Section 67a of the San Remo Manual of International Law Applicable to Armed Conflicts at Sea! Of course!

Since the mass murder on the Mavi Marmara, who hasn’t been on tenterhooks to discover what legal justification Israel’s apparatchiks would take? What recherché citation proving uncontroversial uncontroversiality? The San Remo Manual, eh? Your move, rest of world.

But, many of the global aghast say, this is a disgrace, a traducing of the law. Opponents of execution-style killing of unarmed activists (who were giving medical attention to their own attackers) have overwhelmingly expressed their grief & rage in legal terms, denouncing Israeli actions as piracy, the blockade of Gaza as illegal, the force used as murderously disproportionate, the justifications as bogus, &c.

This outpouring of juridicalised condemnation is, of course, completely comprehensible. Along with the rest of Israel’s grotesque bullshit, faced while we remember the dead with the utterly odious Mark Regev’s oleaginous, glib rehearsals of legal doctrines he had neither heard of the day before nor gives a tupenny fuck about now, or watching the eagerness with which an apologist for slaughter chirpily fans juridical references (all ‘Hi there!’ informality & friendly lo-fi bobbly camerawork, as if these imperial murder-shills were actors in some adorable Brooklyn indie comedy), the eagerness to disprove such lawyerly manoeuvres on the turf they claim is just one of the things one wants, violently, to do.

…

Nothing that follows is an attack on those pursuing such a course. Solidarity, however, sometimes means disagreeing with comrades, debating on the same side of a barricade. Faced with the insistence, including from those we admire, that ‘Israel ignores international law’, a reasonable question - & one that implies not a scrap, an iota, a shred of legitimacy to the colonial-settler rampages against an occupied & brutalised people - is: really?

George Bisharat’s 2009 NYT article against Israel’s carnage in Gaza, after more than one correction on a seemingly minor lexicographical matter, has now been retconned to describe Israel as ‘flouting’ juridical norms. This correction, though, is wrong. Bisharat originally had it that Israel engaged in a ‘cruel flaunting of international law’. No matter what we think of its actions, it is straightforwardly untrue that Israel does not bother with such questions. In fact as its very harshest critics have pointed out, Israel has ‘always taken international law very seriously’. It cites it obsessively & officially, & has, with skilful & erudite deployments by its legions of lawyers, weaponised it. It wages lawfare. We all know slips-of-the-tongue (or pen) are tells. Whatever Bisharat meant to say, his original formulation was exactly right: Israel cruelly flaunts international law. 

Of course in many cases, its official legal assertions put its advocates in a small minority. But they are certainly not without external support for such interpretations. & that the great mass of the world disagrees tells us nothing about the legality of these actions: whether it should be or not, international law is not a democracy. Indeed, ‘[i]nternational law probably grapples with an inevitable democratic deficit’ (pdf).

We should read our own fervent desire to condemn on legal grounds symptomatically. Why do we wish it? Because it is all manifestly unjust. So are such acts unjust & therefore illegal? Illegal therefore unjust? Unjust & also illegal? That justice, emancipation and law are not coterminous, may be contingently related, is, though repeatedly ignored, hardly a radical insight. What about the laws, with which history is strewn, that aid injustice?

Though they are often clearer there, it is not only within states that such questions are raised. The late Peter Gowan, in The Global Gamble, saw the Iraq War of 1990-91, a response to the ‘killing of a sovereign state… a uniquely heinous crime’, as clearly internationally legal - & yet something to be robustly opposed. Why should a legal system thrown up by and during the brutal process of consolidation of bickering, oppressive states be so much as distantly related to radical, or even just humane, standards of justice? 

One may argue with Gowan’s interpretation, & insist, as many do, that the war was illegal. But this merely begs another round of the question. Why must our opposition take legal forms? What of actions to which one is opposed which yet are plausibly legal, or that one supports but that might be legally dubious? Surely they can exist? If not, the spurious ‘justice = legality’ equation has hegemonised, which given the legal form’s violent abstraction from social context, its efficacy for the powerful & the concentration of its machinery in their hands, is the triumph of a conceptual violence against us. Law & justice must be disaggregated. & if such events can occur, then an action’s putative legality cannot drive our opinion of it. 

So what might this say about international law? Israel’s relationship to it? & the most efficacious strategies for challenging this bleak, ongoing barbarity?

Possibility A) There are in the fabric of law itself some foundational rules, an end to interpretation. Solidity. Further, in this case we insist that Israel’s assertions are wrong, its actions illegal. 

Then what? Then, as its continued swaggering defiance shows, Israel (like one or two others) breaks the law with impunity. International law is toothless. Why then, if we want to get things changed, other than out of some vague melancholia, would we indulge in its invocation? 

Possibility B) More persuasive is the position that it is in the nature of international law that these arguments - all such international legal arguments - are endlessly debatable. Indeterminate. That it is at fundament a disputatious process, & that what ends such arguments is no bedrock Truth of Law, but the most powerful coercive interpretation. 

This is a conception miles from textbooks’ lullabies about law’s impartial justice, but it is thoroughly commonplace among many & varying traditions of jurisprudence, & is the (Conscious? Implicit? Who knows? Who cares?) methodological assumption of technocrats. 

If this is persuasive, the assertion that Israel’s actions are ‘illegal’ is not helpful & not true. Nor untrue, either - just part of international law’s endless claim-chain. Lawyerly partisans of power do not, of course, have to win such arguments. All that is ever necessary is a counterclaim. All they have to do is keep the argument going, as they are doing, while guns create facts on the ground - & at sea.

Our very rage, expressed in legal terms, might reinforce an agenda which is not ours, one divorced from justice, a fabric we are unlikely ever to control. 

What place ‘principled opportunism’? Strategically deployed indeterminacy - by which through the speech-act of an assertion of illegality performed with sufficient bitter rigour, we make it so? Well, there are strategies (of rupture or otherwise) that some might argue disrupt even the barren & hostile landscape of international law, maybe crack open a few chasms for something useful to root. But even if, unconvinced & hesitant, we allow in principle for this possibility, that is no argument for such recourse here. 

We cannot bypass (international) law, of course - in a juridicalised world, where empire has its law, it & its categories are inevitable. But to be worth deploying as a strategy against atrocity, such arguments have to do more than would an alternative, non-legal denunciation. There must be some surplus, some excess that the law grants us; and a surplus not outweighed by the mass of inevitable opposing claims on the legal seesaw on which we totter. 

Do we, in other words - ignoring for a moment whether or not we consider the claim meaningfully ‘true’ - even gain politically by insisting that the killings on the flotilla were illegal, rather than that they were monstrously wrong? Is it not possible that our case might be no weaker, or even stronger, if we oppose such actions irrespective of all blah-blah-law-law-jaw-jaw back & forth?

A century ago it was already clear that international law was ‘a maze of plausibilities’. Ask a landscape gardener: the point of a maze is not to get out, but to get lost. 

So what if, in the face of Israel’s cruel flaunting, we scythe through the hedges? Refuse to bicker over precedent, interpretation, custom, & all the rest of the endless pantomime?

What if, instead, we pursue other strategies to isolate the hijack state, & in response to its jurisprudes of murder, simply say: ‘Fuck your law’?