Israel's Forever War

As the war between Israel and Hamas grinds on in Gaza, we've seen various moments where both Israel and Hamas have been deemed the barrier to a ceasefire. At the moment, the pendulum appears to be swinging Israel's way, as reports grow from multiple parties accusing Israel -- and Netanyahu in particular -- of sabotaging peace talks.

Ultimately, Israel's problem is this: once the war ends, it's put up or shut up about the day after plan. And Bibi's conundrum is that he doesn't have a plan for the day after that would result in an equilibrium anyone either in Palestine or in the international community would accept, and he knows it. This is why we get bombastic but vague bleatings about "total victory". Even assuming, for sake of argument, that it would be possible to completely destroy Hamas -- what then? An independent Palestinian state? We know the answer for Bibi is no. Some sort of inferior dependency status? That's a non-starter. Occupation forever? That's just another way of saying the war continues.

But those are the choices, and ending the war means making a choice that Israel -- or at least, this government of Israel -- simply does not want to make.  Whenever one questions the possibility of destroying Hamas, one gets dismissive snorts about how we managed to destroy Nazism in Germany, and didn't stop until we achieved "total victory" there. But the end of World War II didn't coincide with ending Germany as a country -- it was always taken for granted that Germany would, within the confines of the new world order, remain a sovereign state (indeed, we dedicated unprecedented resources to rebuilding Germany post bellum in the form of the Marshall Plan -- a commitment that proponents of this analogy seem strangely uninterested in extending). If the Allies' approach towards the Axis powers was that they just never get to exercise sovereign powers again, but remain under perpetual occupation and subjugation ever-outward in time, that's not an end to the war at all -- that's maintaining the war indefinitely.

So long as the war continues, the legal, political, and diplomatic framework allows Israel considerably greater freedom of action vis-a-vis Palestine than would be available under any peacetime scenario. When you're at war, you can occupy, you can raid, you can detain, you can violate normal rules of sovereignty. That's what war is, and ending the war means either giving those opportunities up or explicitly endorsing the logic of conquest and/or apartheid. Remaining at war punts the decision down the road, remaining at war indefinitely punts the decision down the road indefinitely. This, I think, is a large part of what motivated the ICJ's decision regarding the unlawfulness of the occupation -- its conclusion being that the occupation had become a delaying mechanism, an attempt to retain the prerogatives of belligerency indefinitely. Bibi's interest in prolonging the war in Gaza now is a concentrated version of the choice Israel has made off-and-on since 1967: a forever war to avoid an undesirable peace.

This isn't to pretend that Palestinian factions have been eager partners for peace, stymied only by Israel's intransigence. But it is to say that Israel's interest in blocking Palestinian statehood is fundamentally incompatible with securing a lasting peace, because any durable peace cannot avoid the question of Palestinian independence. Bibi is probably more ideologically opposed to Palestinian statehood and equality than any modern Israel leader, so even if he didn't have a partisan interest in prolonging the war to delay his own electoral reckoning, it should not surprise anyone that his orientation towards the war in Gaza is to keep it going as long as possible. He simply cannot answer the questions posed by its end.

The Settlements Gave Us the ICJ Decision

The International Court of Justice has released a long-anticipated advisory opinion regarding the status of Israel's occupation of the Palestinian territories. You can read all of the opinions here, but the top-line conclusion is that the occupation is at this point unlawful, because Israel's actions have made clear that it is not acting in the context of a military occupation at all -- it is acting as if to acquire the underlying territory as part of its own domain. And my overall conclusion is that, while the opinion sprawls and has wide implications, ultimately the vast majority of its conclusions can be laid at the feet of the settlement project. That's what gives the opinion its analytical force, the subject of the main "remedy", and that's what makes it not ultimately a matter of Israel's genuine self-defense and security interests.

To be sure, there is more to the opinion than just an indictment of the settlement project, or even the occupation-qua-occupation. Another aspect sure to get much commentary is the gesture at characterizing Israel's conduct in the West Bank as potentially apartheid -- the opinion was (it seems almost certainly intentionally) ambiguous on this point, and amongst the concurrences one sees both "yes, that's absolutely what it's saying" and "no, we're definitely not saying that". There's also the question of how to apply the ruling to the Gaza Strip -- while nominally covering all of the Palestinian territories, the opinion is primarily focused on the situation in the West Bank, recognizing that Gaza is a different and more complex circumstance for a host of reasons, ranging from Israel's withdrawal in 2005 to the current ongoing war. For the most part, the opinion largely accepts that different analysis will need to be applied there, and so it's fair to bracket that off.

Still, even "just" talking about the illegality of the occupation of the West Bank, the ruling is bombshell enough. Ultimately, the opinion reflects an essential and oft-misunderstood attribute of Israel's relationship with the Palestinian territories: while pro-Israel commentators often treat the language of "occupation" as delegitimizing Israel's activities (cf. Bibi's response to the ruling: "The Jewish people are not conquerors in their own land"), in reality occupation is the most plausible justification for Israel's activities in the Palestinian territories. When one is in the midst of military hostilities with another power, one is allowed to have a military presence on their territory, and one is allowed to impose not infinite but substantial restrictions on the local civilian population to account for security necessities, and one is certainly not required to give the civilian nationals of the opposing power citizenship in your country.

But those prerogatives are predicated on the occupation not being permanent; it is not a claim of permanent jurisdictional right over the underlying territory, it is a temporary state of affairs tied to ongoing hostilities with another power. The ruling of the ICJ can be summarized as a conclusion that Israel is no longer acting as if that was the case. The settlement enterprise, in particular, is the smoking gun evidence here: it is not only clearly impermissible under the law of occupation, but it has nothing to do with effectuating military security in the context of an ongoing state of belligerency and everything to do with acting as if the territories in question are part of Israel's normal domestic territory -- the settlers are, in most every respect, treated identically as if they were Israeli citizens in Tel Aviv. Through the settlements, Israel is taking actions that are fundamentally at odds with it treating the West Bank as being under a temporary occupation, and so it cannot claim the protections international law accords to occupying powers to take actions that otherwise would be obvious breaches of principles of sovereignty and Palestinian self-determination.

For my part, I've only had the opportunity to quickly skim the various opinions, and I'm not an international law expert. There were a cluster of judges who sought to distinguish in various ways between the illegality of Israel's conduct in the West Bank (which they find conclusively established) and the inherent illegality of Israel's presence in the West Bank (which they would not reach), and on my quick read they make a valid distinction. The idea, in essence, is that while it is clear enough that what Israel is actually doing in the West Bank cannot be justified via the security framework of a belligerent occupation (indeed, it openly defies this framework) -- the settlement enterprise being the obvious example -- this doesn't mean that it's impossible in concept for Israel to do things in the Palestinian territories that would be consistent with a genuine military occupation. Israel and Palestine are still in a state of belligerency, and in such a context there likely will be causes where actions could be justified under the framework of a (genuine) military occupation. This probably has more salience in Gaza than in the West Bank, and it further ratifies a point I've made earlier -- that as horrible as the happenings are in Gaza, the West Bank if anything represents an easier case of Israeli injustice: the former at least nominally can be fitted into the framework of a military confrontation subject to a national right of self-defense, the latter appears to be a pure unadulterated land grab.

But it's worth emphasizing how little this matters. Several judges chastised the majority for not paying due heed to Israel's genuine security concerns. It's a fair shot, but the payoff is that even being attentive to these concerns would not actually change much (as evidenced by the fact that even the aforementioned "cluster" of judges ended up agreeing with the majority on all or nearly all substantive points). One can wholeheartedly agree that Israel has valid self-defense rights that are operative in the Palestinian territories, and nonetheless conclude "but there are a host of Israeli actions in the West Bank that have nothing to do with security; it's about taking over territory" (indeed, the fact that recognizing the security concerns would have been more or less "free" does, arguably, validate the Israeli suspicion that the ICJ majority genuinely doesn't care about them -- they do not downplay Israel's security needs as a necessary component of their legal analysis, but rather wholly gratuitously).

Once again, the settlements are central to the point: one can wholeheartedly acknowledge that Israel has a raft of genuine security concerns vis-a-vis the Palestinian territories, and still easily come to the conclusion that the settlements evidence an orientation towards those territories that is acquisitive in character. After all, does anyone truly believe that the settlements are a security measure, as opposed to what they manifestly appear to be on face: an effort to establish Israeli civilian control over new swaths of territory? Once in a blue moon one hears the argument (something about setting a "buffer"), but any jurist would be fully justified in dismissing it as specious; and in any event it is a tactic decisively forbidden by the international legal framework that recognizes many other ways in which an occupying power can entrench its security (just not via the transfer of its civilian population into the occupied territory).

Over and over again, we return to the same point: it's all about the settlements. It is the settlements that show Israel doesn't view its occupation as temporary; it is the settlements that demonstrate the unequal treatment of the two civilian populations that reside in the Palestinian territories; it is the settlements that falsify the notion that the deprivation of Palestine's self-determination rights is solely attributable to the regrettable necessities of ongoing military belligerency. The settlements are the problem. Saying that doesn't make figuring out what to do about them any clearer -- if anything, the deep ties the settlement enterprise has to the "regular" Israeli state only accentuates the magnitude of the crisis -- but nonetheless: the settlements are what makes this entire machine run. I don't know what the Israeli/Palestinian conflict would look like if there were no settlements, but it would look different and would and should be treated differently under international law.

There are many facets of the Israeli/Palestinian conflict which are "complicated", which raise difficult questions of security versus self-determination, where compelling but seemingly irreconcilable national narratives stand at an impasse. But the settlements are simple. They are not annexes of a military occupation, justified by an ongoing state of belligerency. They are an attempt by Israel to exercise permanent control over territories it acquired by force, in defiance of clear international legal rules that prohibit exactly that. One can quibble around the edges of bits and pieces of the ICJ's ruling. But the core conclusion that the settlement project is not part of a military belligerency but an effort by Israel to establish indefinite control over Palestinian territories under a separate and unequal legal regime is to my mind impossible to gainsay.

The ICJ's decision is a bitter pill for many friends of Israel to swallow. But if there is one bit of solace they can take, it lies once again in recognizing the true significance of occupation -- it presupposes two states, both of which have unquestionable legitimacy and a right to exist in their own sphere, neither of which has the right to displace the other. Israel has no right to settlements in Palestinian territories, but Israel in its pre-1967 borders is neither a settlement nor a colony: it is a validated member of the community of nations, whose existence is exactly as sacrosanct as any other country, Palestine included. In his separate opinion, ICJ President Nawaf Salam observed this reciprocity: the entirety of the international legal framework which governs this opinion, including the notion that Palestine is being unlawfully occupied by Israel, is based on the original UN partition resolution in 1948 which "provided for the creation of two independent states on the territory of Palestine, one Arab and the other Jewish."

It was on the basis of [this] resolution ... that both Israel and Palestine proclaimed their existence.... This resolution forms a whole, whose terms must be read together and inseparably. In other words, neither Israel nor Palestine can claim to derive rights from the resolution while rejecting or ignoring the rights of the other party enshrined in the same text.

Emphasis added. The same commitment to self-determination that validated the creation of a Jewish state in Israel demands acknowledgment of the Palestinians' right to their own state. And vice versa. Those who indulge in nightmarish fantasies of the expulsion and extirpation of Israel-qua-Israel, who see the entirety of Israel as an "occupation" and the entirety of the land as Palestinian by right, are not implementing today's decision, they are flouting it.

The ICJ's opinion is a historic victory for the cause of Palestinian independence. But -- or, in my preference, and -- it continues to insist that the legal grounding for both Palestinian and Israeli liberation depends on, and cannot be separated from, parallel recognition of the other. In this critical -- albeit sure to be overlooked point -- the ICJ's decision is emphatic and unimpeachable in holding that freeing Palestine not only need not, but must not, take the form of replacing, displacing, or otherwise eliminating the state of Israel.

UNHRC Releases Report on Rights Violations in Gaza "March of Return" Protests

The UNHRC has released the results of its investigation into alleged human rights violations that occurred during the "Great March of Return" on the Gaza/Israel border last year (see my contemporaneous post on use-of-force issues written at the time of the protests). It concludes that there is "reason to believe" that Israeli forces committed human rights violations related to the excessive use of lethal force against protesters. Pro-Israel NGOs, unsurprisingly, rejected the findings.

I read the report. And I have some quibbles with some of its conclusions, which I'll mention at the end. As has become usual in these cases, it was unable to take testimony from the Israeli side (because Israel refused to cooperate with the investigation, arguably with good reason). In general, I take a relatively dim view of the UNHRC, and I think it is fair to appropriately discount any of its findings simply based on the source. The UNHRC, as a body, really is structurally biased against Israel.

Still, at the end of the day? I read the report. And I think it's pretty fair. It does mention Palestinian rights violations (notably, the use of incendiary devices to torch the Israeli countryside, but also violent attacks on Israeli border guards). It expressly considers cases where Israeli soldiers resorted to lethal force in circumstances where there was an ongoing or imminent attack, and declines to find cause for a rights violation in those cases. Where someone is firing a rifle at Israeli soldiers, the Israelis are allowed to fire back.

But the big problem here is that the Rules of Engagement Israel put in force for dealing with the protests really were too loose. I agree with the commission that the March of Return cannot, in toto, be cast as a military operation -- it was primarily a civilian campaign, albeit one that at various times Hamas tried to infiltrate into a military one (this is one of my quibbles -- the report doesn't treat with sufficient seriousness the problem of Hamas' admixture of its military operations into civilian protests -- a decision which bears significant responsibility for putting the protesters at risk).

In such a circumstance, Israel is acting in a law enforcement capacity, and can only resort to lethal force in cases where there is an imminent threat to life or limb. "Imminent" threat, as the Commission correctly notes, is measured as a matter of "moments", not hours.

Yet the Israeli RoE was considerably more expansive -- it effectively authorized the use of deadly force as a riot dispersal technique, including targeting "main inciters", which was recklessly irresponsible and predictably would lead to the use of lethal force in inappropriate circumstances. Even assuming marchers breaching the fence could constitute an "imminent" threat, it does not warrant the use of deadly force against persons who are still a football field's length away.

The problems with the RoE are one of the reasons why I'm less (not un-) concerned that the commission wasn't able to get the Israeli "side" of the story. Yes, that might make a difference in assessing individual cases. But there isn't much serious dispute regarding what the RoE was, and it is reasonable to infer that an RoE which viewed riotous protests at the border as tantamount to an "imminent" threat would at least somewhat predictably lead to uses of lethal force that are indefensible under international law.

The common objection to reports like these is that they act to "second-guess" on-the-ground military decision-making in a hot zone. And in a sense, they do -- though, again, it seems wrong to characterize the entirety of the protests as "hot" in the relevant sense. The widely shared clips of violence occurring by protesters are, if not irrelevant, than certainly incomplete. In cases where protesters were violent, that can warrant the use of deadly force; but the existence of violence among protesters does not create a blanket authorization for firing live ammunition anywhere and anywhere. Again, this is the point of the "imminence" requirement: lethal force is justified in particular moments characterized by a particular threat; the justification of using lethal force in this spot at this moment does not transfer to any use of lethal force at any time during the broader protest. Indeed, the core of the problem is the proposed transitivity, which is what ends up getting you to Avigdor Liberman's "there are no naive people in Gaza" claim and sanctions anyone and everyone as a target.

But more broadly: the reason we have rules regarding laws of war and international humanitarian law is, in a sense, to do that "second-guessing". It is to judge conduct in precisely the sort of situations that occur here. To dismiss such judgments as second-guessing is to moot this entire arena of law. That simply cannot be right.

This broad endorsement of the report is not wholly unqualified. I mentioned one problem already -- the report in my view gives the short-shrift to the manner in which the intentional mixing of military or otherwise violent actors into the civilian protests played a role in creating dangerous conditions for the civilians. Likewise, the report doesn't seem to take much account of the obvious fact that bullets travel and sometimes miss their intended target -- it is too much to assume that any bullet that hits any civilian actor is necessarily aimed at that actor. While some of the incidents described in the report attempt to paint a reasonably full spatial picture of where the victim was in relation to other protesters (most importantly, those who were acting violently or in ways that otherwise could have warranted a lethal response), the authors were inconsistent on this score.

Yet, reading the report holistically and taking theses shortcomings into account, they do not ultimately negate the core conclusion -- that there are reasonable grounds to believe (which is not, it is worth noting, the same as "definitively proven") that Israeli forces -- likely as a result of decisions made regarding the rules of engagement -- violated international law regarding excessive use of lethal force against Gazan protesters.

I remarked in my post from last year that too many people who style themselves "pro-Israel" seem more concerned with calling the IDF "the most moral army in the world" than in it being such. To be a "moral army" requires actually adhering to certain rules and standards, and punishing people when they violate them. It's not simply a matter of assertion; there is no law of the metaphysical universe which makes it conceptually impossible for the Israeli army to commit rights violations. We figure out whether they did or did not by investigating the possibility seriously, and without predisposition to either a "guilty" or "innocent" verdict.

In terms of that project, it is indeed unfortunate that the UNHRC has shot its credibility to hell and back on the matter of Israel; it makes it easy to reflexively dismiss this report based on its provenance. But dismissal and then silence should not be an adequate response -- indeed, it is just as partial and biased as the UNHRC is (fairly) accused of being. If one does not trust the UNHRC investigation, the right call is to launch one whose partiality is less questionable. Either the results will confirm that Israeli forces fired only when there was an imminent risk of death or serious injury -- or they won't. We cannot prejudge that outcome based on what we hope the answer will be.

Quote of the Day: Arendt on Why Eichmann Was Tried in Jerusalem

Arendt answers those who asked why Eichmann should be tried in an Israeli court rather than an international tribunal.

[T[hose who asked the question did not understand that for Israel the only unprecedented feature of the trial was that, for the first time (since the year 70, when Jerusalem was destroyed by the Romans), Jews were able to sit in judgment on crimes committed against their own people, that, for the first time, they did not need to appeal to others for protection and justice, or fall back upon the compromised phraseology of the rights of man--rights which, as no one knew better than they, were claimed only by people who were too weak to defend their "rights of Englishmen" and to enforce their own law. (The very fact that Israel had her own law under which such a trial could be held had been called, long before the Eichmann trial, an expression of "a revolutionary transformation that has taken place in the political position of the Jewish people" ...) It was against the background of these very vivid experiences and aspirations that Ben-Gurion said: "Israel does not need the protection of an International Court."

Hannah Arendt, Eichmann in Jerusalem (New York: Penguin 2006) (1963), 271-72.

It is worth noting that Arendt was quite the skeptic of trying Eichmann in Jerusalem. But nonetheless, here I think she aptly summarizes one of the key drivers as to why so many thought it was so essential that he be tried by Jews, in Jewish court, in a Jewish state.

You Don't Need Hyperbole When The Truth Works Fine

International Law Professor Yuval Shany has an outstanding post working through the legal use-of-force issues surrounding the Gaza protests at the Israel/Palestine border. The reason that it's outstanding is that it takes seriously the fact that some of the protesters may be violent and may be trying to breach the border -- it isn't just people randomly waving flags. Many pro-Israel commentators have made this observation and acted as if that were that -- a dismissal made easier when pro-Palestinian voices have acted as if there was no component of armed violence in the equation at all.

Yet my instinct was that, even if there were actual attempts to cross the border or even some use of violent force (e.g., stone throwing), this wouldn't necessarily suffice to justify the use of lethal force by IDF. Shany's post explains why in detail, fully attentive to the actual security concerns faced by Israel, and that makes it far more powerful as a critique of the IDF's conduct -- conduct that seems very likely to have violated international law -- than the median post which treats those concerns as non-existent.

Of course, it may seem silly to go into a fine-grained, nuanced explanation of why IDF use-of-force practices on the Gaza border have been unlawful when Avigdor Liberman is explicitly saying that every single human being in Gaza is a valid target for lethal force.

"It has to be understood that there are no innocent [naive] people in Gaza," Liberman added. "Everyone is affiliated with Hamas, they are all paid by Hamas, and all the activists trying to challenge us and breach the border are operatives of its military wing."

The strike-out is there because Liberman claims he's been mistranslated in the use of the word tamim. But I don't think it materially alters the point he was making, which more-or-less explicitly labels the entire Gaza population as members of a hostile military force who are therefore valid targets for lethal force.

More and more, it seems that the IDF prefers calling itself "the most moral army in the world" to actually acting like "the most moral army in the world." The way you become and then stay a "moral" army is via discipline, and discipline means actually investigating and punishing potential violations of the rules of armed conflict. But Liberman refuses to even countenance an investigation -- well, unless it's of human rights groups asking that soldiers not shoot unarmed civilians across the border. A culture of impunity will yield a culture of violation -- there is nothing in the Israeli or Jewish soul that renders us immune from the general rules of human behavior.

Satyagraha at the Gaza Border

At least 16 Palestinians were killed by Israeli forces during mass demonstrations on the Gaza border.

Israeli government officials blamed Hamas for "provoking" a conflict and said its response was justified due to the risk of a mass attempt to breach the border.

That response is a problem. Let me explain why.

Non-combatants attempting to cross a border may be a crime, but it isn't a crime that can justify the use of lethal force. Lethal force can only be justified in cases where the target poses an imminent threat to life. Yet even under the Israeli narrative, threats of that scale were only sporadic (two of the dead Palestinians are alleged to have opened fire at IDF soldiers -- that probably warrants a lethal response -- but that leaves up to 14 who didn't). In a simplicitor case of attempted unlawful border crossing, the only lawful remedy is arrest and trial -- not bullets.

The main apologia we're seeing on that score is the claim that some (not all) of the shot Palestinians were members of terrorist groups. Even if that turns out to be the case (and that hasn't been independently corroborated yet), it'd be less of an absolution of the IDF than apologists might believe. Put aside the general thorniness of whether someone who's a member of a terrorist organization can be treated as a "combatant" even when partaking in civilian (in this case, protest) activities. I'm skeptical, but we can even stipulate that they could be. The bigger issue is that the lawfulness of the use of deadly force has to be justified based on what was actually known, or reasonably should have been known, by the shooter at the time -- and there's no evidence that the IDF soldiers were aware of the identities (let alone affiliations) of the Palestinians they were firing at in the moment. For example: If I fired into a crowd in a city street, and it just so happened that the person struck by my bullets was a member of a terrorist group, my action would still be unlawful because I had no way of knowing that fact when I opened fire. Likewise, the affiliations of those killed by IDF bullets could not in themselves legalize the decision to open fire -- that can only be justified based on specific threats to life that were reasonably perceived at the time (of which simply approaching the border is not one).

The other argument I can imagine being made is that -- in the context of a mass march on the border -- "arrest and trial" isn't a feasible response. It'd be impossible to arrest them all; the only viable means of deterrence may well be the use of lethal force. But this is a rather dangerous and hypocritical position -- the same in form as the argument that suicide bombings are justifiable because the power imbalance between Israel and Palestine means the latter can't win a traditional military conflict. The laws of war and humanitarian international law in that case say that if you can't win a conflict without suicide bombings, then you don't win the conflict (as much as it might seem unjust). They likewise say that if you can't stop non-violent attempts to cross a border without resorting to lethal force, then you don't stop the attempts (as much as that might seem unjust). In either case, the rule of law quite properly does not contain an "unless you'd lose" exception.

And this really gets to the rub of the problem. Were these protests a perfect exemplar of non-violence? Almost certainly not. But it seems equally clear that the Israeli government (and many of its defenders) wouldn't accept the legitimacy of protests of this nature even if they were. They view it as a form of cheating, precisely because it likely would succeed but-for the use of violent force that can't actually be justified. But that's an untenable position. A protest or resistance strategy doesn't become illicit on the grounds that it does work, nor because it forces Israelis to do things they'd otherwise not want to do or puts them in a position they'd otherwise not like to be in. That's not, and cannot be, the standard for what conduct by Palestinians is acceptable (it obviously isn't the standard for what Israeli actions are justifiable vis-a-vis Palestinian actors). Palestinians are allowed to come up with ways to put pressure on Israelis, and massed civil disobedience falls into that category.

Indeed, this is in many ways the power of resistance strategies of this sort -- they are difficult to counter without resorting to violence that both appears to be and juridically is excessive and unjustified under the circumstances. This is why civil rights leaders placed young activists in the path of Bull Connor's firehoses, this is the efficacy of Gandhi's satyagraha. What violence there was on the Palestinian side was a sterling example of "worse than a crime, it was a blunder," because it allows dust to fly up around this basic point. But while I don't want to as far as to say this violence was a "distraction", I do think it must not occupy the entirety or even the majority of our attention, because the Israeli response -- almost by its own admission -- wasn't keyed into the sort of violence that could warrant resort to lethal force, and because the Israeli government has no answer to what it would do if the protests really did meet the platonic ideal of satyagraha.

Syrian Kids Are Good Enough To Kill For, Not Good Enough To Save

On Syria, I have for the last several years stuck to the position that (a) it's an incredibly complicated and delicate situation with many moving parts that (b) doesn't admit to easy or obvious answers. During the Obama administration, I observed that many Republicans seemed to deal with this difficulty by waiting for Obama to tip his hand as to what he would do, so they could immediately and fervently advocate the opposite. This being a bad way to come to one's policy beliefs, I decided I would refrain from making sweeping pronouncements favoring or denouncing either interventionist or non-interventionist activities.

That logic continues to hold with respect to the recent airstrike launched by the Trump administration, done in response to a horrifying chemical weapon attack perpetuated by the Assad regime that yielded some ghastly images of dead or wounded Syrian men, women, and children. I don't think it is something that should evoke strong feelings -- if for no other reason than it was virtually entirely symbolic (the targeted airfield quickly was restored to operational status). In terms of actual, tangible policy towards Syria, the main differences between Trump and Obama can expressed succinctly as follows:

Trump would rather Syrian children die in Syria than survive in the US.

That's all. I suppose you could also say that Trump's wildly oscillating views on whether Assad should stay or go count as a "difference", and it doesn't strike me as implausible that the Trump administration publicly declaring that we no longer wanted Assad out is what emboldened the dictator to launch his chemical strike.

But really, this is the main difference. Syria is a complex, difficult situation, but what's incontestable is that it is producing a refugee population which wants nothing more than to escape the horrifying violence in Syria. The Obama administration wanted to rescue those civilians. The Trump administration insists that they stay in Syria and die. That's the function of the refugee ban. That's Trump's signature policy vis-a-vis Syria. Not a few rockets from a Navy destroyer.

Anyone who is chest-puffing about the toughness of Trump re: Syria who isn't appalled by the refugee ban gets a first-class ticket to my list of people whom I have no interest in listening to on Syria.

That was the main point I wanted to make, but briefly I also want to discuss concerns over the lack of explicit congressional authorization for the strike. The lack of congressional authorization is what deterred Obama from attacking Assad directly, though he did launch airstrikes targeting ISIS in Syria on a regular basis, and in any event Obama previously had attacked Libya without authorization (misgivings over the results of that action no doubt acted to stay Obama's hands when Syria proceeded to flare up). While I'm not opposed to congressional authorization requirements per se, the fact is that Congress virtually never presses the issue and it's therefore been a non-issue for every presidential administration in my lifetime -- used almost exclusively as one-off partisan attacks. Congress, indeed, seems very much to prefer not having the responsibility for authorizing military force rest on its shoulders -- the same voices crowing about how Trump is strong and Obama is weak seemed utterly uninterested in actually getting the Republican Congress to actually commit to voting to endorse such actions.

So I can't bring myself to care about the lack of congressional authorization either way. Presidents of all parties and stripes take actions like this regularly, it is not worse nor better when President Trump does it. Ditto international law issues, where (as Julien Ku wryly observes) everyone thinks the attack on Syria was illegal except for virtually all the governments in the world.

Legal Ramifications of UNSC Resolution 2334

Over at the Lawfare Blog, Elena Chachko has a good rundown of the legal (not political) ramifications of the just-passed UN Security Resolution on Israeli settlements. Chachko, a former clerk for Chief Justice Grunis on the Israeli Supreme Court, contends that the resolution carries few, but not no, major legal consequences. For the most part, it does not alter but does "revitalize" (to use Chachko's term) the international legal case against the settlements.

It's not a long piece, but I'd nonetheless recommend reading the whole thing to get a complete picture that cuts through a lot of the political sturm und drang. And if this does not exhaust your thirst for international legal analysis related to the settlements, you might enjoy this exchange between Eugene Kontorovich and Yael Ronen and Yuval Shany on the international legal validity of Israel's proposed "settlement regulation" bill, which would authorize the (compensated) expropriation of Palestinian land in order to retroactively legalize thousands of unauthorized settlement homes in the West Bank.

I Abstain

Last week, outgoing UN Secretary General Ban Ki Moon recognized his organization's profound bias against Israel, noting that (among other things) it does no service to the Palestinian people it claims to act on behalf of. There's nothing really new about that acknowledgement -- Kofi Annan said the same thing -- but it nonetheless is gratifying to hear.

This morning the UN rejected a resolution imposing an arms embargo on South Sudan. But it passed a resolution condemning Israeli settlements in the West Bank (including East Jerusalem) as violations of international law and "a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace." The resolution also contained a parallel condemnation of "all acts of violence against civilians, including acts of terror, as well as all acts of provocation, incitement and destruction."

The resolution was passed after the US, a Security Council member with veto rights, elected to abstain. And, as is the case in any UN resolution on Israel, there is less than ideal language (particularly around Jerusalem). Moreover, precisely because the UN is such an obviously biased body when it comes to Israel, my default instinct is that any time the UN steps in it will cause more harm than good. The statement from the Israel Policy Forum in opposition to the resolution makes sense to me.

So I should be upset. But I just can't bring myself to be angry. I read the usual suspects falling over themselves in histrionic rage -- Mort Klein ranting that "Obama’s anti-Semitism runs so deep that he also apparently needed to drive one more knife into Israel’s back," Netanyahu saying he "colluded against Israel", David French fulminating against the supposed "50 years of foreign policy" undone by a single abstention -- and I just can't do it. I can't.

The ADL -- which murmurs empty platitudes about the President's right to implement policy when picking avowedly anti-two-stater David Friedman for Ambassador -- suddenly is "incredibly disappointed" that the Obama administration followed consistent American policy in opposition to the settlements? The JFNA -- which (and this was forwarded to me by an AIPAC-attending friend of mine) "has not said ONE THING about Islamophobia and anti-Semitism from Trump and his appointees" -- sure found its voice on this one.

The abstention was the first (and last) of Obama's tenure on an Israel related resolution -- by allowing just one of these resolutions to pass the security council, Obama has by a huge margin the most pro-Israel voting record of any post-'67 American President (by comparison, George W. Bush allowed six such resolutions to pass, and Ronald Reagan permitted a whopping 21). Ambassador Power's abstention vote came while fully and publicly acknowledging the UN's fundamental and discrediting bias towards Israel.

Will this resolution do any good? I doubt it. It's empty words from a body whose words deservedly carry little credit. Still, much of international diplomacy is the art of using empty words to send messages. Maybe the message here is that breathless hysterics about Obama selling Israel out! over and over and over again won't carry the day forever. Certainly that's a message I can get behind, regardless of whether anyone pays attention to the substance of the resolution.

I just can't take seriously anymore people who simultaneously decry America's policy towards Syria as being naught but words, while breathlessly characterizing one -- one -- abstention on a UN resolution that is consistent with longstanding American policy towards Israel as an act of "aggression". One would think that those "mere words" would pale in comparison to $38 billion in aid America will be giving Israel thanks to Obama's leadership. The UN is not the only entity whose words carry little credit these days. I've completely lost whatever confidence I had in mainline Jewish groups to maintain a sense of proportion and principle when it comes to defending a secure, democratic, Jewish state of Israel.

The UN resolution won't accomplish anything. Perhaps its only tangible impact is that it is felt as a rebuke by the Israeli government. Given their behavior over the past eight years towards the Obama administration and the American Jewish community writ large, I can't even be mad about that. You're not getting everything you want, all the time, from your "friends"? Welcome to the club.

So I abstain on this fight. Why shouldn't I? If I believe -- and I do -- that the settlements are "a" (not "the") obstacle to peace, and I believe -- and I do -- that Israeli settlement on territories in the West Bank should be contingent on a final, negotiated status agreement with the Palestinians, and I believe -- and I do -- that part of any remotely plausible peace plan means that not everyone will get to live on the precise acre of land that they wish, why should I muster up any outrage on this resolution? Because its verbiage isn't perfect? When is it ever? Because the UN is biased? Of course it is, but so what? Because the Netanyahu administration is trying its level best to negotiate a two-state solution and this throws a wrench in their delicate plans? Don't make me laugh. Because the Palestinians aren't trying their level best to negotiate a two-state solution? Of course they're not, but again, why is that relevant (what kind of Zionism is it that uses Palestinians as its metric)? Because I owe a duty of loyalty to my fellow Jews who do find the resolution problematic and worrisome, even if I personally am able to shrug it off?

That last one is the only one that makes sense. Or made sense, at least. But right now, that argument is a cruel mockery. When groups like the ADL and the JFNA and all their colleagues show they aren't willing to fight for their principles at home, why should I back them up just to pacify yet another right-wing temper tantrum? That, really, is what's driving me right now. Mainline Jewish groups have taken for granted that people like me -- solid, pro-Israel liberals -- will back them to the hilt when they feel the need to soothe their right flank, even at the expense of pursuing some of our own policy objectives in defense of a democratic Jewish Israel. But when it's Jewish liberals who need backing and the right which is asked to make sacrifices, suddenly those groups are nowhere to be found.

This one-sided bargain will not stand forever. I'm pro-Israel for my own sake -- I don't need to be treated nicely by the AJC or ADL to defend the necessity and justifiability of a democratic homeland for the Jewish people, and the fact that ZOA's mad at the UN does not mean that the UN is even remotely useful as an agent for peace. But that's not what's at stake here; I can and will make all those points without anybody giving me a cookie for them. What's at stake in this fight is intercommunal consensus -- backing our fellow Jews even when we don't have the exact same priors as they do. Such a commitment only works if it works both ways. Otherwise, I feel entirely justified saying that I'm done going to bat for bodies that I now know won't have my back when I need it. Solidarity is a two-way street.

It's Terrible How Fugitives Have To Hide From the Law

CNN gives us another entry in my "the UN is worthless" file.

A UN rights working group has found that Wikileaks founder Julian Assange has been arbitrarily detained by being forced to hole up in the Ecuadorian Embassy in London to avoid arrest. Assange, who is wanted in Sweden for alleged sex offenses, has been in the embassy for three and a half years.

Forgive me if I don't see either the "arbitrary" or the "detention." It's not arbitrary since the principle that the UK will respect extradition requests from Sweden is hardly some weird legal anomaly. And it's not detention since Assange can leave whenever he feels like being accountable to normal judicial processes just like everyone else. Admittedly, this does not account for the age old legal norm that accused rapists should be able to walk the earth freely while completely ignoring judicial summons. So it's fortunate we have a UN group to remind us that process is for peasants.

UPDATE: Good analysis from Carl Gardner. This is just a joke.

If It's a War You Want....

Swedish Foreign Minister Margot Wallstrom provoked outrage in Israel when she alleged that the nation was engaging in "extrajudicial executions" when police forces killed terrorists engaged in stabbing attacks in civilian areas. Israel has responded by declaring that Wallstrom is no longer welcome in the country.

The bases for critiquing Wallstrom are legion, including the usual charges of hypocrisy (police officers in Europe -- including Sweden and France -- have killed armed assailants before, without any fretting by Wallstrom about the deaths constituting "executions"). Harvard Law Professor Noah Feldman also observes that Wallstrom seems to badly misunderstand the relevant international law principles she purports to be defending. Most notably, Feldman observes that even if police use of lethal force in stopping an armed attacker presents an international law question in the first place (far from clear), the international law language she appeals to is that governing armed conflict, not criminal conduct. Questions of "proportionality" and "distinction" refer to the legality of military strikes which will result in civilian casualties in pursuit of a bona fide military objective. Civilian and military targets must be distinguished, and civilian casualties must be proportionate to the military objective pursued. These considerations are simply inapposite where the police are seeking to stop an identified criminal in a civilian context.

There's another point worth making here that Feldman does not raise. Obviously, some defenders of Palestinian attacks on Israel would argue that these are military, not criminal actions. It's possible that this is the view that Wallstrom is seeking to channel: the stabbing attacks conducted by Palestinians against Israelis are part of an ongoing military conflict between Israel and Palestine, and so therefore Israel's response should be thought of in terms of the laws of war.

Obviously, the goal of this framing is to elevate the stabbing attacks beyond that of unsavory criminality. The stabbers are not mere criminals, but soldiers, entitled to all the respect that position entails. Now there are all sorts of reasons why characterizing stabbing attacks as military operations is problematic, and another lengthy list of reasons why if they are "military" they're also war crimes. But putting that aside, Wallstrom and other advocates of "militarizing" Palestinian stabbing attacks overlook one essential characteristic of the laws of war relevant to this conversation:

Soldiers can be killed.

This is a bedrock feature of the law of armed conflict: it is obviously not illegal (in of itself) to kill a soldier on the battlefield. They can be killed immediately, without warning, and without opportunity to surrender. And one can kill as many soldiers as one wants. There is no "proportionality" requirement with respect to combatants. Nor is there a requirement that they be given judicial process. A combatant who does legitimately surrender is entitled to have that surrender accepted, and upon capture is entitled to various protections as a POW. But there is no obligation to try and take enemy soldiers alive. If they're there and they're active, they can be killed -- even if they aren't an immediate threat to kill someone.

In this way, one might say, it's sometimes better to be a criminal than a soldier. Criminals are entitled to judicial process; that's the process through which they are punished. Killing a criminal on the street is only justified if there is an objective, imminent threat to someone's safety (the officers or surrounding civilians). None of that is necessary to kill a soldier. This oddity exists because, odd as this might sound, killing a soldier is not taken to be punitive. We don't kill soldiers on the battlefield as punishment for them breaking a law (being a soldier does not, in itself, break a law). We kills soldiers on the battlefield because that's what war is. And so by the same token, a captured soldier cannot be punished simply by virtue of their status as a soldier. Detention in a POW camp is also non-punitive; it is lawful as a means of incapacitating an enemy force. To punish an enemy soldier -- e.g., to hang him -- you need to charge him with a crime (such as a war crime). But judicial process is not something that exists on the battlefield itself.

For my part, I think it is evident that the Palestinian knife attackers are not soldiers, but ordinary criminals. And so that does mean that they are subject to ordinary rules of policing, which means they cannot be killed unless they pose an imminent safety threat. But if their defenders want to cloak them in the garb of the soldier, they need to accept the consequences of the label. Soldiers can be killed in war. That's what war is. And if it's a war Palestine wants, Israel is not under any obligation to lose it.

Great (Israel) Cases Make Bad (International) Law, Part II

Back in July, I blogged on an ICC ruling reversing a prosecutor's decision not to open a case in the Mavi Marmara flotilla incident. Comoros had filed a complaint alleging that the killing of 10 persons aboard the boat during the IDF raid was a war crime; the ICC prosecutor decided that the incident lacked the "gravity" that would compel an ICC investigation (if you're wondering "why Comoros?", it's because neither Turkey nor Israel is an ICC party, but the ship was Comoros-flagged).

The ICC panel's decision ordering the prosecutor to reconsider filing the case was notable in that it united right-wing general Israel-defender Avi Bell and left-wing general Israel-critic Kevin Jon Heller in pretty vitriolic criticism. Both agreed that the rule the panel articulated regarding "gravity" was legally novel and practically unworkable; Bell explicitly and Heller implicitly contended that the decision consequently would have no bearing outside the Israel context (where, it seems, the normal rules never apply). My post above (which links to Bell and Heller's arguments) provides more detail, but put simply there is no way that the ICC can be mandated to investigated ever case alleging roughly 10 killings, and given the identity of the complaining party (Comoros) there is no serious argument that the event was part of a larger "situation" in the Comoros that exacerbates the salience of the incident.

In any event, by a 3-2 vote an appellate panel has affirmed the initial decision ordering reconsideration by the prosecutor. I haven't read the opinion so I don't know if it takes any steps to cure the defects Bell and Heller identified, and I look forward to their commentary. But at first glance, this seems to be a continuation of a very deleterious trend: International law principles surrounding Israel tend to be tickets good for this ride only. And that is a principle that is destructive of international law and wholly incompatible with principled commitments to equality.

Great (Israel) Cases Make Bad (International) Law

Yesterday, the ICC pre-trial chamber by a 2-1 vote ordered the ICC prosecutor to reconsider its decision to close its investigation into the Mavi Marmara flotilla incident. I heard about this decision via a column by Bar-Ilan and San Diego law professor Avi Bell, who lambasted it as a completely unprecedented decision that fails as a matter of law and whose legal determinations will by necessity only be applied against Israel. This struck me as intuitively plausible -- I've long thought that international legal determinations made in Israel-related cases tend to be tickets good for this ride only.

But I knew that Bell has somewhat of a conservative reputation on Israel-related issues, and since international law is not my area of speciality, I was curious to hear what more left-wing and Israel-critical voices had to say on the subject. The person I particularly had in mind was Kevin Jon Heller, a international law specialist at the University of London who has been a harsh critic of Israel's behavior from an international law perspective for sometime. That said, just as Bell's more conservative slant doesn't mean that I haven't found his analysis to be thoughtful, likewise I've always found Heller's writing illuminating despite his often adversarial stance towards Israel.

So I was happy to see that Kevin has written a lengthy analysis of pre-trial chamber's decision. And -- in substance though perhaps not in angle of approach -- he agrees with Bell entirely. Heller describes the decision as "deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP's prosecutorial discretion," attacks it as fundamentally misunderstanding the law regarding "gravity" of the alleged offense, and accuses it of applying the wrong standard of review in a bid to "maximi[ze] its own power". He also (in a comment) claims to be "shocked by the nasty tone of the decision", characterizing comments in the opinion as "exceptionally uncivil, unnecessary, and unprofessional."

Heller's post is more technical than Bell's is (which makes sense, since Heller is writing on a international law blog and Bell in a general news column), and so he focuses more on the damage this precedent would do to the ICC as an institution. The crux of his analysis (though you should read him, the expert, rather than me, the novice) focuses on how the decision misapplies the concept of "gravity". Obviously there are many human rights violations that occur around the world, and the ICC cannot investigate all of them. One main guideposts for the exercise of ICC prosecutorial discretion is whether the case is sufficiently "grave". In this litigation, the "case" gravity was an attack on a blockade-running ship that resulted in approximately 10 deaths. But, the prosecutor argued, "case" gravity is not all that matters: it also is relevant who the alleged perpetrators were (low-level grunts, or top military or political leaders) and the "situational" gravity (that is, the broader context in which the particular alleged wrong occurred). The latter, incidentally, is not as one might expect the "situation" in Israel or Turkey. It's the situation in The Comoros, of all places. Why? Because unlike Israel or Turkey, the Comoros is a party to the ICC convention, and the hook for ICC jurisdiction is that one of the flotilla ships was Comoros-flagged. The prosecutor basically reasoned that (a) there was no basis for concluding that any high-level Israeli officials could be found to have engaged in any rights violations and (b) that as part of the Comoros situation this event was an isolated one-off, hence, the allegations lacked sufficient gravity for the ICC to investigate. And this is what the-pre-trial chamber rejected. It basically collapsed the entire inquiry of gravity into "case" gravity -- is 10 deaths sufficiently grave? -- and answered "yes", regardless of the surrounding situation and regardless of whether any high-level officials are implicated. And this, as Heller observes, is completely unworkable as a legal rule -- it would compel the ICC to prosecute dozens if not hundreds of cases that previously would have been obviously of insufficient gravity.

Of course, the counterargument to that is precisely what Bell and I suspect -- that this precedent won't be one because it won't be applied anywhere else. The ICC prosecutor will not, in fact, prosecute every case where there are roughly ten deaths, and the pre-trial chamber will not disturb that decision once made. While he does not explicitly echo Bell's assertion that the putative rule of decision here will be applied to Israel and nowhere else, Heller seems to think that the decision having no practical significance outside the Israel-context is a more likely outcome than the complete overload of the ICC structure.

The legal rules announced in this case, and the broader willingness of the pre-trial chamber to micromanage the prosecutor's decision, will not have any broad resonance. They will not apply to other cases or controversies, they will not meaningfully alter the governing legal regime. They will simply be the latest datapoint for an undeniable pattern: Israel gets treated differently from any other country in the international legal arena. People worried about the effects on the international legal system as a whole can rest easy.

Post-Grading Roundup: 5/13/15

Exams are graded and turned in. I've yet to have an angry mob of students assail my office door (or email inbox). And my browser is starting to be overrun. So let's clear some debris, shall we?

* * *

* The always-provocative Northwestern Law Profesor Eugene Kontorovich explores how the international community and international press has reacted to other blockades in situations analogous to the Israel/Gaza conflict (e.g., Georgia/Abkhazia, Sri Lanka/Tamil, and Saudi Arabia/Yemen). In all cases there seem to be few claims that the blockades are illegal (indeed, there seem to be few instances where people pay attention at all).

* Eugene Volokh has the rundown on a really bizarre story out of Canada, where some reports have high government officials threatening prosecution of anti-Israel BDS activists (on "hate crimes" charges), while other officials dismiss those reports as "conspiracy theories." It's unclear what is going on, but if I had to guess the government is not planning to prosecute anyone for mere advocacy of a boycott, but might be indicating its belief that actually carrying out such a boycott would constitute illegal national origin discrimination. But that's really a wild guess on my part.

* Speaking of national origin discrimination and boycotts, a proposed BDS resolution at an Ithaca co-op was rejected after co-op attorney's determined it would put them at risk of liability under New York human rights laws (which prohibit boycotts based on national origin). This interests me, since I've always though the BDS movement was vulnerable to this point of attack, but I hadn't seen it get much traction up until this point. And to be clear: the attorneys are not saying adopting a BDS resolution is illegal, only that it raises a sufficiently colorable risk such that it might (for example) affect their insurance rates. That seems pretty incontestably true.

* A South Africa columnist sharply condemns those rallying around a student leader who expressed admiration for Hitler (the defenders, needless to say, are accusing the student's administrative critics of being "puppets" for the shadowy Jewish conspiracy supposedly funding the university). I'm of two minds on this: On the one hand, the column really is well done and unapologetic in its condemnation of this form of anti-Semitism, even when it (as always) tries to cloak itself as mere "anti-Zionism" (and the author makes abundantly clear that he agrees with the basics of the anti-Zionist position). On the other hand, I feel like if I'm getting excited that a columnist is able to unapologetically condemn praising Hitler, I might be setting the bar too low.

* My latest draft paper is up on SSRN. It's titled The Siren Song of Strict Scrutiny, and explains why the failure of sexual orientation to be elevated to the ranks of a "suspect classification" is actually a very good thing for the gay rights' movement.

Does Human Rights Law Do Anything?

An interesting conference at The University of Chicago Law School. As a decided skeptic regarding the capacity (and beneficence) of international law, this sounds right up my alley.

Torturing: The Data

This is a great chart:

The x-axis shows the five years before and after a country ratified the CAT. Year 0 is the year that the country ratified the CAT. For example, year 0 for the United States was 1994, while year 0 for Nicaragua was 2005. The line shows the average torture score for countries during the five years leading up to ratification and the five years following ratification (where 0 refers to frequent torture and 2 refers to no torture). If the average country had reduced torture during this period, then the line would have sloped up.

You'll notice the line does not really slope at all. Anyone can sign a piece of paper, people.

Maybe Try Zigging When They Expect You To Zag?

Yesterday, the UN General Assembly voted 138-9-41 to grant Palestine status as a non-member observer state. Israel and the United States were among the nine "no" votes, arguing that it was a symbolic distraction from the necessity of bilateral negotiations.

On the merits of this vote, I'm indifferent. I don't think UN votes accomplish anything useful, and it is already pretty well-known that the UN will happily pass any resolution that comes before it that is framed as pro-Palestine and/or anti-Israel. This resolution could have stated that Israel killed Roger Rabbit and the vote tally wouldn't have meaningfully differed. As for the ICC, I do think this is probably a red herring. The prosecutor would be exceptionally unlikely to take these cases, and if it did it may well start with prosecuting Hamas terrorism. I'd add that if the prosecutor (quite plausibly) declines to open a case on the grounds of complementarity (that Israeli courts can and do investigate these sorts of allegations effectively), that would actually be a pretty rare endorsement of Israel from an international legal body.

But nonetheless, I don't really fault Palestine for seeking even symbolic victories that antagonize their Israeli adversary. I don't like it either, but that's what happens when you're in an antagonistic relationship -- you seize opportunities to humiliate and piss off your opponent. Neither side is really innocent of this sort of behavior, and here at least I can respect why the symbolism is genuinely meaningful. And hey, if it allows Abbas to return to negotiations on the claim that he's now in a position of strength, so much the better.

My real question is why Israel didn't just go ahead and support the bid on purely tactical grounds. Look, Israel knew this resolution was going to pass. There was no doubt about that, which is why Israel began dialing back its threats of diplomatic retaliation and instead began mumbling about how this was all symbolic and didn't mean anything. Which -- maybe! But -- aside from the fact that if Israel had endorsed the bid I'd have given greater than 50/50 odds that Palestine would have pulled it -- if passage is inevitable and the substantive effect is negligible, why not vote in favor and gain some free credibility?

The answer, as usual, is probably nothing more than that the current Israeli government is comprised of idiots. Oh well.

Sore Losers

In the wake of a comprehensive UN report which largely, though of course not entirely, vindicated Israel's conduct with respect to the Gaza blockade and the flotilla incident, Turkey has expelled the Israeli ambassador. It also announced that it considered the Palmer Report "null and void", which makes sense, as the report sided with Israel over Turkey on most of the key points and its recommendations for reconciliation (a statement of regret) were considerably closer in line with what Israel had offered than what Turkey had been willing to accept.

Turkey has a habit of being more than a little childish in the international arena, so I can't say I'm surprised that their response to a major defeat in the UN is to simply announce that they're ignoring it. Well, let me be a little more charitable: most UN states ignore UN recommendations that go against their interests or conduct, and I can hardly fault them for doing so given that the bodies in question generally lack basic credibility. What makes Turkey unique isn't that it is rejecting a report that went against them; what makes them unique is their utter unwillingness to negotiate in good faith. They weren't looking for a route towards rapprochement, they were looking for a path towards escalation. There were loads of ways Turkey could have indicated its dissatisfaction with the Palmer Report that didn't entail expelling the ambassador of a friendly nation. As is per usual, it isn't Israel who decided to up the diplomatic ante with its neighbors. Turkey made a conscious decision that it wanted to turn a fissure into a chasm, and it acted accordingly.

Palmer Report Largely Vindicates Blockade

The United Nation's long-awaited Palmer Report on the Gaza flotilla incident has now been released, and, from Israel's perspective it has to be seen as a major win. The committee firmly decides that the blockade is legal and notes that an essential element of a legal element is that it has to be enforced consistently (which means intercepting folks trying to breach it, and can entail forcibly boarding resisting vessels). It also notes that the the Israeli soldiers who boarded the Mavi Marmara did face violent resistance. The committee does believe that Israel used excessive force in boarding the vessel and in not pursuing more non-violent interception techniques prior to its forcible boarding action. Statements from the Israeli and Turkish representatives to the commission appended at the end are revealing: the Israeli representative quibbles with the excessive force findings, but the Turkish representative is forced to disassociate himself from virtually the entire document.

I think the committee report is generally solid. It's analysis on the overall legality of the blockade is unquestionably superior to that forwarded by the UNHRC's report, which (and this is true regardless of one's ultimate perspective on the conflict) was frankly an embarrassment to the legal profession (how one even tries to undertake a proportionality analysis without even mentioning the objective in question, see paras. 51-61, compare Palmer Report pp. 38-45, is a mystery). So that's good.

Of course, I remain exceptionally dubious of the utility of these reports or the international law frame at all. The Palmer Report had been delayed several times because everyone believed it would only hurt rapprochement efforts between Israel and Turkey (Turkey is hell-bent on a full apology and an end to the blockade, which Israel is far less likely to do now that a high-profile commission has deemed the blockade legal and vindicated many, albeit not all, of its actions). Folks opposed to Israel's actions will simply cite the UNHRC report instead. Israel knows that, which limits whatever benefits it might reap from citing the Palmer Report. The conflict is political, and will be resolved politically. Whatever formal authority the Palmer Report has (and I'm not sure it has much anyway), formalism is not and should not be the primary lens for examining the issues in this controversy.

UPDATE: This older post by Kevin Jon Heller offers a good foil for some of what I'm trying to say here. Unlike the UNHRC opinion, Professor Heller provides a solid, well-reasoned argument for why the blockade is illegal (which isn't to say I'm necessarily persuaded by it; indeed, Professor Heller is admirably forthright about his uncertainty on the question). Professor Heller's basic claim is that the conflict between Israel and Hamas is not of an international character, and that international law does not contemplate the use of blockades in non-international conflicts.

The Palmer Report considers and rejects that point, instead holding that the conflict between Israel and Gaza is, for all intents and purposes, "international" for the purpose of the law governing blockades:

The Panel now turns to consider whether the other components of a lawful blockade under international law are met. Traditionally, naval blockades have most commonly been imposed in situations where there is an international armed conflict. While it is uncontested that there has been protracted violence taking the form of armed conflict between Israel and armed groups in Hamas-controlled Gaza, the characterization of this conflict as international is disputed. The conclusion of the Panel in this regard rests upon the facts as they exist on the ground. The specific circumstances of Gaza are unique and are not replicated anywhere in the world. Nor are they likely to be. Gaza and Israel are both distinct territorial and political areas. Hamas is the de facto political and administrative authority in Gaza and to a large extent has control over events on the ground there. It is Hamas that is firing the projectiles in Israel or is permitting others to do so. The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outside territory. In this context, the debate on Gaza's status, in particular its relationship to Israel, should not obscure the realities. The law does not operate in a political vacuum and it is implausible to deny that the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict. This conclusion goes no further than is necessary for the Panel to carry out its mandate. What other implications may or may not flow from it are not before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others. (p. 41, para. 73)

This sort of analysis appeals to my legal pragmatist streak generally. And specifically with it is hard to argue against the Palmer Report's conclusion that the conflict bears the "trappings" of an international one in terms of actually describing the hostilities between Israel and Gaza. Even to the extent he's right, Professor Heller's analysis is another example of formalism and categories triumphing over descriptive and normative realities. That's not a strike against Professor Heller -- he's doing what lawyers do. And perhaps in a world where international law was a stronger force and it didn't seem like all aspects of the Israeli/Palestinian conflict were treated as sui generis anyway, it might be more important to rely on staid legalisms (though I'm not sure why participants in non-international conflicts should never be allowed to resort to blockades anyway. Their omission seems more a function of the rarity of situations where one would make sense -- Israel/Palestine really being "unique" in this regard -- than the result of some normatively sensible distinction). But that isn't our world, and in the world we live in, the Palmer approach seems far, far more reasonable.

Again with the Formalist Worries

The forthcoming UN General Assembly vote on admitting Palestine as a state is perhaps the highest profile example of the Netanyahu administration's catastrophic failure at managing both Israel's perception abroad and crafting any sort of progress on resolving the Israeli/Palestinian conflict at home. To be sure, at this stage in the game, there is little any Israeli government could do to stop the vote (though the American threat to slash aid to Palestine might). But this is not something that came up out of nowhere -- it is the upshot of months of blunders and unforced errors by the Keystone Cops which comprise the current Israeli cabinet. I cannot think of an Israeli government in my lifetime which has done more damage to the state of Israel than this one.

But anyway. One of the more 7-dimensional chess worries to emerge from the statehood vote was claims by Palestinian legal adviser Guy Goodwin Gil that the statehood vote could imperil various claims made by Palestinians who do not currently reside in the West Bank or Gaza (the "diaspora", so to speak). In essence, the current state of affairs has the PLO as the recognized representative of the Palestinian people (wherever they live). "Palestine", as a state, would take over that role in the United Nations. The problem, though, is that the state of Palestine has little basis for claiming the right to represent Palestinians who aren't inside its borders (and, to the extent it wants to push for a "right of return" to Israel proper, Palestinians who have no desire to move inside its borders).

Another Palestinian legal adviser, my Illinois colleague (though we have not yet met) Francis Boyle, argues that these worries will not come to pass. His reasons are a little vague, but no matter -- I suspect he is correct. But the reasons why have nothing to do with "all the legal and constitutional technicalities that were originally built into the Palestinian Declaration of Independence," or, for that matter, technicalities in international law.

For starters, it is hardly unknown for states to maintain concern about the status and rights of people -- even non-citizens -- outside their borders that the state nonetheless possesses an affinity towards. Mexico, for example, cares quite a bit about the rights of Chicana/os in the United States -- including those who are United States citizens. That is part and parcel of having nation-states in the first place where, in addition to (hopefully) promising some sort of open, liberal political order, states also hold themselves out as the homeland of Mexicans or the Irish or Jews or Palestinians.

But more importantly, the entire debate relies on formal notions of the structure of international law and the effect international legal machinations of which I'm dubious exert any strong force. Relying on formal rules of international law to exert any constraining force on what international law is said to be in politically "hot" conflicts is almost invariably a mistake. To the contrary, the international legal system is overwhelmingly results-oriented, and in particularly it fervently desires results that redound to the benefit of Palestinians (and to the disadvantage of Israelis). To the extent there might be precedents which seem to imperil a given Palestinian interest, they'll be modified accordingly or cast aside. In the worst case, an entirely sui generis regime will be carved out to accommodate the dissonance (see, e.g., the UNRWA).

To be honest, though, in a sense this is how it should be. Not the part about international law being entirely results-oriented (though honestly, I'm mostly an international law skeptic even conceptually at this point -- it is not a system I think presents a particularly prime candidate for meaningful reform, so I prefer not to try). But the various claims of Israelis and Palestinians shouldn't be extinguished by technocratic reshuffling of categories, and it bothers me how often people try to play this game. One sees it with respect to Jews when folks alternatively label them a "religion", "race", or "ethnicity" depending on which one best defeats any particular Jewish political claim. The idea that the category system might not map onto the territory -- might simply be inadequate to encompass the Jewish experience and respond to just Jewish political claims -- is pushed aside as Jews are forced into a legalistic game whose rules, at best, we didn't write and at worst were written precisely to maintain Jewish subjugation.

And that's silly. I'm no fan of a Palestinian right of return, and everybody knows that it will not be a part of any final peace agreement except perhaps as some limited symbolism. But that end is and should flow out of a negotiated settlement -- it should not be the result of some legalistic trap.