Commentary Magazine


Topic: Gaza flotilla

How to Gut the Principles of Law in One Easy Verdict

Any legal case has two main components – the facts and the law. In my last post, I analyzed the International Criminal Court’s disregard of salient facts in its ruling on Thursday overturning the chief prosecutor’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. But the ruling was equally contemptuous of several fundamental legal principles. Read More

Any legal case has two main components – the facts and the law. In my last post, I analyzed the International Criminal Court’s disregard of salient facts in its ruling on Thursday overturning the chief prosecutor’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. But the ruling was equally contemptuous of several fundamental legal principles.

The first of these is that judicial decisions should be dictated by law, not politics. The majority judges threw this principle out the window when they asserted that whether the alleged crime was sufficiently grave to merit ICC attention should depend not on what actually happened, but on the amount of “attention and concern that these events attracted” from the international community, as reflected in “several fact-finding efforts on behalf of States and the United Nations.” In other words, the ICC’s choice of cases will depend not on their objective legal merits, but on how many resolutions the dictators who dominate the U.N. Human Rights Council decide to devote to it.

As legal scholar Eugene Kontorovich aptly noted, the ICC is thereby “saying ‘drop dead’ to victims U.N. not interested in,” which is a travesty in and of itself: It means the court will spend its scarce resources investigating 10 people killed while attacking soldiers intercepting a blockade-busting flotilla, but ignore – to cite just one example – the tens of thousands of Syrian civilians killed by their own government’s barrel bombs.

No less appalling, however, is that this is a standard of justice used only in the most benighted regimes: Prosecutions will be based on neither facts nor law, but solely on whether they serve the interests of the politicians in power.

The second fundamental legal principle the decision guts is that the same person shouldn’t be prosecutor, judge and jury. Since a prosecutor is obviously invested in his own case, he cannot be an impartial judge.

But the ICC judges, sitting as a “pre-trial chamber,” decided to actively force the prosecutor to pursue an investigation she considered unjustified (technically, they only ordered her to “reconsider” her decision, but in practice, that order leaves her little choice). Thus the court is no longer an impartial arbiter between prosecution and defense; it is now actively invested in the success of the case.

This blurring of boundaries is justifiable only in extraordinary circumstances. That is why, as Judge Peter Kovacs noted in his dissent, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion” – or at least, it ought to be. Instead, the majority decided to leave her no discretion at all.

Finally, the court ignored the law itself. As Kovacs also noted in his dissent, customary international law explicitly allows countries to enforce a lawful blockade, including by force if necessary. The blockade of Gaza is legal according to one of the very U.N. fact-finding committees the majority cited in its decision. And force was necessary in this case, since the ship refused repeated orders to halt and then attacked the Israeli boarding party with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles.” Thus the casualties “were apparently incidental to lawful action taken in conjunction with protection of the blockade,” and as such, it’s likely that “most if not all of those acts will not qualify as war crimes.”

Yet the majority judges’ opinion doesn’t even mention the laws of blockade much less discuss their application to this case. Evidently, they consider customary international law irrelevant to their decisions.

In my earlier post, I compared the majority ruling to something out of Alice in Wonderland. And in fact, the three elements cited above are precisely the elements that make the Queen of Hearts’ courtroom so arbitrary: The law is irrelevant; judgment depends solely on the whim of the rulers; and the same person is prosecutor, judge and jury.

But the Queen of Hearts is actually preferable, because at least she’s honest about the arbitrary nature of her decisions: “Sentence first – verdict afterwards.” The ICC maintains an expensive taxpayer-funded legal bureaucracy in an effort to disguise it.

 

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The ICC Channels the Queen of Hearts on Israel

If the International Criminal Court ever had any pretensions of being a serious legal institution, they were effectively demolished by yesterday’s ruling overturning Prosecutor Fatou Bensouda’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. Reading the ruling feels like falling down the rabbit hole straight into the Queen of Hearts’ courtroom, for many reasons. But here’s the one I found most astonishing: In a 27-page document devoted almost entirely to discussing whether the alleged Israeli crimes were grave enough to merit the court’s attention, not once did the majority judges mention one the most salient facts of the case: that flotilla passengers had attacked the Israeli soldiers with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles,” causing nine soldiers serious injuries. Read More

If the International Criminal Court ever had any pretensions of being a serious legal institution, they were effectively demolished by yesterday’s ruling overturning Prosecutor Fatou Bensouda’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. Reading the ruling feels like falling down the rabbit hole straight into the Queen of Hearts’ courtroom, for many reasons. But here’s the one I found most astonishing: In a 27-page document devoted almost entirely to discussing whether the alleged Israeli crimes were grave enough to merit the court’s attention, not once did the majority judges mention one the most salient facts of the case: that flotilla passengers had attacked the Israeli soldiers with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles,” causing nine soldiers serious injuries.

That fact appeared only in Judge Peter Kovacs’ dissent. Anyone reading the majority decision would conclude that the soldiers opened fire no reason whatsoever.

This is not a minor detail; it was central to Bensouda’s decision to close the case. She noted that the soldiers opened fire, ultimately killing 10 passengers, aboard only one of the flotilla’s seven ships – the one where passengers attacked them. That strongly indicates there was no deliberate plan to kill civilians; rather, the soldiers intended to peacefully intercept all the vessels, and the killings were the unpremeditated result of a chaotic combat situation that unexpectedly developed aboard one ship. Or in her words, “none of the information available suggests […] the intended object of the attack was the civilian passengers on board these vessels.”

The majority judges, however, dismiss that conclusion, asserting that the lack of casualties aboard the other ships doesn’t preclude the possibility that soldiers intended from the outset to kill the Mavi Marmara’s passengers. They then offer a string of wild suppositions to explain why soldiers might have wanted to perpetrate a massacre aboard that ship but not the others. Perhaps, they suggest gravely, it’s because the Mavi Marmara carried the most passengers. Or, perhaps because it carried no humanitarian aid. In any event, the soldiers clearly used more violence against the Mavi Marmara than against other ships that also refused their orders to halt, so “It is reasonable to consider these circumstances as possibly explaining that the Mavi Marmara was treated by the IDF differently from the other vessels of the flotilla from the outset.”

But of course, the only way to make that unsupported speculation remotely plausible is by ignoring the fact that the Mavi Marmara was the only ship whose passengers brutally attacked the soldiers. Once you acknowledge this fact, it’s obvious that it’s a far more likely explanation for the ship’s different treatment than any of the majority judges’ outlandish theories.

So how do they get around this problem? Very simply: by refusing to admit the fact’s existence. At no point in those 27 pages do they ever acknowledge that the passengers attacked the soldiers. And then, having obliterated the actual reason why the soldiers opened fire from the record, they can accuse Bensouda of having erred by not considering their alternate-universe theory that the soldiers opened fire out of malice aforethought.

In the Queen of Hearts’ courtroom, the rule is “Sentence first – verdict afterwards.” The ICC judges, in contrast, are perfectly willing to let the verdict precede the sentence; they merely insist that said verdict exclude any evidence which might contradict their preconceived conclusions.

And, in that case, the Queen of Hearts’ approach actually makes much more sense. If you already know what the verdict is going to be, it’s much more efficient to move straight to the sentence. At least that way you don’t waste taxpayers’ time and money on lengthy legal proceedings.

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Pro-Palestinian Activists Only Respect the U.N. When It Suits Them

The hypocrisy of the claim that flotillas to Gaza are a “humanitarian” endeavor has now been fully exposed: As Jonathan Tobin noted last week, the latest proved to be carrying a mere two cardboard boxes worth of aid. But pro-Palestinian activists are also guilty of an even more egregious form of hypocrisy: They proclaim all anti-Israel U.N. decisions to be binding international law, but openly flout U.N. decisions that happen to be in Israel’s favor. The Gaza flotillas are a perfect example. Read More

The hypocrisy of the claim that flotillas to Gaza are a “humanitarian” endeavor has now been fully exposed: As Jonathan Tobin noted last week, the latest proved to be carrying a mere two cardboard boxes worth of aid. But pro-Palestinian activists are also guilty of an even more egregious form of hypocrisy: They proclaim all anti-Israel U.N. decisions to be binding international law, but openly flout U.N. decisions that happen to be in Israel’s favor. The Gaza flotillas are a perfect example.

According to the flotilla activists, their goal was “to break the illegal blockade on Gaza.” But a blue-ribbon international commission appointed by U.N. Secretary General Ban Ki-moon in 2010 concluded that the blockade is in fact a “legitimate security measure” that fully complies with international law. So the same activists who lambaste Israel for noncompliance with anti-Israel U.N. resolutions – like those against the settlements, or the one ostensibly granting Palestinian refugees a “right of return” to Israel – feel it’s perfectly fine for them to ignore U.N. decisions that don’t serve their cause.

Nor is the Gaza blockade the worst example. Far more egregious is the way pro-Palestinian activists – and indeed, every country in the world except Israel – simply ignores U.N. Security Council Resolution 242, despite it being hands-down the most frequently cited resolution relating to the Palestinian-Israeli conflict.

That resolution was deliberately worded to allow Israel to retain some of the territory it captured in 1967. This isn’t mere speculation; the American and British ambassadors to the U.N. at the time, who drafted the resolution, both said explicitly that this was the purpose of its wording. And as legal expert Eugene Kontorovich noted in a terrific analysis in December, the same conclusion emerges from a comparison of 242 to 18 other U.N. resolutions demanding territorial withdrawals. He discovered that 242’s demand for a withdrawal from unspecified “territories,” rather than from “the territories” or “all the territories” or “the whole territory” or to the status quo ante, is unique. And this reinforces the conclusion that the drafters indeed intended to allow Israel to retain some of the territory rather than ceding it all.

Yet today, both America and Britain – along with the entire rest of the world – simply ignore this resolution and insist that Israel must retreat to the pre-1967 lines.

To be clear, I would have no problem with ignoring the U.N. altogether; it’s an organization dominated by dictators that no self-respecting democracy should legitimize, so a principled refusal to honor any of its decisions would be eminently understandable. I’d also have no problem with a position rooted in genuine international law, which is that U.N. decisions are binding and enforceable only when adopted by the U.N. Security Council under Chapter VII. That’s what’s actually written in the U.N. Charter, and what U.N. member states agreed to when they signed the charter, and therefore, no state ever made a legal commitment to obey any other U.N. decision.

But pro-Palestinian activists selectively treat U.N. decisions that favor their cause as “binding international law” while simply ignoring decisions that don’t favor their cause. And that position makes a travesty of the most fundamental principle of any kind of law: that it must apply equally to all parties in all cases, regardless of whether it helps or hurts a particular cause.

Thus, anyone who claims to support international law should be the first to denounce this abuse of U.N. decisions. And the fact that so many self-proclaimed advocates of international law instead lend tacit support to this travesty is precisely why no self-respecting person should accept their interpretation of anything.

 

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Gaza Flotilla Activists Brought Hate, Not Aid

We all knew that the latest Gaza flotilla that attempted to land on the coast was a publicity stunt rather than an actual effort to bring assistance to the Palestinians. After all, international organizations can ship genuine humanitarian aid into Gaza via the Israeli land route. But instead they chose to try and run the naval blockade put in place to ensure that shiploads of non-humanitarian supplies like Iranian-supplied weapons don’t reach the terrorist Hamas government. But it turns out that all these so-called human rights advocates were bringing to Gaza was moral support for the right of the Islamist regime there to oppress Palestinians and wage war on Israel. After the Swedish-registered ship Marianne was detained and brought to Israel, Defense Minister Moshe Yaalon dismissed the effort by revealing that the Navy discovered “there was no aid on the board” after examining the vessel. When queried about this by the Washington Post, members of the so-called Freedom Flotilla Coalition claimed Yaalon was wrong and sent a photograph to prove it. What did they bring? Two cardboard boxes.

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We all knew that the latest Gaza flotilla that attempted to land on the coast was a publicity stunt rather than an actual effort to bring assistance to the Palestinians. After all, international organizations can ship genuine humanitarian aid into Gaza via the Israeli land route. But instead they chose to try and run the naval blockade put in place to ensure that shiploads of non-humanitarian supplies like Iranian-supplied weapons don’t reach the terrorist Hamas government. But it turns out that all these so-called human rights advocates were bringing to Gaza was moral support for the right of the Islamist regime there to oppress Palestinians and wage war on Israel. After the Swedish-registered ship Marianne was detained and brought to Israel, Defense Minister Moshe Yaalon dismissed the effort by revealing that the Navy discovered “there was no aid on the board” after examining the vessel. When queried about this by the Washington Post, members of the so-called Freedom Flotilla Coalition claimed Yaalon was wrong and sent a photograph to prove it. What did they bring? Two cardboard boxes.

According to one member of the group, the two boxes contained a solar panel and a nebulizer. I’m sure Gazans appreciate the gesture and, it’s likely that, as they’ve done before, the Israelis will ensure that any genuine aid packages will reach Gaza. After all, even on days when Hamas is shooting rockets at Israeli cities, convoys of up to 500 trucks pass through the border bringing food and medicine to the Palestinians. Israel also supplies the water and electricity that Palestinians in Gaza use.

That’s why talk of a humanitarian crisis in Gaza is a lie. There is no shortage of supplies needed to keep Palestinians in Gaza alive. What Hamas wants, and what these faux human rights activists want to give it, is a shot in the arm for a propaganda war against Israel that will reinforce the legitimacy of the Islamist regime that brutally oppresses its own people and uses them as human shields in order to conduct terrorist operations.

But it is no more of a lie than the claim that the point of this flotilla was humanitarian aid. That’s not just because the activists didn’t actually bring much, if any, aid material with them. It’s because the whole point of the exercise is to claim that efforts of both Israel and Egypt to isolate the Hamas terrorists that run Gaza are illegitimate.

The talk of bringing help to the Palestinians in Gaza is a sham that extends beyond the two cardboard boxes on the so-called aid ship. The Palestinians already have an entire United Nations refugee agency — UNRWA — devoted to them while the uncounted millions of other refugees around the world must make do with sharing one to tend to their needs. UNRWA operates in Gaza with Israeli cooperation, despite the fact that it is a highly political group that is not only dedicated to preventing refugee resettlement — the normal task of a refugee aid group — but also allows Hamas to use their facilities and schools for storing armaments.

What Gaza needs is not a ship with or without superfluous aid material but a government that isn’t a terrorist organization. It needs foreign friends who genuinely care about the plight of Palestinians caught in the grip of such Islamist tyrants. But instead it gets people whose main purpose is providing moral encouragement and public relations stunts aimed at undermining Israel’s legitimacy and supporting Hamas’ war on the existence of the Jewish state.

The paltry two boxes of assistance on the Marianne don’t amount to much for the poor of Gaza. Yet there is a reason why flotillas go to Gaza rather than Syria, as Prime Minister Benjamin Netanyahu said earlier this week, where hundreds of thousands have been killed and millions have been made refugees. The flotilla activists don’t bother bring real aid to Gaza because the point of the flotilla wasn’t to promote “freedom” for the strip since their effort is aimed at bolstering Hamas and shaming the world into recognizing it. No, the “freedom” they are after is one that would allow Hamas to freely import weapons and construction materials that could be used to build fortifications and terror tunnels into Israel, such as the one that Hamas boasted about reconstructing this week.

You don’t need to bring actual aid if your goal is waging war on the existence of the sole Jewish state in the world. For that, you only need to be immersed in the anti-Semitic zeitgeist of a movement that thinks helping Hamas is a humanitarian gesture.

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