June 27, 2010

The Gaza Blockade: A Dialogue

By Richard Baehr and Daniel London

The Jewish Reconstructionist Congregation in Evanston, Illinois invited  Richard Baehr and Daniel London to provide alternative views on the wisdom and legality of Israel's blockade of Gaza. The presentations below reflect the order in which the talks were given.

Richard Baehr

I would like to  quickly address  a few issues:  is Israel's blockade of Gaza legal?    Is it strategically  necessary?  Is there a humanitarian disaster in  Gaza, that should place it as a top priority among all the  areas in the world where human rights advocates should be directing their efforts?  And finally, are there alternative approaches Israel could take that might better  balance its strategic concerns and humanitarian issues in Gaza?


First legality: The Naval Blockade on Gaza

According to the Laws of Armed Conflict, a State party to an armed conflict has the right to establish a naval blockade on its enemy's coast for security reasons. Israel and Hamas are parties to an armed conflict and Israel is a state.  A naval blockade means  preventing the passage (entry or exit) of all vessels to or from the ports and coastal areas of the enemy, irrespective of the kind of cargo carried by these vessels.

The power to impose a naval blockade is well established under customary international law. It is a common practice, and even the Charter of the United Nations, mentions its use in Article 42.

International law sets several conditions for a legal naval blockade (these conditions are reflected in the "San Remo Manual on International Law Applicable to Armed Conflict at Sea" from 1993, establishing five conditions for a blockade:


Public declaration

Effectiveness

Impartiality

Access to neutral States.

Passage of humanitarian assistance

The naval blockade imposed by the State of Israel on the Gaza Strip, which was violated by the vessels participating in the recent flotilla, is in conformity with the aforementioned rules of international law, as summarized by the Military Strategic Information Center of the IDF


Public declaration - Most recently in early 2009, during operation "Cast Lead", the State of Israel declared a naval blockade on the Gaza Strip, in the distance of 20 miles from the coast. The naval blocked was established for a clear military necessity - to prevent the military strengthening of Hamas by stopping the entry of terrorist elements and the smuggling of weapons into the Gaza Strip, an aim supported also by SCR 1860 .The establishment of the naval blockade was published in the ordinary international channels. These publications detailed the geographical boundaries of the blockaded area (by coordinates) and emphasized that the naval blockade shall be in force until a further notice. Before the recent flotilla had begun, the State of Israel approached the States involved, by diplomatic channels, and the organizers of the flotilla were well aware of the blockade.


Effectiveness - the naval blockade on Gaza has been effectively enforced by the State of Israel since its commencement. Indeed, before it was established, Israel allowed the entry of a vessel carrying humanitarian assistance into Gaza, but since the naval blockade was declared, no vessel was allowed in.


Impartiality - the naval blockade has been enforced on the vessels of all States, with not discrimination.


Access to neutral States - the naval blockade on Gaza has not affected, in any manner, the access of vessels to the ports or coasts of neutral States.


Passage of humanitarian assistance - the State of Israel has allowed the passage of humanitarian assistance into the Gaza Strip long before the naval blockade had been imposed. This assistance has entered Gaza through the crossing points between Israel and Gaza, subject to security check and in coordination with international organizations working in Gaza. The State of Israel openly declared that it would allow the entry of the humanitarian goods carried by the recent flotilla into Gaza, after it was unloaded in Israel, in the port of Ashdod."


In conclusion, the naval blockade imposed by the State of Israel on the Gaza Strip is in accordance with international law. 

Israel  and Egypt both maintain more limited blockades of land routes into Gaza to prevent certain goods from being transported into Gaza.  Israel has revised some of its rules in recent days that will facilitate the shipment of  construction materials so long as their use in Gaza is supervised by parties other than Hamas,  so as to insure that  materials are not used for weapons manufacture.  Israel has  also broadened the list of other items allowed in to Gaza. It will be much harder now for Israel's critics to charge Israel with denying needed aid for Gaza.  One of the more interesting questions concerning the blockade of Gaza is why Egypt, which has fully cooperated with Israel in its enforcement, has garnered virtually no criticism from the same human rights groups which harshly condemn Israel for the blockade. Egypt, which has a land border with Gaza,  has refused to recognize Hamas as the legitimate sovereign power  in Gaza since it would undermine the legitimacy of the Palestinian Authority.

Egypt has also been very wary of the spread of radicalism from Hamas, an arm of the Muslim Brotherhood, in destabilizing Egyptian politics.


Is the blockade strategically necessary?

For several years, the State of Israel has been engaged in an ongoing armed conflict with terrorist organizations operating in the Gaza Strip-including Hamas, Islamic Jihad, the Al Aksa Martyrs Brigade, and other groups associated with  Iran, and Al Qaeda.  This armed conflict  intensified after Hamas violently took over Gaza, in June 2007, murdering 200 Fatah members in a week, and turning the territory under its de-facto control into a launching pad for thousands of mortar and rocker attacks against Israeli towns and villages in southern Israel, some of which had all of 15 seconds warning to get civilians into bomb shelters.

The State of Israel took several measures to defend its citizens from the terrorist attacks originating from the Gaza Strip, including diplomatic and economic  measures, as well as  limited military operations. When these measures proved ineffective, and the barrage of rockets against the Israeli civilian population continued, and intensified, the State of Israel launched a more extensive military action - Operation "Cast Lead" in December 2008.

The first obligation of any government is to provide security for its citizens.  Israel faces in Hamas, a terrorist group, which seeks the destruction of Israel. Hamas has never agreed to be bound by any agreements between Israel and the Palestinian Authority, does not recognize Israel's legitimacy as a nation, and considers all of Israel occupied territory.  Hamas routinely  calls for the murder of Jews in mosque sermons broadcast  on Palestinian TV , and promotes a unique form of child abuse- instructing children that the highest calling in life is martyrdom-  to seek early death by carrying out the murder of Israeli Jews through suicide bombings. It would be hard to find anywhere in the world, a more virulent foe of any nation, than Hamas versus Israel.

It is clearly in Israel's interest to prevent Hamas from terrorizing its population, and if possible to bring it down.  In Lebanon, the United Nations committed to preventing Hezbollah from rearming after the 2006 war between Israel and Hezbollah. These assurances were a major factor in Israel's decision to curtail its armed effort in Lebanon, and withdraw its forces behind the international border.

The UNIFIL has done a miserable job.  Various intelligence estimates now place the number of rockets in the hands of Hezbollah at over 40,000, more than double the number they held before the 2006 war, and with a far higher number of long range rockets, able to hit every major Israeli population center.  In essence, Hezbollah, an Iranian proxy army, supplied by Iran through Syria, is now the effective sovereign in Lebanon.  Its military power provides it with a chokehold on actions by the Lebanese government. 

This situation mirrors what happened in Gaza when Hamas brutally seized control from the PA in 2007.  Without a naval blockade, Iranian ships could dock in Gaza ports and supply the same rockets to Hamas that they have provided overland to Hezb'allah.  These weapons would be much closer to Israeli population centers than is the case with Hezb'allah in Lebanon. Would any rational nation allow that to happen?  Israel's blockade seeks to prevent the direct importation of weaponry to Gaza,  , as well as limit building material falling into the hands of Hamas   that would unquestionably be used for new weapons manufacture.


Humanitarian issues

Israel maintains an ongoing humanitarian corridor for the transfer of food and humanitarian supplies to Gaza, used by internationally recognized organizations including the United Nations and the Red Cross.  I will not defend each and every decision that has been made by Israeli authorities on what goods to allow in, and which to limit. My politics are not one that puts great faith in the wisdom of bureaucrats,  and some of the decisions on specific items which have been limited by Israel, were undoubtedly flawed.  In any case, the changes made by Israel this week, means that the list of restricted items has virtually been eliminated, with the exception of weapons, and construction materials whose use is not supervised by international organizations.

Gaza is not sub Saharan Africa.  People are not starving.  Life expectancy and infant mortality rates, improved sharply after 1967, when Israeli medical care spread to Gaza.  They are far better than those of struggling third world nations. Life expectancy is 74, higher than Malaysia, Russia, and several E. U members, including Estonia, and Bulgaria.  Infant mortality rates are lower than in Jordan, Lebanon, China and Thailand.  Were the PA in charge of Gaza, and Hamas no longer a factor creating endless conflict with Israel, Gazans could enjoy a far higher standard of living, and higher economic growth rates, similar to what is now occurring in the West Bank, 7% a year.   Economic conditions have weakened since Hamas took over the Strip, but blame for that is hardly or even in large part due to Israel.  Hamas has used some of the transfers of cash from international organizations and the PA to pay its military forces, and administrators, and to rearm.  After the recent events with the flotilla, Hamas refused to allow the humanitarian relief items offloaded from the six ships into Gaza. Israel has always offered to offload all materials from aid ships at the port of Ashdod and transfer humanitarian assistance to Gaza. If Hamas or the human rights community that has worked to end the blockade were primarily concerned with the humanitarian issue, the Israeli approach would be accepted. But for some of Israel's critics in the international community, and certainly for Hamas, the real goal is not to improve living conditions for Gazans, but to end the blockade, which would allow Hamas to be able to rearm and again threaten Israel. If Hamas is unconcerned with the welfare of Gazans, what can outsiders hope to accomplish? 

Here are some of the facts on Israel's humanitarian relief to Gaza:

Well over a million tons of humanitarian supplies entered Gaza from Israel over the last 18 months equaling nearly a ton of aid for every man, woman and child in Gaza -- close to six pounds of humanitarian assistance per person per day. . Millions of dollars worth of international food aid continually flows through the Israeli humanitarian operation, ensuring that there is no food shortage in Gaza. Large quantities of essential food items like baby formula, wheat, meat, dairy products and other perishables are transferred daily to Gaza. Fertilizers that cannot be used to make explosives are shipped into the Strip regularly, as are potato seeds, eggs for reproduction, bees, and equipment for the flower industry.

Gazans produce much of their own food products including olives, citrus, vegetables, Halal beef, and dairy products. Primary exports from Gaza include cut flowers and citrus, sold to Israel, Egypt and the West Bank. During 2009, 7.5 million tons of flowers and 54 tons of strawberries were exported from Gaza with Israeli cooperation.


The medical corridor

No Palestinian is denied medical care in Israel. However, if the Hamas regime does not grant permits for medical care, the Israeli government can do nothing to help the patient. Israel will facilitate all cases of medical treatments from Gaza, unless the patient is a known perpetrator of terror.

Israel maintains a corridor for the transfer of medical patients out of Gaza, and about 200 medical staff members go through the crossings every month. Israel also helps coordinate the transfer of Jordanian doctors into Gaza.

In 2009 alone, 10,544 patients and their companions left the Gaza Strip for medical treatment in Israel. Moreover, there were 382 emergency evacuations from Gaza for medical purposes.

Following fears of a swine flu outbreak, three Israeli hospitals were assigned to treat cases in the Gaza Strip and 44,500 immunizations were transferred to the Strip.

While Israel has kept the medical aid flowing, Palestinians have exploited medical care arrangements more than 20 times, in the last four years to carry out terror attacks.


Building materials

While the import of cement and iron has been restricted into Gaza since these were used by Hamas to build rockets and bunkers, monitored imports of truckloads of cement, iron, and building supplies such as wood and windows are regularly coordinated with international parties.

Two recent examples:

On 13 May 2010, Israel allowed approximately 39 tons of building material into Gaza to help rebuild a damaged hospital. The construction material for al Quds hospital was transferred after French assurances that the construction material would not be diverted elsewhere.

On 24 May 2010 Israel opened the Kerem Shalom crossing to 97 trucks loaded with aid and goods, including trucks holding 250 tons of cement and five tons of iron for projects  operated by UNRWA.

The United States, Israel, Canada, and the European Union have frozen funds to the Palestinian Hamas government since 2006, recognizing it as a terror organization. Despite this, Israel has taken measures to support trade and commerce, the banking system, and the existing financial market in the Gaza Strip.

Israel has allowed the transfer of hundreds of millions in cash to the Gaza Strip for the ongoing activity of international organizations and to pay the salaries of Palestinian Authority workers. In February 2010, an agreement was reached with the Palestinian Authority's National Insurance Department to ensure that pensions reached those formerly employed in Israel. The funds were deposited in financial institutions in the West Bank, while the Palestinian Authority was given the responsibility of distributing the funds to the pensioners in Gaza.

If Israel were unconcerned with the humanitarian situation in Gaza, it would do none of these things.  The Nazis did not send several pounds of food per person per day into the Warsaw Ghetto.

Finally, a few questions for Israel's critics to consider:

If the blockade were ended, how would Israel's strategic concerns about preventing rocket fire from Gaza be addressed? Was the real issue with the blockade how much humanitarian aid was allowed in, and not the strategic necessity for a blockade? Increasingly, it appears that the story about Gazan suffering was greatly overstated, a propaganda victory for Israel's critics, and that plenty of aid was allowed in by Israel or through smuggling from Egypt. 

With all that is going on in the world -- starvation in the Sudan, where 400,000 have died,  7 million dead in a never ending now decades long Civil war in the Congo,  40,00 civilians killed  by Sri Lankan military forces in but a few days in their conflict with the Tamil Tigers, the new misery in Kyrgyzstan -- half a million refugees, and 2,000 dead in just a few days -- Turkey bombing Kurdish civilian  areas in both Turkey and Iraq in recent days, --- why the obsession by the international human rights groups with Gaza?  Where are all the Goldstone reports on these other conflicts?

Israel has made mistakes in its blockade enforcement. But it is a necessary blockade. Israel can improve its management of the blockade, and the recent steps will do just that. But so long as Hamas remains in control of Gaza, there will be no unified Palestinian Authority able to negotiate a peace agreement with Israel, and the need for the blockade will continue. 

****

Daniel London

What I'm going to say -- and not going to say -- during the next 15 minutes boils down to the following:

I'm not going to argue the technicalities of blockades under international law. I've read the oft-cited piece by Leslie Gelb, former president of the Council on Foreign Relations, and a handful of others, and I still can't make heads or tails of whether the blockade is legal. Nor am I going to talk about rights, whether Israel's right to defend itself or the rights of people in Gaza.  Because neither of those things furthers the debate. I could argue that Israel has a right to defend itself and you could respond, yes, but what about the suffering of the Palestinians. And so on. So, let's just stipulate for purposes of this discussion that Israel's use of a blockade is 100% permissible under international law, and I think we can all agree that Israel has a sovereign right of self defense. The main point is that the blockade has been counterproductive in terms of Israel's interests, and at an unnecessary cost in terms of both human suffering and damage to  Israel's reputation.

Rather, here, in a nutshell is what I want to say: Many of us saw the Free Gaza flotilla as a trap into which Israel unwittingly stepped. But Israel, along with the Quartet of Nations and Egypt, fell into a far bigger intellectual trap -- the alluring but mistaken notion that economic pain could defeat or isolate Israel's enemies where military force had failed to do so.  The reverse, as I will argue, may in fact be closer to the truth.

Circumstances have changed since this forum was organized. Since then, Israel has announced six steps to allow for the importation of more goods for civilian use in the Gaza Strip, with a specific list of goods that are prohibited. This is a step in the right direction.  Israeli officials have stated in the past that the blockade was designed to turn Gazans against Hamas by creating conditions of economic hardship, or as Dov Weissglass, advisor to Prime Minister Ariel Sharon once put it, "The idea is to put the Palestinians on a diet, but not to make them die of hunger."  Human rights organizations refer to such policies as collective punishment, and it is good to see Israel apparently abandoning the approach.

After all, it should bother us that, according to the United Nations and the World Food Program,

  • anemia for children in Gaza under the age of 5 is estimated at 48%.
  • 8 out of 10 Gazans depend on foreign aid to survive.
  • 95% of Gaza's water fails World Health Organization standards, which means that thousands of newborns are at risk.
  • 75 million liters of untreated sewage are pumped into the Mediterranean every day because piping and spare parts have not been permitted to enter the strip.
  • And more than 120,000 jobs were lost as Gaza's industrial zone was destroyed, along with 15,000 homes and apartments. 1/3 of all schools were destroyed. Yet most couldn't be rebuilt until now, because construction supplies have been kept out by theIsraeli authorities.
As Peter Beinart, the former New Republic editor, argued in a recent article,

If all this were actually turning the people of Gaza against Hamas, perhaps -- perhaps -- it might have a cold-blooded justification. But if there is anything that the U.S. has learned from its half-century long embargo of Cuba, it is that policies of collective punishment don't turn people against their regimes. To the contrary, they usually offer those regimes an excuse for their inability to govern.

But there is another side to the blockade story. Some reports suggest that the situation of people in Gaza is not "that dire," because of international aid and because Gaza has dug itself a new economy to supplant the one that the blockade has halted.  This is an import-only economy that relies on some 600 to 1,000 tunnels to smuggle goods across the Egyptian border into Gaza. A few agricultural goods are the main items traveling the other way because under the blockade, Gaza can smuggle in basics, like food and clothing, but it does not have the ability to purchase and import the manufacturing components, spare parts and equipment required to manufacture goods for export.

According to the Israeli human rights organization Gisha, roughly 90% of Gaza's factories are either closed or are functioning at less than 10 percent capacity because of the inability to obtain raw materials or to export finished goods. With Sunday's announcement of the six steps to ease the blockade, the importation of goods via over-land routes is bound to improve. However, the Six Steps do not address Gaza's need to export goods in order to achieve a sustainable, productive economy, or the freedom of movement, which merely increases Hamas's stranglehold over Gazan society.

Hamas, meanwhile, has turned the tunneling into a form of "resistance" economy. Thanks to the tunnels, some bazaars in Gaza are today brimming with goods, which often arrive cheaper and faster than ever. A dozen eggs in Gaza now costs half what it does in Ramallah. These include concrete and gravel for road repairs and housing construction.  While NGOs point to the lack of development, Gaza is nonetheless slowly redeveloping, and Hamas is remaking Gaza in its own image. As goods pass through the tunnels, Hamas skims a rich share off the top to finance its rule and to feed Gaza's unemployed. Amira Haas, a reporter for the Ha'Aretz newspaper who used to report full-time from Gaza quoted a Hamas minister who called the blockade "a gift."

To finance its half-billion-dollar annual budget, the Hamas government has created an entire bureaucracy, including a customs service to raise duties on tunnel imports. With fishing in the seas restricted by Israel's navy, Hamas is opening fish-farms in former Israeli settlements. Again, Hamas-run, Hamas-controlled. Guess who wins? Hamas.

It gets even worse. M.J. Rosenberg (former head of the Israel Policy Forum) has pointed out that the siege has allowed for much greater control over Palestinian society in Gaza. Manned by militants from its Izz a-Din al-Qassam brigades who once were deployed against Israel and now make up Hamas's internal security apparatus, Hamas is imposing a reign of fear. When rival Islamists decried Hamas rule in the Rafah refugee camp in the southern part of the strip, Hamas's brigades stormed the local mosque and killed some of its worshippers. When leftists protested that the tax increases were hitting people who were already burdened by the siege, they were hauled to jail. The death penalty has been reinstituted in Gaza. We can thank the blockade for creating the circumstances in which Hamas has virtual monopoly power over the economy and, by extension, over politics, culture and mores in Gaza.

Solutions

Opening the borders a crack to allow Gazans to travel again would let other influences seep in that might chip away at the absolutism of Hamas rule. This notion is not unique to Gaza, it's pretty much a truism that trade helps give rise to domestic groups that are economically independent of the regime and can voice alternative visions for a society.
A dose of that would be a welcome change in Gaza.

Don't get me wrong, I'm not suggesting that liberal ideas will sprout in Gaza tomorrow. No, we are not talking about rosy outcomes here. I wish we were. We're talking about better outcomes.

The problem is that permitting Gazans to trade is politically untenable for Israel's leaders because it represents legitimacy for Hamas that is a bitter pill to swallow. After all, this is the organization whose charter calls for the destruction of Israel and that holds Cpl. Gilad Shalit prisoner (now marking four years in captivity).  Likewise, Prime Minister Benjamin Netanyahu does not want to create a situation in which European officials are meeting Hamas officials in Gaza. Israel's position is that "Hamas will manipulate such visits to gain legitimacy."

This too is part of the blockade. Again, I get that lending legitimacy to Hamas seems repugnant. But our sense of revulsion has stood in the way of Israel's best interests. This is what real friends abroad should be telling Israel.

Germany's Development Minister, Dirk Niebel, who was denied entry to Gaza last week said "Israel was "making it difficult for even its truest friends to understand its behavior." I know, a few of you are probably having a hard time thinking of any European as one of Israel's truest friends - such are the doubts we harbor about European intentions toward Israel these days. Well, it turns out Heir Niebel spent a year on kibbutz after graduate school (!) and is a member of a group of the Germany-Israel alliance -- parliamentarians who promote German-Israeli relations. Israel needs real friends like Niebel, who can serve as reliable third-party intermediaries with Hamas. Spurning such friends does not help Israel's cause.

Ami Ayalon, a former commander of Israel's Navy and former director of the Shin Bet (Israel's internal security service) spoke recently at No. Shore Cong. Israel in Glencoe. He told the audience that Israel needs to learn to distinguish between victory and revenge. The temptation to strike at evil is great. But it's a schoolyard truism that it is seldom the path to success.

There's a wonderful Seinfeld episode in which the hapless George, always his own worst enemy, is trying to act out a bizarre revenge fantasy against a former boss and Jerry tries to convince him to abandon the idea saying, "George, you know the best revenge is living well." And George says, "Well, since there's no chance of that...."

The blockade strikes me as an expression of that kind of fatalism, a fatalism I sometimes hear from Israelis and American Jews alike -- that there's no hope of peace, so Israel has no choice but to hit back hard and unrelentingly in response to any provocation.

Israel's blockade, even tempered by last weekend's promises of moderation from Netanyahu, strikes me as a strategy for a long, unceasing revenge.  What if, instead, Israel were to propose an import-export monitoring system for Gaza that would allow Israel or other international actors to search for weapons materiel aboard ships and trucks bound for Gaza? What if entrepreneurial types from Gaza could be exposed to and have business ties with the outside world, including Israelis? What if Gazan youth were invited to meet Israeli youth? What if Gazan farmers could meet Israeli agricultural experts? After more than three years of brutal, fanatical authoritarian/fundamentalist control over the strip, would Hamas agree to let its people venture into the demonic Zionist entity? Unlikely! But in terms of PR, who would have the upper hand now? By extending its hand to the people of Gaza, while spurning their rulers, Israel could turn the tables on Hamas and its sympathizers.

Israel's six steps are a positive  move that weaken a major Hamas propaganda claim. But Israel should do more. The best weapon in its arsenal is to promote private enterprise and greater freedoms for Gaza's population, to show that Israel is the one offering creative ideas and that Gaza's thuggish rulers are the impediment to progress. I see little sign of such initiative or creativity from Netanyahu and his team.

One final story: Two weeks ago, there was a venture capital and high-tech conference at Binyanei Ha-Uma, the big convention center in Jerusalem, with Bibi Netanyahu attending.  Erel Margalit, who is the managing partner at an $800 million venture capital fund -- one of the engines that helped turn Israel into a high-tech superpower, got up and said "Mr. Prime Minister, we need to stop being reactive and defensive.  We must play offense.  We are not asking that you must get a deal done in six months.  The high tech community wants to you to intend it and work your hardest for it.  We want you to get up and say that you intend to make peace in the next six months.  This is my focus, priority and clear intention to get this done.   Mr. Prime Minister please play offense, show your clear intent to get a deal done and we wish you the best in bringing home peace."

It is a bold wish that calls for bold leadership. Israel's supporters at home and abroad should echo it.
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