Method and Madness: The Hidden Story of Israel's Assaults on Gaza (9 page)

The report further pointed out that “the naval blockade is also connected to the land crossings policy on a tactical level”: if and when cargo aboard vessels headed for Gaza was rerouted through the land crossings, it was subject to the land restrictions blocking passage of critical goods, such as “iron and cement.”
⁵⁵
“Therefore,” the report concluded, “it is possible that the enforcement of the naval blockade in addition to the implementation of the land crossings policy has a humanitarian impact on the population, at least in principle”; “
The approach of the Israeli Government . . . created, in this sense, a connection regarding the humanitarian effect on the Gaza Strip between the naval blockade and the land crossings policy
.”
⁵⁶

Because the Israeli Turkel Report held that the land and naval blockades were “in principle” inextricably intertwined, it could defend the legality of the Israeli naval blockade only by simultaneously upholding the propriety of the land blockade and treating each “in conjunction”
⁵⁷
with the other. The UN Panel was consequently confronted with a dilemma. If it retraced the Israeli Turkel Report’s line of argumentation, it would have to pass judgment on Israel’s blockade policy as a whole. But if it rendered such a comprehensive judgment, the UN Panel could vindicate Israel only by blatantly contradicting the near-unanimous authoritative opinion that declared such a blockade illegal.
⁵⁸
The UN Panel accordingly resolved on an altogether novel strategy. It artificially pried the land blockade from the naval blockade, relegated the land blockade to a secondary and side issue, and proceeded to focus in its legal analysis exclusively on the naval blockade as if it were a thing apart.
⁵⁹

To justify this radical surgical procedure, the UN Panel points to the facts that, chronologically, imposition of the land blockade (in 2007) preceded imposition of the naval blockade (in 2009); that the “intensity” of the land blockade “fluctuated” over time whereas the naval blockade “has not been altered since its imposition”; and that the naval blockade “was imposed primarily to enable . . . Israel to exert control over ships attempting to reach Gaza with weapons and related goods.”
⁶⁰
This series of affirmations confuses and conflates the broad purposes behind Israel’s blockade policy with the practical modalities of its enforcement. Since 2007, Israel has imposed a suffocating blockade on all of Gaza’s borders. This comprehensive blockade has been designed to achieve the dual goals of preventing weapons from reaching Gaza and politically isolating Hamas. Although Israel periodically adjusted its blockade policies to accommodate new political contingencies, the dual security-political goals stayed constant. It is disingenuous to pretend that, as against the security
and
political dimensions of the Israeli land blockade, the purpose of the coastal blockade was “primarily”—in fact, in its legal analysis the UN Panel effectively argues that it was
exclusively
—to prevent weapons from reaching Gaza. The ultimate irony is that,
senso stricto
, the naval blockade did serve only one of the two purposes, but it was
not
the military one; its purpose was narrowly political. The UN Panel is thus doubly wrong: the naval blockade was not “distinct from” the land blockade, and the purpose of the naval blockade was not “primarily” security.

I
SRAEL CONFRONTED A SIGNIFICANT SECURITY THREAT FROM
G
AZA’S COASTAL WATERS
. “The fundamental principle of the freedom of navigation on the high seas,” the UN Panel observes, “is subject to only certain limited exceptions under international law.”
⁶¹
A State party attempting to restrict navigation hence bears a heavy legal burden. It inexorably flows from these tenets that the greater the impediment a state places on freedom of navigation, the heavier its legal burden. If a fundamental freedom is at stake, then infringements on it must be graduated: an extreme restriction would not be justified if a lesser restriction would meet the perceived threat. In the case at hand, if the “visit and search” of a vessel (where there are “reasonable grounds” for suspicion) is an effective means of preventing contraband
⁶²
from reaching Gaza, then it cannot be justified to impose the more restrictive measure of a naval blockade that, by indiscriminately barring passage of all goods, military and nonmilitary, obstructs commercial traffic and potentially inflicts grave harm on the civilian population.
⁶³

The UN Panel purports that Israel confronted a significant security threat from Gaza’s coastal waters that could be met only by a naval blockade. However, the evidence it brings to bear in support of this contention underwhelms. It cites, on the basis of the Israeli Turkel Report,
three
alleged instances of attempted weapons smuggling into Gaza by sea, the last of which, in 2003, had occurred
six years before
Israel’s imposition of the naval blockade.
⁶⁴
It further alleges, citing the Turkel Report, that after its 2005 “disengagement,” Israel had to find a new legal basis for preventing weapons from reaching Gaza. Even if true, it still would not explain why the visit and search method apparently proved effective after the 2005 “disengagement” until sometime in mid-2008, when it abruptly presented what the UN Panel, following the Turkel Report, calls “practical difficulties.”
⁶⁵
The UN Panel, citing the Turkel Report, also alleges that only a naval blockade provided a legal basis for preventing Hamas from smuggling weapons out of Gaza to launch attacks from the sea.
⁶⁶
But it cites no instances—none apparently exists—of Hamas attempting such a maneuver.

I
SRAEL IMPOSED THE NAVAL BLOCKADE IN RESPONSE TO THIS SECURITY THREAT
. The UN Panel alleges, on the basis of the Israeli Turkel Report, that Israel imposed the naval blockade “in order to prevent weapons, terrorists and money from entering or exiting the Gaza Strip by sea.”
⁶⁷
But, although Israel formally gestured to this threat as its rationale for imposing the naval blockade, the UN Panel does not present a persuasive case for crediting this official Israeli testimony. In its legal analysis of the naval blockade, the UN Panel’s methodology amounts to,
If Israel says so, it must be true
.
⁶⁸

In fact, Israel imposed the naval blockade not because it faced a security threat from the sea but, on the contrary, because it did
not
face one. As the Israeli Turkel Report observed, Israel couldn’t rely on visit and search to block flotillas from Gaza, because those powers can be used only against vessels suspected of carrying weapons. Israel’s quandary was that the Gaza flotillas did not carry weapons and that it therefore lacked a legal basis for stopping them. Israel initially let a succession of vessels pass,
not even bothering to search them
, in the hope that the flotilla phenomenon would go away.
⁶⁹
When the ships kept coming, Israel responded with escalating violence—but still they kept coming. It was “in these circumstances, on January 3, 2009,” the Turkel Report recalled, that “the Minister of Defense ordered a naval blockade. . . . The significance of imposing a naval blockade according to the rules of international law is that it allows a party to an armed conflict to prevent entry into the prohibited area of any vessel that attempts to breach the blockade (
even without it being established that the vessel is assisting terrorist activity
).”
⁷⁰
That is, the blockade was imposed in order to provide Israel with a legal basis for preventing passage of vessels transporting not weapons but humanitarian cargo to Gaza.

T
HE NAVAL BLOCKADE WAS THE ONLY MEANS
I
SRAEL HAD AT ITS DISPOSAL TO MEET THE THREAT POSED BY THE FLOTILLAS
. Even if, for argument’s sake, the claim were credited that, as a practical matter and setting aside the law, no country at war would permit a convoy of ships—even a declared humanitarian convoy that had been carefully searched—to pass freely into enemy territory, Israel still had another ready option. The UN Panel itself alludes, if only in passing and in another context, to this alternative. It reports that “at a briefing immediately after the 31 May 2010 incident, a senior United Nations official noted that the loss of life could have been avoided if Israel had responded to repeated calls to end its closure of Gaza.”
⁷¹
Thus, if Israel wanted to stop the humanitarian convoys headed for Gaza, all it needed do was lift the illegal economic blockade that was causing a humanitarian crisis. Revealingly, this obvious option did not figure in the UN Panel’s analysis of the naval blockade’s legality. Was it because, in the face of this option, Israel’s only conceivable justification for the naval blockade crumbled and, consequently, the UN Panel could vindicate Israel only by defending the patently indefensible policy of a comprehensive siege that amounted to collective punishment?

T
HE
I
SRAELI NAVAL BLOCKADE ACHIEVED ITS SECURITY OBJECTIVE WITHOUT CAUSING DISPROPORTIONATE HARM TO GAZA’S CIVILIAN POPULATION
. The UN Panel contends that, given the “absence of significant port facilities in Gaza,” the harm caused by the naval blockade to Gaza’s civilian population was “slight,” and therefore—according to the proportionality test of international humanitarian law—not disproportionate to the military gain.
⁷²
But if, as the evidence unambiguously shows, the Israeli naval blockade did not serve the purpose of self-defense but instead was imposed with a political objective in mind, then the proportionality test is wholly irrelevant. As the UN Panel observes, “The imposition of a blockade must have a lawful military objective.”
⁷³
Put otherwise, even if the humanitarian value of the maritime point of entry were limited, the naval blockade would still cause proportionally greater harm because its military value was nil—or, at any rate, whatever military objective it met could also have been met by a visit and search procedure that did not hinder the passage of humanitarian goods.

Furthermore, even if the naval blockade did serve a military objective, it would still be hasty to conclude that it did not cause disproportionate collateral damage. The Israeli Turkel Report itself cautioned against being too dismissive of Gaza’s potential for maritime traffic: if goods could just barely enter Gaza by sea, then it must follow that weapons, too, could just barely enter—which in turn would render a naval blockade redundant and any justification for it unsustainable.
⁷⁴
The furthest the Turkel Report would go was, “in the absence of information and records, it is difficult to determine the effect of the naval blockade alone on the humanitarian situation in the Gaza Strip.”
⁷⁵
It cannot but perplex how the UN Panel knew the potential harm of the naval blockade was “slight” when even the egregiously apologetic Israeli Turkel Report pleaded agnosticism.

Once having proven that the Israeli naval blockade was legal, the UN Panel proceeds to reprimand the flotilla passengers for having committed a “dangerous and reckless act” by attempting to breach it.
⁷⁶
The UN Panel also repeatedly exhorts states to proactively prevent such irresponsible undertakings in the future.
⁷⁷
The welfare of Gaza and its people, the UN Panel suggests, would be better served by and should be the exclusive preserve of states, not ordinary citizens. Consider what would have transpired had this advice been heeded.

In 2007, Israel imposed a stringent blockade on Gaza that constituted a form of collective punishment and consequently a flagrant violation of international law. The international community did not lift a finger. Journeying to Gaza around this time, former High Commissioner for Human Rights Mary Robinson declared that Gaza’s “whole civilization has been destroyed, I’m not exaggerating.” The international community still did not lift a finger. In November 2008, Israel turned the blockade’s screws yet tighter, bringing Gaza’s infrastructure “to the brink of collapse.” The international community still did not lift a finger. “The breakdown of an entire society is happening in front of us,” Harvard political economist Sara Roy wrote in the
London Review of Books
, “but there is little international response.”
⁷⁸

In late December 2008, Israel launched Operation Cast Lead and, in the course of what Amnesty called “22 days of death and destruction,” it massacred the Gazan civilian population and laid waste the civilian infrastructure. In January 2009, the UN Security Council finally reacted to popular international outrage at Israel’s crimes by passing a resolution (1860) that expressed “grave concern . . . at the deepening humanitarian crisis in Gaza,” and called for “the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment.” Israel nonetheless persisted in its strangulating blockade, and the international community still did not lift a finger. It was only
after
the martyrdom of the
Mavi Marmara
passengers, as the UN Panel itself effectively concedes,
⁷⁹
that the world’s leaders suddenly awakened to the realization that the Israeli blockade was “unsustainable,” and some (albeit grossly insufficient) relief was granted to Gaza’s desperate civilian population. But if the UN Panel had had its way, and the Freedom Flotilla had not taken the initiative to commit a “dangerous and reckless act” that—God forbid!—infringed on the sacred prerogatives of states, Israel would have been left undisturbed and the people of Gaza left to languish and expire.