Erasing International Law in Israel's Attack on the Gaza Freedom Flotilla

There has been much intense discussion of Israel’s recent attack against a flotilla of aid ships that was travelling to Gaza, intent on violating the blockade imposed by Israel against the government of Hamas and the Palestinian people. Much of the debate, unfortunately, has taken place under limited, propagandistic pretenses.

The Israeli attack took place on May 31 in the Mediterranean Sea, approximately 80 miles off the coast of the Gaza Strip. More than 660 pro-Palestinian activists were detained, and another nine were killed as the Israeli military intercepted the flotilla to prevent it from reaching the Gaza shore. The activists were known to pose no military danger to Israel; instead they were carrying much needed humanitarian supplies to ease the suffering of Palestinian civilians who have been the subject to an unofficial Israeli siege policy, following their election of the Islamist group Hamas to power.

Reactions among U.S. officials and in the American media were predictably favorable to Israel. Obama and the press are largely ignoring or discounting international law. Obama refuses to condemn Israel, instead tepidly pushing it to conduct its own investigation (in which Israeli Defense Minister Ehud Barak opposes). In its recent editorial, "Israel and the Gaza Blockade," the New York Times mildly criticizes Israel for having "mishandled the incident." The blockade is deemed "unjust," although the paper’s editors seem more concerned with the PR fallout of the incident to Israel’s reputation than with the loss of civilian lives. This is evidenced in the Times’ own statement that "this is a grievous, self inflicted wound [for Israel]. It has damaged Israel’s ties with Turkey, once its closest ally in the Muslim world".

The Times generically calls for "an impartial international investigation" into the incident – pre-determined to lead to no punishments considering it would be undertaken by the same government guilty of war crimes.

Similarly, in "The Flotilla Fiasco," the Washington Post’s editors are even more hostile in their response to the activists challenging the Israeli blockade. The paper complains that "Israel’s response to the pro-Palestinian flotilla was both misguided and badly executed," but then admits that "we have no sympathy for the motives of the participants in the flotilla".

The famous Edward Said lambasted American and European media, and political and cultural discourse as heavily Orientalist, framing Muslims as dangerous and exotic others. This practice continues today, with U.S. media heavily privileging Israeli narratives over Palestinian ones. A Lexis Nexis database search finds that in 31 stories referencing Israel or the Gaza Strip that were printed in U.S. from May 31 to June 2 (the three days following the attack), 23 stories, or 74 percent of the total, contained a headline that led with references to Israel or Israel’s actions. In contrast, only 8 stories, or 16 percent of the total, were accompanied by headlines that led with references to the Gaza Strip or the actions of Palestinian officials.

Media outlets are more than happy to obfuscate international law in order to absolve Israel of criticism. Tellingly, neither of the editorials from the Washington Post and New York Times even bothers to reference the implications of international law for Israel’s attack on civilians travelling in the flotilla.

When the Washington Post does reference international law, the contents of such stories are hardly critical of Israel. In one story, "Israeli Flotilla Raid Revives Question of International Law," the Post argues that "international law experts differ over the legality of the Israel action, with some asserting that the raid constituted a clear cut violation of the Law of the Sea, while others maintain that Israel can board foreign vessels in international waters as part of a naval blockade in a time of armed conflict." The article goes on to cite the denials of illegality by Israeli officials, such as Mark Regev, spokesman for the Israeli Prime Minister, who argues that, under the San Remo Manual on International Law Applicable to Armed Conflicts at Sea: "if you have a boat that is charging a blockaded area you are allowed to intercept even prior to it reaching the blockaded area if you’ve warned them in advance, and we did a number of times, and they had a stated goal which they openly expressed, of breaking the blockade. That blockade is in place to protect our people." International law is generally not a salient theme for stories on Israel’s attack.

Just four of the 27 stories in the New York Times referencing Israel also mention the words "international law," while just one of 21 stories in the Washington Post contain those words, according to a Lexis Nexis analysis from May 31 to June 2nd. As a student of political science, international law has long been an area of interest – one in which I did much research as an undergraduate and graduate student. It’s worth reflecting briefly below on just what international legal agreements have to say on Israel’s Flotilla attack. After undertaking this analysis, it should be clear that the legal justification made by Israeli officials is unconvincing and self-serving.

Or if vessels "otherwise make an effective contribution to the enemy’s military action."

There is no legitimate basis for invoking the San Remo agreement in regards to humanitarian shipments from the flotilla. There is no reason to believe the ships were contributing to Hamas’ military power; rather they were being provided needed relief to civilians targeted by Israel’s illegal siege strategy. This basic reality means that five of the six provisions above (B, C, D, E, and F) are inapplicable in terms of authorizing the Israeli flotilla attack. The only provision left, point "A," does not justify actions undertaken under an illegal embargo.

In the case of the Israeli flotilla attack, and as mentioned above, the legality of the blockade itself is clearly in question, as it represents a blatant violation of the Geneva Conventions’ protections of civilians during wartime.A more relevant international treaty in the case of this attack is the 1982 Law of the Sea Treaty. This agreement allows for the "innocent passage" of ships in international waters if their behavior is not deemed "prejudicial to the peace, good order or the security" of the respective coastal state. The Israeli attack took place 80 miles offshore, clearly outside of Israel’s sovereignty (which extends no further than 12 miles from Israel’s coast), and in a zone where the Law of the Sea Treaty is clearly applicable. Furthermore, it’s difficult to make an argument that humanitarian supplies sent to a population under an illegal siege are a threat to the national security of Israel – unless national security is defined through illegal aggression, illegitimate land expansion, and the terrorizing of civilians.

The comatose political debate over Israel’s actions is hardly surprising to those who critically follow U.S. public discourse on the Middle East. American narratives have long privileged Israel over its Arab neighbors, and this case is no exception. Still, the growth of domestic or international pressure may play a positive role in pushing the U.S. to take a more critical stance toward Israel. Whether this will happen, however, remains to be seen.

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Josh Ruebner - June 4, 2010