Legality, Legitimacy and the New Misdeeds of the “Jewish Pirate”

The debate surrounding the Gaza blockade and Mavi Marmara incident is in full swing and it’s getting both sadder and more ridiculous by the hour. I still find the sheer dimensions of the response you get whenever Israel does something “outrageous” hard to believe, way beyond anything even faintly resembling plausibility and more disproportionate than anything the IDF has ever done. If I were a social psychologist with even a passing interest in mass pathologies, I’d definitely look into it…:)

Anyway, I found this piece by CFR’s president emeritus Leslie Gelb quite interesting. His post is certainly biased (if not in the “biased beyond belief”-kind-of-way so common to debates involving Israel), the title is more than unfortunate and, in my view, he by and large gets it wrong, but his two main arguments are still worthy of examination:

First, he makes an argument almost diametrically opposed to mine, blaming the Navy special forces for “badly mishandling the situation”. Unfortunately, he doesn’t elaborate on this point. I still don’t see how a soldier with no escape route who is attacked by a mob of violent activists mishandles anything at all when he or she fires his or her weapon in self-defense. The videos I’ve linked earlier are as much in the way of proof as you’ll ever get of anything that was or was not mishandled on the high seas by night. The real question is and remains: Who put the soldier there, with what expectations and what assumptions leading to the decision in the first place?

Second, and much more importantly, he states that “Israel had every right under international law to stop and board ships bound for the Gaza war zone late Sunday. Only knee-jerk left-wingers and the usual legion of poseurs around the world would dispute this.” And further:

Regarding international law, blockades are quite legal. The United States and Britain were at war with Germany and Japan and blockaded them. I can’t remember international lawyers saying those blockades were illegal—even though they took place on the high seas in international waters. There would be a general violation only if the hostile actions against the ships took place in waters under the jurisdiction of another sovereign state. Thus, for example, if the Israelis stopped the ships in Egyptian waters, that would have been a violation.

While the analogy is intuitive, one need not be an international lawyer (god forbid!) to know that these events took place before the UN Charta formally abrogated the ius ad bellum and the Security Council monopolized the right to declare lawful or illegal any international use of force, with the exception of actions taking place under the “inherent right” to self-defense “if an armed attack occurs”.  And no-one will seriously dispute the fact that a blockade has formally constituted an act of war for at least a couple of centuries. So while I don’t know much about the specific legal status of the blockade of Gaza — which is pretty much an international legal vacuum anyway –, the US blockade against Cuba in 1962, which had to be termed a “quarantine” to get around possible legal issues (and foster legitimacy), seems to me a more appropriate analogy. That example, in which, of course, the SC was blocked by cold war rivalry and thus couldn’t decide about the legality of anything at all, points to the more important question: What does it matter whether the blockade is legal or not?

In truth, international legality, while it can be an extremely convenient instrument at times, is no more than an aspect of the essential political resource of international legitimacy, and not even the most important aspect at that. In this sense, it doesn’t make any difference whether Israel’s boarding of a ship in international waters actually was an act of piracy in legal terms. What does matter is whether the other side is able to successfully frame Israel’s actions as such, thus bringing to bear on its opponent the full moral, political and legal weight of the term “piracy” and of everything it implies.

So even if Gelb were right about the legality of Israel’s actions, a legalistic argument will hardly turn this discourse inside out. The real issue is: Who is better able to present their actions as being all in all more legitimate than the other party’s actions. Obviously, whenever it comes down to this, the purportedly unarmed do-gooder humanitarian activist and the purportedly valiant, outgunned “freedom-fighter” have an inherent marketing advantage over the armed-to-the-teeth state actor trying to protects its citizens and its interests, even if the latter’s actions are completely justified.

At this point, sadly, it’s merely a matter of effectively feeding your narrative to that great “force for good”, the “global public”, well-meaning, self-righteously moralistic and ignorant. Meaning that the stupidity of the street, harnessed by Israel’s enemies, empowered by media democracy, and well-served both by cowardly political elites and what is left of the scam that is the United Nations, will surely triumph in this struggle over the new misdeeds of the “Jewish pirate”.

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