In this last post (I think) on the attack on the Gaza flotilla, I want to respond to a comment to a previous post in which Eric wondered why I was not paying more attention to the question of the legality of what happened with the blockade, the flotilla, and the attack on the Mavi Marmara, saying “I would think that the questions should start with legality, and if the laws don’t accurately reflect morals, maybe then they should shift to morality as we address the shortcomings in the law. But laws don’t originate in a vacuum. Moral questions often have many wrong answers and no right one, or vice versa. Legal questions may be (are) open to interpretation, but they (theoretically) have a right answer and a wrong one.”
Eric is right that legality may be easier to judge than morality, but this is true only when it comes to everyday life because there we have a commonly accepted legal framework and agreed-upon legal institutions to adjudicate cases, and the contesting parties agree to abide by the verdict and suffer any consequences.
But when it comes to actions by governments, the reverse is true and questions of morality are often far easier to determine than those of legality. The reason that you never get very far arguing on the basis of legality when criticizing governments is because they consider themselves to be supra-legal entities accountable to no one. It is only an impartial and international judicial hearing that can resolve issues involving governments, but both Israel and the US have ruled out even an impartial inquiry, let alone a trial before (say) the International Court of Justice. The US has even said that the ‘inquiry’ led by Israel would not allow the Israeli commandos to be questioned, making an even greater mockery of the process.
Furthermore, governments have the ability to make the law seem to justify anything that they do. Humorist Art Buchwald once wrote that the problem with the legal system is not incompetent lawyers but that we have too many competent lawyers.
A competent, first-class lawyer can tie a case up in knots, not only for the jury but for the judge as well. If you have two competent lawyers on opposite sides, a trial that should take three days could easily last six months. And there isn’t a thing anyone can do about it.
Peter Casey discusses the implications of this when it comes to high profile issues like the Gaza flotilla and how it is always possible to find people willing to argue legal points to a stand-off and then claim that the resulting inconclusiveness justifies the action.
What Buchwald was on to is the practice of “polishing the turd,” an indispensable art of the legal advocate. When two accomplished turd-polishers are pitted against one another, the jury – or the public – will not know what to believe. Further, when dealt a hand of bad facts by his client, an experienced and creative defense counsel will ply this skill by converting obvious and incriminating facts into an impossible puzzle of uncertainty.
In its many trials in the court of public opinion, Israel and its supporters have become adept at polishing turds. The process begins with asking and answering the question, “Did the law allow us to do this?” If the answer is “yes,” as it always will be, its critics are terrified of leaving that claim un-rebutted. And so, like moths to a flame, they respond. Once they do, the defenders of Israel’s actions are on safe ground. They don’t need to prove ironclad, irrefutable legal justification. All they need to do is persuade the target audiences that the law, the facts, or both are so complicated that anyone, especially in the heat of battle, could have made a mistake.
Take the case of the US government torturing people. Has consensus been reached that it is illegal? No, that ‘debate’ still goes on because Bush-Cheney could find lawyers like John Yoo and Alan Dershowitz to argue that torture is perfectly legal and then have that discussion drag on endlessly and inconclusively until people get sick of it and stop paying attention. In the same way, Obama has now got lawyers to say that it is perfectly legal for him to order the murder of anyone, even American citizens, anywhere in the world.
All governments claim that what they do is legal. It is precisely because governments have this sense that the law is whatever they say it is that lures them into ever more extreme actions which results in moral judgments being easier to make.
I am sure that the US could argue that invading Vietnam and killing half a million of Vietnamese and destroying that country was legal. Reagan would have argued that his invasion of the tiny nation of Grenada was legal. I am sure that Stalin felt that his orders to send people to the gulags where they died in huge numbers was legal. Slavery in the US was perfectly legal. It was even enshrined in the ultimate legal document of a country, its constitution. I am sure that Hitler’s lawyers argued that murdering Jews was perfectly legal according to German laws. I could go on and on with the list of all the appalling things that governments have done while arguing that they were legal.
But can anyone doubt that all these things were deeply immoral?
Frankly, I don’t give a damn if any of those actions were legal. They were horrific, morally repugnant, and deserve unreserved condemnation. It is for this reason that I come down especially hard on governments that act badly because the people harmed by them have no recourse except to appeal to world opinion or have a more powerful entity take their side. But that latter path is unlikely and even when successful can lead to wars, which often make things even worse. But in the case of the US, and also Israel as long as the US is its patron, even that option is ruled out for the people at the receiving end of their actions because no one has the power to force them to do the right thing. That is why they can, and do, act with impunity in world affairs, like rogue states.
In this particular case, I think the siege that Israel has imposed on Gaza (which began long before the 2008 assault) is morally reprehensible. Israel is slowly but steadily starving the population of 1.5 million by allowing only one-fourth of the supplies it used to receive in 2007, even though even that amount was insufficient to adequately meet basic needs. In addition, the massive military assault in 2008 that destroyed a huge amount of its infrastructure such as fresh water supplies, electricity, and medical facilities means that Gaza requires even more supplies than normal in order to repair and replenish what was lost.
The Israeli siege is designed to collectively punish the entire population of Gaza, irrespective of whether they are aged or infants or sick, for electing Hamas as their government, by deliberately restricting food and other essential supplies to keep them in a state of semi-starvation and deprived of the essentials of life. This partial list of items that Israel has prevented from reaching Gazans, that includes flour, sugar, milk, diapers, toys, sweets, spices, toilet paper, diapers and baby wipes, feminine hygiene products, etc., has to be read to be believed to appreciate the sheer meanness, pettiness, and cruelty of the siege policy. The list reveals a deeply immoral mindset on the part of the Israeli government and makes abundantly clear that this policy was deliberately designed to humiliate Gazans and make their lives miserable by denying them the most basic of everyday items that we take for granted.
The policy decision to starve the Gazans was made at the highest levels in Israel and articulated in 2006 by Dov Weisglass, an adviser to Ehud Olmert, the then Prime Minister, who said: “The idea is to put the Palestinians on a diet, but not to make them die of hunger.”
Is the use of such starvation tactics to punish a civilian population legal? Do we need to even have such a discussion? I don’t give a damn if it is legal or not. To me this is obviously a moral crime of the highest magnitude.
All this is taking place on top of the state of apartheid that Israel has imposed in the rest of the occupied territories, and its attempts to marginalize the Arabs who still live in Israel. Egypt is also part of this shameful blockade of Gaza and it is widely believed that it does so because it is a client state of the US, the second largest recipient of US aid (mostly military) after Israel, and helping Israel enforce the blockade on Gaza is part of the deal. Egypt has also become Israel’s client state by proxy through the US.
The US is the most powerful country in the world and is Israel’s protector and they feel that they are unaccountable to no one. Countries like North Korea and Iran may appear to be reckless and thumbing their nose at world opinion but they know that there are some lines they cannot cross because more powerful governments are able to do them serious harm. No such restraint exists with the US, or with Israel as long as the US unhesitatingly supports it. The only counterweight to lawless behavior by them is worldwide outrage.
That is why I support the efforts to end the siege of Gaza by those courageous people who went unarmed as part of the flotilla to dramatize the monstrous injustice that is being perpetrated. Was what they were doing illegal? Again, I don’t give a damn. I see the people in the flotilla as worthy successors to Gandhi and his followers who picked up salt (an acknowledged and deliberate illegal act) to dramatize the injustices they faced from the British. I see them, to pick something closer to home, as successors to the unarmed civil rights marchers in Selma, Alabama in 1965 who were brutally beaten by the police on what has come to be known in the civil rights movement as Bloody Sunday. I see them as successors to the unarmed civil rights demonstrators who sat at lunch counters and in the front of buses and were attacked by Bull Connor’s police force using attack dogs and fire hoses in Birmingham, Alabama in 1963.
I do not get deeply into the weeds of legal issues when it comes to governments because they will not agree on the legal principles to be used or submit themselves to courts and verdicts. They will instead use those interminable discussions to deflect attention away from the blatant immorality of their actions. What I do in such cases is comparative analyses, asking “what if…” questions, by switching the roles of parties. The role reversals do not always match up perfectly, but usually they are close enough that they reveal when people are taking a stand on a tribal basis (by twisting legal interpretations to make their own tribe appear to be in the right) and when they are doing so on the basis of some moral and legal principle applied even-handedly.
When, as was the case with the Gaza flotilla, large numbers of ordinary people from all over the world, with no particular ideological or religious or tribal allegiances, are willing to risk their personal safety to take action against a wrong that does not affect them personally but whose injustice they feel deeply, you know that you have an immoral policy on your hands.
Israel’s siege of Gaza and its apartheid policies in the West Bank are deeply immoral and any discussion of their legality should be seen for what it is, a side issue and a distraction.