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Legality and morality

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.

Comments

  1. Josh Friedman says

    I could write paragraphs on this… Here’s some more fact checking:

    The widely circulated list of restricted imports you listed is not official. It’s from Gisha, a pro-Palestinian organization in Israel that cites as its source conversations with Gazan (Hamas) officials over the last couple years. What that means is that some could be fabrications and some could have been denied import only once or twice in that time.

    Your info about reduced aid is misleading and is in no way evidence of an humanitarian crisis. If you go to the UN FAO’s website (they produced that report) you can see a list of food security information for many countries. How do the Palestinian Territories measure up?

    Palestinian Territory:
    Undernourished Total: 15%
    Undernourished Children: 10.2%

    Pakistan:
    Undernourished Total: 23%
    Undernourished Children: 37%

    India:
    Undernourished Total: 22%
    Undernourished Children: 48%

    China:
    Undernourished Total: 10%
    Undernourished Children: NA

    Cuba:
    Undernourished Total: 18.6%
    Undernourished Children: 5%

    I didn’t even look at African nations which no doubt are far worse. I won’t deny that life for Palestinians is far from ideal, and far worse than that of Israelis, but why is there so much attention given to them when there are so many nations in such worse shape? Why is the UN not coming down on the governments of India and Pakistan for starving their people? Is China in an humanitarian crisis? Why is no one sending peace flotillas to break America’s blockade of Cuba? The answer is an effective Arab propaganda machine – like Routers caught just last week cropping knives-in-hand out of the photos they posted of Mavi Marmara activists. Like your quote from “former US marine Ken O’Keefe” which fails to mention that in 2003 he renounced his US citizenship and lead “Human shield action to Iraq”, for which he was scorned by the international community for aiding the Saddam Hussein regime and directly violating the Geneva Convention’s ban on the use of Human shields.

    I just don’t get why Palestine has become the focus of the world’s humanitarian efforts when war, poverty and starvation is so much worse in so many other places.

  2. Eric says

    I’m going to consolidate my answers to yesterday’s post & today’s:

    1) The Mavi crew were not unarmed. They were poorly armed. There’s a big difference. If you’re going to be the successor to Gandhi or the Selma Protestors, your non-violent resistance has to be actually non-violent. These guys started the fight (acknowledged by O’Keefe), using deadly weapons (knives & poles). They don’t get to shout “Rodney King” just because the fight went predictably against them.

    2) For the past week, you’ve been using the term “international waters” at least once per post when you criticize the raid. “International waters” is a legal term of art. You can use the law to support your argument, or you can argue that the law is a sham, but you don’t get to do both.

    3) “If you have two competent lawyers on opposite sides, a trial that should take three days could easily last six months.” That may be the stupidest sentence I’ve ever seen, anywhere, and that’s saying something. “Polishing the turd?” Mano, is it possible that lawyers make the law look complex, multi-layered, and nuanced because the law is actually complex, multi-layered, and nuanced? Believe me, I wish it weren’t – it would make studying for the Bar Exam a lot easier.

    I believe that an independent, transparent investigation is warranted for any government acts of questionable legality. But your argument up there sounds a lot like “I don’t care about the law because this looked immoral to me and the law’s just too inefficient, so let’s not bother with due process.”

    4) This is the most minor point I can make, but I feel it’s worth making. A blockade is an act of war. Running a blockade is an act of war, and the customary treatment of blockade runners by the enemy is capture or sinkage. Hamas is the de facto government in Gaza, which has been in a state of war with Israel since 2007 (declared on Israel’s part, de facto on Gaza’s). Why is it that when Gaza acts like they’re at war, nobody blinks, but when Israel does the sky falls on them?

  3. Scott says

    Eric, I think the point is “international waters” is a concept recognized by all maritime nations, and Israel’s actions in the Med were no different than if they were 50 miles off the coast of Maine or Cornwall. Israel’s juridiction only begins in their territorial waters, unless the vessel in question was flying the flag of an enemy nation. The ship hadn’t run the blockade yet, in any case.

    I also don’t think he ever suggested that we do away with due process. The point he made is that no nation ever acknowledges that what it does, ostensibly in self-defense, might not be legal. Every government in history has always claimed the legality of it’s actions. I think the only exceptions to that would be where the US gov’t assisted in the overthrow of nations in central and South America, such as Guatemala and Chile, but Us involvement in those were covered up.

    In such a case, claiming that the attack by the Israelis was illegal is useless, because they claim it was legal and apparently in their jurisdiction, so everyone else has to butt out. His point, made much more eloquently than me, was that legal and moral are often not the same. The action by Israel was probably legal by Israeli law, but certainly not moral. It doesn’t take much imagination to think of more examples.

  4. Eric says

    Scott –

    Your point is well-taken, but my problem is that there is international law that deals with these issues, ratified and acknowledged by the U.N., and they can’t be wished away simply because they complicate the issue. I am absolutely in favor of applying these standards, and I think that if Israel truly believed they did nothing wrong, they should allow for international expert investigation.

    Announcing an intent to run the blockade has, traditionally, given the blockading country license to act outside of its territory. Remember that a blockade itself (by definition) takes place outside of the blockading nation’s territorial waters, so it makes sense that enforcement of it would have to.

    This isn’t just a question of Israel using domestic law to try to justify a blatant crime (which is what Bybee & Yoo tried to do with the waterboarding incidents); there is a genuine issue of international law that deserves to be explored.

    There are three approaches here: 1) the blockade is morally wrong, therefore, any action taken to enforce it must be inherently wrong. This appears to be Mano’s point of view. I don’t necessarily share it, but I understand it. If you feel that way, though, you have to do some serious soul-searching on what is & is not acceptable wartime practice.

    2) The blockade itself is not necessarily wrong, but the specific Mavi incident was. This opinion, I also understand, but disagree with based on the facts as I currently understand them – Commandos boarded expecting light to no resistance, got deadly resistance, and opened fire as a result. This outlook is most dependent upon the facts – who attacked whom, who did it first, and how did people die? It is because of this question that I feel a thorough & impartial investigation is necessary.

    3) Both the blockade and the Mavi incident are tragic and hurt entirely the wrong people, and (the Mavi especially) might have been avoidable, but not inherently immoral in themselves. Israel may bear a greater share of responsibility for the tragedy, by virtue of having a greater degree of control over the situation, but that doesn’t necessarily equate to a moral evil. Unsurprisingly, this is my opinion. War forces people & countries to do terrible things, and it’s small consolation that the guidepost for “moral” during a war is “less terrible than it might have been.”

  5. Dileepan says

    Dear Mano Singham,

    This is a virtuoso presentation. My hats off to you.

    I am really surprised at some of the arguments presented, like this one:

    “Announcing an intent to run the blockade has, traditionally, given the blockading country license to act outside of its territory.”

    The underlying principle of this position is “might is right”. If you have the wherewithal to enforce a blockade then you can just declare a blockade and enforce it. Under this principle, North Korea has the license to blockade South Korea, Iran has the license to blockade UAE, etc.

    But alas, this principle of “might is right” is the prevailing new world order unleashed by George W and taken further with a velvet glove by Obama.

    Kudos to Mano Singham, for not pulling any punches and being forthright.

    Cheers!

  6. says

    Mano, Sir, you made a very profound opinion on the morality of Israel’s taking siege of Gaza. Obviously, it is the powerful nations who has the say regardless of whether or not the actions are moral or legal. While it is easy to say that Israel end their siege, Israel and the US are finding it hard to rid themselves of Arab-phobia. I still believe that talks, diplomatic talks, are the best non-violent way to settle issues.

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