAnE says:
Once again, people quote maritime law without actually having read the stuff.
June 2, 2010, 9:19 amtired of blogs says:
At the end of all the legal analysis, there will still be dead pro-Palestinian activists and no dead Israeli soldiers. Legal quibbles about international waters, piracy, etc. are not going to obviate that fact, and that’s what the public is going to get about this clusterfuck. Whatever happened, that’s going to be the story.
June 2, 2010, 12:47 pmJonathan says:
That’s always the story. Even when the activists are firing rockets at civilians. It’s always a lose-lose situation for Israeli.
June 2, 2010, 12:53 pmnicehonesty says:
You did not try to engage in good faith.
I asked you to explain your arguments so I could understand them, judge them, and if appopriate, rebut them.
I asked you to do this twice.
Both times you refused.
Playing coy by posting a series of “guess what argument I’m thinking of!” comments is not engaging in good faith.
June 2, 2010, 4:47 pmhaha rimshot says:
Yep. Israel can’t win. Right on the law, so what? It’s dead activists that matter. And if Israeli soldiers had died, so what? Non-story in the event.
June 2, 2010, 4:55 pmmattski says:
Nothing personal, but you are delusional.
June 2, 2010, 7:07 pmJonathan says:
He’s delusional for thinking that someone trying to actively participate in a discussion would explain his views, rather than make other participants guess them?
June 2, 2010, 7:34 pmnicehonesty says:
Mattski:
I asked leo marvin in my June 1, 2010, 5:50 pm comment to explain his argument.
leo marvin in his June 1, 2010, 7:28 pm comment said he wasn’t going to make an argument. He also claimed in his June 1, 2010, 9:11 pm comment that his argument was implied.
In my June 1, 2010, 9:19 pm I asked leo marvin to make his argument explicitly (a reasonable request, since he accuses me of reading too much into the comments of others) so that I could understand it, judge it, and respond to it directly.
In his June 1, 2010, 9:37 pm comment, leo marvin once again declined to state his argument.
Unless I am imagining these comments (which I do not think is the case, as others can also see them), I am not delusional. To reiterate:
June 3, 2010, 4:02 pmleo marvin says:
For any poor soul still reading at this point, here’s the exchange in its entirety, (as opposed to nicehonesty’s cherry-picked and distorted rendition, above). I’m happy to let it speak for itself.
June 3, 2010, 4:56 pmnicehonesty says:
Nothing in my summary was distorted or cherry-picked, leo marvin.
I asked you to explain your argument, multiple times, so I could understand and address it.
You declined. Multiple times.
If you had a valid argument to make, I think you would have made it by now.
Instead, you’ve invested an incredible amount of time and effort in pointedly avoiding making an argument that could be responded to.
Obfuscating, evading, and playing “guess what I’m thinking!” games is not engaging in good faith.
June 4, 2010, 1:38 am