COMBATTING THE WARRING ENEMY
by David Basch 6.7.10
"General Mcclelan, if you are not using our army,
may I please be permitted to do so?"
-- President Lincoln
As David Horovitz wrote, "history,... is written by the victors." If
so, Israel better be the victor and write that history. On the other
hand, the way Israel deals with issues of the legitimacy of its claims
to its lands and its conduct in repelling implacable enemies
determined to destroy her, it is hard to visualize how Israel can
become victorious to write that history.
Eric Posner wrote in the Wall Street Journal that Gaza is not
sovereign and its status ambiguous, possibly not now a part of
Israel, but maybe yes if the points raised by Professor Julius Stone,
quoted by Paul Eidelberg, are taken seriously. Certainly if the point
of relinquishing Gaza was that its Arab population would make peace,
this was a dismal failure and should be abrogated at least to the
point of recouping strategic positions that harm Israel.
Here we find in such actions of appeasement Israel's Achilles heel,
namely, Israel's failure to recognize the nature of her enemy, the
enemy's implacable intention to destroy her. Exposed, this reveals
that all such attempts at appeasement only strengthen the enemy and
do not bring peace closer.
To this day -- to view Israeli Ambassador Michael Oren on televison --
Israel is after making peace with the implacable enemy and is hell
bent on keeping such an imaginary peace illusion by failing to
decisively defeat him, although shirking from victory may be at the
cost of Israel's existence. Can David Horovitz have had this in mind
when he warned in his article, "Sailing Into History," that "Israel
simply cannot afford to continually underestimate the malevolent savvy
of enemies."
If Israel begins to open its eyes, it should become evident that any
pursuit of peace with the enemy ought to proceed simultaneously with
the strengthening of Israel's security and diplomatic position, not at
the cost of it. Unfortunately, this aspect of the nation's security
has been dismally neglected by Israeli governments. Probably this is
lately revealed in Israel's conduct with respect to Gaza and the
flotillas to break Israel's blockade of it.
As we read the news, Israel's enemies are determined to pierce
Israel's blockade of a Gaza that is at war with Israel. These assaults
sound serious, very much like part of a real shooting war, (as if
having 7,000 rockets shot from Gaza upon Israeli cities is not enough
of a clue that this enemy is warring on Israel).
How to deal with this military threat?
Clearly, the enemy has nothing but contempt for Israel, a well
deserved contempt considering Israel's great hesitations and failures
to effectively deal with the enemy's assaults owing to Israel's dreams
of winning, in effect, Arab jackals away from their lusts for Israeli
blood. What is needed is a lesson given by Israel to the Arabs and
their supporters that they deal with a military superpower. In any
other context, when one party makes war upon another, the attacked has
the right to do whatever is needed for its defense. So if the enemy
wishes to send ships to break the blockade of the port of Gaza -- I
leave open the decisive response to his rockets on Israel's cities --
the counter to that should seem straight forward. Yet, friends of
Israel find no firm response except suggestions of how to finesse this
problem that gives the enemy claims to getting another victory. (This
could be justified if Israel had more important fish to fry for now,
such as coping with an emerging nuclear Iran. But if Israel's response
to the Gaza assault is a permanent feature of Israeli policy without
the justification of saving the country's energies to deal with
Iran, then Israel loses on both counts.)
Concerning the Gaza problem, if Israel presses the point that the
Gaza regime is at war with Israel, the option is raised for a war
response that directly copes with the problem of military supply to
Gaza from the sea, namely, bombing the Gaza docks and making them
useless as a port for disembarking outside, un-inspected cargos,
defeating the designs of Israel's enemies. But of course, Israel would
have to acknowledge that it is at war with Gaza.
But if this is not realistic and is born of ignorance that this could
be effective, since merely putting outside large ships at anchor will
enable the enemy to deliver cargos to shore using such things as
small boats.
So another option would be for Israel to use its military to seize the
Gaza dock and the lands around it, creating a permanent military zone
enclave, cleansed of civilian population and would not preclude the
destruction of the docks. (Please spare me, Ambassador Oren, the fairy
tale thought that peace can be negotiated with this enemy.) This
Israeli action would create part of a secure boundary for Israel that
was called for under UN Resolution 242 -- a necessity considering an
enemy in perpetual war against Israel. (This maneuver might also be
wisely designed to close off the myriad of tunnels from Egypt.) Such a
military action cutting off military supply to Gaza would of course
bring to an end the rocket attacks on Israel's cities -- a goal that
Israel's military has not been able to achieve for the last few years.
But perhaps the military responses suggested have too many flaws and
would open unsolvable diplomatic difficulties dangerous to Israel's
existence. No doubt, Israel's self defeating diplomatic postures that
preemptively surrender Israel's rights to her lands and even to the
secure borders given by 242. If so, how about Israel's military
experts coming up with alternatives that effectively do the job with
less fuss and feathers and yet demonstrate that Israel is not to be
trifled with and that Israel does not await a Messianic era in which
Arab hearts are changed to peace with Israel.
I am resigned to the reality that the designs of Israel's enemy will
not change within any meaningful future time span. In this context, it
would seem that taking control of strategic land that an enemy holds
-- lands to which Israel has a claim to under the Mandate of Palestine
and which land is being used to wage war against Israel -- is a time
honored military maneuver that states at war avail themselves of if
they wish to win their wars.
Or do I have Israel wrong? That Israel has no intention of winning the
war for its existence. Its wish is rather to be the a righteous utopia
in the eyes of savage and barbarous Arab nations and their supporters,
risking becoming the most righteous nation in the graveyard. That
goal seems not too far a conjecture judging Israel's methods in
defending its position. I hope I err by miles.
I will end here by repeating the clarifying analogy I have raised of
Israel's condition, likening it to a hen house in which jackals have
come to live. If the Israeli hens want to survive, their goal cannot
be to appease the Arab jackals, which is precluded in the nature of
the case.
*****
Wall Street Journal - 6.4.10
The Gaza Blockade and International Law
By Eric posner
Israel's raid on a fleet of activists bound for the Gaza Strip has led
to wild accusations of illegality. But the international law
applicable to the blockade eludes the grasp of those in search of easy
answers.
The most serious charge is that by seizing control of the flotilla,
Israel violated the freedom of ships to travel on the high seas. The
basic law here is that states have jurisdiction over a 12-mile
territorial sea and can take enforcement actions in an additional
12-mile contiguous zone, ac cording to the 1982 Law of the Sea
Convention (which Israel has not ratified, but which is generally
regarded as reflecting customary international law). Outside that
area, foreign ships can sail unmolested.
But there are exceptions. Longstanding customary international law
permits states to enforce publiclY announced blockades on the high
seas. The Gaza blockade was known to all, and certainly to those who
launched the ships for the very pur pose of breaking it. The real
ques tion is whether the Israeli blockade is lawful. Blockades
certainly are during times of war or armed con flict. The U.S.-led
coalition imposed a blockade on Iraq during the first Gulf War.
Israel's position is reasonable and backed by precedent.
The catch here is the meaning of "armed conflict." Traditionally,
armed conflict can take place only between sovereign states. If Gaza
were clearly a sovereign state, then Israel would be at war with Gaza
and the blockade would be lawful. If, however, Gaza were just a part
of Israel, Israel would have the right to control its borders- but not
by intercepting foreign ships outside its 12-mile territorial sea
or contiguous zone.
Gaza is not a sovereign state (although it has its own government,
controlled by Hamas) and is not a part of Israel or of any other
state. Its status is ambiguous, and so too is the nature of the armed
conflict between Israel and Hamas. Thus there is no clear answer to
the question whether the blockade is lawful. However, the traditional
idea of armed conflict involving only sovereign states has long
given way to a looser definition that includes some conflicts between
states and non state actors. The international rules governing
blockades attempt to balance belligerents' interest in security and
other countries' economic interests in shipping. During war, security
interests prevail.
War-like conditions certainly exist between Israel and Hamas. And
because Israel intercepts only selfidentified blockade runners, its
actions have little impact on neutral shipping. This balance is
reflected in the traditional privilege of states to capture foreign
pirates on the high seas.
So Israel's legal position is reasonable, and it has precedent. During
the U.S. Civil War, the Union claimed to blockade the Confederacy
while at the same time maintaining that the Confederacy was not a
sovereign state but an agent of insurrection.
Then the Union navy seized ships trying to run the blockade, their
owners argued that a country cannot interfere with shipping on the
high seas except during war, and one cannot be at war except with
another sovereign state. The U.S. Supreme Court approved the captures
in an ambiguous opinion that held that an armed conflict existed, even
though one side was not a sovereign state. The opinion suggests a
certain latitude for countries to use blockades against internal as
well as external enemies.
Human Rights Watch argues that a blockade to strike at a terrorist
organization constitutes a collective penalty against a civilian
population, in violation of Article 33 of the fourth Geneva
Convention. This argument won't stand up. Blockades and other forms of
economic sanction are permitted in international law, which
necessarily means that civilians will suffer through no fault of their
own.
Most attention has focused on the question whether Israeli commandos
used excessive force while taking control of one of the flotilla
ships, which resulted in nine deaths. Human Rights Watch says that
Israel's actions violated the 1990 United Nations Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials.
However, that document is not international law; its principles are
akin to a set of "best practices" for advising countries with poorly
trained police forces. It is also vague and it would not apply to a
military operation.
Military operations must respect the principle of proportionality,
which is a fuzzy, "know-it-when-yousee-it" test. But one thing is
clear. Ships that run blockades may be attacked and sunk under
international law. If Israel had exercised that right, far more than
nine people would have been killed.
----------------------------
Mr. Posner, a professor at the University of Chicago Law School, is
the author of "The Perils of Global Legalism" (University of Chicago
Press, 2009).
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