Team Obama has made inept attempts to deter the upcoming Gaza flotilla, which reportedly include offering Turkey a role in the Arab-Israeli peace process if the Turks will prevent the Turkish-sponsored ships from getting underway this month. The overly clever, tin-eared – and destabilizing – character of that move is worth a post in itself, but my topic today is the “US Boat to Gaza”: the ship named Audacity of Hope that will reportedly join the blockade-busting Gaza flotilla later this month under the US flag.
What Obama’s cohort no doubt perceives as a form of civil disobedience can justifiably be seen by Israel as a hostile act – an attempt to break her blockade of Gaza – and responded to with armed force. Israel isn’t demonstrably on the wrong side of international law with the blockade. She is on the other side of a political divide from those who want Hamas to have as much access to weapons as it wants.
But in that political divide, the policy of the United States is not on the side opposite from Israel’s. To demonstrate that it was, we would have to have proclaimed our opposition to the blockade and our intention not to honor it. We have never done so. That is the salient point, and it ought to govern what we do about the career proposed for the Audacity of Hope (hereinafter AOH).
The marine venue in which AOH will operate makes this situation different from that of US citizens engaging in civil disobedience on another nation’s territory. There exists no “right” to operate a ship under the flag of the United States. Doing so is entirely a matter of privilege conferred by the US government, including conformity with US laws and the international conventions recognized by the US.
The concept of a “flag state’s” responsibility for the behavior of ships operating under its flag is by no means fully developed in explicit law, but it is a longstanding convention, codified in both the Geneva Conventions on the High Seas of 1958 and the UN Convention on Law of the Sea of 1982. (Most discussions of this topic revolve around national responsibility for the behavior of fishing vessels, and for pollution and emission control.)
It is not clear what Israel could hold the flag states of the ships in the next flotilla accountable for, under international conventions – but what is clear is that there is a responsible way for the flag states to handle the problem, and an irresponsible – cynical – one. It is not a responsible approach to stand by and allow Americans to attempt to break a blockade – commit a hostile act – under the US flag, without the authorization of the US government and indeed in contravention of its own policy.
But what can be done? Andrew McCarthy offered an answer in the summer of 2010, shortly after the plans for AOH were announced by the Free Gaza Movement in the US. The possibility of Americans trying to perpetrate unauthorized actions at sea was foreseen by US lawmakers a long time ago, and that is why Title 18 of the US Code contains Section 962, which makes it a crime to “furnish, fit out, or arm” (or “attempt to furnish, fit out, or arm”) a vessel that will be used to “cruise or commit hostilities” against a nation with which the United States is at peace.
McCarthy suggested using Title 18 Section 2339B as well, which makes it a crime to provide support or resources to designated foreign terrorist organizations. As McCarthy and others have laid out in detail, the Free Gaza Movement has extensive ties to Hamas (designated a terrorist organization by the US government); whenever Free Gaza attempts to break the blockade that hampers Hamas’s arms pipeline, it is providing support to Hamas. McCarthy points out that the laws he cites make the attempt a crime, as well as the accomplishment of the prohibited acts.
Other commentators have also pointed out that the US could take action against the funding sources of the Free Gaza Movement, given its terrorist ties. One step would be revoking the 501(c)(3) status of the American Educational Trust (AET), through which tax-deductible donations to Free Gaza can be made.
New information about the 2010 flotilla reinforces the concern that participating in one of these flotillas involves both supporting terrorism and incurring an armed confrontation. Although it was reported that the passengers on the Turkish ferry Mavi Marmara last year were “unarmed” (except for metal pipes, rocks, and other items used as weapons), photos obtained by Israeli news outlets last week show that at least two of the passengers on the ship were armed with handguns (see here and here).
It doesn’t matter that the planners of this year’s flotilla state that they will be going in unarmed. They said that last year too.
The Obama administration may cynically calculate that Israel isn’t going to break off ties or void agreements with the US because of AOH joining the flotilla under a US flag. But relying on that assumption – and not caring about the consequences of a disorderly attempt mounted on the high seas – is not demonstrating global leadership or integrity. It’s acting like the world’s worst nations. It’s acting like a community organizer, whose priority is provoking disorder and undermining the sources of order and security.
That’s the central issue in this drama for the US. In a case like the Gaza flotilla, what is considered reliable “law” or convention will be what the US upholds or doesn’t. Obama will be setting an example with his handling of the high profile, US-flagged flotilla participant: one that will send ripples through the ill-disposed segment of the geopolitical world. What the US will not enforce, anyone will feel free to breach. That will come back on us as quickly as it will affect Israel.
Perhaps the Turkish government will succeed in its new effort to discourage the Turkish participants in the flotilla. Perhaps a lawsuit filed by a Canadian will result in an injunction against the participation planned by a Canadian ship. Perhaps Israel’s arm-twisting in the capitals of Europe will bear fruit, or the warnings of Israeli lawyers about the liability of international marine services firms like Inmarsat, the marine communications company.
But the US should be taking the lead in enforcing maritime order here, including warning and deterring our own citizens. There is no bureaucratic manual, no book of step-by-step instructions, that dictates what we must do in this situation; rather, we have a policy choice – a choice of national character – to come down on the side of order or disorder. If we choose the latter, we cannot for long remain the source of global standards and conventions, for operations on the high seas or for anything else.