Tuesday, June 1, 2010

Israeli Actions Are Stupid, But Legal

nGW and information warfare go hand in hand, and that is exactly what we are seeing unfold with the situation regarding the sea based protesters and Israel this morning as the discussion moves away from law and into the realm of politics. The political fallout will prove interesting, only because we are likely to learn a lot about President Obama.

The news has already gone viral, and many pundits have weighed in - many of whom have formulated their response without the facts of what happened. It is not surprising to me that much of the early press reporting has suffered from inaccuracies - early reporting of activities at sea often gets it wrong - and this incident is no different.

Was the Boarding Legal?

Under international law, the consensus of the maritime attorney's I have spoken to is that the boarding operation by Israel was legal. The coast of Gaza has been under maritime blockade by Israel, a blockade that was well known - indeed running the maritime blockade for political purposes was the specific intent of the protesters. It is why the press had been reporting all week that the situation was likely leading towards a confrontation. Is anyone surprised that Israel had an established maritime blockade and enforced that maritime blockade? I'm certainly not, Israel made clear all week that the flotilla would not be allowed to pass.

The maritime blockade is a result of the war between Israel and Hamas. Ones political position on that ongoing war is completely irrelevant to the reality that the maritime blockade was established. Knowledge of the maritime blockade by the protesters is also not in debate, and neither is knowledge the flotilla intended to violate the blockade - they made this clear themselves in the press. Once the flotilla made it clear in the press they intended to run the maritime blockade, according to international law, and even US law, the flotilla was considered to be in breach by attempting to violate the blockade.

It was at that point the IDF had legal authority - under international maritime law governing maritime blockades during wartime - to board the vessels and prevent the vessels from running the blockade. Yes, this action may legally be taken in international waters if those waters are recognized as part of the area under the maritime blockade. It is important to note that the action took place within the zone that was publicly known to be part of the maritime blockade of Gaza, and part of that zone is in international waters.

Whether it was a good decision by Israel to board the vessels is a political question, not a legal question. The outcome of the incident should not surprise anyone part of the maritime security community, indeed it highlights the inherent dangers that exist in political protests by sea. Sea based protests may be civilian political activities, but running a maritime blockade is not a political activity that engages law enforcement, rather it is a political activity against a military force exercising and activity governed by the laws of war - in other words, the protesters attempting to run the blockade could legally be argued to describe an act of war against Israel.

The Maritime NGO

What the hell was Israel thinking? I can't be the only person asking this question today, and yet I imagine there are a number of people in professional Navies around the world who have serious concerns in observing the events as they happened.

Political protests at sea cannot be legitimately compared to any protest on land, particularly when one considers any political protest situation where violent activity is likely. I think the authors on this blog made clear this week that we expected violence, because none of us are naive enough to believe close quarters situations involving Israelis and Palestinians will in any way be peaceful.

There is not a lot of space on ships, even big ships. If you have ever been on a ship, you know hallways are narrow and even something as simple as deckchairs can add to clutter on deck. When maritime security is enforced on any ship, there is an expectation of close quarters interaction with passengers and crew of a ship. One simply cannot get around this.

Putting IDF soldiers and political activists together on the same ship is like putting protesters and riot police in your house - that is literally how close they will be to one another. It isn't like a street protest where police can prepare by giving full city blocks of space for movement and protest activities. During situations on land where protesters may engage law enforcement, the space also allows for time - something one does not get when all activities between protesters and enforcers are in close quarters - like on a ship.

What is the result? Well, once the decision was made by Israel to board the ship the question is how the IDF would board the vessel. Based on video it would appear the protesters had deployed effective techniques to prevent an over-the-side boarding. That led to Israel deciding upon the fast rope approach.

The video of the fast rope activity demonstrates the danger in that tactic. Indeed, the first IDF commando doesn't even make it to the ground before the close quarters situation - like one would find on any ship full of protesters - immediately leads to violence. It seems incredible to me that the IDF didn't see that coming. If we presume the Israeli Navy is competent, we can presume they knew this would happen. That suggests Israel knew the initial boarding would be met with violent resistance, but the political cost of allowing violation of the blockade was higher than the expected political fallout of a violent response.

One thing is clear - every Navy needs to give serious thought to how to address this situation, because fast roping onto the deck of a ship of protesters should always expect to be a forcible entry operation.

It will be interesting to see how the Obama administration reacts. The recently released National Security Strategy of the United States depends a great deal on the use of international institutions and international law as a mechanism for fostering global peace on the maritime domain. Israel can legitimately be accused of having politically tone deaf leadership that is making world class dumbass decisions - an argument I think there is plenty of evidence to support - but the actions taken are within their rights of enforcing a maritime blockade under international law.

The truly scary part is that under international laws governing maritime blockades, Israel could have outright sank the ship instead of board it as an alternative enforcement of the maritime blockade, and Israel still been within their rights under international law. Such an action could have led to war with Turkey, but even if the ship would have been sunk, Turkey would still be on the wrong end of international law in this situation. Turkey will likely find plenty of populist political support in NATO countries over these events, but if they attempt to escalate they may find that support is fleeting among their NATO allies.

No one in NATO is going to support Turkey with anything other than political rhetoric in this situation. Rhetoric is free, but if a financial cost to NATO nations supporting Turkey becomes necessary - international law regarding naval blockades will quickly become the new foundation of NATO countries, and Turkey would quickly find themselves on the wrong end of the shifting political winds. Turkey finds a political victory in the present condition, and needs to do nothing outside of political rhetoric to secure it. The likelihood of taking some meaningful action against Israel by Turkey is very low.

As far as I am concerned, any country that acts as politically stupid as Israel has in this situation deserves every political attack they get. Israel has some seriously tone deaf leadership right now who seems to look at every problem as a nail and every solution requiring a hammer.

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Those wishing to add comment are reminded this is not a political blog. Our focus should be on the tactics of the incident and the legal issues surrounding maritime law. Most Americans probably don't realize everything Israel did was legal under US law, for example. Given the level of political support the protesters are getting from the international community - despite international law - suggests we have plenty to discuss regarding this event that has nothing to do with the Palestinian | Israeli conflict specifically.

Final note. As usual the Small Wars Journal has a timely piece by Claude Berube that goes right to the broader maritime security discussion this situation represents.

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