Israel's assault on an aid flotilla heading to Gaza is a decisive episode in the country's challenge to international humanitarian law and its advocates. But it may have unexpected results, say Thomas Keenan & Eyal Weizman
Many details remain to be established about the Israeli commando assault on the Mavi Marmara - the lead ship in a flotilla intent on carrying humanitarian aid to the Gaza strip - in the early hours of 31 May 2010. But whatever the investigation of the incident ultimately reveals, the killing of nine human-rights activists bears witness to two related developments: the increasing politiciisation of humanitarian aid, and the growing sense of threat that the Israeli government seems to feel from human-rights organisations and international law.
The humanitarian minimum
Since human-rights workers and humanitarian groups emerged in the field of international conflict, they have been the targets of repressive regimes or violent militias, who often interpret the provision of relief and assistance to civilians as intervention on behalf of the enemy. Aid convoys to the ”other side” have routinely been attacked or hijacked, staff kidnapped or killed, hospitals and compounds seized and destroyed. When shelter, medicine, and food are seen as interventions, it means that control over the conditions of civilian life has become one of the weapons in the conflict.
Humanitarianism is in a strict sense grounded in the principles of neutrality, impartiality, and commitment, first and foremost, to the civilian victims of conflict. However, aid workers are not always successful in convincing fighters of their independence, and sometimes themselves blur the border between support for victims and support of a political cause. Furthermore, when the pursuit of a military strategy (such as a state of siege) entails and/or is designed to affect the quality of civilian life, the provision of aid can become an element in a politico-military calculation. When aid is thus politicised it can easily become a target for all parties in a conflict. As Toni Pfanner of the International Committee of the Red Cross (ICRC) noted in 2005: ”recent attacks on humanitarian organisations, including the ICRC, both in Iraq and in Afghanistan have shown that humanitarian relief may be contrary to the belligerents' interests or, even worse, that attacks on humanitarian workers may foster their agenda."
But with very few exceptions, direct and intentional attacks on aid workers or human-rights advocates have hitherto been largely the work of undisciplined militias, ragged armies, criminal gangs, and police-states. The perpetrators have included the Taliban, the Bosnian Serb army, Iraqi insurgents, and the organisers of Latin America’s “dirty wars”. Now, with the lethal raid on the Mavi Marmara, is Israel in this respect following in their footsteps?
The double logic
To answer this question, it is necessary to rewind. The attack in the Mediterranean - albeit it was followed on 5 June by a non-violent prevention of the later attempt to deliver supplies to Gaza via the MV Rachel Corrie - represents the violent culmination of a process in which the Israeli government, and various private proxy groups, have come to see humanitarian and human-rights groups, and even international humanitarian law itself, as an "enemy" of or a threat to the existence of the state.
In this context, the fact that navy commandos used lethal force to “defend their nation” from an aid convoy should perhaps not be a surprise. Before the departure of the Mavi Marmara-led flotilla, Israel’s deputy foreign minister Danny Ayalon declared that "there is no humanitarian crisis in Gaza" and therefore that the flotilla was not a relief mission in fact but "a provocation intended to delegitimise Israel" (the Israeli government press office even emailed copies of a Gaza restaurant menu to reporters.) After the attack, Ayalon's description of the flotilla as an "armada of hate and violence in support of the Hamas terror organisation" was simply the ratification of this more general Israeli government interpretation of civil-society activists, at sea and on land.
The process is more complex, however. The vigorous current discussion around the politics of humanitarianism provides evidence for the case that aid can indeed be politically motivated and manipulated by both its givers and its receivers.
It is in this connection that the apparently inverse phenomenon of attempts by powerful states to instrumentalise or monopolise the construction of humanitarian space and the delivery of aid can be understood. The Israeli government’s attempt to "manage" the humanitarian situation in the Gaza strip as an instrument of state policy belongs to this modern history of instrumentalisation (whose precedents include the refugee-camps across the border from Kosovo during the Nato air-campaign there in 1999).
This regulation of the flow of cross-border aid for political purposes has been echoed, in reverse, in the increasingly partisan rhetoric of some aid organisations, as some of the statements from the activists on Gaza flotilla testify.
The closure policy of Gaza is regulated, after a decision in January 2008 by the Israeli high court of justice, by a policy through which the state assumes the responsibility of providing the inhabitants with a "humanitarian minimum" meant to forestall the possibility of a humanitarian crisis developing - but no more than that. Dov Weisglass, adviser to former prime minister Ehud Olmert, explained the rationale: "The idea is to put the Palestinians on a diet, but not to make them die of hunger."
In June 2009 the newspaper Ha'aretz published an Israeli document entitled "Red Lines" which specifies precisely the number of calories allowed to enter the strip, organised according to gender and age, at a level just above the United Nations's definition of hunger. The control of these supplies provides Israel with political leverage, but it can only be maintained if goods pass through its borders rather than through underground tunnels or from the sea.
In this sense, the attack on the Gaza flotilla obeyed a complex logic: it confirmed in practice the definition of humanitarian and human-rights activists as enemies of the state, and it reaffirmed the state's attempt to manage the humanitarian situation in Gaza as a instrument of policy.
The next enemy
The current campaign began in summer 2009, in the wake of a number of reports from human-rights organisations challenging the conduct of the Israeli military in Operation Cast Lead, its three-week assault on Gaza in December 2008-January 2009. The new government of prime minister Binyamin Netanyahu - who had consolidated his hardline reputation during an earlier term in 1996-99 - seemed to react to the reports, their authors, and their logic with unusual severity.
"We are going to dedicate time and manpower to combating these groups; we are not going to be sitting ducks in a pond for the human-rights groups to shoot at us with impunity", Ron Dermer, director of policy planning in the prime-minister's office told the Jerusalem Post in July 2009. "Every NGO that participates in this adds fuel to the fire and is serving the cause of Hamas", he said. "This is exactly what Hamas wants to do."
In August 2009, Moshe Ya'alon - the minister of strategic affairs, and a former Israeli Defence Forces (IDF) chief-of-staff - declared in a meeting with settlers that the activists of Peace Now represented a "virus". “We again are dealing with the issue of the virus, Peace Now - the elitists, if you may - who have incurred great damage."
Although he was reprimanded by the prime minister for the remark, Ya'alon's phrase - especially following Dermer's militant words - set the tone of the campaign that has since unfolded. It came into its own after the publication of the report of the United Nations Fact Finding Mission on the Gaza Conflict (under the chairmanship of the South African judge Richard Goldstone) to the UN’s Human Rights Council) in September. The report concluded that there was evidence indicating that serious violations of international human rights and humanitarian law had been committed by Israel (and Hamas) during the Gaza conflict, and that Israel committed actions amounting to war crimes, and possibly crimes against humanity.
The Israeli government could in principle have simply ignored the report, or dismissed it by attributing it to the usual "anti-Israeli" suspects. Instead it took the charges extremely seriously, although not in the way the commission might have hoped.
The Netanyahu government decided to "combat" both the Goldstone report and the entire phenomenon which it saw the document as exemplifying – something it referred to variably as "Goldstonism" and the "Goldstone effect", which it understands as an international tendency to delegitimise Israel, denying its right to exist.
Binyamin Netanyahu himself, in a November 2009 lecture at the Saban Forum, one of Israel's leading security-studies institutes, identified three strategic threats facing Israel. The first of these so-called "three challenges to Israel's security", he explained, was "a nuclear Iran", which has threatened to "wipe Israel off the map." The second was cross-border "missile and rocket attacks" from Islamist militant organisations such as Hamas and Hizbollah.
What was the third after these first two formidable, if classic, opponents? "The third challenge to peace is the attempt to deny Israel the right to self-defence. The UN Goldstone report on Gaza attempts to do that."
The logic of this argument is far-reaching. Binyamin Netanyahu was quick to emphasise that it is not simply Justice Goldstone or any particular organisation or report which constitutes the threat, nor is Israel its sole target ("Be assured that this UN report is not Israel's problem alone. It threatens to handcuff all states fighting terrorism.") The problem is more too, Netanyahu suggested, than simply an ideologically- or politically-motivated abuse of international humanitarian law (the so-called laws of war). Rather, it is the current definition itself of this law, which he argued gave undue protection to "terrorists embedded in civilian areas [who] deliberately launch attacks on the innocent" and thus undermined the legal and moral position of the states which fight against them.
In response, Israel’s prime minister called for a radical rewriting of IHL to address the "threat." "Paradoxically", he said, "it is possible that the firm response of important international leaders and jurists to this morally twisted report will accelerate the re-examination of the laws of war in an age of terror."
It is one thing to criticise the Geneva conventions or IHL. It is yet another thing to violate or ignore them. States and non-state actors do both of these things all the time. It is third, and a rather different thing, to construe IHL itself, and its advocates, as a threat to the existence of a state, and to initiate a systematic process of combating them. But this interpretation, advanced now quite routinely by the Israeli government, might explain why legal opinions such as the Goldstone report - which would limit Israel's capacity to act "disproportionally" - could be seen as an existential threat.
The enemies within
In this light, perhaps the raid on the Mavi Marmara demonstrates what the Israeli government might mean by the end of "impunity" for human-rights NGOs and other international activists, and by granting them a new status as a strategic threat on a par with Iranian nuclear weapons or thousands of missiles and rockets.
In January 2010 a leading Israeli think-tank, the Reut Institute, worried about what it called the "delegitimation war". Its director, Gidi Grinstein, wrote in Ha'aretz: "Our politicians and military personnel are threatened with lawsuits and arrest when they travel abroad, campaigns to boycott our products gain traction, and our very existence is challenged in academic institutions and intellectual circles. The country is increasingly isolated. To date, Israel has failed to recognise these trends for the strategically significant, potentially existential, threat they constitute" (see Gidi Grinstein, “Israel delegitizers threaten its existence”, Ha’aretz, 14 January 2010).
Perhaps the "recognition" has now happened. The Israeli government and a group of proxy organisations have launched a multi-pronged project of "counter-delegitimisation", directed at humanitarian and human-rights NGOs. They seek, in the words of one of its participants, "to end the practice used by certain self-declared 'humanitarian NGOs' of exploiting the label 'universal human rights values' to promote politically and ideologically motivated anti-Israel agendas." Likewise, Israeli groups have launched campaigns against the New Israel Fund, a United States-based organisation that funds civil-society activists in Israel and which has been accused (as have the NGOs it has funded) of undermining the foundations of the state by contributing to the research behind the Goldstone commission report.
This recent atmosphere contributed to two recent high-level political decisions in Israel: the Knesset’s overwhelming vote in February 2010 to pass a law depriving groups that receive support from foreign governments (as most human-rights and humanitarian groups do) of their tax-exempt status, and thus their ability to raise money abroad; and the proposal of a new law in April that sought to close down NGOs involved in bringing legal proceedings against Israeli government officials or military officers abroad.
The military, for its own part, has started confronting international activists with renewed vigour and zeal. It has recently developed a practice of invading Palestinian towns to arrest not militants but international activists (mainly European members of the International Solidarity Movement). Many other activists do not even get the chance to enter, having been turned around at the border or held in the new detention facility built in the Tel Aviv airport for this purpose.
In a public letter released at the end of January 2010, a group of thirteen Israeli human-rights organisations called on the government to "denounce the increasing assaults on the human rights and social change organisations in Israel." It cited "a series of invective comments by various officials who wish to delegitimise the civil society organisations who work for human rights and social change" (The authors at this point would like to express thanks for the work of ACRI's director Hagai El-Ad). Buried among the citations were words attributed to Moshe Ya'alon, who was quoted as saying of human-rights organisations: “your enemies will come from within”. In this mindset, international NGOs presumably would be the “enemies from without”.
The threat of law
The notion that the Mavi Marmara-led flotilla itself and the activists on it were designated as enemies could help explain why a full-scale military operation was ordered against a humanitarian mission (after all, several ships carrying humanitarian aid had been allowed into Gaza in previous years); and why, even when resistance from some of the ship's passengers to the takeover seem to have turned violent, the soldiers' response was so disproportionate. But what is harder to explain is why the designation happened in the first place. That militias, bandits, terrorists, and pirates seek to threaten or kill human-rights activists and humanitarian-aid workers seems easy to comprehend, however reprehensible their actions. But it remains somewhat mysterious that a state which insists it is the only one upholding human rights and democracy in the neighbourhood would decide to "combat" them so directly. Why the assaults, and why the worry?
One of the most frequent and powerful critiques of international war-crimes law is that it is too often only applied to the weakest parties in a conflict. The International Criminal Court, as Guénaël Mettraux points out, "has thus far only indicted Africans." International criminal law, he writes, "remains to a large extent le droit des autres, a set of rules that we seem content to apply to others, but not to ourselves. The 'others' are those, states and individuals, who have lost the political muscle to pre-empt or resist the application of that regime to them" (see Guénaël Mettraux, “International Justice-For Others”, International Herald Tribune, 1 June 2010).
The powerful states, it would seem, can simply get away with violations of the laws of war, and barely even need to worry about the bad publicity. While the United States was hiding “ghost” detainees from the Red Cross and subjecting them to “advanced interrogation techniques”, its officials were loudly - if anonymously - advertising the use of those methods in leaked stories on the frontpages of major newspapers. They did not appear terribly worried about the potential legal consequences.
Similarly, when Israeli foreign minister Tzipi Livni told Radio Reshet Bet during the war in Gaza that "Israel is … a country that when you fire on its citizens it responds by going wild – and this is a good thing", she seemed to promote with pride the sheer disproportion of the military operation then underway. But when that very quotation appeared as the centrepiece of the Goldstone commission's report, the government reacted with outrage, and some fear about possible war-crimes charges.
At a moment when questions of humanitarianism and human rights have become a major stake in the conflict, the battle-space has expanded to include them, discursively and physically. There are two available interpretations of this trend and the campaign which it has spawned, apparently including the violent raid on the aid flotilla on 31 May 2010.
The Israeli government's reaction to the strategic threat posed by international humanitarian law, and its advocates, might suggest (first) that it fears it belongs to the “others” - to those without the political force to resist the application of the law. By contrast, the government’s reaction might suggest (second) that with each passing day the extension of the law grows; and that accountability for all before this law could become more of a reality, perhaps even sooner rather than later.
If Israel still seeks to rewrite international humanitarian law and to regulate humanitarian supplies as instruments of state power, and if some international organisations respond with increased legal challenges and others with more more ships on the seas, then the incident of the Mavi Marmara will be remembered as one of the opening shots in this emerging battle of law and aid.