The Volokh Conspiracy

For those of you who still take Juan Cole’s views on Israel seriously, a reminder:

“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.”

Palmer Report: Israeli forces “faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.”

As I pointed out at the time, Israel relied on faulty intelligence, and should have recalled its forces and started from square one when it became clear that they weren’t facing peaceful “aid volunteers,” but organized, violent fanatics itching for a fight.

The Palmer Report suggests that Israelis forces may have used excessive force, and that wouldn’t be surprising–that’s the sort of thing that happens when a bunch of scared, heavily-armed but woefully ill-prepared nineteen-year-olds suddenly find themselves in close combat with armed militants who have captured their friends and are threatening their lives. That’s very different, however, from the completely unsubstantiated claim, pushed by Cole then and others still today, that the level of violence was premeditated on the part of the Israeli government.

And if you’re in a mood for a grim laugh, check out Roger Cohen’s new column, in which he writes that Israel, because of its actions, is “losing one of its best friends in the Muslim world, Turkey.” Cohen appears to be completely innocent of the obvious fact that Turkey’s Islamist government is using hostility to Israel to play to its base, and had done so for some time before the Mavi Marmara. Israel’s remaining friends in the Turkish establishment were primarily in the military–but the Turkish government has locked up many of its top generals on trumped up charges, and many of the rest resigned in protest.

In other words, Israel didn’t have Turkey’s friendship (or at least the friendship of this particular Turkish government) to lose. Does anyone with half a brain really believe that the Turkish government, which occupies Northern Cyprus, blockades Armenia, and suppresses Kurds (including by using cross-border force against Kurdish militants based in Iraq), has been oozing hostility to Israel for years now because it opposes occupation, blockades, and what is perceives as suppression of minorities? The Israeli government, hoping not to permanently damage Turkish relations (perhaps the Islamists will be thrown out of power in due course) can’t be so blunt. But there’s no need for the rest of us to confuse matters.

Kevin Jon Heller of University of Melbourne and Opinio Juris: “Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC [International Armed Conflict] with Hamas” (and thus the blockade of Gaza is unlawful).

U.N.’s Palmer Committee Report on the Mavi Marmara incident (and note that the U.N. is not exactly the most sympathetic forum for Israel): “The Panel considers the [Hamas-Israel] conflict should be treated as an international one for the purposes of the law of blockade” (and thus the blockade is lawful).

Heller: “I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee’s report contradicts my analysis of the situation. In fact, the opposite is true.”

Well, no. Because the Report concluded that the Hamas-Israel conflict was an IAC, it didn’t contradict Heller’s argument that if it’s not an IAC, the blockade is illegal under international law. But Heller also, as he acknowledges, “questioned the legality of the blockade” and said that it was not just wrong but that Israel’s claim to be in an IAC with Hamas is wholly implausible. While one Report cannot establish in everyone’s mind the lawfulness of the blockade, surely if an unsympathetic (or at the very least, non-sympathetic) forum like a U.N. commission adopts the Israeli position on IAC, that position cannot be deemed beyond the realm of even plausible argument, and Heller’s analysis is indeed “contradicted.”

UPDATE: Heller, responding to this post, writes: “I’m glad Bernstein believes that any legal conclusion reached by the UN regarding Israel’s actions is by definition plausible.” No, what I actually said is that a legal conclusion reached by the UN that is favorable to a position argued by Israel is a position “that position cannot be deemed beyond the realm of even plausible argument,” because the U.N. is an unsympathetic (or in the best-case scenario, non-sympathetic) forum.

Heller also writes that “Bernstein admits that my central claim about blockade was completely accurate.” No, I acknowledged that one particular claim wasn’t contradicted by the Report, which is obviously a far cry from stating that it “was completely accurate.”

But I can play this game, too. So I thank Kevin Jon Heller for publicly declaring that I’m the best-looking, smartest, and most reasonable law professor in North America, and that I’ve persuaded him that Human Rights Watch is not an objective arbiter of human rights in the Middle East, but an organization with an anti-Israel ideological agenda motivated by the far-leftist inclinations of its Middle East staff.

A bunch of eyewitness accounts are collected here. Various left-wing blogs are trumpeting these accounts as contradicting the Israeli account, but there are actually more commonalities, or at least more important commonalities, than differences. The commonalities:

(1) Ship passengers armed themselves with makeshift weapons to prevent the Israeli navy from boarding. Israel claims that these passengers were well-organized with quasi-military discipline and had trained for this task. I don’t see anything in the eyewitness accounts to contradict that.

(2) When the first Israeli commandos landed, they were attacked by the armed passengers, beaten, and taken hostage. According to the eyewitnesses, some of the other passengers tried to protect the soldiers from being killed, and I haven’t seen Israeli accounts that say otherwise.

(3) All hell broke loose thereafter.

Note that the agreed-upon points contradict the initial claims of the Free Gaza spokespeople that their passengers would never, ever, intentionally engage the IDF with violence. Either they were lying, or didn’t realize they had passengers on board who were planning on a violent confrontation.

The differences:

(1) Passengers claim that Israel first sent noise bombs and perhaps tear gas on to the ship, and also tried to land from the sea with grappling hooks, before the commandos started to land via helicopter. This is not so much a contradiction as it is the claim that the videos Israel has released don’t start at the very beginning of the operation, but only when the commandos start to land from the air. But assuming that there were armed men on board obviously trying to prevent the navy from boarding, I’m not sure why using noise bombs and tear gas changes the substance of the story; if anything, it reinforces the view that Israel was trying to take the ship with non-lethal force, and the response was a severe beating of the sailors who boarded by armed men who organized in advance for that purpose.

(2) A few eyewitnesses, in particular an Al-Jazeera reporter, claim that Israel used live ammunition before the navy boarded. It seems to defy credulity that Israel would fire bullets into an crowd of angry protesters, and then drop commandos armed with paint guns one by one into the midst of that crowd. Charitably, perhaps the reporter mistook other sounds for live fire. The other option is that the Israeli navy is murderous, its leaders completely oblivious to world opinion, and even more incompetent than what’s obvious from what we otherwise know.

(3) Israel says that the some of the activists had guns, and tossed them overboard to avoid capture. The activists claim that the weapons they tossed overboard were taken from the soldiers they disarmed. Since everyone agrees that the weapons are overboard, we may never know the truth. One oddity: the activists claim that they stripped the weapons of ammo, then tossed them overboard. But if you are going to toss weapons overboard, why take the ammo out first? Also, Israel claims that when Israel took control of the ship some of the activists still had the guns they took from Israeli personnel.

(4) Israel claims that all of the dead were armed and violent. The eyewitnesses claim some of them were journalists. At least one example may have involved a “fog of war” error–an eyewitness claims that a journalist was shot when he pointed a camera at an Israeli soldier. Pointing things at a soldier in the midst of a violent incident is not a good idea.

UPDATE: Here’s an account from the Israeli commando who turned the battle around and shot six of the nine fatalities. He says that Israel fired warning shots before commencing the helicopter landing. So a picture is emerging. Israel expected non-violent resistance, with perhaps some scuffling or whatnot. So the navy tried to board from the sea with the help of noise bombs and maybe tear gas. This didn’t dissuade the armed faction on board, which was armed and prepared for battle. (“The group was well trained and was split into a number of squads of about 20 mercenaries each distributed throughout the upper deck, the IDF said. All of the mercenaries wore gas masks and ceramic bulletproof vests and were armed with either bats, slingshots, metal bars, knives or stun grenades.”) With the sea route stifled, Israel send commandos to land via helicopter. The commandos fired warning shots and stun grenades, which they expected would disperse the crowd, as it would if they were simply activist rioters putting on a minor show of resistance. What the commandos didn’t know is that they were facing trained operatives, who didn’t flinch at the warning shots. This is when the navy made its huge error. When the warning shots failed to disperse the crowd, the commander should have recognized that this wasn’t a random crowd of activists as expected, but trained individuals intent on a violent confrontation. The mission should have been aborted right then and there, and a new strategy devised. Instead, some genius decided to send naval commandos one by one down into the hostile armed crowd. The first several to land were beaten to pulp and taken hostage, and, at least according to Israeli reports, the oncoming commandos were fired on, and also beaten. At this point, the commandos who were not captive began to use lethal force to defend themselves, rescue their comrades, and gain control of the ship.